Pre-charge detention

Thank you for your letter of 3 April to me and to Vera Baird. You ask for our views on a number of issues related to the Government's proposal to enable the maximum period of pre-charge detention of terrorism suspects to be increased to 42 days in future if there is an exceptional need to so do, including the compatibility of the proposal with the ECHR.

So far as the policy justification for the proposal is concerned, the Government has made clear its position on a number of occasions — not least in response to questions from your Committee.

As to the legal position, you will be aware of the long-standing convention, set out in the Ministerial Code, that neither the fact that the Law Officers have advised (or have not advised), nor the content of any advice they may have given, is disclosed outside Government. That convention would clearly be undermined if the Law Officers were simply required to give their views publicly on issues which they may (or may not) have advised the Government, or be called on to do so.

The Government recognises that Parliament and the public are entitled to an explanation of the legal basis for key actions and decisions. This does not entail disclosing the legal advice received by Government, whether from the Law Officers or any other lawyer.

The Government has recently reaffirmed its position on these questions in the White Paper The Governance of Britain — Constitutional Renewal (see paragraphs 66-69).

In this case, the Home Secretary has signed a certificate under section 19 of the Human Rights Act 1998 to the effect that she considers the provisions in the Terrorism Bill (including those on pre-charge detention) to be compatible with the Convention Rights; and the Home Office has set out, in the Explanatory Notes to the Bill, the basis on which it considers those provisions to be compatible. Hence Parliament has received an explanation of the Government's position on these issues.