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In its last report into counter-terrorism policy the Committee welcomed the Government's commitment to consultation and consensus. On 25 July the Prime Minister outlined measures for possible inclusion in a Counter-Terrorism Bill in the autumn and the Home Office published more detailed documents. Together they maintained a highly consensual approach which the Committee welcomes. But the Government's new approach now faces a critical test since it seems to the Committee that, on one of the Government's most important proposals, to extend the period of pre-charge detention beyond 28 days, there is a clear national consensus that the case for further change has not been made by the Government. The Home Secretary nevertheless announced on 6 December the Government's intention to increase the pre-charge detention limit to 42 days. In the Committee's view a truly consensual approach should lead the Government to accept that it has failed to build the necessary national consensus for this very significant interference with the right to liberty and withdraw the proposal, to proceed with it as detailed by the Home Office calls into question the Government's commitment to a consensual approach and raises questions of compatibility with human rights. The Committee agrees that the Government is under a duty to protect people from terrorism. Indeed, this duty is imposed by human rights law itself and includes a duty to prosecute those whom it suspects of being involved in terrorist activity. The case for extension must therefore be treated with great seriousness, but the test which human rights law requires to be satisfied where measures would interfere significantly with personal liberty is that, on all the evidence, including the availability of alternatives, the measures are truly "necessary" to protect the public (paragraphs 1-23).
The first plank of the Government's case for extending pre-charge detention is that the threat from terrorism is "severe and shows no sign of diminishing. In fact, the reverse". But it is not clear if the Government claims the threat has increased since extension to 28 days in July 2006. The Committee has recently heard from the Minister of State at the Home Office that the threat level was broadly the same. The Committee is disappointed that the Director-General of the Security Service, whose recent public lecture was widely reported as signalling an increase in the threat, so far seems reluctant to give evidence to the Committee on the record. The relevant question is whether the Government has shown that the threat has increased since Parliament last considered the limit on pre-charge detention. The evidence the Committee has seen suggests that the threat level remains about the same as last year. It is not possible to infer an increase in the threat level from bare statistics about the number of people convicted of or charged with terrorism offences in the absence of any qualitative analysis of those statistics (paragraphs 24-33).
The second plank of the Government's case is the growing complexity of terrorist investigations. But the Committee has not yet seen a full analysis of the operation of the 28-day limit so far, and concludes that experience to date provides no evidence to support an extension of pre-charge detention beyond 28 days. It also draws attention to the evidence of the CPS that it is satisfied with the present limit, which seems devastating to the Government's case for an extension (paragraphs 34-43).
In the Committee's view, the Government has failed to consider how the alternatives to extension of pre-charge detention combine together to avoid the risk of investigation teams running out of time. Given the range of alternatives already available, including broad offences such as acts preparatory to terrorism, charging suspects on the basis of reasonable suspicion, post-charge questioning, control orders and other forms of surveillance, the Committee does not believe that, without extension, there is a gap in public protection. And it notes other possible future changes which could help reduce the pressure on investigators. A power to go beyond these alternatives, and to have a power to detain in a case where even the lower threshold test cannot be met by the end of 28 days, would be dangerously close to a power of preventive detention which is prohibited by Article 5(1) ECHR. The Committee urges the Government to consider the interrelationship between various alternatives to extending pre-charge detention in order to bring forward a package of measures, taken together, in place of the 42-days proposal. It again calls on the Government to consider the introduction of bail with conditions for Terrorism Act offences (paragraphs 44-51).
The Committee has grave doubts about the suggestion by Liberty that instead of new legislation to deal specifically with terrorism the Government could rely on the Civil Contingencies Act 2004 (paragraphs 52-58).
Although the Committee welcomes any commitment to enhance parliamentary accountability for the use of powers which interfere with liberty, it is very concerned by the implication in the Government's proposals that there might be parliamentary debate about the appropriateness of exercising the new power to detain for up to 42 days in relation to specific investigations, which would carry a serious risk of prejudicing any eventual trial of the individuals concerned. It recommends ruling out any such role for Parliament (which, as set out in the Government's proposals, would in any case be virtually useless as a safeguard because any debate would be so circumscribed and almost certainly take place after the 42 day limit had expired) (paragraphs 59-63).
The Committee has previously welcomed the Government's apparent commitment to enhancing judicial safeguards surrounding pre-charge detention. But there are no additional judicial safeguards proposed as part of the Government's preferred option for extension to 42 days, which therefore depends on the adequacy of existing safeguards, about which the Committee has repeatedly expressed concerns on human rights grounds including the suspect's right to a fully adversarial hearing. Having heard evidence about the way in which applications for warrants for further detention operate in practice, the Committee is confirmed in its view that such hearings do not satisfy the requirement of human rights law that the process be fully adversarial. It recommends changes. It may propose amendments to the Counter-Terrorism Bill to ensure that judicial safeguards at hearings to extend pre-charge detention comply fully with the requirement in Article 5(4) ECHR that there is a truly "judicial" procedure (paragraphs 64 - 100).
In short, any extension to pre-charge detention is a serious interference with liberty that requires a compelling, evidence-based case, and the Committee does not accept that the Government has made such a case for extending pre-charge detention beyond the current limit of 28 days, for the following reasons:
i) it can find no clear evidence of likely need in the near future;
ii) alternatives to extension do enough, in combination, to protect the public and are much more proportionate;
iii) the proposed parliamentary mechanism would create a serious risk of prejudice to the fair trial of suspects;
iv) the existing judicial safeguards for extensions even up to 28 days are inadequate (paragraph 101).
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