House of Lords - Constitution

Select Committee on Constitution Tenth Report

APPENDIX 1: Correspondence on the Counter-Terrorism bill

Letter from Lord Goodlad to Lord West of Spithead, 25 June 2008

The Constitution Committee is currently scrutinising the Counter-Terrorism Bill. We plan to agree a report at our meeting on 9 July 2008 so that it available to the House in time for the start of the bill's Committee Stage. We will therefore require a response from you by 5pm on Thursday 3 July at the latest if we are to take into account your comments.

Part 2 of the bill: Detention and questioning of suspects

We have several concerns about the respective roles of ministers, Parliament and the judiciary in decisions relating to the 42-day detention provisions.

When the Terrorism Act 2000 was enacted, there was a clear decision on the part of the Government that "it is right in principle that matters relating to the liberty of the individual should be in the hands of the judiciary". Those were the words of Lord Bassam of Brighton to the House on 24 May 2000 (col 693), rejecting calls for the Secretary of State to retain power to authorise pre-charge detention. We take the view that the principle in the Terrorism Act 2000—that after an initial short period of detention authorised by police officers unconnected with the inquiry, any further authorisation should be exclusively a matter for the judiciary—is correct. That principle not only accords with the requirements of Article 5 of the European Convention but reflects the basic constitutional principle that individual liberty is to be protected by the courts.

It appears to us that the arrangements set out in the bill depart from that policy. In deciding to make a reserve powers order, the Home Secretary would in effect be making decisions about specific suspects detained as part of a particular police investigation. This is plain from the requirement that the DPP and chief police officer's report to the Home Secretary must state that they are "satisfied that the investigation in connection with which the detained person or persons is or are being detained is being conducted diligently and expeditiously" (clause 24(5)); and that the Home Secretary must satisfy herself that this is indeed so as a pre-condition to making the order.

Q1 Is the principle of transferring responsibility for authorising pre-charge detention from the executive to the judiciary, adopted in 2000, still correct?

Q2 (a) Are we right to think that the Home Secretary will, under the arrangements in the bill, be involved in assessing the conduct of a specific investigation and the detention of particular suspects? (b) If so, how does this sit with the principle set out in the 2000 Act?

We also have concerns about the proposed role of Parliament in the scheme envisaged by the bill. The provision in clause 26 for the sharing of confidential information with the chairmen of certain select committees on a "privy counsellor basis" is, so far as we are aware, a constitutional innovation. As the Explanatory Notes make clear, this information could not be discussed by the chairmen with other members of their committees; nor, we might add, would a chairman be able to seek advice from a committee's legal or specialist advisers. The Explanatory Notes go on to claim that "parliamentary scrutiny will be informed and strengthened" by this arrangement (para 308 f). It is not however obvious to us how these arrangements are capable of enabling more effective parliamentary scrutiny of the Home Secretary's decision.

Q3 Please outline the precise purpose(s) of clause 26, in particular how the Government envisages that sharing information in this way will promote more effective scrutiny than might otherwise be the case.

Under the bill, each House of Parliament will debate the reserve powers order made by the Home Secretary. While we accept that in many situations parliamentary scrutiny of Government decisions in each House is essential or desirable, we foresee significant—and perhaps insuperable—difficulties in this particular context. We have noted the explanation given by the Home Secretary of the matters that would be debated (HC Hansard, 11 June, col 400), which include: (a) the general security threat; (b) the progress of the investigation; (c) the police numbers involved; (d) the number of suspects detained; (e) the outline of the plot; (f) the what, why and when; (g) the number of countries involved; (h) whether the Home Secretary's decision was properly founded; and (i) whether she had indeed received reports from the police and the DPP.

Public debate of (b), (d), (e) and (f) in particular, during the early stages of a police investigation, appear to us to present very real difficulties. We do not understand how discussion and inevitable speculation about these matters can avoid the risk of prejudicing not only the continuing police investigation but also subsequent court proceedings. Even without high-profile debates in Parliament, last year the then Attorney General had cause to issue an advisory note warning the news media to exercise restraint in their reporting of a counter-terrorism operation in the Midlands and reminding editors of the terms of the Contempt of Court Act 1981 ("Counter Terrorism Operation in the West Midlands", 31 January 2007). The practical problems that already exist are surely likely to be greatly exacerbated.

Q4 How do you respond to concerns that the parliamentary debates envisaged by the bill, and the consequent coverage in the media, may risk hindering the police investigation?

Q5 Is there a risk that the debates and media coverage may prejudice future legal proceedings, including (a) any application that the DPP may make under the reserve powers order for a warrant of detention and (b) any subsequent trial of the suspect(s)? How might the risks be minimised?

Q5a It would be helpful to know in more detail what matters would in the Government's view be (a) appropriate and (b) inappropriate for debate in Parliament on a resolution to affirm a reserve powers order.

Part 6 of the bill: Inquests and inquiries

Part 6 of the bill proposes to empower the Secretary of State to issue a certificate ordering that a coroner's inquest into a death be conducted without a jury where material will need to be considered that should not be made public "in the interests of national security, in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest" (clause 77 and clause 78, amending respectively the Coroners Act 1988 in England and Wales and the Coroners Act (Northern Ireland) 1959).

First, as to procedure, our view is that the Coroners and Death Certification Bill announced as part of the 2008-09 Draft Legislative Programme appears to be a more appropriate vehicle for these provisions. As currently drafted, the certification powers of the Secretary of State are very broad and capable of extending far beyond cases related to terrorism and national security. The current proposals would receive more effective scrutiny in the context of wider reforms of the coronial process in the Coroners and Death Certification Bill.

Q6 Why are reforms on the use of juries in inquests being included in a Counter-Terrorism Bill rather than in the Coroners and Death Certification Bill next Session?

A second concern returns to questions about the proper allocation of functions between ministers and the judiciary. As currently drafted, the bill gives power to the executive to determine that a coroner hold an inquest without a jury. This strikes us as constitutionally inappropriate given that coroners are independent judicial officers and the inquests are judicial proceedings. These proceedings may of course call into question the conduct of government. A more constitutionally acceptable model might be to provide for the Secretary of State to apply for an order from a senior judge for an inquest to proceed without a jury where secret material has to be considered.

Q7 (a) How do you respond to the view that the decision to proceed without a jury ought to be a judicial rather than an executive function? (b) What other options have been considered and why were these rejected?

By clause 79 of the bill a new section 18A will be inserted into the Coroners Act 1988 providing that "the Secretary of State" may appoint specially appointed coroners and a new section 18C by which "the Secretary of State" may revoke the appointment. In both cases the concurrence of the Lord Chief Justice or another senior judge is required. Nonetheless, our provisional view is that the functions of appointing and revoking the appointment of special coroners ought to be in the hands of the Lord Chancellor rather than the Home Secretary. Under the Coroners Act 1988 it is the Lord Chancellor who has power to remove coroners from office. This is a constitutional arrangement that appears preferable as the Lord Chancellor has responsibilities for judiciary-related matters but also has special duties in relation to the rule of law.

Q8 Please explain why the Secretary of State rather than the Lord Chancellor is thought to be the appropriate minister.

RT. HON. LORD GOODLAD

Response from Lord West of Spithead, 2 July 2008

Thank you for your letter of 25 June 2008 on the Counter-Terrorism Bill. Please find below a response to the points raised in your letter.

Part 2 of the Bill: Detention and questioning of suspects

Q1 Is the principle of transferring responsibility for authorising pre-charge detention from the executive to the judiciary, adopted in 2000, still correct?

There is no change to the principle that the judiciary are responsible for authorising the continued detention of a suspect before charge.

Under the pre-charge detention proposals in Part 2 of the bill, the Home Secretary would have no involvement in deciding on the detention of individual suspects which will continue to be determined by a judge. Any application for an extension beyond 28 days in England and Wales must be made by the DPP (or by a senior crown prosecutor designated by the DPP). A judge could approve the continued detention of a suspect only if he were satisfied that there were reasonable grounds for believing that further detention was necessary to obtain relevant evidence or to preserve relevant evidence, and that the investigation in connection with which the person was detained was being conducted diligently and expeditiously. If this test were not met, the person would be released.

The Home Secretary's role under the proposed arrangements is to decide on whether to make the reserve power (that is the power allowing for detention to be extended by a judge for up to 42 days) exercisable for a limited period. If she does decide to make the power exercisable, she must then make a statement to Parliament stating she is satisfied that a grave exceptional terrorist threat has occurred or is occurring and that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible. The proposal on pre-charge detention that is now in the bill is substantially different from that originally proposed by the Government. The Government accepts that the reserve power must only be exercised in exceptional circumstances and that it must be only be available for a temporary period and that it should not, therefore, be exercisable by means of a normal commencement order made following Royal Assent.

The Home Secretary will not be involved in the conduct of a particular investigation or the detention of individual suspects. These are operational matters and it would be inappropriate for the Home Secretary to be directly involved. The report by the DPP and police will however form an important pre-condition to her decision to make the reserve power available for a limited period. It will provide the operational advice necessary for the Home Secretary to decide whether the reserve power is needed in the context of the circumstances set out in legislation. The Home Secretary's role is to decide if and when the 42 day higher limit should be made available as a matter of law. The detention of individual suspects therefore remains as stated in 2000 the sole responsibility of the courts.

Clause 26 provides that when the Home Secretary makes an order under clause 23 she must immediately notify the chairman of the Home Affairs Committee, the chairman of the Joint Committee on Human Rights and the chairman of the Intelligence and Security Committee. It also provides that she must, as soon as reasonably practicable, provide each of those persons with a copy of the report from the police and the DPP on the operational need for an extension of the maximum period of detention and the unredacted independent legal advice.

This will ensure that these key individuals are aware of the circumstances leading to the Home Secretary's decision and are therefore able to participate fully in the subsequent debates on the issue. Parliament itself will not have access to the police/DPP report (which is likely to contain sensitive information and material which if made public might be prejudicial to criminal proceedings) or the unredacted version of the legal advice (which will by definition contain information of a similar nature). Giving these documents to the chairs of these committees will therefore provide a level of reassurance to Parliamentarians and the public that the Home Secretary is acting properly and in accordance with the law. The chairmen also have particular and relevant expertise which will allow them, having had access to the police/DPP report and the full independent legal advice, to make informed and valuable contributions to the Parliamentary debates, while of course protecting any sensitive information.

Q4 How do you respond to concerns that the parliamentary debates envisaged by the bill, and the consequent coverage in the media, may risk hindering the police investigation?

Parliament can have a full and meaningful debate on whether the reserve power should be made exercisable without hindering a police investigation or prejudicing any subsequent prosecution. Although they will not be able to discuss the details of individual suspects, Parliament will be able to fully discuss and, if so minded, approve the order commencing the reserve power. It is not the case that Parliament will have little to debate. It is already the case that there are statements and debates in Parliament following major terrorist incidents (for example in relation to the alleged airline plot and following the incidents in London/Glasgow). Such statements can, and have, included details about scale and nature of the plot being investigated and the police response. Although these occasions do not deal with details that would be prejudicial to the ongoing investigations, they provide a very real and important opportunity for Parliament to question the Government about events and the response to them from law enforcement agencies and others, and to evaluate for themselves the seriousness of the plot or situation. Under the proposals in the Bill, the debates would provide Parliament an important opportunity to scrutinise the Home Secretary's decision to make the order in the light of what she has to say about the grave exceptional terrorist threat and to decide whether or not the reserve power should remain exercisable beyond 7 days from it being laid.

Furthermore, there are express provisions in the Bill to ensure that nothing released to Parliament shall include either the name of anyone detained under the powers or anything that might prejudice any prosecution.

Part 6 of the Bill: Inquests and inquiries

Q6 Why are reforms on the use of juries in inquests being included in a Counter-Terrorism Bill rather than in the Coroners and Death Certification Bill next Session?

The Government is aware of circumstances in which a coroner's inquest may need to consider material that cannot be disclosed publicly or shown to the jury, as the finders of fact, without harming the public interest (for example, for reasons of national security). This creates the potential for coroners' inquests to be incompatible with Article 2 of the ECHR where the inquest must be held with a jury and the sensitive material is central to the inquest but by reason of its sensitivity cannot be disclosed to the jury.

Due to a delay to the introduction of the Coroners and Death Certification Bill, the Counter-Terrorism Bill is considered the most appropriate vehicle in the current session of Parliament to bring forward these proposals. There was simply no space for the Coroners and Death Certification Bill in this session's extremely busy Parliamentary programme. The Government remains committed to reform and a Bill will be brought before Parliament as soon as time allows. The draft programme for the next session, published on 14 May, included a Coroners and Death Certification Bill. Unfortunately, however, the Coroners and Death Certification Bill will not gain Royal Assent and come into force within a sufficiently short timescale to address the problems we are concerned about in relation to pending inquests which have brought this issue to our attention.

You will wish to note however, that we are considering the possibility of a sunset clause on the basis that Parliament will have a second chance to re-debate the relevant issues during the passage of the Coroners and Death Certification Bill whilst providing an interim solution to address the problem which has arisen.

(a) Should the decision to certify an inquest to sit without a jury become a judicial function, the judge, before granting the certificate, would undoubtedly need to see and thoroughly examine all the information claimed by the Secretary of State to be sensitive in order to properly consider the application and reach an informed decision as to whether section 8A(1)(a) to (c) applied.

I understand that members of the Committee may have concerns about the Executive's involvement in certifying inquests where the death may have been caused by the actions of agents of the state. The Secretary of State may be privy to information or material which may go to national security or the relationship between the United Kingdom and another country for example. Assessing the sensitivity of this material requires not simply evaluation of information that is available, but also (for example) evaluating the significance to be attached to the overall intelligence picture informed by a further appreciation of national and international conditions (relating to security matters, and otherwise). The Secretary of State would be in the best position to assess the requirements of national security and international relations and to determine, in any particular case, whether the public interest requires a certificate to be issued requiring an inquest to be held without a jury. Indeed, this has traditionally been a function for the Executive alone, with the judiciary giving due deference to the executive's role.

A decision to certify an inquest will be capable of challenge by way of judicial review, so there will still be an important element of judicial scrutiny of the Executive's function in determining the sensitivity or otherwise of the material.

(b) The Government with the assistance of Counsel tried over several months to find a mechanism that permitted the protection of sensitive material whilst retaining the jury. The Government has also considered carefully suggestions made both by interest groups and in the Commons as to other possible options we could bring forward as a solution to the problem outlined briefly above (in answer to Q6). We are committed to ensuring that, where possible, investigations into deaths take place within the existing coronial system.

One suggestion considered was whether a model could be devised which would split the fact-finding functions between the coroner and the jury—with the coroner being the finder of fact on any issue that involved the sensitive material, and the jury being the finder of fact on all other issues. However, it soon became clear that such a model would not be capable of meeting Article 2 requirements in all cases and would be unworkable in practice. The split could also invite constant challenges as to whether something was for the coroner or for the jury to decide, thereby delaying the inquest (which would be very much to the detriment of the bereaved families who await the outcome of the inquest).

Another suggestion considered was the possibility of vetting juries. However, an inquest might have to consider material which could normally only be received by officials with the highest level of security clearance ("developed vetting"). But this involves a close examination of all aspects of a candidate's life that could give rise to some sort of threat. It would clearly not be feasible or appropriate to apply this style of vetting to randomly chosen jurors.

Even if we could process jurors through "developed vetting" vetting is not a guarantee against leakage and in no other context do we disclose such sensitive material to members of the general public who are not subject to, for example, duties under the Official Secrets Act.

More limited jury vetting is also available but it is too limited to be effective in protecting the sensitivities that may attach to the material. There are random checks of the Criminal Records Bureau, and also "authorised jury checks" which take place with the Attorney General's permission and involve checks with the Criminal Records Bureau, Special Branch and occasionally the Security Service. But these checks are far more limited than full "developed vetting" and would not provide sufficient reassurance for us to be certain that they could be shown all the material which might be relevant to an inquest.

'Justice' in their evidence session suggested seeking out members of the public to go through the process of security clearance. This would essentially mean that juries were self-selecting and would be confined to those who were willing to go through the process of "developed vetting". Furthermore, there would be no guarantee that the individuals would necessarily be granted the clearance.

Q8 Please explain why the Secretary of State rather than the Lord Chancellor is thought to be the appropriate minister.

In this part of the Bill, Secretary of State refers to the Secretary of State for Justice who is also, of course, the Lord Chancellor. The Secretary of State for Justice/Lord Chancellor is responsible for the law and policy relating to the current coroner system, although he has limited powers only with regard to the deployment of coroners, and none at all in relation to their selection and appointment. The Lord Chief Justice similarly has no powers in respect of the deployment, selection and appointment of coroners. Although the selection of specially vetted coroners will be an administrative rather than judicial process, we amended the provisions in the Commons so that the Secretary of State will make appointments with the concurrence of the Lord Chief Justice.

I am copying this letter to the Lord Chancellor and the Attorney General.

LORD WEST