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.
- 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.
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
"One of my concerns about the legislation that
was used previously for the 28 days with its annual renewalearlier
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".
65. She also said that the Government believes
it is right that any decision to move beyond 14 days should be
made by Parliament.
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
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
- 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
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
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 shownor
challengedwithout risking prejudice?"
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".
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.
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".
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".
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".
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?"
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".
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".
Liberty agreed with Lord Macdonald.
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."
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.
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
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."
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."
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 timeor
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."
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".
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
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 operationsYugoslavia, 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.
The Clerks of the two Houses told us that a realistic time span
for implementing a recall can be as little as 48 hours
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.
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
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".
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. 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.
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
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
Q 363 Back
Q 31 Back
Q 364 Back
House of Lords Constitution Committee, DTS3 Back
Review, para 24 (ii) Back
Q 375 Back
DTS 4 Back
Q 213 Back
Q 74 Back
Q 74 Back
Q 328 Back
Q 9 Back
Q 110 Back
HL Debate 28 Jan 2009, column 247 Back
Q 328 Back
House of Lords Constitution Committee DTS 18 Back
House of Lords Constitution Committee, 5 August 2008, Tenth Report,
session 2007-08 Counter-Terrorism Bill: The Role of Ministers,
Parliament and the Judiciary, para 38 Back
Ibid, para 39 Back
DTS 8 Back
Q 155 Back
DTS 4 Back
The 17 days does not include weekends or bank holidays. For full
details of the dissolution timetable, see the House of Commons
Library Research Paper 09/44, Election Timetables, 13 May
Q 335 Back
Q 336 Back
Q 376 Back