1. The purpose of this report is to identify, in advance of the Second Reading in the Commons of the Government's Counter-Terrorism Bill,[1] some of the most significant human rights issues raised by the Government's proposals, and to indicate some of what we consider to be the most important debates which should take place in Parliament during the passage of the Bill.

2. In our view the five most significant human rights issues which are in need of thoroughgoing parliamentary scrutiny and debate are:

(1) Pre-charge detention

(2) Post-charge questioning

(3) Control orders and special advocates

(4) The threshold test for charging

(5) The admissibility of intercept.

3. This Report concentrates on those five issues, with a view to framing the debate on the Bill. We will report again on the detailed provisions of the Bill when we have had an opportunity to carry out careful scrutiny of its clauses. We are grateful to the Government for affording us the opportunity to ask questions about draft clauses covering many (though not all) of the topics in the Bill. We have corresponded with the Home Office in relation to a number of subjects and anticipate that we will wish to comment on a number of those issues in any future scrutiny report, including:

• The disclosure and use of information by the intelligence services
• The retention and use of DNA samples
• Notification requirements
• The need for legal certainty in the definition of terrorism

4. The Bill also contains a number of measures which were not mentioned in the Government's consultation documents published in July 2007, for example:

• provisions concerning coroners' inquests involving material affecting national security
• provisions relating to the use of closed source material in terrorist asset freezing cases.[2]

5. These raise significant human rights issues, but, because of their late introduction, we have not yet had the opportunity to question the Government about them. We are particularly concerned about the insertion into the Bill at this late stage, without any prior consultation, of the measures concerning coroners' inquests. The Bill provides for the Secretary of State herself to appoint a "specially appointed coroner" and to require the inquest to be conducted without a jury where, in her opinion, the inquest will involve the consideration of material that should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.[3] We are disappointed to note that the Explanatory Notes to the Bill contain no analysis of the human rights implications of these provisions. A letter from the Home Secretary dated 21 January 2008, however, claims that "the proposed changes are necessary in order to ensure that we are able to comply with our Article 2 obligations while protecting the integrity of the material in question."[4]

6. On first inspection we find this an astonishing provision with the most serious implications for the UK's ability to comply with the positive obligation in Article 2 ECHR to provide an adequate and effective investigation where an individual has been killed as a result of the use of force, particularly where the death is the result of the use of force by state agents.

7. It is well established in both ECHR and UK case law that Article 2 requires, for example, that the person carrying out the investigation must be independent from those implicated in the events, there must be a sufficient element of public scrutiny to secure accountability in practice as well as theory, and the investigation must involve the next of kin of the deceased to the extent necessary to protect their legitimate interests.[5] We are alarmed at the prospect that under these provisions inquests into the death of Jean Charles de Menezes, or British servicemen killed by US forces in Iraq, could be held by a coroner appointed by the Secretary of State, sitting without a jury.

8. We will be writing to the Home Secretary about the compatibility of these provisions with the UK's obligations to investigate deaths in Article 2 ECHR and will be reporting to Parliament in due course. We think that the significance of the provision in the Bill concerning coroners' inquests warrants it being drawn to the attention of both Houses at the earliest possible stage.

9. In the meantime, we confine ourselves in this Report to the issues identified in paragraph 2 above. As always, we ground our analysis in the human rights standards with which the Government's counter-terrorism measures must be compatible, and we proceed from a full recognition that the Government has a duty to protect people from terrorism, a duty imposed by human rights law itself.

2   Letter from the Home Secretary to the Rt Hon David Davis MP, 10 December 2007, Appendix 1. Back

3   Clauses 64 and 65 of the Bill, amending the Coroners Act 1988. Back

4   Letter from the Home Secretary to the Rt Hon David Davis MP, 21 January 2008, Appendix 2. Back

5   See e.g. Jordan v UK (2003) 37 EHRR 52; R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169. Back