Pre-charge detention

I am writing to you both in connection with the proposal in the Government's Counter-Terrorism Bill to introduce a reserve power for the Home Secretary to increase the maximum period of pre-charge detention of terrorism suspects to 42 days.

As you will both be aware, on 21 November 2007 the former Attorney General, Lord Goldsmith, giving evidence to the Home Affairs Committee about the proposal for 90 days pre-charge detention in the 2006 Terrorism Bill, said (Q492)

"if the 90-day proposal had come from the Commons unamended, I would have not found it possible to vote for it in the Lords and that would have had an obvious consequence in terms of my position within government."

Although Lord Goldsmith said (Q500) that his view was not that the proposal for 90 days was illegal, he explained (Q496) that his reason for thinking that 28 days is the right limit was that, to keep somebody in detention without charging them, you need to continue to have reasonable suspicion that they have committed an offence, and that "this is probably required by our international obligations". He thought it unlikely that there could still be a reasonable suspicion if no evidence had been found of any offence after a period as long as 28 days. This is also the view expressed by the DPP in his interview this week with The Times newspaper (The Times, 1 April 2008).

It is also a matter of public record that the Law Officers will be called upon to advise Ministers about the human rights compatibility of measures in Bills in difficult or sensitive cases. As Lord Goldsmith explained in his public lecture, Government and the Rule of Law in the Modern Age, at the LSE on 24 February 2006

"the Minister giving the certificate needs to be satisfied that it is more likely than not that the courts will uphold the proposal as compliant. The Minister's judgment is necessarily made on the basis of legal advice. That advice comes from departmental lawyers, sometimes supplemented by external advice or advice from the Law Officers. The Law Officers will normally only be called upon to advise in the most difficult or sensitive cases. But called upon, we are."

I am sure you would agree that on a matter as significant and sensitive as the proposal to increase the maximum period of pre-charge detention, it is important that Parliament is fully informed about the views of the Law Officers, especially in light of what has subsequently bean learned about Lord Go1dsmith's view at the time of the 90 day proposal.

I would therefore be grateful if you could answer the following questions:

1. Are you persuaded that the case has been made for extending the maximum period of pre-charge detention beyond the current limit of 28 days?

2. If so, what evidence has persuaded you that the current limit of 28 days is inadequate?

3. Are you persuaded that extending the maximum period of pre-charge detention is necessary having regard to the alternatives, including new offences such as acts preparatory to terrorism, charging at the lower threshold of the "threshold test", and post-charge questioning?

4. An you satisfied that the hearings of applications for warrants of further detention are fully adversarial in the sense required by human rights law?

5. Do you disagree with the JCHR's analysis of the human rights compatibility of the 42 days proposal in its Report on the subject, Counter Terrorism Policy and Human Rights:42 Days (Second Report of Session 2007-08, HL 23/HC 156), which I have enclosed, and if so why?

I would be grateful for your response to these questions by Friday 25 April 2008.

Alternatively, if you would prefer to respond to these questions orally, the Committee would be pleased to hear evidence from you on the afternoon of Tuesday 6^th May.