COUNTER TERRORISM BILL DRAFT CLAUSES

  Thank you for sending my Committee a copy of draft clauses on some of the proposals in the forthcoming Counter Terrorism Bill. As you know, we welcomed your predecessor's commitment, in his statement to the House of Commons on 7 June 2007, to share draft clauses with us and the Home Affairs Committee. In our most recent report in our ongoing inquiry into counter-terrorism and human rights, we welcomed this as an important indicator of a change to a more consultative and consensual approach to counter-terrorism policy.[1]

  While we are grateful to have received the draft clauses, we are disappointed not to have received them in time to give us an opportunity to subject them to detailed scrutiny and to point out any human rights compatibility concerns at as early a stage as possible and before the Bill is finalised. In Mr. McNulty's evidence to us on 20 September he hoped to be in a position to provide us with draft clauses by "early October", or by the time the House resumes (ie 8 October). We received the draft clauses on 6 November. With the Bill itself expected to be published shortly, this has provided us with very little time to conduct anything but a very cursory pre-legislative scrutiny of the draft clauses. We understand the pressures under which you and your staff work, but we hope that in future you will be able to keep your commitment to affording an opportunity for meaningful pre-legislative scrutiny by making draft clauses available at least four weeks before a Bill is due to be published. Otherwise the exercise risks looking like token consultation.

  We are also disappointed not to have received draft clauses concerning the Government's proposed extension to the period of pre-charge detention, which is likely to be the most controversial of the measures in the Bill and therefore most in need of careful pre-legislative scrutiny. We seek your reassurance that it is still the Government's intention to afford an opportunity for pre-legislative scrutiny of the draft clauses giving effect to this proposal.

  In the meantime we would be grateful for your responses to the following questions concerning four of the areas covered by the draft clauses.

1.   Post-charge questioning

  The draft clauses include a new power for a constable to question a person about terrorism-related offences after they have been charged with the offence, or been officially informed that they may be prosecuted for it, or where they have been sent for trial for the offence. They also provide for adverse inferences to be drawn from the accused's silence in the face of such post-charge questioning.[2] No safeguards are included on the face of the draft clauses themselves. Instead, the draft clauses provide that the PACE Codes of Practice may make provision about post-charge questioning.

  As we have pointed out in our recent reports, while we welcome the introduction of post-charge questioning as an important alternative to even longer pre-charge detention, the crucial human rights issue in relation to post-charge questioning will be the adequacy of the accompanying safeguards against the abuse of what is potentially an oppressive power. We note that the draft clauses provide no assistance on this, leaving all the safeguards to be provided in the PACE Code of Practice.

  We would be grateful if you could provide more detail about precisely what safeguards are intended.

2.   Disclosure and use of information by the intelligence services

  Two of the most significant human rights issues concerning the use and disclosure of information by the intelligence services are the arrangements for independent oversight of the powers to use and disclose information, and the safeguards provided to make sure that information has not been obtained from, and will not be used in, acts which amount to human rights violations.

  In the Committee's report on Torture, for example, we said that in future "the UK intelligence and security agencies must take all feasible steps to ensure that information exchanged with foreign intelligence services has not been obtained from, and will not be used in, acts which would be regarded as human rights violations."[3] Otherwise there is a serious risk of UK complicity in acts of torture and inhuman and degrading treatment. The draft clauses are silent on both of these matters.

In light of these concerns, will independent oversight of these powers be exercised by the Information Commissioner?

Will the forthcoming Bill include express safeguards designed to ensure that information has not been obtained as a result of, and will not be used in, acts amounting to torture or other human rights violations?

3.   Retention and use of DNA samples

  We note that the draft clauses provide for the retention of DNA samples taken under the Terrorism Act on the National DNA Database, and for their use for the purposes of national security. There is no requirement that the person from whom the sample has been taken has been convicted of or even charged with a terrorism or terrorism-related offence and no limit on the period for which the samples can be retained.

  In September, the Nuffield Council on Bioethics recommended that the police should only be allowed to store permanently bioinformation from people who are convicted of a crime, with the exception of people charged with serious violent or serious sexual offences.[4] Indefinite retention of DNA samples from persons suspected of terrorism potentially raises even more acute concerns about proportionality, because the threshold for arresting a person on suspicion of terrorism is so much lower, and the proportion of those arrested who are subsequently released without charge is correspondingly higher.

What are the Government's reasons for not limiting the retention and use of DNA samples to those who have been convicted of or charged with a terrorism or terrorism-related offence?

On what evidence does the Government rely to demonstrate the necessity for a wider power to retain and use the samples taken from anyone arrested on suspicion of terrorism?

4.   Notification requirements

  The notification requirements contained in the draft clauses apply automatically to anyone convicted of a terrorist-related offence and sentenced to a term of imprisonment for 12 months or more in respect of the offence.

Has the Government considered a less restrictive notification regime for those convicted of terrorism-related offences in which the sentencing judge is given a discretion to decide, in all the circumstances, which notification requirements are required for the protection of the public? What are the Government's reasons for not favouring such a regime?

  The proposed notification requirements would apply indefinitely to a person sentenced to more than five years' imprisonment, and for 10 years to people sentenced to less than five years.

Has the Government considered a more graduated regime in which the period for which notification is required is linked more proportionately to the length of the sentence received?

What is the justification for imposing indefinite notification requirements, without any mechanism for the requirements to lapse on certain conditions being satisfied?

  There is a procedure for the police to apply to a court for a notification order in respect of a person convicted of and sentenced to more than 12 months' imprisonment for a foreign terrorism offence, where the offence would also have constituted a terrorism offence if done in the UK.

Given the breadth of the definition of "terrorism" in the Terrorism Act 2000, will the application of notification requirements to those convicted of terrorism offences outside of the UK catch the political opponents of oppressive regimes who have been convicted in their absence of offences which would qualify as "terrorism-related offences"?

  I would be grateful for your response to these questions by 26 November 2007.

2   Amending the relevant sections of the Criminal Justice and Public Order Act 1994. Back

3   The UN Convention Against Torture, 19th Report of 2005-06 at para. 60. Back

4   The Forensic Use of Bioinformation: Ethical Issues. Back