6 Pre-charge detention of terrorist
suspects
125. The Bill makes permanent the recent reduction
in the maximum period of pre-charge detention of terrorist suspects
from 28 days to 14 days,[98]
and removes the power of the Secretary of State, by Order,
to increase it again to 28 days for any period of up to a year.[99]
The Government's Human Rights Memorandum describes this as "an
ECHR-enhancing amendment to the legislation".[100]
126. However, alongside this Bill the Government
published two draft Bills, the Detention of Terrorism Suspects
(Temporary Extensions) Bills, which are, in effect, draft legislation
to be introduced in Parliament in an emergency authorising the
temporary extension of the period to 28 days. The Joint Committee
which scrutinised those draft Bills reported on 23 June 2011.[101]
It accepted the need to provide for a power to extend the
maximum period beyond 14 days "in truly exceptional circumstances",
but was 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. It was particularly
concerned about the fact that parliamentary debate would have
to be carefully circumscribed in order to avoid the risk of prejudicing
future trials. The Joint Committee recommended that the Home Secretary
should be given an order-making power to extend the period to
28 days for a temporary period of 3 months, with the agreement
of the Attorney General, but without any parliamentary scrutiny
of the Order.
127. The Government has not yet formally responded
to the Report of the Joint Committee on the draft bills. However,
the Home Secretary indicated in the House of Commons on 27 June
2011, in response to a topical question, that the Government does
not accept the Joint Committee's recommendation that emergency
legislation is not a satisfactory way of ensuring that a contingency
power is available.[102]
She said that the Government remains of the view that it is important
to have draft emergency legislation available for Parliament to
enact, and that in the vast majority of circumstances it is appropriate
that that is done after Parliament has had the opportunity to
consider the matter. However, the Government intends to bring
forward proposals for an order-making power to cover the possibility
that the extended period might be needed at a time when Parliament
is dissolved and therefore cannot pass emergency legislation.[103]
128. The Independent Reviewer of Terrorism Legislation,
on the other hand, agrees with the Joint Committee on the draft
bills that the appropriate mechanism for extending the period
of pre-charge detention beyond 14 days in exceptional cases should
not be primary legislation as proposed by the Government, but
an order-making power conferred on the Home Secretary, with safeguards.[104]
129. We welcome
the provision in the Bill making permanent the recent reduction
in the maximum period of pre-charge detention for terrorist suspects
from 28 days to 14 days. Our predecessor
Committee increasingly questioned the continued necessity of a
power to detain terrorist suspects pre-charge for up to 28 days,
in light of the time that had elapsed since the power was last
used, and in the absence of detailed reviews of the cases in which
the power had been used in 2006-07.[105]
We note with interest the evidence given to us by Lord Macdonald
of River Glaven QC, who was the Director of Public Prosecutions
at the time the extended power was being used, to the effect that
a period longer than 14 days is not only unnecessary now, but
had never been necessary.[106]
Lengthy periods of pre-charge detention for terrorism suspects
are the badge of illiberal regimes, and we applaud the Government's
courage in enshrining in law the reduction from 28 to 14 days.
130. We also
doubt whether it has been demonstrated, by evidence, that it is
necessary to make provision now for a contingency power to extend
the period of pre-charge detention beyond 14 days in the event
of some future emergency. We note that
the Joint Committee on the draft bills considered that such a
power would only be required in "truly exceptional circumstances".
It is always possible to imagine such extreme scenarios but an
evidence-based approach to law-making requires rigour in assessing
the likelihood of such exceptional circumstances arising. It is
a paradox of democratic accountability that elected Governments
are unlikely to risk saying overtly that the threat from terrorism
has diminished. Responsible Parliaments, however, must take a
view, on the information available, as to whether emergency powers
are really necessary. In our view, on the evidence we have seen,
the case for legislating now to provide an emergency power to
increase the period of pre-charge detention beyond 14 days has
not been made out.
131. We are particularly wary of an executive order-making
power which would give the Government the power to increase the
period of pre-charge detention beyond 14 days, without prior parliamentary
scrutiny of the particular justification for doing so, and in
relation to individuals who are already detained as part of an
ongoing investigation. We have difficulty in seeing how such an
executive power to extend the maximum period of detention, in
relation to particular individuals who are already detained, can
be compatible with the right to liberty in Article 5 ECHR, or
our traditional conceptions of the separation of powers. Moreover,
in view of the recent efficiency with which Parliament both passed
the Police (Detention and Bail) Act and was recalled from its
summer recess for a day to debate the recent riots, we question
the strength of the argument that provision must be made for an
executive power to extend the detention time limit during the
parliamentary recess. We
recommend that the Government reconsider its intention to bring
forward an order-making power to increase the maximum limit when
Parliament is dissolved.
132. Finally, we note that in the Government's Human
Rights Memorandum it argues that the legal framework governing
the pre-charge detention of terrorism suspects[107]
is compatible with the right to liberty in Article 5 ECHR.[108]
However, both the Joint Committee on the draft Bills[109]
and the Independent Reviewer of terrorism legislation have recently
concluded that the legal framework should be amended so as to
reflect as fully as possible the requirements of the right to
liberty in Article 5 ECHR, as explained in the case-law of the
UK courts.[110]
The Independent Reviewer recommends that this should be
done in the light of the forthcoming judgment of the UK Supreme
Court in a case concerning the compatibility of that framework
with Article 5.[111]
We agree with these conclusions, which accord with recommendations
consistently made by our predecessor Committee. We
recommend that the Government bring forward amendments to the
legal framework governing pre-charge detention of terrorist suspects
as soon as possible following the decision of the Supreme Court
in Duffy, in order to ensure that the legal regime
operates in practice in a way which is fully compatible with the
procedural requirements of Article 5 ECHR.
98 Clause 57(1), substituting "14 days" for
"28 days" in para. 36(3)(b)(ii) of Schedule 8 to the
Terrorism Act 2000. Back
99
Clause 57(2), repealing s. 25 of the Terrorism Act 2006. Back
100
Human Rights Memorandum, para. 106. Back
101
Draft Detention of Terrorist Suspects (Temporary Extension)
Bills, HL Paper 161/HC 893. Back
102
HC Deb 27 June 2011, col 608. Back
103
See, to similar effect, the Government's Counter-Terrorism Strategy
(July 2011), para. 4.23, p. 49 ("a new order-making power
to increase the maximum limit will be created for use only when
Parliament is dissolved.") Back
104
Report on the Operation in 2010 of the Terrorism Act 2000 and
of Part 1 of the Terrorism Act 2006, by David Anderson Q.C.
(July 2011) at para. 7.48. Back
105
See e.g. Eighteenth Report of Session 2008-09, Counter-Terrorism
Policy and Human Rights (Fifteenth Report): Annual Renewal of
28 Days 2009, HL 119/HC 726, paras 16-24; Sixteenth Report
of Session 2009-10, Counter-Terrorism Policy and Human Rights
(Seventeenth Report): Bringing Human Rights Back In, HL 86/HC
111, paras 65-68. Back
106
Qq 17-18 Back
107
Schedule 8 to the Terrorism Act 2000. Back
108
Human Rights Memorandum paras 106-110. Back
109
Above, n. 101 at paras 142-145 and 151-159. Back
110
Report on the Operation in 2010 of the Terrorism Act 2000 and
of Part 1 of the Terrorism Act 2006, by David Anderson Q.C.
(July 2011) at para. 7.50 and 7.55. Back
111
In the case of Duffy, on appeal from Northern Ireland (In
the matter of an application for judicial review by Colin Duffy
and others (No. 2) [2011] NIQB 16). Back
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