Derogation: background

46.  In the course of the debate about the Government's 42 days proposal, it has increasingly stressed that what it seeks is in the nature of a reserve or contingency power, a "backstop" to deal with the truly exceptional situation in which the current exceptional limit of 28 days would not be enough. The Government has often put its case for its 42 days proposal in terms of a need to ensure that the police are ready to deal with a scenario in which multiple incidents occur or multiple plots are discovered at once, tying up the police's finite resources and making it impossible to gather sufficient evidence to charge within 28 days. As Home Office minister Tony McNulty MP graphically put it in a newspaper article, "imagine two or three 9/11s".[30]

47.  We have no difficulty in accepting that a co-ordinated, large-scale attack on a nation's political, military and financial institutions, which of course is what happened on 9/11, constitutes a public emergency threatening the life of the nation. In such an extreme scenario, human rights law already provides the framework in which exceptions from the usually applicable norms are permitted, in the form of derogations. The ECHR provides for such a derogation where there is a "public emergency threatening the life of the nation" and the measures taken are "strictly required by the exigencies of the situation" and consistent with the UK's other international obligations.[31] The right to liberty in Article 5 ECHR is not one of the Convention Rights from which no derogation is permitted.[32] Such a derogation requires a public statement by the Secretary of State that there is an emergency threatening the life of the nation, and of the justification for the measures taken in response to that emergency.[33]

48.  Under the Human Rights Act ("HRA"), the right to liberty in Article 5 ECHR has effect "subject to any designated derogation."[34] The Secretary of State has the power under the HRA to make a "designated derogation order", designating a derogation for the purposes of the Act.[35] The HRA also provides that a designation order may be made in anticipation of the making of a proposed derogation by the UK.[36] Both the derogating measure and the Secretary of State's accompanying derogation order would be subject to judicial review for compatibility with the requirements of Article 15 ECHR, just as the power to detain foreign nationals in the Anti-Terrorism, Crime and Security Act 2001 and the accompanying derogation order were judicially reviewed in A v Secretary of State for the Home Department.[37]

49.  Both the ECHR and the HRA therefore already provide for the possibility, in principle, of extending the period of pre-charge detention in a genuine emergency, in the form of the power to derogate from the right to liberty in Article 5 to the extent strictly required by the particular emergency. We remain firmly of the view that if there is a genuine emergency within the terms of Article 15 of the ECHR the Government should make its case for such a derogation and not seek new legislation.

Incorporating safeguards against improper derogation

53.  This alternative, it seems to us, would provide much more stringent safeguards than are currently proposed by the Government.[38] It would ensure that there was an opportunity for both Parliament and the courts to scrutinise the derogation from Article 5, which in our view is inevitably involved in extending the period of pre-charge detention beyond 28 days.

54.  It would also, we hope, make it more likely that the Government will improve the judicial safeguards at pre-charge detention hearings. The Government will have a greater prospect of persuading a court that the availability of the reserve power to detain pre-charge for up to 42 days is "strictly required" if the judicial safeguards at extended detention hearings are strengthened, so as to ensure that such hearings provide an early and genuine opportunity to mount an effective and meaningful challenge to the reasons why a suspect is being held.

55.  We therefore recommend that the opportunity be taken in the Bill to provide a clear framework for any future derogation from the right to liberty in this particular context. This is not an alternative to, but complements, the other elements in the package of measures we have recommended in our previous reports. We remain of the view that the case for 42 days detention has not been made, that the availability of alternatives makes it unnecessary, and that it would inevitably breach Article 5 ECHR. In our view, however, providing a detailed framework for any future derogation is a human rights compliant alternative to the Government's approach: it both recognises that human rights law can accommodate a wholly exceptional power to extend the pre-charge detention limit in a case of genuine public emergency, and at the same time ensures that the scope of any such future derogation will be strictly confined to that which is permitted by the ECHR. We suggest the following amendments to the Bill to give effect to this recommendation.