2 Pre-charge Detention
3. We have set out our views on the human rights compatibility of the Government's proposal to extend the maximum period of pre-charge detention to 42 days at length in previous reports. We do not seek to repeat those views here, save where relevant to the issues addressed below. The purpose of this chapter is to update our previous reports on the subject in the light of recent developments and, in particular, in the light of the potential Government amendments to this part of the Bill designed to meet concerns about its human rights compatibility. We stress that at the time of agreeing our report the text of the Government's amendments was not available, and what follows is therefore based on the Government's indication of the amendments it intends to bring forward.
The "growing" threat
4. In our Report on 42 days, in December 2007, we subjected to careful scrutiny the precise nature of the Government's argument about the level of the threat from terrorism. We noted that the Government's statements stressed the high level of the threat, but fell short of claiming that the level of the threat had increased since the extension to 28 days was enacted in 2006. We pointed out that both the Minister, Tony McNulty MP, and the then head of the Metropolitan Police's Counter-Terrorism Command, DAC Peter Clarke, had appeared to accept that, while the threat was at a very high level, it was at about the same level as when Parliament extended the maximum period of pre-charge detention to 28 days.
5. We note that the Home Secretary, in more recent statements, has become much less guarded and now refers to the "growing" threat from terrorism when seeking to justify the Government's proposal to extend the maximum period of pre-charge detention to 42 days. This claim raises again the many questions we have asked in the past about exactly what evidence exists to support this claim. We do not underestimate the seriousness of the threat this country faces from terrorism, but when the Government seeks more extensive counter-terrorism powers on the basis of broad assertions about a "growing" threat, it is vital that it produce to Parliament the evidence on which those assertions are based.
6. In our Report on 42 Days we concluded that we had not seen any evidence to suggest that the level of the threat from terrorism had increased since the previous year, and that the evidence that we had seen suggested that the threat level remained about the same as it had been the previous year. We still have not seen any evidence which demonstrates that the threat level is growing.
7. We have indicated to the Government the sort of evidence that we would like to see concerning the level of the threat. We pointed out in our Report on 42 Days that it is not satisfactory to infer an increase in the level of the threat from bare statistics about the number of convictions or the number of people charged with terrorism offences, in the absence of more qualitative analysis of, for example, the seriousness of the charges brought and the number of convictions secured in the last year compared to previous years. No such qualitative analysis has been forthcoming from the Government. Nor is it satisfactory to draw inferences about the level of the threat from the number of active investigations, the number of suspects, nor the number of prosecutions. An increase in the number of investigations, suspects, people charged or convictions may be consistent with an increased level of threat, or could be due to other factors.
8. We also wrote, in December 2007, to the Director General of the Security Service, Jonathan Evans, asking specifically whether the level of threat from terrorism has increased since June 2007, if so, to what extent, and asking him to provide us publicly with as much information about the basis of his assessment of the increase in the threat level as it is possible to provide consistent with the obvious public interest in not disclosing information which would harm national security. We have not received a response to that letter.
9. In our view, the questions we have consistently raised about the precise evidential basis for assertions by Ministers and others that the threat from terrorism is "growing" have never been satisfactorily answered. We recommend that the Government provides Parliament with the evidence on which it relies when it says that the threat from terrorism is growing; if this is not done, we draw the attention of both Houses to the absence of evidence demonstrating that the threat level is growing.
The use made of the 28 day period
10. In our previous reports we have frequently drawn attention to the need for careful analysis of the use which is being made of existing powers when considering whether or not they should be extended further. During Public Bill Committee it became clear that, not only have the Crown Prosecution Service (CPS) been working comfortably within the 28 day limit, but for the last nine or ten months they have been working comfortably within the 14 day limit. Sue Hemming, the Head of the CPS's Counter-Terrorism Division, told the Public Bill Committee that there has been no need to make an application to extend pre-charge detention beyond 14 days since the investigation into the attack on Glasgow airport in the summer of 2007.
11. The annual renewal of the provisions in the Terrorism Act 2006 which extend the maximum period of pre-charge detention in terrorism cases from 14 to 28 days is imminent. That extended period will expire on 25 July 2008 unless a renewal order is passed by both Houses. So far, however, there is no information in the public domain concerning what use has been made of the extended power to detain without charge for up to 28 days, and how it is operating in practice since it was last renewed.
12. We have written to the Home Secretary to request some information about the operation of the extended period since its last renewal with a view to ensuring that Parliament is fully informed when it comes to debate the draft renewal order. That information will also be highly relevant to the debate about the need to further extend the maximum period of pre-charge detention beyond 28 days. We have not received the information we requested at the time of agreeing this report, and we recommend that the Home Secretary make the information available in time to inform the debate on this issue at the Bill's Report stage. If this is not done, we draw the attention of both Houses to the absence of this information.
13. In our Report on 28 Days, Intercept and Post-Charge Questioning, published in July 2007, we made a number of specific recommendations concerning the arrangements for parliamentary review of the operation in practice of the extended period of pre-charge detention up to a maximum of 28 days. The aim of our recommendations was to ensure that there is rigorous independent scrutiny of the operation in practice of the extended period, which is made available to Parliament sufficiently in advance of the renewal debate to ensure that Parliament is fully and reliably informed about how the power has actually been working before it is asked to approve renewal of the extraordinary power for another year.
14. We recommended that parliamentary oversight be improved by making available to Parliament, at least a month before the renewal debate, a report by an independent reviewer on the operation in practice of the extended period and on the continued necessity for it, and a detailed annual report by the Home Secretary on the use which has been made of the power by the police. In response, the Government said that Lord Carlile already reports annually on the operation of the Terrorism Act 2000, including on the extended period of pre-charge detention. It also said that it would be looking to ensure that there is sufficient parliamentary oversight of the pre-charge detention period as part of the consultation on the forthcoming counter-terrorism bill and that it would consider our recommendations as part of that consultation.
15. We also recommended that an appropriate independent body undertake an in-depth scrutiny of the operation in practice by the Metropolitan Police Service of the new power of pre-charge detention beyond 14 days. We suggested that the Metropolitan Police Authority, the independent statutory body charged with scrutinising the work of the Metropolitan Police Service, may be well placed to do this. The Government said in its response that it would consider whether there is a need for an independent body to review the operation of pre-charge detention as part of the consultation on the forthcoming counter-terrorism bill.
16. The Counter-Terrorism Bill, however, makes no provision for improving the existing arrangements for parliamentary review of the operation of extended pre-charge detention. Instead, as we pointed out in our recent report on the annual renewal of the control orders legislation, the Bill's provisions for parliamentary review of the power to extend pre-charge detention are closely modelled on the very provisions relating to the renewal of the control orders legislation in the Prevention of Terrorism Act 2005, which have failed to ensure proper parliamentary scrutiny in three consecutive years.
17. We also recommended in our Report on 28 days that, in order to help Parliament evaluate the strength of the case for extended pre-charge detention in terrorism cases, the police should in future keep data to demonstrate the number of times terrorism suspects have been released without charge and then subsequently rearrested as a result of information that had subsequently come to light as a result of searching computer hard drives or related material. In our view, such data is central to any evidence-based assessment of the adequacy of the current period. In the Government's response to our report it said that the Home Office was working with the police to review the collation and publication of statistics relating to terrorism legislation and that statistics and information available with reference to pre-charge detention would be reviewed as part of this process. However, we have not been told what, if any, additional statistics or information in relation to pre-charge detention the Government or the police decided to collect as a result of their joint review.
18. In our last report on this Bill we expressed again our disappointment at the Government's failure to respond to our constructive proposals for improved parliamentary review, particularly in light of the Prime Minister's commitment to the importance of parliamentary oversight in relation to the unusual powers required to counter terrorism. In view of the Government's failure to respond to our proposals, and the lack of provision in the Bill, we have written to the Home Secretary to ask what improvements she has made in the arrangements for parliamentary review and for her reasons if, as appears to be the case, she has decided not to accept our recommendations for improving those arrangements. We look forward to a response to our queries in time to inform debate at Report stage.
19. In the meantime, we think it is important for the arrangements for parliamentary review to be improved by providing for the independence of the reviewer, some parliamentary input into the appointments process and for direct and timely reporting to Parliament. We also feel that there is now more work than one reviewer can reasonably do and that a panel of independent reviewers would be desirable. We therefore suggest the following amendment to the Bill for debate:
To move the following clause:-
'Expiry or renewal of extended maximum detention period: further parliamentary safeguards
(1) The Terrorism Act 2006 is amended as follows.
(2) After subsection (6) of section 25, there is inserted-
"(6A) The Secretary of State and the panel appointed under section 36 must lay annual reports before Parliament on the operation of the extended period of pre-charge detention.
(6B) No motion to approve a draft order under subsection (6) may be made by a Minister of the Crown until one month has elapsed since the publication of the reports laid under section (6A)."
(3) In section 36-
(a) in subsection (1) for "person" there is inserted "panel of persons";
(b) in subsection (2)-
(i) for "That person" there is inserted "The panel";
(ii) for "he" there is inserted "it"; and
(iii) for "his" there is inserted "its";
(c) in subsection (3)-
(i) for "That person" there is inserted "The panel"; and
(ii)for "his" there is inserted "its";
(d) in subsection (4), for "That person" there is inserted "The panel";
(e) in subsection (6)-
(i) for "a person" there is inserted "the persons"; and
(ii) for "his" there is inserted "their".
(4) In section 36, after subsection (1) there is inserted-
"(1A) A person may not be appointed under subsection (1) unless-
(a) the Secretary of State lays a report on the appointment process before both Houses of Parliament, and
(b) a Minister of the Crown makes a motion in both Houses to approve the report laid under this subsection.".'
The Civil Contingencies Act type safeguards
Possible additional safeguards
20. At our recent conference on counter-terrorism policy and human rights on 14 May 2008, the minister, Tony McNulty MP, indicated that the Government was still seeking consensus in relation to pre-charge detention and welcomed further discussion about what further safeguards might be built into the Bill to ensure that the exceptional reserve power to extend the period to 42 days is not abused. In particular, the Government was still willing to consider whether more of the type of safeguards contained in the Civil Contingencies Act 2004 could be imported into the Bill.
21. It now appears that the following additional safeguards are under consideration by the Government and likely to be the subject of Government amendments to the Bill:
(1) A tightening of the definition in the Bill of what amounts to an "exceptional need" to use the power, to make it clear that it will only be used in exceptional circumstances, such as the discovery of multiple terrorist plots or the aftermath of an atrocity, or in a "grave terrorist emergency";
(2) A shortening of the time within which Parliament is required to authorise the extension by the Secretary of State, from 30 days to a much shorter period, possibly seven days; and
(3) Reducing the period for which the reserve power is available from 60 to 30 days.
22. In this part of our Report, we draw attention to those parts of our previous conclusions which will be most relevant to assessing any further safeguards, judicial or parliamentary, offered by the Government. We also consider whether any additional safeguards could render the 42 days proposal compatible with the right to liberty in Article 5 ECHR.
The Civil Contingencies Act: does it and should it apply?
23. In our Report on 42 Days, we considered whether the Civil Contingencies Act 2004 already provides the Secretary of State with the power to extend pre-charge detention beyond 28 days in circumstances such as those which concern the Government, and whether it would be desirable, in principle, for the Civil Contingencies Act to apply in such circumstances.
24. We concluded that the Civil Contingencies Act, properly interpreted, did not already provide the power to extend the period of pre-charge detention beyond 28 days. We reached this view for two reasons. First, the general power of the executive to make emergency regulations under the Civil Contingencies Act does not expressly authorise the making of regulations which deprive a person of their liberty. In our view, the common law principle of legality, which requires general powers capable of interfering with fundamental rights to be read strictly, requires a power to deprive a person of their liberty to be expressly authorised by Parliament in the regulation making power. Second, in our view the restriction in the Civil Contingencies Act itself on the scope of the power to make emergency regulations, that they "may not alter procedure in relation to criminal proceedings", would apply to any regulation purporting to extend the period of pre-charge detention. The Government agrees with us that the Civil Contingencies Act does not already give the power which the Government seeks.
25. We also concluded that it would be undesirable in principle for such a power to be available under the Civil Contingencies Act, for two main reasons. First, we are concerned by the lack of safeguards provided by the Civil Contingencies Act: it leaves it to the emergency regulations themselves to provide the necessary safeguards, such as appropriate judicial scrutiny of extended detention, which both the Government and Parliament may be less inclined to provide when regulations are being made in the context of an emergency. Moreover, the Government has refused to publish any drafts of the emergency regulations which might be made under Part II of the Civil Contingencies Act, so it is impossible to tell what safeguards, if any, would be included in the regulations extending pre-charge detention beyond 28 days. Second, we share the concerns of the Director of Public Prosecutions (DPP) about the risk of prejudice to future trials when Parliament debates the emergency regulations extending the period of pre-charge detention in respect of a particular case, as the Civil Contingencies Act framework would require.
26. It follows that we would also be opposed to any proposal to amend the Civil Contingencies Act to provide the Secretary of State with the power to extend the period of pre-charge detention beyond 28 days by way of emergency regulations. In our view the existing safeguards against the wrongful use of such a power in the Civil Contingencies Act itself are neither sufficiently strong nor appropriate for an exercise of power which deprives individuals of their liberty.
Adequacy of proposed additional safeguards
27. The question which now arises is whether the additional safeguards which the Government appears to be proposing would meet all of the human rights concerns which have been expressed about the 42 days proposal. In our view, those safeguards would not meet our concerns about the 42 days proposal, for the following reasons.
(1) The "emergency" threshold
28. The Civil Contingencies Act provides that three conditions must be satisfied before the power to make emergency regulations is triggered:
(1) an emergency must have occurred, be occurring or about to occur;
(2) it must be necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency; and
(3) the need for the provision must be urgent.
29. An emergency, for the purposes of the Civil Contingencies Act, is defined to include "terrorism which threatens serious damage to the security of the UK".
30. In the Counter-Terrorism Bill, as presently drafted, the only precondition to the exercise of the power of the Secretary of State to make the reserve power available is that there must have been a report from the DPP and the police on the operational need for the reserve power. The Secretary of State is required to make a statement to Parliament shortly after having made the reserve power available, in which she must state certain prescribed things, including that she has received information indicating that an ongoing terrorism investigation gives rise to "an exceptional operational need" and that she is satisfied that the reserve power is needed, that the need to make it available is urgent, and that its availability is compatible with the Convention rights. However, these are not preconditions to the making of the order which brings the reserve power into effect. One of the possible additional safeguards which may be proposed by the Government is that the Bill define in more detail the circumstances which would amount to "exceptional need", for example the discovery of multiple terrorist plots or the aftermath of an atrocity, or, in the words of the Secretary of State for Justice, "a grave terrorist emergency". It is difficult to comment on this potential amendment without more detail about what is intended, but we observe that some of the suggested formulations do not appear to raise very significantly the threshold of what is meant by "exceptional". For example, according to the Director-General of MI5, in his lecture to the Society of Editors in November 2007, there are already "multiple plots": some 30 in total being monitored by the intelligence services. On the other hand, a substantial threat to the nation, which appears to be what was contemplated by Tony McNulty MP in a radio interview on BBC Radio 4 on 2 June 2008, or a "grave terrorist emergency" would set the bar rather higher. We would also point out, however, that, as presently drafted, the Bill merely requires that the Secretary of State make a statement to Parliament that she is satisfied of certain matters. It does not make those matters preconditions to the exercise of the power.
31. In our view, a requirement that the Secretary of State merely make a declaration to Parliament that she is satisfied that there are exceptional circumstances giving rise to an "exceptional operational need" to use the power would not amount to much of a safeguard, even if the circumstances capable of amounting to such an exceptional need were spelt out in more detail in the Bill.
32. In our view, requiring the Secretary of State to declare there is an exceptional need for a reserve power, or even that there is an emergency which makes such a power necessary, is not, in reality, much of a safeguard, at least without some meaningful opportunity for that assertion to be tested by independent scrutineers, whether in Parliament or the courts.
(2) Parliamentary scrutiny
33. The Civil Contingencies Act provides for parliamentary authorisation of emergency regulations within seven days.
34. The Counter-Terrorism Bill currently provides for parliamentary approval of the Secretary of State's decision to make the reserve power available within 30 days of the power becoming available: if the decision to invoke the reserve power has not been approved by resolution of each House within that time the power ceases to be available at the end of the 30 days, and it ceases to be available immediately if it is disapproved of by either House. As we pointed out in our first Report on this Bill, the 30 day provision means that by the time Parliament expresses a view on whether the reserve power should be made available, it is likely that the full 42 day period will have expired. The Government now appears to be suggesting that this period be reduced from 30 days to seven.
35. We considered in our second report on this Bill the possibility of an amendment which would guarantee Parliament an opportunity to debate the justification for invoking the reserve power before the expiry of the 42 day period. However, we concluded that such an amendment would not meet the objection that any parliamentary debate will be so circumscribed by the need to avoid prejudicing future trials as to be a virtually meaningless safeguard against wrongful exercise of the power.
36. Even if the Bill were amended to provide for parliamentary authorisation of the Secretary of State's decision within a very short period such as seven days, this would not be a very significant safeguard so long as the exceptional need relates to a specific, ongoing investigation, because the debate would be heavily circumscribed by the risk of prejudicing future trials. Indeed, this was the very criticism made by the DPP of the proposed use of the Civil Contingencies Act option in his evidence to the Home Affairs Committee. Authorisation by Parliament within a short period such as seven days would not therefore, in our view, amount to a very significant additional safeguard.
37. The Government appears to be suggesting that the period for which the power is available be reduced from 60 days to 30 days. We acknowledge that this would match the equivalent provision in the Civil Contingencies Act.
(4) Judicial safeguards
38. We welcome the Prime Minister's express acknowledgement in his Times article that it is essential to "maximise the protection of individuals against arbitrary treatment". We note, however, that neither the Bill as drafted, nor any of the potential Government amendments to it, provide any additional judicial safeguards for the individual.
39. We have explained in detail in previous reports why, in our view, the lack of proper judicial safeguards at extension hearings under the present law amounts to a breach of the right to a judicial hearing in Article 5(4) and to sufficient guarantees against arbitrariness in Articles 5(1) and 5(3) ECHR. The lack of proper judicial safeguards is one of the principal reasons why, in our view, extending the maximum period of pre-charge detention to 42 days, without providing any additional judicial safeguards, would be in breach of the right to liberty in Article 5 and therefore require a derogation from that Article.
Conclusion on adequacy of additional safeguards
40. We are not, therefore, persuaded that the additional safeguards being considered for the Bill, modelled on those in the Civil Contingencies Act 2004, provide sufficiently strong safeguards to meet the human rights concerns that we have expressed about this particular aspect of the Bill.
41. In any event, the nature of one of those concerns is such that no amount of additional parliamentary or judicial safeguards can render the proposal to detain for up to 42 days without charge compatible with the right to liberty in Article 5 ECHR, as we now seek to explain.
Can any additional safeguards prevent incompatibility with the "promptness" requirement in Article 5(2) ECHR?
42. In our earlier reports we have explained in detail why, in our view, the legal framework which will be created by the Bill is both not compatible with the right to liberty in Article 5 ECHR and will inevitably lead to breaches of the rights in Article 5 in individual cases. In our view the Bill is incompatible on its face with the right of a terrorism suspect in Article 5(2) to be informed "promptly" of any charge against him. For a suspect to be informed of the charge against him only after more than 28 days in detention cannot be considered "prompt". We pointed out that we were fortified in this view by the evidence we had heard that terrorism suspects are often provided with very little information about the reasons for their arrest, other than that they are a suspected terrorist, and by the very limited opportunity to challenge the reasons for detention at hearings to extend pre-charge detention. The rationale for the "promptness" requirement in Article 5(2) is to enable the suspect to have an effective opportunity to challenge the lawfulness of their detention before a court. We remain firmly of the view that the Bill is therefore incompatible with Article 5(2) on its face.
43. We acknowledge that there is no decision of the European Court of Human Rights establishing precisely how promptly a suspect must be informed of the charge against him, but we find further support for our view that the Bill is incompatible with Article 5(2) in the recent decision of the European Court of Human Rights in Saadi v UK. In that case the Grand Chamber unanimously found a violation of Article 5(2) of the Convention because a delay of 76 hours in providing reasons for detention was not compatible with the requirement of the provision that such reasons should be given "promptly". Although the case concerned the right to be informed of the reasons for arrest, rather than of the charge, the judgment graphically demonstrates the importance attached by the Grand Chamber of the Court to the promptness of being informed of the genuine reasons for detention.
44. It follows from the above that, in our view, no amount of additional parliamentary or judicial safeguards can render the proposal for a reserve power of 42 days' pre-charge detention compatible with the right to liberty in Article 5 ECHR. In our view, such provision inevitably involves derogation from the right to liberty in Article 5. Inserting safeguards such as those apparently suggested by the Government does not change our view that a derogation from the UK's obligations under Article 5 would be required to make available a reserve power of 42 days pre-charge detention.
9 See in particular Report on 42 Days, paras 24-101; First Report on Counter-Terrorism Bill, paras 10-21; Second Report on Counter-Terrorism Bill, paras 22-26. Back
10 Report on 42 Days, paras 24-33. Back
11 See e.g. "Terror threat to UK is 'growing'", BBC News Online, 13 April 2008; HC Deb 21 April 2008. Back
12 Letter to Director-General of MI5, 5 December 2007, Appendix 8 to Report on 42 Days. Back
13 See e.g. Report on 28 days , paras 29-44. Back
14 PBC, 22 April 2008, col. 57 (Qs 147-8). Back
15 Letter to the Home Secretary, 23 May 2008, Appendix 2. Back
16 Report on Control Orders Renewal, at para. 29. Back
17 See Report on Control Orders Renewal, paras 19-34; Twelfth Report of Session 2005-06, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2006, HL Paper 122, HC 915, paras 13-14; Eighth Report of Session 2006-07, Counter-Terrorism Policy and Human Rights: Draft Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2007, HL Paper 60, HC 365, paras 12-17. Back
18 Second Report on Counter-Terrorism Bill, at para. 20. Back
19 Letter to Home Secretary, 23 May 2008, Appendix 2. Back
20 See e.g. "Brown signals retreat on 42 day detention", The Guardian, 16 May 2008; "Gordon Brown to offer 42 days concessions to Labour MPs", The Telegraph, 25 May 2008; Secretary of State for Justice on the Andrew Marr Show, BBC1, 1 June 2008. Back
21 The phrase used by the Secretary of State for Justice on 1 June 2008. Back
22 Civil Contingencies Act 2004, s. 21. Back
23 Under proposed new para. 39 of Schedule 8 to the Terrorism Act 2000. Back
24 Civil Contingencies Act 2004, s. 27(1)(b). Back
25 Under proposed para. 45(2) of Schedule 8 to the Terrorism Act 2000, as would be inserted by Schedule 2 to the Bill. Back
26 First Report on Counter-Terrorism Bill, para. 13. Back
27 Second Report on Counter-Terrorism Bill, para. 17. Back
28 Application no. 13229/03, 29 January 2008. Back
29 Paras 81-85. Back