Draft Detention of Terrorist Suspects (Temporary Extension) Bills - Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills

Draft Detention of Terrorist Suspects (Temporary Extension) Bills - Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills Contents

CHAPTER 3: Are the draft Bills the right contingency plan?

The origin of the draft Bills

62. Having concluded that a contingency plan was necessary, the Review sought to find a suitable method for extending the maximum period for pre-charge detention to 28 days. Based on the evidence it received from the police and others the Review sought a method that could be used in three different scenarios:

A catastrophic national emergency;
A significant rise in the threat level that means the police are over stretched and several investigations are coinciding;
The arrest of an individual, or group of individuals, who are suspected of terrorist activity but where the police need more time due to the complexities of the particular investigation.

63. Four options were considered by the Review. These were:

retaining the order-making power under section 25 of the Terrorism Act 2006, but instead of seeking an annual renewal, introducing the order only when necessary;
introducing a new order-making power that Parliament would grant annually to the Secretary of State giving him the power to extend the period of pre-charge detention to 28 days if operationally necessary;
giving the Secretary of State the power to increase the maximum period to 28 days, but requiring Parliament to vote on it within 40 sitting days, and;
requiring Parliament to pass emergency primary legislation if it was deemed necessary to extend the maximum period beyond 14 days.

Table 2 sets out the conclusions drawn by the Review about each of these options.

TABLE 2

The Review's conclusions on the different options for extending the maximum period for pre-charge detention to 28 days

Option	Conclusion of the Review
Retain the order-making power under section 25 of the Terrorism Act 2006, but instead of seeking an annual renewal, introduce the order only when necessary.	"Because of the time needed to make the order under section 25, it would be very difficult to extend 28 days in response to a specific investigation." "although no order would be in force at present, 28 days as an option would remain on the face of existing primary legislation."
Urgent primary legislation.	"this could be passed through Parliament more quickly than an order under section 25, for example in response to multiple co-ordinated attacks or multiple pre-emptive arrests or investigations." "If an active investigation were underway, parliamentary debates would require particularly careful handling to avoid jeopardising the fairness of future trials."
A new order-making power that Parliament grants annually to the Home Secretary giving him the power to extend the period of pre-charge detention to 28 days if operationally necessary.	"This option may not be regarded as an enhancement of safeguards given the lack of parliamentary scrutiny."
Give the Secretary of State the power to increase the maximum period to 28 days, but require Parliament to vote on it within 40 sitting days.	"This would result in greater scrutiny but there may be a risk that trials could be prejudiced by the parliamentary debate if there were not carefully handled." "Parliament may also prefer to vote on primary rather the secondary legislation."

64. The Review concluded that urgent primary legislation, discussed in advance by the main political parties, was the best option. This recommendation was accepted by the Home Secretary. The reasons for the recommendation were that this route allows the statutory maximum to revert to 14 days (unless or until either of the draft bills are passed) and it enhances parliamentary scrutiny of, and control over, these controversial powers. The Home Secretary emphasised the importance of 14 days being seen to be, on the face of the legislation, the maximum period of pre-charge detention available:

"One of my concerns about the legislation that was used previously for the 28 days with its annual renewal—earlier I used the term "the norm"—was that it came to be accepted that the 28 days was there and it was possible to use it. Using the phrase "the norm" is incorrect, in the sense that there were very few circumstances in which it was used, but it was an important part of the perception that 28 days was the period of pre-charge detention, albeit that processes had to be gone through to reach that".[68]

65. She also said that the Government believes it is right that any decision to move beyond 14 days should be made by Parliament.[69]

66. Lord Macdonald of River Glaven supported this view. He told us that another advantage of this route is that requiring Parliament to pass a bill is a high hurdle and should ensure the extended powers are only asked for when absolutely necessary.[70]

67. The Government's reasons for choosing the emergency bill route are understandable. They rightly seek to find a way of increasing parliamentary scrutiny of these powers and of ensuring that the powers can be used only in truly exceptional circumstances. Furthermore it is a positive precedent that the Government has set by publishing potential emergency legislation in draft for pre-legislative scrutiny.

68. We are, however, extremely concerned that the draft bills will not only fail to realise the Government's intentions but will also fail to ensure that the contingency powers can be made available when necessary. Our concerns fall in four main areas:

Parliamentary scrutiny of the bills will be so limited as to be rendered unsatisfactory and ineffective;
Parliamentary debate might actually endanger the conviction of a terrorist suspect if it could be successfully argued that the right to a fair trial had been compromised;
it would be unconstitutional to introduce a public bill targeted at particular investigations;
it might well be impossible in practical terms to introduce and pass a bill within the short time scale imposed by the requirement to bring it into very early effect.

69. These concerns are addressed below.

Could Parliament adequately scrutinise the bills?

70. The Government's intention to increase parliamentary scrutiny of the increase to 28 days would not be realised through the draft bill route. Debate on the bills would be severely limited. This is partly because of the normal concerns that emergency legislation fast-tracked through both Houses allows very little time for adequate scrutiny. It is also because the circumstances in which the legislation is likely to be introduced will necessarily and drastically limit what ministers can tell the two Houses without either jeopardising a suspect's right to a fair trial or compromising national security.

71. The Home Secretary made it clear to us that she could not rule out the introduction of one of the bills after the arrest of one or more individuals involved in a particularly complex conspiracy.[71] In such a circumstance it is difficult to see how Parliament's scrutiny could be fully effective without risking prejudice to what would be pre-existing and ongoing criminal investigations. The House of Lords Constitution Committee expressed concern that "Parliament could rightly be expected to want to know that the Bill was strictly necessary. How could its necessity be shown—or challenged—without risking prejudice?"[72] The Joint Committee on Human Rights expressed the same concerns in relation to the draft bills published in 2008 which would have increased the maximum period for pre-charge detention to 42 days.

72. The Review recognised this risk and stated that "If an active investigation were underway, parliamentary debates would require particularly careful handling to avoid jeopardising the fairness of future trials".[73] The Review did not go on to explain how debates could be handled so as to eliminate this risk and did not acknowledge that careful handling would be likely to render real scrutiny impossible. The Home Secretary acknowledged that restrictions on the debate to avoid prejudice to fair trials was an issue with the draft Bill option, but she still felt that the mechanism offered "a degree of parliamentary scrutiny" which made it worthwhile.[74]

73. Both Houses of Parliament have sub-judice rules designed to ensure that parliamentary proceedings do not impact on the judicial process. Those rules do not apply, however, to the debate of legislation. The Clerks of the two Houses underlined to us that "It would be for Ministers to ensure that sufficient information and argument was provided to Parliament to persuade members of the case for the Bill, without undermining ongoing investigations or prejudicing future trials".[75] There would therefore be no effective way of controlling what was said in either House. Again this would be particularly problematic if the Bills were introduced after arrests had been made. The Minister might be well-briefed about what information could and could not be given, but there would be a serious risk that other Members could ask questions or make comments which could prejudice the possibility of a fair trial for a suspect, especially if the debate was taking place amidst intense media reporting and speculation after an incident and perhaps an arrest.

74. The question then needs to be asked: would it be possible for ministers to provide sufficient information for effective scrutiny? The evidence we received from the Director of Public Prosecutions and the former independent reviewer of terrorism legislation suggests it would not. Keir Starmer QC was concerned that Parliament should not be given too much information about the investigation of particular individuals:

"We are concerned about the extent to which, realistically, Parliament could debate the individual case, and we would want to safeguard the fair-trial rights of anybody who might ultimately be charged ... the closer it is to an individual case or set of cases, the more anxious we would be about what could go into the public domain".[76]

75. Lord Carlile of Berriew suggested that ministers would be able to say little more than:

"We have a suspect. We believe that evidence will be forthcoming if we are allowed more than 14 days. I am afraid I can't say what the evidence is, because if I do I am going to prejudice the trial".[77]

76. Lord Carlile asked, "What could be more prejudicial than responsible people expressing their opinions in Parliament as to whether there should be further inquiry into the activities of an individual who later stands trial?"[78]

77. Sir Hugh Orde, President of the Association of Police Officers, highlighted the risk that detailed debate might also risk national security by "giving people still at large any further information they may not have".[79]

78. Other witnesses sought to persuade us that a useful debate could take place. Lord MacDonald of River Glaven stated that the debate should and could focus "on the process issues: in other words, how many computers had been seized, how many people had been arrested and how many prosecutors and police officers there were".[80] Liberty agreed with Lord Macdonald.[81]

79. It could even be argued that, if introduced after arrests, the mere fact of the legislation being passed could prejudice the right to a fair trial. Parliament would not have to be told individual names; just making public the broad nature of the plot in which the suspects were involved could make it possible for a juror on a subsequent trial to connect the suspects with the need for the emergency legislation. Baroness Neville-Jones, the former Minister for Security, made this point about similar legislation published when she was in opposition: "the jury, being aware that Parliament had approved such a drastic measure in a particular crisis, may be tempted to assume the suspect's greater guilt. There is a problem in proceeding that way."[82] This risk could be exacerbated if Parliament had to be recalled to pass the legislation (see paras 87-93).

80. We are not convinced that a public parliamentary debate could get to the bottom of whether the legislation was necessary; we are concerned that it would be extremely difficult to stop parliamentary debate jeopardising fair trials and hence convictions; and we note Sir High Orde's concern that putting some of the process issues into the public domain could risk giving terrorists not yet arrested useful information.[83]

81. It might be tempting for the Government to say that, although scrutiny may be limited when the bills are introduced, the pre-legislative scrutiny by this Joint Committee in some way makes up for that. Pre-legislative scrutiny of these draft bills cannot address the key question, which is whether the powers are absolutely necessary. That question cannot be answered unless and until the legislation is introduced into Parliament and the circumstances being used to justify the extension are known.

Do the bills risk blurring the lines between Parliament and the court?

82. If the bills were introduced to deal with suspects who had already been arrested, then there would be a risk of blurring the line between Parliament and the courts. The House of Lords Constitution Committee warned that such an approach would potentially breach the separation of powers principle:

"Public bills should be of general application and not targeted at particular investigations. There is a risk that the constitutionally important distinction between the generality of legislation, on the one hand, and the particularity of adjudication, on the other, would be blurred in these circumstances. It does not seem to us that it is necessarily constitutionally appropriate for Parliament to be invited to pass a public bill on a matter that may affect only a small number of known individuals who are already caught in the criminal justice system."[84]

83. In relation to the emergency legislation proposed in 2008 along the same lines as these draft bills, the Constitution Committee emphasised the need for the independence of the judiciary to be protected:

"... we are concerned that a judge determining an application for extended detention will be called upon to exercise powers a matter of days or perhaps hours after a highly politically charged debate in Parliament in which there has been a clear division on party lines and over which there continues to be party political controversy. There is a risk that this will be perceived to undermine the independence of the judiciary."[85]

84. That Committee went on to conclude that:

"It is ill-advised to create a decision-making process that requires Parliament and the judiciary to ask and answer similar questions within a short space of time—or at all. Far from being a system of checks and balances, this is a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and arguably risks undermining the rights of fair trial for the individuals concerned."[86]

85. JUSTICE stated that "the prospect of laws being drafted in response to individual cases seems to us to undermine one of the central principles of the rule of law which is its generality".[87]

86. The considered conclusions of the Constitution Committee underscore the importance, if there are to be contingency powers to extend the maximum period of pre-charge detention, of establishing a process which reflects and respects the fundamental distinction between the role of Parliament, which is to provide powers of general application, and the role of the judiciary, which is to in decide upon applications to exercise those powers in particular cases.

The practicalities of passing the legislation

87. If one accepts the argument that it is necessary to have a contingency power to extend the maximum pre-charge detention period beyond 14 days, then we believe it is necessary to find a way of making sure that the contingency power is always available for use in short order.

88. Parliament would need to be available to pass the Government's proposed emergency legislation. There are significant periods of time each year when Parliament is not sitting. When Parliament is in recess it is possible to recall it. On the rare occasion when Parliament is recalled, it is normally only for matters of great moment. In the last 30 years the House of Commons has only been recalled eight times:

3 and 14 April 1982: Falkland Islands
6-7 September 1990: Kuwait invasion
24-25 September 1992: Government economic policy; UN operations—Yugoslavia, Iraq, Somalia
31 May 1995: Bosnia
2-3 September 1998: Omagh bomb, Criminal Justice (Terrorism and Conspiracy) Bill
14 September, 4 and 8 October 2001: International terrorism and attacks in the USA
3 April 2002: Death of Her Majesty Queen Elizabeth the Queen Mother
24 September 2002: Iraq and Weapons of Mass Destruction

89. Recall is not necessarily a quick process. Jack Straw MP, Home Secretary from 1997-2001, found that it took nine days to recall Parliament when he was Home Secretary and had to arrange the 1998 recall to pass legislation following the bombing in Omagh.[88] The Clerks of the two Houses told us that a realistic time span for implementing a recall can be as little as 48 hours[89] but we are not convinced that this would be realistic in all circumstances or at all times.

90. Parliament cannot be recalled during a dissolution which precedes a General Election. The length of dissolution varies but at the very least Parliament must be dissolved for 17 working days before polling day.[90] The proclamation dissolving a Parliament appoints a day and place for the meeting of the new Parliament. Although it is possible to advance this date once the General Election has taken place this would be highly unusual and probably very inconvenient; and before the new Parliament could consider the bills new Members would have to be sworn in, the House of Commons would have to elect its Speaker and State Opening would have to take place. This would not, therefore, be a quick process: in practice there would be a period of some thirty days between the dissolution of one Parliament and the State Opening of its successor during which Parliament could not be available to consider and pass emergency legislation.

91. The evidence we received from the police and CPS suggested that it may be necessary to ask Parliament to pass the bills in a matter of a very few days. This might not be possible in a recess and certainly would not be possible during a dissolution. John Yates told us that this was "a gap that ought to be plugged somehow".[91] He pointed out that it is not unheard of for terrorist campaigns to take place in the run up to general elections and he concluded that "That is a risk I would not want Parliament to take".[92]

92. The Home Secretary suggested that the Civil Contingencies Act 2004 could be used to extend the maximum period of pre-charge detention if it was necessary when Parliament was in recess or dissolved. She did not however think that the Civil Contingencies Act could be relied on at all times.[93] We have explained in para 61 why we do not think that the Civil Contingencies Act is necessarily always an appropriate or available option to rely on. While the chance of something occurring when Parliament could not sit, and which would not fall within the powers in the Civil Contingencies Act, may be remote, it is not beyond the realms of possibility and we have concluded that this is a risk which Parliament should not take.

93. Having reviewed the evidence outlined in this chapter it is clear that relying on emergency primary legislation as the method for extending the maximum period available for pre-charge detention has significant problems. Many of these problems are inherent in the fact that even though the draft bills are drafted so as to have general application, it is clear that they would probably be introduced in the context of, and in connection with, specific investigations, and with specific individuals in mind. Although we are satisfied that the bills are not technically hybrid, because (whatever the declared policy intent of ministers) hybridity can only be judged by what is on the face of the Bill, this situation does pose very real problems. Scrutiny is unlikely to be effective, the suspects' right to a fair trial may be put in jeopardy and the measures may be needed more quickly than might prove possible.

94. We believe that the Government is right to wish to create a contingency power to extend the maximum period for pre-charge detention beyond 14 days up to not more than 28 days in exceptional circumstances. We understand the Government's reasons for proposing that this power 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. We believe, however, that the parliamentary scrutiny of primary legislation to this effect would be so circumscribed by the difficulties of explaining the reasons for introducing it without prejudicing the rights of a suspect or suspects 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 in practice be almost impossible to introduce and pass the legislation required within a sufficiently short period of time when Parliament was in recess (particularly the long summer recess) or at the time of a general election during the 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.

95. On the other hand we share the Government's belief that it is necessary to create a system for providing a contingency power of general application which is more constrained than the current system and contains more safeguards to ensure that the power is provided only in exceptional circumstances and exercised only when absolutely necessary.

96. So we have addressed three questions:

What process might satisfy these requirements?
How far it is possible in advance to define the exceptional circumstances which should justify a decision to bring the contingency power into effect? and

What safeguards should be introduced to ensure that it is brought into effect only when it is absolutely necessary and that it is virtually impossible for it to be misused?

68 Q 368 Back

69 Q 363 Back

70 Q 31 Back

71 Q 364 Back

72 House of Lords Constitution Committee, DTS3 Back

73 Review, para 24 (ii) Back

74 Q 375 Back

75 DTS 4 Back

76 Q 213 Back

77 Q 74 Back

78 Q 74 Back

79 Q 328 Back