Pre-Charge Detention: Adequacy Of Safeguards

Thank you for your letter of 9 June on pre-charge detention proposals in the Counter-Terrorism Bill. The answers to the questions raised in your letter are given below.

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?

After making the order, the Home Secretary must be in a position to state that she is satisfied there is a grave exceptional terrorist threat and that the power is needed to investigate that threat and bring those responsible to justice. It is in that context that the power is made exercisable and the order may only be made available if there is a report as required under the proposed new clause 22 from the DPP/police. This can only be made in relation to persons being questioned for a serious terrorist offence). The reserve power could not, therefore be made available simply because the police were investigating a terrorism offence that carries a sentence of life imprisonment. For example, it could not be used in relation to an investigation into a plot to kidnap and maim a group of people because this would not constitute serious loss of human life or serious damage to human welfare or the security of the UK.

However it is correct that once the order is in force it is available in relation to those suspected of the commission of a serious terrorist offence. It is not practical to limit the operation of the power to those suspected of involvement in a specific terrorist threat. In a fast-moving situation, multiple conspiracies or other threats could be revealed and it would be impractical in those circumstances to be required to make multiple, possibly overlapping, orders. The order will in any event expire after 30 days and then only if it has been approved by a resolution of each House of Parliament within seven days of the order being laid before Parliament.

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?

No. An investigation into membership of a proscribed organisation, fundraising for terrorist purposes, the provision of false passports (for terrorist purposes), the encouragement of terrorism or the dissemination of terrorist publications or the provision or receipt of weapons training would not involve offences carrying a 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?

The alleged airline plot would be covered by 'grave exceptional terrorist threat', as it involved terrorism which threatened serious loss of human life inside or outside the UK. In our view it is absolutely right that it should be so covered.

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?

It would not be for Parliament to debate whether there were reasonable grounds for believing that any individual should be detained or whether a particular investigation into an individual was being conducted diligently and expeditiously. These are matters for the police, prosecutors and the courts. The report from the DPP/police to the Home Secretary will address these issues as part of the information that is necessary to enable the Home Secretary to decide whether the reserve power should be made available.

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

Parliament can have a full and meaningful debate on whether the reserve power should be made available. Although they will not be able to discuss the details of individual suspects, Parliament will be able to fully discuss and, if so minded, approve the order commencing the reserve power. In doing so, Parliament could debate the general security threat, the progress of the investigation, the police numbers involved, the number of suspects detained, the outline of the plot, the number of countries involved and whether the Home Secretary's decision was properly founded and all the statutory requirements had been met. Indeed, it is already the case that there have been statements and debates in Parliament following major terrorist incidents (for example in relation to the alleged airline plot and following the incidents in London/Glasgow). Although these occasions do not deal with details that would be prejudicial to the ongoing investigations it would be wrong to say that they are not meaningful - they provide a very real and important opportunity for Parliament to question the Government about events and the response to them from law enforcement agencies and others.

Q6  How will 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 safely circumscribed by the need not to prejudice any future trials?

One of the purposes of requiring the independent reviewer to provide a report to Parliament on whether the procedure for detaining individual suspects beyond 28 days was in accordance with the relevant legislation and codes of practice is to meet the concern that the JCHR has previously raised about not having enough information on the operation of pre-charge detention. It is perfectly possible for the proposed report to address whether the pre-charge detention procedures have been met without prejudicing any trial. If the detainee was held in breach of the PACE codes, the defence could raise this issue at trial in any event and seek to have evidence excluded.

I believe that a report by the independent reviewer, and the accompanying parliamentary debate, are an important addition to parliamentary oversight of the reserve power as they will enable Parliament to consider in some detail how the power has operated in practice.

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 explicitly consulted?

I have responded to this point in my letter to you dated 5 June.

Q8  What is the value of this as a safeguard (reducing period 42 day limit is available from 60 to 30 days) 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?

Under the original proposal, the higher limit would have expired at 30 days unless it was agreed by Parliament (within 30 days) in which case it would remain in force for a total of 60 days. Furthermore, there was nothing in the original proposal to prevent the reserve power being triggered more than once.

Under the new proposal, whilst the reserve power can again theoretically be triggered more than once, it only remains available for 30 days even if approved by Parliament. This therefore reduces by half the amount of time during which individuals can be detained beyond 28 days.

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?

The order brings into effect the amendments to Schedule 8 to the Terrorism Act 2000 set out in Schedule 2 to the Bill. If this question is aimed at seeking the government's position as to whether or not the order would be subject to judicial review, the answer is that we do consider the Secretary of State's decision to make the order would be amenable to judicial review by the courts.

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?

See the answer above.

Q11  This seems to be missing ?

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 purposes 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?

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?

The Secretary of State's decision can be judicially reviewed, subject to normal judicial review principles. While we consider there would be wider scope for judicial review under the Civil Contingencies Act, the level of scrutiny available to the court under our proposals is appropriate to the action taken by the Home Secretary. Under our proposals, the order made by the Secretary of State brings into force amendments to the 2000 Act already extensively debated in Parliament and exhaustively set out in Schedule 1 to the Bill. This is in contrast to the regulations made under the CCA, which can include any number of as yet unspecified measures.

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

Parliament should have the fullest practicable information, including its own source of legal advice, to enable it to exercise effective scrutiny of any decision to invoke the reserve power.

Parliament will receive this advice as part of a package of information the Home Secretary must lay before Parliament within two days after the order itself is made (or as soon as practicable).

In the event of an order being made, the legal advice that will be published (in redacted form to protect sensitive information) will be the advice obtained specifically for the purpose of informing Parliament and the chairs of the committees. We believe that even in a redacted form, the advice will provide an important contribution to the Parliamentary debates on the reserve power. It will cover matters concerning the definition of the grave exceptional terrorist threat, and, most importantly, analysis and conclusions about the lawfulness of making the reserve power available. These parts of the advice will be the most significant for the purpose of assisting Parliament, rather than the detailed intelligence etc. surrounding the operation and the particular individuals involved, which are likely to be the parts redacted.

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?

I think it is important that Parliament can have as an informed debate as possible on making the reserve power available. Providing information to the Chairs of the relevant parliamentary committees will help provide an assurance that the power has been properly and responsibly exercised and will help inform any reports that these committees publish in support of the debates in Parliament. This is different, however, from providing information to all committee members or indeed to MPs and Peers more generally. The Chilcot review is an example of how making information available on Privy Council terms can help inform debates on security issues, and more general briefing on privy councillor terms happens regularly for the same purpose.

I am placing a copy of this letter in the Library.