Pre-Charge Detention: Adequacy of Safeguards

As you know, my Committee recently reported on the adequacy of the additional safeguards which the Government indicated it intended to bring forward to meet the human rights concerns about its proposal to extend the maximum period of pre-charge detention to 42 days (42 Days and Public Emergencies). Now that the text of those amendments is available, I am writing to ask a number of questions about the adequacy of those safeguards. It would be useful if your answers could be available in time to inform the parliamentary debate about the amendments on Wednesday.

(1) The trigger: a "grave exceptional terrorist threat"

The Government amendments re-define the "trigger condition" for the reserve power to be brought into effect by the Secretary of State. In the Bill as published, the trigger is a particular terrorism investigation giving rise to an "exceptional operational need" for the reserve power.[6] The Government's amendments require the Secretary of State to be satisfied that "a grave exceptional terrorist threat" has occurred or is occurring before the new 42 day limit can be made available.[7]

A "grave exceptional terrorist threat" is defined[8] to mean an event or situation involving terrorism which causes or threatens

(a) serious loss of human life,

(b) serious damage to human welfare in the UK, or

(c) serious damage to the security of the UK.

Damage to human welfare is further defined to include: human illness or injury; homelessness; damage to property; disruption of a supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health. The event or situation involving terrorism may be outside the UK, and includes "planning or preparation for terrorism" which, if carried out, would cause or threaten one of the harms set out.[9]

A further amendment to the Bill which, according to the Government, tightens the definition of the trigger condition is that the reserve power will only be available in relation to investigations "that relate to the commission by the detained person or persons of a serious terrorist offence."[10] "Serious terrorist offence" is defined to mean an offence under the Terrorism Act 2000 or the Terrorism Act 2006, or any offence that has a terrorist connection, which carries a sentence of life imprisonment.[11]

I note that in his letter to Dominic Grieve, Tony McNulty states that the effect of the Government's amendments redefining the trigger is that the 42 day limit can only be made available if there is a grave exceptional terrorist threat, and the power can only be triggered by an investigation into "the most serious terrorist related offences." The Government argues that its amendment defining the trigger in terms of a grave exceptional terrorist threat is an important new safeguard which ensures that the power to extend detention to 42 days could only be used in very exceptional circumstances.

It appears, however, that the Secretary of State's power to extend the maximum period of pre-charge detention to 42 days would remain extremely broad even after the Government's amendments, for two main reasons.

First, the definition of a "grave exceptional terrorist threat" is extraordinarily broad and includes events or situations which fall well short of constituting a genuine emergency in any meaningful sense of that word. A terrorist threat is always grave, given the seriousness of the harm which it might cause, and there is nothing in the definition of "grave exceptional terrorist threat" to confine the reserve power to situations such as "two or three 9/11s on one day" or the other extreme scenarios which the Government has said it wishes to ensure are provided for.

Second, the definition of a "serious terrorist offence" is also extremely broad. The new offence of "acts preparatory to terrorism", for example, carries a maximum sentence of life imprisonment, and virtually any terrorism investigation will include an investigation into the possibility that the suspect has committed that offence. This makes the definition of the trigger in the Bill very much wider than that in the Civil Contingencies Act.

I am therefore concerned that the Government's definition of the "exceptional" nature of the threat fails to provide any guarantee that the power will only be used in truly exceptional circumstances. Not only does it fall well short of any meaningful sense of being an "emergency power", it is so broad as to make the power in principle capable of being applied in relation to virtually any terrorism investigation. It seems quite clear, for example, that the new trigger condition of a "grave exceptional terrorist threat" would have been satisfied in relation to the investigation into the alleged Heathrow bomb plot in 2006. In that case three suspects were released without charge towards the very end of the 28 day period. Had the 42 day period been available, it is possible that they might have been detained for even longer before being released without charge.

I would be grateful for your answer to the following questions:

Q1. Is it correct that it will be within the Secretary of State's power to make the reserve power available in relation to any investigation of a terrorism offence or offence with a terrorism connection which carries a maximum sentence of life imprisonment?

Q2. Given the seriousness of terrorism, is it not the case that every investigation into a possible terrorism offence or offence with a terrorism connection, may result in the suspect being charged with an offence which carries a possible sentence of life imprisonment?

Q3. Would the "grave exceptional terrorist threat" requirement, as defined in the Government's amendment, have been satisfied in the case of the investigation into the alleged Heathrow bomb plot?

(2) Parliamentary scrutiny

I note that the Government argues that it is strengthening the role of Parliament by its amendment which brings forward the vote in Parliament to within seven days of the order being made, instead of 30 as in the original Bill.[12]

My Committee commented on this likely Government amendment in its most recent report on 42 Days and Public Emergencies.[13] The Government's amendment strengthens Parliament's role to the extent that it meets the objection to the provision in the original Bill[14] that the entire 42 days period would have expired by the time Parliament debates whether the reserve power to extend it should have been made available by the Secretary of State. However, as the Committee pointed out in both its Second Report on the Bill and its most recent Report, the Government amendment does 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.

Now that the text of the Government's amendments is available, I am concerned that the scope of any parliamentary debate will be even more circumscribed than the Committee has previously appreciated. This is because the test to be applied by the Secretary of State when deciding whether or not to make the order to make the reserve power available (and therefore by Parliament when it considers whether or not to approve the order), is in important respects identical to the test which will have to be applied by the court when deciding whether to authorise further detention of an individual suspect. There is therefore a risk that the parliamentary debate will not only prejudice possible future trials, but will prejudge some of the very issues which a court will have to decide very shortly afterwards, when an application is made to a court to extend the detention of the suspects who are already being investigated.

The questions for the court which is asked to extend pre-charge detention in relation to a particular suspect are whether (a) there are reasonable grounds for believing that the further detention is necessary and (b) the investigation is being conducted diligently and expeditiously. Further detention is necessary for these purposes if it is necessary:

(a) to obtain relevant evidence, whether by questioning him or otherwise;

(b) to preserve relevant evidence, or

(c) pending the result of an examination or analysis of any such evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining such evidence.[15]

To bring the reserve power into effect, under the Bill as the Government proposes to amend it, the Secretary of State must be satisfied that it is "needed for the purpose of investigating the threat and bringing to justice those responsible."[16] That decision will be made in light of the report from the DPP and police that they are satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the following purposes:[17]

(a) to obtain, whether by questioning or otherwise, evidence that relates to the commission by the detained person or persons of a serious terrorist offence,

(b) to preserve such evidence, or

(c) pending the result of an examination or analysis of any such evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining such evidence.

The DPP and police must also be satisfied that "the investigation in connection with which the detained person or persons is or are detained is being conducted diligently and expeditiously." These are the same questions as the court will have to decide in due course.

Before making an order making the reserve power available, the Secretary of State is also required to obtain independent legal advice as to whether she can be properly satisfied of various matters. Those matters include that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible.[18] In order to be able to advise the Secretary of State about the need for the reserve power in this sense, the independent lawyer will have to ask the same questions as the DPP and police address in their report, which are also the same questions as the court itself will have to ask when deciding whether or not to grant a further extension of detention in relation to the particular suspect.

The Secretary of State then has to decide, in the light of this material, whether she is satisfied that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible. If she is satisfied of that and the other relevant matters, she may make the order declaring the reserve power to be exercisable, and must lay before Parliament both a copy of the independent legal advice, and a statement containing such of her reasons for her decision as she considers appropriate. Neither the legal advice nor the Secretary of State's statement should contain any material which might prejudice the prosecution of any person.

So the scheme of the Bill, with the Government's amendments, is:

(1) the DPP and police make a report to the Secretary of State in essentially the same terms as they will later make an application to court to extend the individual suspect's detention;

(2) An independent lawyer advises the Secretary of State on essentially the same issues as the court will later have to determine;

(3) The Secretary of State decides whether to make the order, which requires her to be satisfied of the same matters as the court will later have to be satisfied;

(4) Parliament decides whether to approve the order.

I am concerned by the extent to which the Bill seeks to give, in the first place to the Secretary of State and then to Parliament, what is really, by its nature, an inherently judicial function, namely the power to determine whether the further detention of an individual suspect is necessary. In order to avoid pre-judging the very issues which the court will be asked to determine shortly after Parliament approves the order, the material before Parliament (including the independent legal advice) will therefore have to be limited and the parliamentary debate itself will also have to be correspondingly circumscribed, avoiding any consideration of whether the further detention of the particular suspect or suspects is necessary.

Q4. Is it acceptable in your view for Parliament to debate whether there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary, or whether the investigation is being conducted diligently and expeditiously?

Q5. If not, how can Parliament debate in any meaningful sense whether the reserve power is needed?

(3) Parliamentary review

The Government's proposal provides that the statutory reviewer of terrorism legislation will report within 6 months of the reserve power ceasing to be available, and the report will cover matters such as whether it was reasonable in all the circumstances for the Home Secretary for make the order bringing the extended 42 day period into effect. A parliamentary debate would take place on the reviewer's report.

Q6. How will a parliamentary debate on the reviewer's report be able to provide a meaningful safeguard, when any such debate will almost certainly take place before any trial of the suspects who were the subject of the extension and therefore be severely circumscribed by the need not to prejudice any future trials?

(4) Judicial safeguards for the individual

As my Committee has said in its reports, decisions concerning the liberty of particular individuals require judicial not parliamentary safeguards. Neither the Bill, nor the Government's amendments, however, do anything to improve the judicial safeguards surrounding the extension of pre-charge detention. The Committee has found those safeguards to be inadequate because of the power both to exclude the suspect and their lawyer and to withhold from them information which is seen by the judge.

Q7. Why did you decide not to include any additional judicial safeguards for the individual at the hearings for extension of further detention when this was something on which you explicitly consulted?

(5) Duration

One of the Government's amendments reduces the time the 42 day limit is available from 60 days to 30 days.[19]

Q8. What is the value of this as a safeguard when the new clause also provides that "nothing in this section prevents the making of a new order", which was not in the original Bill?

(6) Judicial review

I note that the letter from the Minister states that "the decision of the Home Secretary [to declare that the reserve power is exercisable] would be subject to judicial review." The possibility of judicial review of the Secretary of State's order making the reserve power exercisable is in principle an important safeguard against its wrongful use. The Government's clarification that the lawfulness of the Secretary of State's order will be controlled by the courts is therefore welcome. However, the Government's amendments leave considerable uncertainty about two things:

(i) whether a court could quash the order for incompatibility with the right to liberty under the HRA; and

(ii) the precise grounds on which judicial review of the order could be sought.

(i) Can courts quash the order for breach of the right to liberty in Article 5 ECHR?

The first uncertainty concerns whether the order can be quashed by the courts on judicial review on the ground that it is incompatible with the right to liberty in Article 5 ECHR. This is an important question because breach of Article 5 is likely to be one of the main grounds on which any challenge to the lawfulness of the order could be made.

Under the Human Rights Act, subordinate legislation which is incompatible with a Convention right can be quashed by the courts. Primary legislation, however, cannot be quashed by the courts if it is found to be incompatible with a Convention right, it can only be declared incompatible.[20] A declaration of incompatibility leaves the provision in question in force until Parliament decides to repeal or revoke it.

The Secretary of State's order declaring the reserve power exercisable looks to all intents and purposes like subordinate legislation. However, the Human Rights Act defines "subordinate legislation" for the purposes of that Act to mean "any … order … made under primary legislation (except to the extent to which it operates to bring one or more provisions of that legislation into force)".[21] It is not clear from the Bill or the Government's amendments whether, for the purposes of the Human Rights Act, the Secretary of State's order declaring that the reserve power is exercisable is an order bringing the reserve power in the primary legislation into force. If it is such an order, it constitutes primary legislation for the purposes of the HRA and cannot be quashed if it is found by the courts to be incompatible with the right to liberty in Article 5.

In the Civil Contingencies Act, there is an express provision to make clear that emergency regulations made under that Act "shall be treated for the purposes of the Human Rights Act 1998 as subordinate legislation and not primary legislation (whether or not they amend primary legislation)."[22] That provision was inserted by the Government in response to concerns expressed by the JCHR and others about whether emergency regulations could be quashed by the courts under the Human Rights Act. There is no equivalent provision in relation to the order making the reserve power available in the Counter-Terrorism Bill.

In view of this uncertainty, I would be grateful if you could clarify by answering the following questions:

Q9. Is it the Government's intention that the Secretary of State's order declaring that the reserve power is exercisable is primary or subordinate legislation for the purposes of the Human Rights Act?

Q10. If the Government intends that courts should be able to quash the Secretary of State's order if it is incompatible with Convention rights, what is the Government's reason for not including in the Bill an equivalent provision to that in the Civil Contingencies Act, making clear that the Secretary of State's order shall be treated for the purposes of the Human Rights Act as subordinate legislation and not primary legislation?

(ii) On what grounds can the order be challenged in court?

The second uncertainty about the scope for judicial control concerns the grounds on which the Secretary of State's order could be judicially reviewed.

Under the Bill, there are two preconditions to the making of an order by the Secretary of State declaring that the reserve power is exercisable:

(1) an order extending the maximum period of pre-charge detention to 28 days[23] must already be in force; and

(2) the Secretary of State must have received the necessary report from the DPP and the police stating the operational need for a further extension.

It is clear that these are preconditions to the exercise of the power: New Clause 21(2) provides expressly "No such order may be made unless-". The order could clearly be challenged by way of judicial review on the basis that one of these conditions was not satisfied and the order is therefore unlawful for that reason.

The Bill also provides that the Secretary of State must lay a statement before Parliament, after making the order, stating that she is satisfied of four things:

(a) that a grave exceptional terrorist threat has occurred or is occurring;

(b) that the reserve power is needed for the purpose of investigating the threat and bringing to justice those responsible;

(c) that the need for that power is urgent; and

(d) that the provision in the order is compatible with Convention rights.

However, the Bill does not provide that these are preconditions to the exercise of the power. They are merely matters in respect of which the Secretary of State must state to Parliament that she is satisfied.

Under the Civil Contingencies Act, by comparison, there is power to make emergency regulations if the Minister is satisfied that three prescribed conditions are satisfied:[24]

(a) that an emergency has occurred, is occurring or is about to occur;

(b) that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency; and

(c) the need for the provision is urgent.

The Civil Contingencies Act also provides for the maker of the emergency regulations to make a statement at the beginning of the regulations declaring that they are satisfied that the specified conditions are met.

It is not clear, therefore, whether, under the Counter-Terrorism Bill, the Secretary of State's order declaring that the reserve power is exercisable is subject to judicial review on the basis that these conditions are not satisfied, or only on the narrower basis that the Secretary of State's decision that she is satisfied of those things is so unreasonable that no reasonable Secretary of State could have reached that view (a very high threshold which it is quite difficult to meet in judicial review proceedings).

Again, I would be grateful if you could clarify by answering the following questions:

Q12. Can the Secretary of State's decision be judicially reviewed on the basis that

(a) a grave exceptional terrorist threat has not occurred or is not occurring;

(b) the reserve power is not needed for the purpose of investigating the threat and bringing to justice those responsible; or

(c) the need for the power is not urgent?

Q13. If not, is the Secretary of State's decision only judicially reviewable on the basis that her decision on each of those matters was so unreasonable that no reasonable Secretary of State could have made that decision?

Q14. Is the degree of judicial control of the Secretary of State's decision making the reserve power available intended to be any weaker than the judicial control of emergency regulations made under the Civil Contingencies Act?

(7) Independent legal advice

I note that the Government's amendments include a new requirement that the Secretary of State obtain independent legal advice, from a non-government lawyer, as to whether she can properly be satisfied of the various matters of which she must be satisfied before making the 42 day power available.[25] That advice must be laid before Parliament[26] as soon as practicable after the order is made, except to the extent that it contains material which would be damaging to the public interest or might prejudice the prosecution of any person.[27]

The central question to be addressed by such legal advice will be whether the reserve power is needed for the purpose of investigating the threat and bringing the perpetrators to justice. This will involve the independent lawyer considering the very same questions as have to be determined by the court which will hear any application for an extension of detention. This will be the heart of the independent legal advice but it will be material which should not be laid before Parliament because it directly prejudges the very issues which will have to be determined at the application for judicial authorisation of extended detention which would follow if Parliament approved the Secretary of State's order.

Q15. Please explain how this will provide a meaningful safeguard when the most important parts of the legal advice will have to be withheld from Parliament.

(8) Notification of chairmen of certain committees

The Government's amendments provide that on making the order the Secretary of State must notify the chairs of the Home Affairs Committee, the JCHR and the Intelligence and Security Committee and, as soon as reasonably practicable, provide them with copies of the report from the DPP and police and of the independent legal advice on Privy Council terms (or corresponding terms if not a Privy Counsellor).[28]

I am concerned that in practical terms this will not operate as much of a safeguard. Disclosure on Privy Council terms would limit considerably the use which can be made of the information. The chairs of the relevant committees will not be able to take advice on the information they receive, including any legal advice in relation to the independent legal advice received by the Secretary of State. Nor will it be possible for the chair to share the information with the rest of their Committee.

Q16. How do you propose the Committee chairs can take advice on the information they receive, or consider it with other members in Committee, if they receive it on Privy Council terms?

7   NC25(2)(a). Back

8   NC20(1). Back

9   NC20(3). Back

10   NC22(3)(a). Back

11   NC22(4). Back

12   NC26. Back

13   Paras 33-36. Back

14   See First Report on the Counter-Terrorism Bill at para. 13. Back

15   Para 32(1) and (1A) of Schedule 8 to the Terrorism Act 2000. Back

16   NC25(2)(b). Back

17   NC22(2)(a) and (3) Back

18   NC23(1). Back

19   NC28. Back

20   Under s. 4 HRA 1998. Back

21   S. 21(1)(f) HRA 1998. Back

22   Civil Contingencies Act 2004, s. 30(2). Back

23   Under s. 25 of the Terrorism Act 2006. Back

24   The power to make emergency regulations is in s. 20 Civil Contingencies Act 2004. The conditions for making emergency regulations are specified in s. 21. Back

25   NC23. Back

26   NC23(6). Back

27   NC23(7). Back

28   NC24(1)-(3). Back