The draft Detention of Terrorist Suspects (Temporary Extension) Bills are two pieces of potential emergency legislation that need to be considered in the context of the Protection of Freedoms Bill which, if enacted as currently drafted, would set the maximum available period for pre-charge detention of terrorist suspects at 14 days. Both draft bills would have the same effect: to extend the maximum period available for pre-charge detention from 14 days to 28 days if and when necessary. Both draft bills contain a sunset clause so that the extended maximum would only be in force for a period of three months from Royal Assent.
Whether it is ever necessary to detain a terrorist suspect for an extended period without charge is an issue that has been exhaustively debated and on which we took expert evidence. The balance of opinion we heard was that a maximum period of 14 days is adequate save in exceptional circumstances, and indeed that 14 days should itself be regarded as an exceptional period. We note that there has been no need to hold any terrorist suspect without charge for more than 14 days since 2007. It is very difficult, however, for those outside the police and prosecution services to judge whether it might ever again be necessary to extend pre-charge detention beyond 14 days. Having heard the views of the Government, the police and the Crown Prosecution Service we agree that it would be irresponsible not to provide for a power to extend the maximum period beyond 14 days in truly exceptional circumstances. Having come to that conclusion we have then concentrated on the questions of how power for such an extension should be provided.
We understand the Government's reasons for proposing that a contingency power to extend the maximum period available for pre-charge detention should be provided by emergency primary legislation, to be enacted only when the need arises, so that the need for and the provision of the power can be subject to parliamentary scrutiny. Given however that it is clear that the legislation may be needed after the arrest of an individual or individuals there are serious problems with this approach. We believe that the parliamentary scrutiny of primary legislation would be so circumscribed by the difficulties of explaining the reasons for introducing it without prejudicing the rights of a suspect to a fair trial, as to make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and ineffective for members of both Houses of Parliament. We also believe that that there would be an unacceptable degree of risk that it would be impossible to introduce and pass the legislation within a sufficiently short period of time particularly when Parliament was in recess or in a period between the dissolution of one Parliament and the opening of a new Parliament. We are therefore not persuaded that emergency primary legislation of the kind proposed by the Government would prove to be a satisfactory or reliable way of creating the contingency power.
Having concluded that the draft bills are not a satisfactory way to proceed we concentrated on finding an alternative method for creating a contingency power. We looked at a number of options. We narrowed down the choice to two options:
- what we have called the primary legislative route, whereby primary legislation would state the maximum period of pre-charge detention of terrorist suspects as 14 days save in exceptional circumstances but would authorise the Director of Public Prosecutions, with the consent of the Attorney General but without reference to Parliament or to the Secretary of State, to decide subject to rigorous safeguards whether circumstances are sufficiently exceptional to justify making an application for extended detention beyond 14 days, for a specific number of days that in no circumstances can total more than 28 days from the date of arrest, and to apply to a High Court judge for consent in an individual case (or individual cases); and
- what we have called the order-making route, whereby the primary legislation would state the maximum period of pre-charge detention of terrorist suspects as 14 days but would give the Secretary of State power, with the agreement of the Attorney General and subject again to rigorous safeguards, to make an executive order limited to three months' duration declaring that circumstances are sufficiently exceptional to justify allowing the Director of Public Prosecutions to make applications to a High Court judge for consent in an individual case (or individual cases) for extended detention beyond 14 days and for no more than 28 days.
Neither of these alternative options is free from difficulties. This first approach has the advantage of simplicity, and avoids the danger that the making of an order might appear to prejudice fair trial in a particular case or group of cases. The problem however is that the decision as to whether exceptional circumstances justify allowing applications to be made for extension beyond 14 days would lie with the Director of Public Prosecutions (having consulted the Attorney General) and a High Court judge without reference to Parliament or the Secretary of State. In addition they may have to consider factors wider than an individual case.
We recommend the order-making option. The advantages of this are: that it does not suggest that Parliament can play a scrutiny role when in reality proper scrutiny will be almost impossible, it gives the decision for temporarily allowing applications to be made for extended detention beyond 14 days to the Secretary of State, who is directly accountable to Parliament, has access to all the relevant information and can act when Parliament is not sitting; and it introduces rigorous safeguards that would ensure that the power was not exercised lightly or unadvisedly. The legislation would provide the opportunity for Parliament to hold the Secretary of State accountable in a meaningful way, once there was no risk of prejudicing judicial proceedings, for the decision temporarily to extend the available maximum period. This could well be not for a period of many months or even years given the possible length of the judicial process.
The judicial process is of central importance in granting warrants of extended detention. We make recommendations to enhance the safeguards in the judicial process.