APPENDIX 23
Supplementary memorandum submitted by
Liberty
TERRORISM PRE-CHARGE DETENTION—THE
GOVERNMENT'S PROPOSALS AND THE CIVIL CONTINGENCIES ACT 2004
INTRODUCTION
1. This submission responds to the proposals
published by the Home Office on 6 December 2007. We hope it assists
the Committee with its inquiry and informs the evidence session
with the Home Secretary on 11 December. In particular we:
— explain the three major flaws with
the Government's current proposals, which mean that it provides
significantly weaker safeguards than the existing law; and
— respond to the Government's arguments
that the Civil Contingencies Act 2004 (the "CCA") does
not provide a mechanism for temporary extensions to the detention
limit if this is urgently needed to deal with a specific emergency.
2. In Liberty's view any legislation, permitting
a temporary extension of precharge detention limits in exceptional
circumstances, must build on rather than weaken the vital safeguards
contained in the CCA. As we explain in this briefing the current
Home Office proposals would provide significantly less protection.
THE THREE
MAJOR FLAWS
WITH THE
GOVERNMENT PROPOSAL
3. In their "Summary of Responses to
the Counter-terrorism Bill Consultation" published on 6th
December the Home Office explicitly accepts that pre-charge detention:
"is a controversial issue and the majority of responses which
we received did not support an outright extension to the current
28 day limit".[275]
The document also explains:
"from the four possible options put forward
in the consultation paper the majority of respondents expressed
a preference for Option iii, which is the suggestion that the
CCA (2004) might provide an alternative to extending pre-charge
detention beyond the current limit of 28 days".[276]
4. The Home Office document "Pre-Charge
Detention of Terrorist Suspects" published on 6 December
2007, states:
"we have considered if there is some way
we can make use of the CCA's guiding principle which makes any
increase in pre-charge detention exceptional, temporary and dependent
upon specific operational need . . . we are therefore proposing
to legislate in the counter terrorism bill to increase the pre
charge detention limit beyond 28 days to 42 days only for a strictly
limited period or time and in response to a specific operational
need".
In reality the Government's current proposal
would lack many of the fundamental safeguards of the CCA.
5. In outline, the three major weaknesses
with the proposals are as follows:
— No need for a real emergency—Although
the Home Secretary has spoken of the powers being "exceptional",
the proposal is for a power to hold people for 42 days (six weeks)
that can be turned on and off by the Home Secretary without any
evidence of a genuine emergency. Instead, it is proposed that
the powers would be available in response to "a specific
operational need". Under the CCA, by contrast, the exceptional
powers have to be urgently needed to deal with a real emergency.
— Ineffective parliamentary oversight—Under
the proposals parliamentary approval is not needed for the triggering
of the extended detention powers. If Parliament considers that
the powers are not needed or if it doubts the existence of the
emergency it would be powerless to do anything about it. Instead,
it is proposed that there would just be a debate in Parliament
and a report from the Government's Reviewer of Terrorism. By contrast,
under the CCA, emergency powers have to be approved by Parliament
within seven days.
— No judicial oversight—It is
proposed that there should be no legal limits on the Home Secretary's
power to trigger the longer detention powers and no judicial oversight
of her decision to do so. We believe the courts should have the
power to overturn emergency powers which are, for example, disproportionate
or irrational. This type of judicial oversight and the power to
quash emergency orders exists under the CCA.
A Real Emergency or a just an Operational Need?
6. Although the Home Secretary has spoken
of the extended detention powers being "exceptional"
the proposal is for a power to hold people for over 28 days that
can be turned on and off by the Home Secretary without any evidence
of a genuine emergency. The power to detain people for 42 days
could be triggered by the Home Secretary whenever she receives
a report by the police and DPP showing that there is a compelling
operational need for extension. A "compelling operational
need" is described as including "a major operation,
a complex individual case, the foiling of a major plot, or an
operation involving many countries". The "operational
need" threshold would seem to allow for the potential extension
of detention in many terrorist investigations.
7. Liberty does not believe there is any
justification for holding suspects beyond 28 days, except where
this is urgently needed to deal with a real emergency of the kind
covered by the CCA, ie:
"Multiple terror plots are identified which,
if carried out, would cause significant loss to life or damage
to property. Before the attacks are carried out, or afterwards,
large numbers of people suspected of involvement in the plots
are arrested. Given the number of people involved, the police
do not, however, have the capacity and resources to gather the
evidence needed to charge the large number of individuals involved
within the existing Statutory Time Limit, ie 28 days."
If there is not a real emergency we believe
that 28 days (already longer than other comparable democracies)
would be sufficient to gather enough evidence to charge a suspect
with an offence, especially when the availability of post-charge
questioning is taken into account. As Liberty's "Real Consensus"
document demonstrates we are not alone in reaching this conclusion.[277]
Real Parliamentary Oversight
8. Liberty's second major concern is the
lack of effective parliamentary oversight of the Home Secretary's
decision to trigger the extended detention power. Under the CCA,
an emergency order must be presented before and approved by Parliament
as soon as possible and, in any event, within seven days.
9. Parliamentary control under the Government's
proposal would be much weaker than under the CCA:
— Two days after the powers have been
triggered by the Home Secretary she must notify Parliament that
she has done this and make a statement that the longer detention
limit is urgently needed. This notification does not, however,
have any real effect.[278]
— At the time of the notification there
might be a debate but, at this point, Parliament would have no
power to vote on the decision to activate the extended detention
powers. If Parliament considered that the powers were not needed
or if it doubted the existence of a real emergency it could do
nothing about it.
— Parliamentary approval would only
be needed if, after the extended detention powers have been in
place for 30 days, the Home Secretary wanted to renew them for
another month. In most cases no parliamentary approval would,
therefore, be needed.[279]
This reduction in parliamentary oversight does
not fit with the Government's stated aim to "entrust more
power to Parliament".[280]
Judicial Oversight and the Rule of Law
10. Under the current proposals there would
be no legal limits on the power of the Home Secretary to trigger
extended detention and no judicial oversight of her decision to
do so.[281]
One can understand why Government ministers might wish to avoid
the risk of legal challenges but, in Liberty's view, under the
British constitution the Government should not be able to operate
above the law. Liberty believes that, as under the CCA, Parliament
should limit the Home Secretary's authority to trigger any exceptional
powers and that the courts should be given effective powers to
sanction any failure by the Home Secretary to operate within the
law.
11. Under the CCA Parliament placed legal
pre-conditions on the power of Government Ministers to make emergency
regulations. The following three conditions have to be met for
the regulations to be lawful: a) An "emergency", as
defined, must have occurred, be occurring or be about to occur;
b) the order must be necessary to prevent, control or mitigate
an aspect or effect of the emergency; and c) the order must be
urgently needed. If these conditions are not met, an emergency
order under the CCA could be quashed or overturned by the courts.
The courts would also have the power to quash emergency orders
under the CCA which are irrational, made in bad faith or which
breach the rights and freedoms protected by the Human Rights Act
1998.
12. This kind of effective judicial oversight
would not exist under the current proposals because (A) there
would not be legal restrictions on the Home Secretary's power
to trigger the extended detention limits and (B) the detention
powers would be contained in primary legislation (the forthcoming
Terrorism Bill) rather than regulations like those made under
the CCA. When the CCA was being scrutinized by Parliament the
Government initially sought to prevent the courts having the power
to quash emergency orders made under it. Government worried that
it could not live with the risk of an emergency order being struck
down by the courts while it was in the middle of dealing with
an emergency like the outbreak of civil war, floods, famine or
an epidemic. When published in draft, the Bill therefore treated
emergency orders as primary legislation rather than secondary
legislation so that they could not be quashed.
13. What is interesting is that, in the
CCA context, Government did eventually get comfortable with the
ability of the courts to quash unlawful emergency orders. In response
to significant parliamentary opposition it agreed:
"In light of the range of tools available
to the courts to ensure that the response to an emergency is not
impeded by successful legal challenges, and the likely approach
that the courts would take to emergency powers, the Government
has concluded that no further provision is needed to protect procedurally
emergency regulations from challenge in the courts."[282]
In particular Government took comfort from the
fact that many human rights are qualified, in the case of a real
emergency it would be open to Government to derogate under Article
15 of the ECHR, the deferential approach that the courts have
taken in the context of emergencies and the courts' discretion
about what remedy to afford if it does decide that an order is
unlawful.
THE CIVIL
CONTINGENCIES ACT—A
REALISTIC AND
EFFECTIVE OPTION
14. As discussed above, the majority of
respondents to the Government consultation supported the CCA option,
ie the suggestion that the CCA provides an alternative to extending
pre-charge detention beyond the current limit of 28 days. Given
this we would expect the Government to offer substantive arguments
as to why it has rejected this option in favour of its current
proposal. We consider below each of the arguments made by Government
against the CCA. These do not withstand scrutiny.
Argument 1[283]
"The CCA goes much wider than terrorism
and we believe it would be preferable to make any changes to the
law using anti-terrorism legislation rather than trying to adapt
other legislation for purposes for which it was not intended"
(emphasis added).
Liberty's Response: There can be no doubt that
the CCA is intended for (among other things) anti terror purposes.
Section 19 of the CCA expressly defines "emergency"
for the purposes of the Act as including "terrorism":
"(1) In this Part "emergency"
means— . . . (c) war, or terrorism, which threatens serious
damage to the security of the United Kingdom" (emphasis added).
Argument 2[284]
"It is not entirely certain that the CCA
could be used to detain individuals as opposed to restrict their
movement."
Liberty's Response: In his opinion on the CCA
(previously provided to the Committee) David Pannick QC did not
envisage any legal problems with the use of the CCA to authorise
the pre-charge detention of terrorist suspects. If Government
feels that this is not sufficiently clear, Liberty would have
no principled objection to the CCA being clarified to establish
that it would allow terrorism pre-charge detention. This could
be achieved by a provision in the forthcoming anti-terror legislation.
Argument 3[285]
"The CCA could not be used in all the circumstances
where the police might need more than 28 days. Although it may
be possible to use it in a 9/11 type situation . . . it might
not be possible to use it where the police have disrupted or foiled
a large and complex plot where the suspects have been arrested."
Liberty's Response: David Pannick QC advised
on the ability to use the CCA in exactly this kind of scenario—ie
where "Before [major] attacks are carried out . . . large
numbers of people suspected of involvement in the plots are arrested."
He concluded that the CCA could be used in this type of situation.
In outline, the CCA allows emergency regulations to be made where
an emergency "has occurred, was occurring or was about to
occur" (Section 21(2)). "Emergency" is defined
as including "an event or situation which threatens serious
damage to human welfare" (Section 21(1)). It is not therefore
necessary that any terrorist plot has come to fruition and neither
is it necessary that the threat continues to exist at the time
the emergency order is made.
Argument 4[286]
"The police may need to detain individuals
beyond 28 days because of the particular nature of the case not
because it is part of an outrage that would constitute an emergency
as defined in the CCA—for example there may be a case .
. . which is particularly complex in terms of the amount or type
of material involved or a vast number of international connections."
Liberty's Response: Liberty considers that detention
beyond 28 days could only be justified in a genuine "emergency"
as defined in the CCA. As debates at the time of the CCA established,
the definition of emergency in Section 19 of the CCA is very broad.
We do not consider that more than 28 days' detention could ever
be justified in "ordinary" anti-terror operations, even
if this would be operationally convenient. It should be remembered
that 28 days is already far longer than the limit in other comparable
democracies.[287]
In "ordinary" anti-terror operations it should be possible
to gather enough evidence within 28 days properly to charge a
suspect with one of the many lower-level terrorism offences, like
acts preparatory to terrorism. If any new evidence comes to light
after this, suggesting that a more serous charge is appropriate,
Liberty has argued that, with judicial oversight, additional questioning
of the suspect should be permitted with the possibility of the
more serious charge being substituted.
Argument 5[288]
"The CCA requires confirmation of the emergency
regulations by affirmative debate in both Houses within seven
days. These debates would be limited in what could be said because
of the ongoing operation and would take resources away from dealing
with the immediate situation."
Liberty's Response: The procedure for emergency
orders under the CCA was designed to deal not only with terrorism
incidents but also major incidents like pandemics and even civil
war. If parliamentary approval is appropriate in the context of
a civil war why not in the context of a terror attack? Indeed,
Government does not seem to have a concern about a debate in Parliament
because under the current model a debate (though no vote) would
happen within two days of the extended detention powers being
triggered by the Home Secretary. This suggests that the real concern
is not the "resources" that would be taken up by the
debate in Parliament but the Home Secretary's fear that Parliament
would not agree with her decision. In a democracy Parliament should
have this power. The CCA would only need to be activated (to permit
detention beyond 28 days) when the current 28 day limit is drawing
to an end. Therefore, parliamentary approval would only be required
at around the 35thday after the initial arrest (ie seven days
after the emergency regulations were triggered). The debate will
not, therefore, occur at the height of the crisis.
Argument 6
"One proposal we cite in the consultation
document from Liberty—and we are grateful to them for engaging
so constructively in the debate—is that if the risk materialises
we should declare an emergency under the Civil Contingencies Act
and allow for a period beyond the 28 day limit, for up a further
30 days. But this would require the declaration of a state of
emergency."[289]
"It does require a declaration of an emergency
and, again, in terms of public safety that is not necessarily
where we would want to be."[290]
Liberty Response: The CCA does not require any
declaration of a general state of emergency. Neither does it confer
general and uncontrolled lawmaking powers on the Executive. The
CCA, while broad in its scope, is a farcry from the declaration
of martial law that has recently occurred in Pakistan. It gives
senior ministers limited powers to make temporary and targeted
laws when they are urgently needed to deal with a specific emergency.
Temporary and targeted emergency powers were, for example, used
in the US to tackle the recent forest fires in California.
10 December 2007
275 Para 14 Back
276
Para 15 Back
277
Provided to the Committee with this submission Back
278
The notification might be accompanied by a report by the Government's
Reviewer of Terrorism legislation. Back
279
The powers to detain people for longer than the current 28 day
limit would only need to be triggered when the 28 day limit is
coming to an end. Therefore, the full 42 detention limit for individual
cases would be likely to expire during the initial 30 day period. Back
280
The Prime Minister's Constitutional Reform Statement, 3 July 2007 Back
281
There would, however, be judicial oversight of the use of the
extended detention powers in individual cases. Back
282
Government Response to the Joint Committee on the draft Civil
Contingencies Bill, p.15 Back
283
Found in a document entitled Pre-Charge Detention of Terrorist
Suspects released by the Home Office on 5 December 2007, page
7 Back
284
Ibid Back
285
Ibid, pages 7-8 Back
286
Ibid, page 8 Back
287
Cf Liberty's comparative law study previously provided to the
Committee Back
288
Ibid Back
289
Prime Minister's Statement on National Security-25 July 2007 Back
290
Sir Ian Blair commenting on the CCA option while giving evidence
to the HASC-9 October 2007. See also Lord Carlile of Berriew QC
in his Report on Proposed Measures for Inclusion in a Counter
Terrorism Bill (December 2007) at Para 49 Back
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