Introduction

1.  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. (Paragraph 9)

Coroners' inquests

2.  On first inspection we find the provision in the bill concerning coroners' inquests 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. (Paragraph 6) We think that the significance of this provision warrants it being drawn to the attention of both Houses at the earliest possible stage. (Paragraph 8)

Pre-charge detention

3.  The detailed provisions in the Bill on pre-charge detention are substantially the same as the proposals we considered in our report in December. (Paragraph 12) We concluded that the Government had not made a compelling, evidence-based case for extending pre-charge detention beyond the current limit of 28 days. (Paragraph 10)

4.  The limits on the scope of the Home Secretary's statements [in relation to extending pre-charge detention] are a welcome recognition of the danger of prejudicing future trials, but only serve to demonstrate the very limited extent to which Parliament will be able to provide any meaningful safeguard against the wrongful exercise of the power. It also remains the case that the order by which the Secretary of State can make the reserve power available is a wholly executive order which is not subject to any parliamentary procedure, and by the time Parliament expresses a view on whether the reserve power should be made available it is likely that the full 42 day period will have expired. (Paragraph 13)

5.  We think that charging suspects only after more than 28 days in detention is likely to be in breach of Article 5(2) ECHR. (Paragraph 18) We think that providing for pre-charge detention up to a maximum of 42 days is disproportionate. (Paragraph 19) Furthermore, we think that the legal framework does not provide sufficient guarantees against arbitrariness and is incompatible with Articles 5(1), 5(3) and 5(4) for that reason alone. (Paragraph 20)

Post-charge questioning

6.  We support the introduction of post-charge questioning as a measure which reduces the pressure for an extension of pre-charge detention, but we agree that it should be accompanied by a number of detailed safeguards on the face of the Bill, to ensure that this potentially oppressive power is not used oppressively in practice. (Paragraph 36)

7.  We recommend that the Bill should be amended to include the following safeguards on the face of the legislation: (Paragraph 37)

(1) that there should be a requirement that post-charge questioning be judicially authorised;

(2) that the purpose of post-charge questioning be confined to questioning about new evidence which has come to light since the accused person was charged;

(3) that the total period of post-charge questioning last for no more than 5 days in aggregate;

(4) that post-charge questioning always take place in the presence of the defendant's lawyer;

(5) that post-charge questioning always be DVD- or video-recorded;

(6) that the judge which authorised post-charge questioning review the transcript of the questioning after it has taken place, to ensure that it remained within the permitted scope of questioning and was completed within the time allowed; and

(7) that there should be no post-charge questioning after the beginning of the trial.

8.  The overriding requirement must be to ensure that a fair trial is possible and judicial oversight should be geared towards this end. For example, particular attention should be paid to the gap between the end of post-charge questioning and the beginning of the trial to ensure that the defendant's rights are respected. (Paragraph 38)

Control orders

9.  We are surprised at the Lords' interpretation of the scope of their power under s. 3 of the Human Rights Act to read words into a statute to avoid an incompatibility with a Convention right. (Paragraph 46) The scheme of the Human Rights Act deliberately gives Parliament a central role in deciding how best to protect the rights protected in the ECHR. Striking the right balance between sections 3 and 4 of the Human Rights Act are crucial to that scheme of democratic human rights protection. In our view it would have been more consistent with the scheme of the Human Rights Act for the House of Lords to have given a declaration of incompatibility, requiring Parliament to think again about the balance it struck in the control order legislation between the various competing interests. In any event, we think it is now incumbent on Parliament to consider again, in detail, exactly what a "fair hearing" requires in this particular context, in light of the House of Lords judgment, and to amend the control order legislation accordingly. (Paragraph 47)

10.  We reached the firm conclusion that the system of special advocates, as currently conducted, fails to afford individuals a fair hearing, or even a substantial measure of procedural justice. (Paragraph 48)

11.  That judgment, in the MB case, now requires the Government's earlier position to be revisited, because it rejects the Government's assertion that the statutory regime will always provide the individuals concerned with a substantial measure of procedural justice. (Paragraph 50)

12.  We think it is a matter of great regret that the Minister did not see fit to discuss these issues of principle with the special advocates at their meeting with a view to the Government bringing forward amendments to the statutory regime in light of the judgment. (Paragraph 51)

13.  In our view the opportunity should be taken in this Bill to make a number of amendments to the control order regime in order to ensure that, in future, hearings are much more likely to be fair. (Paragraph 54)

14.  We recommend that the relevant provisions in the statutory framework, which expressly require non-disclosure, even where disclosure would be essential for a fair hearing, be amended by the insertion of qualifying words, such as "except where to do so would be incompatible with the right of the controlled person to a fair hearing". (Paragraph 58)

15.  We recommend that the relevant power for making rules of court in the control orders regime be amended to make explicit reference to the right to a fair hearing in Article 6 ECHR, in the same way as the Bill itself qualifies the power to make rules of court for asset freezing. (Paragraph 59)

16.  We recommend that an obligation on the Secretary of State to give reasons for the making of a control order be inserted into the statutory framework. (Paragraph 64)

17.  To give full effect to the judgment in MB, we recommend that the statutory framework be amended to provide that rules of court for control order proceedings "must require the Secretary of State to provide a summary of any material which fairness requires the controlled person have an opportunity to comment on." (Paragraph 66)

18.  In our view the statutory framework requires amendment, to enable the controlled person to give meaningful instructions about the allegations against him, where it is possible to do so. We recommend that special advocates be given the power to apply ex parte to a High Court judge for permission to ask the controlee questions, without being required to give notice to the Secretary of State. (Paragraph 69)

19.  We recommend that the PTA 2005 be amended to provide that, in a hearing to determine whether the Secretary of State's decision is flawed, the controlled person is entitled to such measure of procedural protection (including, for example, the appropriate standard of proof) as is commensurate with the gravity of the potential consequences of the order for the controlled person. (Paragraph 71)

20.  We recommend that the PTA 2005 be amended to provide that, where permission is given by the relevant court not to disclose material, special advocates may call witnesses to rebut the closed material. (Paragraph 73)

Threshold test

21.  We are not aware of any such independent review [of the operation of the threshold test in practice] having been carried out and we reiterate that such a review would be valuable. (Paragraph 76)

22.  We recommend that the CPS be required to disclose to the suspect and the court when it has charged on the threshold test in order to provide the opportunity for the court to subject the prosecution's timetable to independent scrutiny and to ensure that the defence is in a better position to challenge the basis of the charge. (Paragraph 81)

23.  In our view, although we regard the advent of the threshold test in terrorism cases as a largely beneficial development, it would benefit from thorough parliamentary scrutiny. (Paragraph 82)

24.  The Bill provides an opportunity to put the threshold test in terrorism cases on a statutory footing and to specify some necessary basic safeguards, to ensure that the use of the lower charging threshold does not result in terrorism suspects being held for longer than necessary before being released without trial. We recognise that the threshold test for charging is not unique to the terrorism context, but we think there is a strong case for making special provision for this category of offence because of the extremely lengthy period of pre-charge detention which is available. (Paragraph 83)

25.  We recommend that: (Paragraph 84)

• the threshold test for charging in terrorism cases is put on an explicit statutory footing;
• there is an explicit requirement that the CPS inform both the suspect and the court when the suspect has been charged on the basis of the threshold test;
• the timetable for the receipt of the additional evidence is set by the court not the prosecutor.

Intercept

26.  We remain of the view expressed in earlier reports, that providing for the admissibility of intercept evidence would remove one of the main obstacles to prosecuting terrorist crime, a view shared by the Director of Public Prosecutions. We believe it is essential that the Chilcot review reports as soon as possible and in time to enable any legislation to be brought forward as part of this Bill. (Paragraph 87) We therefore call on the Government to publish the product of the long running internal review of this question, including the work done to date on the "public interest immunity plus model". (Paragraph 89)