Select Committee on Constitution Tenth Report

Counter-Terrorism Bill: The Role of Ministers, Parliament and the Judiciary

CHAPTER 1: Introduction

Scope of the report

1.  The Committee is appointed "to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution". We draw to the attention of the House provisions contained in the Counter-Terrorism Bill, in particular Part 2 (detention and questioning of terrorist suspects) and Part 6 (inquests and inquiries). This report considers the respective roles of ministers, Parliament and the judiciary in the arrangements proposed by these Parts of the Bill.

2.  In order to assist our analysis and deliberations, we wrote to Lord West of Spithead, the minister in charge of the Bill, on 25 June 2008. We are grateful for his prompt response, which we publish as Appendix 1 to this report.

The Government's approach to the Bill

3.  Our report expresses concern about aspects of the proposed arrangements in Part 2 and Part 6 of the Bill. Accommodating the needs of national security and respect for the fundamental constitutional principles on which a free society is based is a difficult task faced by governments around the world. It is clear to us that the Government have listened carefully to their critics. Indeed, the proposals contained in the Bill have emerged from compromises and concessions by the Government. We make no criticism of the process by which the Bill's proposals have been developed. Our concerns are directed at the outcomes that have been reached.

The totality of terrorism legislation

4.  In our December 2005 report on the Terrorism Bill, we stated that "While anti-terrorist legislation is not new, each incremental instalment, generated by concerns about public safety, must be considered not only on its merits but also in relation to the totality of such legislation".[1] The powers contained in the Counter-Terrorism Bill need to be considered against the background of other recent anti-terrorism legislation. Table 1 below seeks to summarise key features in legislation enacted from the Terrorism Act 2000 onwards.

5.  In a constitutional democracy such as the United Kingdom, a proper balance must be struck between the constitutional principles of security on the one hand and respect for the rule of law and individual liberty on the other. The role of Parliament is to assess whether there is a necessity for new measures, to ensure that the measures are framed proportionately so as to go no further than necessary, and to require that legislation provides for adequate judicial control of the exercise of new powers. Our purpose in conducting constitutional scrutiny of the Bill is to assist the House by identifying and clarifying the constitutional principles and practices that are either expressly or inadvertently affected by the proposals contained in the Bill.

Terrorism Act 2000	Anti-Terrorism, Crime and Security Act 2001	Prevention of Terrorism Act 2005	Terrorism Act 2006	Counter-Terrorism Bill
Part 1: Definition of terrorism Part 2: Proscribed organisations Part 3: Offences relating to terrorist property and seizure of terrorist cash Part 4: Terrorist investigations, including cordons Part 5: Counter-terrorist powers, including arrest without warrant and detention (s 41 and schedule 8), search of premises and persons, stop and search, port and border controls Part 6: Weapons training	Part 1: Forfeiture of terrorist cash and property Part 2: Freezing orders Part 3: Disclosure of information Part 4: Indefinite detention without charge of foreign nationals suspected of terrorist involvement (repealed) Part 5: Religiously aggravated offences and race hatred offence penalties Part 6: Weapons of mass destruction Part 7: Security of pathogens and toxins Part 8: Security of nuclear industry Part 9: Aviation security Part 10: Police powers (fingerprinting, searches, photographing suspects) Part 11: Retention of communications data Part 12: Bribery and corruption	Provision to make 'control orders', a replacement regime for Part 4 of the Anti-Terrorism, Crime and Security Act 2001	Part 1: New offences of encouragement of terrorism, preparation of terrorist acts and terrorist training, etc Part 2: Proscription of terrorist organisations; extension of time limit for detention of suspects from 14 to 28 days (ss 23-25); all premises search warrants	Part 1: Powers to gather and share information (including removing documents, taking fingerprints and samples from a person subject to a control order without consent) Part 2: Detention and questioning of terrorist suspects before and after charge. Reserve powers for pre-charge detention and questioning for up to 42 days Part 3: Prosecution and punishment of terrorist offences Part 4: Notification requirements Part 5: Asset freezing proceedings Part 6: Inquests and inquiries Part 7: Definition of terrorism amended; amendment of control order regime; amendment of arrangements for forfeiture of terrorist cash; costs of policing at gas facilities; appointment of special advocates in Northern Ireland

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1   4th Report (2005-06): Terrorism Bill (HL Paper 82), paragraph 4. Back