Counter-Terrorism Bill

This letter responds to the recommendations made in the report by the Joint Committee on Human Rights on the Counter-Terrorism Bill published on 5 June 2008.

Recommendation 1

It remains our view, expressed consistently in previous reports, that the Government has failed to make its case for further extending the maximum period of pre-charge detention and that there is therefore no need to make any provision for the extension of the current maximum. We explain why the safeguards in the Bill, even after the potential Government amendments, are inadequate to protect individuals against the risk of arbitrary detention. We also spell out explicitly all the necessary safeguards in the event that the public emergency, which is the premise of the Government's proposal, were ever to materialise.

I have explained the threat facing the country in my letter to you of 6 June in response to the JCHR report of 14 May 2008.

Recommendation 2

We still have not seen any evidence which demonstrates that the threat level is growing. (Paragraph 6) 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.

I have given the evidence which explains the threat from terrorism is increasing in my letter to you of 6 June. I would direct you particularly to my response to recommendation 3(c) in that letter.

Recommendation 3

We recommend that the Home Secretary make the information [about the operation of the extended period of pre-charge detention since its last renewal] 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.

The Home Secretary wrote to you on 4 June 2008 with the information on the operation of the extended period of pre-charge detention since its last renewal.

Recommendation 4

We look forward to a response to our queries [about improved parliamentary review of pre-charge detention] in time to inform debate at Report stage. (Paragraph 18) 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.

The Government does not consider this to be necessary and that the current situation remains appropriate. The reviewer's role and responsibilities are set out in section 36 of the Terrorism Act 2006. We do not believe a panel of reviewers is required to fulfil this role. Lord Carlile of Berriew QC has done, and continues to do, an excellent job as the independent reviewer of terrorism legislation.

Recommendation 5

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.

We agree that it would not be appropriate to use the Civil Contingencies Act to extend the pre-charge detention limit in terrorist cases. Our proposals tabled on 3 June amend the Civil Contingencies Act to make it clear that that Act cannot be used to extend pre-charge detention in terrorist cases.

The definition of grave exceptional terrorist threat which we now propose would cover events or situations similar to the bombings in July 2005, or a plot to blow up a shopping centre or a plot to commit terrorist atrocities overseas involving serious loss of life.

We do not think that any of these are covered by the Civil Contingencies Act definition of an emergency. But we must cover such events or situations in the event of a grave exceptional terrorist threat and the potential need to detain suspects beyond 28 days in order to investigate the threat and bring to justice those responsible.

Recommendation 6

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.

After making the order to increase the pre-charge detention period, the Home Secretary must lay before Parliament a statement that she is satisfied among other things that there is a grave exceptional terrorist threat. This is defined as an event or situation which causes or threatens serious loss of human life or serious damage to human welfare in the UK or to the security of the UK. At the same time she must lay before Parliament legal advice obtained from outside Government that that she can properly be satisfied of the matters contained in her statement.

The order by the Home Secretary to bring the reserve power into force is debated by Parliament. Unless each House passes a resolution approving the order, it lapses seven days after the date on which it was laid before Parliament. If this were to happen, anyone who had been held for over 28 days would need to be released immediately but their detention up to that point would not be unlawful.

Recommendations 7 and 8

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.

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.

Parliament will be able to debate the decision to trigger the extension of pre-charge detention. Under the new proposal tabled by the Government on 3 June, the role of Parliament is to approve the Order making extended pre-charge detention available. This may involve a debate on whether the Home Secretary correctly assessed the existence of a grave exceptional terrorist threat as defined, as well as whether the reserve power is urgently needed to investigate the threat and bring to justice those responsible, and is compatible with the Convention rights.

Obviously some information on the threat cannot be disclosed. However we understand that there would be a need for Parliament to hold as informed a debate as possible. We have also proposed to notify the Chairs of the Joint Committee on Human Rights, the Home Affairs Select Committee and the Intelligence Services Committee, on Privy Council terms, that the order has been made forthwith and also as soon as reasonably practicable provide them with full versions of both the DPP/police report and the legal advice obtained from outside government. This will provide added assurance to Parliament that the power has been properly and responsibly exercised.

The courts, in contrast, assess on a case by case basis whether the police and CPS need more time to collect, preserve or examine evidence in order that a charge may be brought against an individual, it is also for the court to be satisfied that the investigation is proceeding diligently and expeditiously.

Recommendation 9

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.

We believe that the proposal already contains adequate safeguards which ensure we comply with our human rights obligations, whilst also creating a reserve power which can properly protect the public.

The judicial safeguards in the Bill provide that individual detention beyond 28 days would, as under present proposals, be considered by a judge (as it is for detention up to 28 days). Any application for an extension beyond 28 days would require DPP approval.

The judge may issue a warrant of further detention only if he is satisfied that there are reasonable grounds for believing that the further detention of the person to whom the application relates is necessary for the investigation into a serious terrorist offence (one carrying a life penalty) and that the investigation is being conducted diligently and expeditiously.

Recommendations 10, 11 and 12

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.

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 met the human rights concurs that we have expressed about this particular aspect of the Bill.

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 fight 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.

We are satisfied that the proposals fully comply with Article 5 ECHR. Article 5(1) (c) of the ECHR permits deprivation of liberty in the case of "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence". There has been no case where the detention of a terrorist suspect being held under the existing maximum period of pro-charge detention has found to be incompatible or unlawful. Pre-charge detention is subject to regular judicial overnight, complying with the requirement in Article 5(3) that such a person be brought promptly before a judge or other officer authorised by law to exercise judicial power. At these hearings a detainee may challenge the lawfulness of his detention, as required by Article 5(4) ECHR. Therefore we do not think it is necessary to derogate from our obligations under article 5 ECHR.

The Government does not believe the extension of pm-charge detention beyond 28 days raises any new human rights issues.

It is already open to any suspect to argue that his detention is in breach of the Human Rights Act, and the OPS, police and courts are all subject to the requirements of that Act

Recommendation 13

As we have made clear above, we remain firmly of the view that the Government has not made out Its case for changing the law to extend the maximum period of pre-charge detention to 42 days. Our clear recommendation therefore remains the deletion of the relevant provisions from the Bill, as we recommended In our last report.

We are proposing a reserve power that could only be used in very exceptional circumstances, only with the support of the Director of Public Prosecutions, and it could only continue with the backing of Parliament in a vote in both Houses following a statement by the Home Secretary and with the benefit of legal advice from outside Government, only subject to judicial supervision and only for a temporary period before automatically lapsing.

Recommendations 14, 15 and 16

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 [from Article 5 ECHR] and not seek new legislation.

As we stated in paragraph 45, above, the Government has not made its case for any increase in the period of pre-charge detention. There is a case for legislation which would provide in advance a detailed framework for the exercise of the power to derogate from particular rights in a particular context in a public emergency. Indeed, such legislation could be beneficial by enshrining clearly into law the requirements which must be met in order for such a derogation to be valid, and ensuring that the necessary safeguards against disproportionate exercise of the derogating power are already in place in advance of the power being used. In our view, this would be positively beneficial from a human rights perspective by ensuring that the necessary safeguards are firmly in place. (Paragraph 50) This alternative, it seems to us, would provide much more stringent safeguards than are currently proposed by the Government. 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.

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.

As I have made clear above, our proposal is compatible with our obligations under article 5 ECHR. There is no need to derogate from the Convention to bring the reserve power into force, because extension of pre-charge detention beyond 28 days raises no new legal issues.

Recommendation 17

We urge the Minister to meet the special advocates to discuss our recommendations and to report to Parliament on the outcome of that meeting.

I wrote to you on 4 June 2008 confirming that I am happy to have a further meeting with representatives of the special advocates to discuss control orders legislation and the JCHR's concerns. The outcome of this meeting will be reported to Parliament.

Recommendation 18

We welcome the Government's proposal to place the disclosure and use of Information by the intelligence services on a statutory footing, as a potentially human rights enhancing measure.

Clauses 19—21 do not provide a new legal basis for the acquisition and disclosure of information by the intelligence and security agencies. In fact, there are already statutory provisions regulating the acquisition and disclosure of information in the governing legislation of the intelligence and security agencies, i.e. the Security Service Act 1989 and the Intelligence Services Act 1994. For convenience, these provisions are:

Security Service Act 1989 extract:

…Section 2(2) The Director-General shall be responsible for the efficiency of the Service and it shall be his duty to ensure—

(a) that there are arrangements for securing that no information is obtained by the Service except so far as necessary for the proper discharge of its functions or disclosed by it except so far as necessary for that purpose or for the purpose of [the prevention or detection of] serious crime [or for the purpose of any criminal proceedings];…

Intelligence Services Act 1994 extracts:

…Section 2(2) The Chief of the Intelligence Service shall be responsible for the efficiency of that Service and it shall be his duty to ensure—

(a) that there are arrangements for securing that no information is obtained by the Intelligence Service except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary —

(i) for that purpose;

(ii) in the interests of national security;

(iii) for the purpose of the prevention or detection of serious crime; or

(iv) for the purpose of any criminal proceedings;…

…section 4(2) The Director shall be responsible for the efficiency of GCHQ and it shall be his duty to ensure—

(a) that there are arrangements for securing that no information is obtained by GCHQ except so far as necessary for the proper discharge of its functions and that no information is disclosed by it except so far as necessary for that purpose or for the purpose of any criminal proceedings;…

Broadly speaking, the effect of these provisions is that the intelligence and security agencies may only obtain or disclose information where this is necessary for the proper performance of their statutory functions (functions which are set out in the two pieces of legislation referred to above). Clause 20 (1) makes it clear that clause 19 does not affect the above provisions, and that these remain the regulating provisions for the acquisition and disclosure of information by the intelligence and security agencies.

The purpose of clauses 19 to 21 is to clarify, and remove any doubt over, the ability of the intelligence and security agencies to obtain, use and disclose information, rather than to provide any new statutory footing for such activities.

In addition, clause 19(6)(a) articulates the existing common law position that a disclosure of information made to one of the intelligence and security agencies for the purposes of their statutory functions will not breach any duty of confidence owed by the person making the disclosure. This reflects the existing common law position that a duty of confidence can be overridden where a greater public interest exists, such as countering terrorism or the protection from other national security threats. Clause 19(6)(b) also disapplies, for the avoidance of doubt, any other restriction on disclosures to the intelligence and security agencies.

Recommendation 19

We cannot accept the Government's argument that the existing safeguards are working well and there Is therefore no need for express safeguards to accompany the statutory power to acquire, use and disclose information.

Our view is that the following interlocking oversight and governance mechanisms are working well. The mechanisms are:

The roles and activities of the intelligence and security agencies are set within a strict statutory framework that include:

The Security Service Acts 1989 and 1996,

The Intelligence Services Act 1994, and the

The Regulation of Investigatory Powers Act 2000 that governs the use of covert investigatory techniques that form a major part of the intelligence and security agencies' activities.

Furthermore, the intelligence and security agencies are subject to particular provisions of the Official Secrets Act 1989. The intelligence and security agencies are also subject to the Data Protection Act 1998.

The intelligence and security agencies are subject to oversight by the independent Intelligence Services Commissioner and the independent Interception of Communications Commissioner. In both cases, by law the Commissioner must hold, or have held, high judicial office and report directly to the Prime Minister who in turn is under a statutory duty to publish the report in each House of Parliament excluding only that information that would be contrary to the public interest or prejudicial to (a) national security, (b) the prevention and detection of serious crime, (c) the economic well-being of the UK, or (d) the continuing discharge of any public authority whose activities include activities that are subject to review by that Commissioner.

Any one who is aggrieved by conduct that he or she believes to have been carried out by or on behalf of any of the intelligence and security agencies in relation to him or her or his or her property may complain to the independent Investigatory Powers Tribunal. The Tribunal has full powers to investigate any complaint and where it upholds a complaint may order any remedy that it sees fit. In particular, the Tribunal is the appropriate forum for the purposes of section 7 of the Human Rights Act for proceedings against the intelligence and security agencies. The members of the Tribunal must hold, or have held, high judicial office.

By law, members of the intelligence and security agencies must co-operate with the Commissioners and the Tribunal.

The intelligence and security agencies are subject to the parliamentary oversight of the Intelligence and Security Committee (ISC). The statutory role of the ISC is set out in the Intelligence Services Act 1994 and it is expressed in the same terms as a departmental select committee, i.e. to examine the expenditure, administration and policy of the three intelligence and security agencies. The nine members of the committee are drawn from both Houses of Parliament and are appointed by the Prime Minister after consultation with the Leader of the Opposition. The Committee reports annually to the Prime Minister who is under a duty to lay the report before both Houses of Parliament but may exclude, after consultation with the Committee, any matter that would be prejudicial to the continued discharge of one of the agencies. There are provisions to allow a Head of Agency not to disclose information to the Committee if it is "sensitive" or because the Secretary of State has determined that it should not be disclosed.

The Intelligence and security agencies are subject to scrutiny by the National Audit Office.

Not least, the intelligence and security agencies come under the authority of the Secretary of State. This is the Foreign Secretary for the SIS and GCHQ and the Home Secretary for the Security Service. Secretary of State oversight includes regular meetings with Heads of Agency, visits to HQ buildings (Home Secretary visited Thames House on 5 June 2008), daily contact between agency and sponsoring departmental officials who advise the Secretary of State on such things as warrantry applications, the scrutiny of the Heads of Agency statutory annual report, the consideration of annual performance reports and whether Public Service Agreement (PSA) targets have been meet

Against this background the Government is confident that there are more than adequate safeguards for the way the intelligence and security agencies currently work.

Recommendation 20

in our view, clauses 19-21 of the Bill provide a formal legal basis for the disclosure and use of information by the intelligence services, but they fail to provide sufficient substantive legal safeguards to guarantee against the arbitrary and disproportionate use of the power to disclose and use such information.

The report fails to recognise that clauses 19-21 do not create a new legal basis for the acquisition, use and disclosure of information. This basis already exists in the Security Service Act 1989 and the Intelligence Services Act 1994 as detailed above. Additionally, to understand the many safeguards that apply to the intelligence and security agencies it is necessary to consider the full range of governance and oversight arrangements as set out above.

For example, the Regulation of Investigatory Powers Act 2000 contains its own safeguards relating to the obtaining, use and disclosure of information from covert and intrusive investigative techniques and, of course, the intelligence and security agencies have to comply with these safeguards when employing the relevant techniques.

Recommendation 21

We therefore recommend that clause 20(2) of the Bill be amended to provide that nothing in clause 19 authorises a disclosure that breaches (1) the Human Rights Act (2) UNCAT and (3) any other relevant international obligation concerning the disclosure and use of information.

The proposed amendment would not have the effect intended. The intelligence and security agencies are already under a duty not to disclose information except where this is necessary for the performance of their statutory functions and for certain other defined purposes

In addition, the intelligence and security agencies are subject to and act in accordance with the Human Rights Act 1998.

As to torture and similar activity, the Government unreservedly condemns the use of torture as a matter of fundamental principle and works hard with its international partners to eradicate this abhorrent practice worldwide.

The UK security and intelligence agencies do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment for any purpose, including obtaining information. Nor would the security and intelligence agencies instigate others to do so. The Government abides by its commitments under international law, including the UN Convention against Torture and the European Convention on Human Rights, and expects all other countries to comply with their international obligations.

The provenance of intelligence received from foreign services is often obscured. Where it is clear it has been obtained from individuals in detention, such intelligence is carefully evaluated. The prime purpose for which the intelligence and security agencies need intelligence on counter terrorism targets is to avert threats to British citizens' lives. Where there is reliable intelligence bearing directly on such threats, it would be irresponsible to reject it out of hand.

Recommendation 22

We also recommend the insertion of further safeguards to require the intelligence services to take active steps to ascertain whether information it is acquiring was obtained by torture.

The proposed requirement - of requiring every acquisition of information, obtained by the intelligence and security agencies, for the purpose of any criminal proceedings, from authorities or persons outside of England and Wales, be accompanied by a statement setting out the steps taken to ascertain the circumstances in which the information was obtained and that it had not been obtained by torture — is simply unworkable and unnecessary.

The intelligence and security agencies are not primarily crime investigation or evidence gathering organisations. Their main area of activity is protecting national security. While they support law enforcement on combating serious crime it would be unusual for the agencies to be used as a conduit for overseas evidence to be used in a UK court.

UK law also already contains extensive safeguards in relation to evidence obtained by torture. The Courts will have regard to the UK's international obligations, including under the European Convention on Human Rights and the Convention against Torture, in exercising these powers. No matter how well intended, the amendment would not add to those safeguards — least of all because clause 19 is not a new and exclusive information gateway for the intelligence and security agencies (see the explanation given in the response to Recommendation 18).

At one level the amendment is unworkable given the intrinsic difficulty of proving a negative - the information had not been obtained by torture! In the vast majority of cases a definitive assurance would not be possible. Rather than to go into an unnecessarily long explanation here, it would be better to consider the detailed consideration of such matters by the House of Lords in their Judgement of the case of A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) (2004) and A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent) (Conjoined Appeals) - reference [2005J UKHL 71.

Another reason why the proposal is unworkable is that the intelligence and security agencies often carry out their work under considerable time pressure. The sheer bureaucracy that would be created by this proposal would impede the rapid acquisition and dissemination of what could be time critical intelligence.

Furthermore, even the limited volume of evidential information involved would make such a proposal impractical to implement. Such a requirement would hamper the intelligence and security agencies in doing their vital work and would divert valuable resources away from that important work.

Lastly, and perhaps least, the proposed amendment is unworkable due to construction. As drafted, SIS officers serving aboard or Security Service officers in Northern Ireland or Scotland would have to produce such statements for each item of information and intelligence obtained. Technically, this would include relevant local items of media reporting that the officer had obtained and wished to share with a departmental official.