CORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 893-iii
HOUSE OF LORDS
HOUSE OF COMMONS
ORAL EVIDENCE
TAKEN BEFORE THE
JOINT COMMITTEE ON THE DRAFT DETENTION OF TERRORIST SUSPECTS (TEMPORARY EXTENSION) BILLS
MONDAY 4 APRIL 2011
RT HON JACK STRAW MP, RT HON DAVID BLUNKETT MP, RT HON CHARLES CLARKE and LORD GOLDSMITH QC
PROFESSOR CLIVE WALKER and PROFESSOR CONOR GEARTY
Evidence heard in Public Questions 138 - 194
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Memorandum by Professor Conor Gearty, London School of Economics (DTS 2)
Autobiographical background 1. I have been a professor of human rights law at LSE, and before that King’s College London, since 1995. Between 2002 and 2009 I was director of the centre for the study of human rights at LSE. Apart from my work on human rights, I have been writing on terrorism and terrorism law since the early 1990s, with my first book on the subject (Terror Faber and Faber) having been published in 1991. In 1995 a colleague and I completed a study of the then UK terrorism laws for the then opposition Labour Party (Terrorism and the rule of law), and I advised the Party on terrorism law and related matters for a number of years during the 1990s. More recently I have been specialist adviser to the Home Affairs Select Committee during the course of its work on what became its report into Terrorism and Community Relations (HC 165 of 2005).
The framing of UK emergency laws 2. As a matter of orthodox constitutional law, it is clear that Parliament can do whatever its members collectively desire and legislate into effect so far as the protection of national security is concerned. In practice such power is circumscribed. There are international and regional frameworks of law to which the UK has committed itself and which constrain the conduct of state actors: the UN human rights treaties to which the UK is a party, the European Union and the Council of Europe (with its European Convention on Human Rights (‘the ECHR’)) are three such examples. There are also various constitutional principles which though not legislated into formal, supra-legislative existence traditionally inform the actions of all branches of government in the state. The principle of separation of powers is one such example, with respect for the rule of law and the protection of fundamental human rights being two others.
3. Any legislation enacted under the rubric of emergency law should not depart from these practical circumscriptions on Parliament’s sovereignty. It is neither desirable nor (more to the point) is it necessary to do so - all proper responses to emergency situations can be accommodated within traditional principle and within the current framework of international and regional law.
A human rights approach to emergency law 4. The primary principle relevant to the configuration of emergency laws in the context of a terrorist attack or attacks is that of respect for human rights. The principle of respect for human rights embraces within it the commitments to international and regional human rights that the UK has already made as a matter of law and encompasses also a strong commitment to the rule of law and to separation of powers. Even more pertinently, the UK parliament has already committed itself to adhere to a human rights approach to legislation: the Human Rights Act 1998 (‘the HRA’), a law that came fully into force in October 2000, and which has not been repealed.
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5. Any legislation designed to deal (either before or after the fact) with the consequences of a terrorist emergency should respect the principles and provisions of human rights law, and in particular the rights set out in the ECHR, particularly insofar as such rights have been incorporated into UK law in the HRA.
6. It must be immediately stressed that such an approach does not denude the state of the power of defensive action; it merely requires that its responses be ordered in a coherent and principled fashion. It is clear that the state has a positive obligation to act to protect the rights of those within its jurisdiction, including each person’s right to life and to security of the person: articles 2 and 5 of the ECHR. The state discharges this obligation in part by the creation of systems for the prevention and punishment of wrongdoing that violates these rights, achieved through establishment of a system of criminal law and the empowerment of law enforcement officers (principally the police) that goes with it. Such laws must themselves be administered in a way that does not violate rights: articles 5, 6, 8 and others. Since human rights law already represents in itself a balance between rights and security, it is not right to balance that law against considerations of national security which are external to it.
7. Most rights in the ECHR recognize that they may not apply where the necessities of democratic society demand. But the possibility of emergency law is also anticipated. Under ECHR article 15, a version of which appears in the HRA, the state may set aside certain (but not all) rights where there is a ‘public emergency threatening the life of the nation’. The measures being proposed under this head must additionally be necessary and proportionate to the goal at which they are aimed.
8. It is clear therefore that under human rights law the need for emergency laws should only arise where it can be shown that there is a ‘public emergency threatening the life of the nation’ and that the laws being proposed are strictly required to meet the exigencies of such an emergency. These evaluative criteria should inform Parliament’s scrutiny of any legislation that is placed before it.
9. As an assistance to parliamentary debate and in order better to guide discussion, any such legislation should contain within it a requirement that it be accompanied by a certificate jointly signed by the relevant law officers for each jurisdiction to which it applies (in England and Wales for example the Attorney General and the DPP) stating that in the opinion of such officers there is indeed such an emergency and that the powers being sought by the government in the legislative proposals being put before Parliament are strictly required by the exigencies of the situation with which the country (or a part thereof) is confronted.
10. I do not think that it is possible or desirable to anticipate in advance the shape of any such public emergency. That said I imagine that it will almost certainly refer to events that have happened rather than those that are said to be about to happen, and that the events will need to be truly catastrophic in nature to trigger the law officers’ certificate. This is a field of law which has been historically dogged by what might be summarized without glibness as a combination of the ‘politics of the last atrocity’ and the ‘politics of the next atrocity’: either we need the law because something terrible 3
has happened or because it might happen: a good example of the flaws inherent in such an approach to law making is the rather wild speculation that has already begun about the supposed threat posed by the Olympics, speculation that has drawn strength from past tragedy (at the Munich Olympics in 1972) as well as anticipated future anxiety. We need to be especially careful about assertions about the need to embrace emergency law on the basis of events that have yet to occur or on the basis of serious attacks that have occurred but which do not necessarily prove the need for new laws simply by virtue of the fact that they have occurred. There is a temptation here to take a short-cut to restrictive laws that, in the past at any rate, the executive has sometimes found hard to resist. (Examples of pre-emptive laws would include those passed to counter anticipated IRA-related violence in 1939 and in 1996. Unnecessary reactive laws, responding to rather than anticipating an atrocity, would include many of the provisions in terrorism laws passed in 1974, 1998, 2001 and 2006.)
11. The requirement that parliament debate any emergency laws put before it by reference not just to whether there is an emergency grave enough to threaten ‘the life of the nation’ but also to whether the proposals before it are necessary, rational and proportionate towards their intended aims is a further safeguard against this politics of the last (or the next) atrocity. The reality in many situations of terrorist attack (anticipated or actual) is that the executive will want to deploy law in a way which is about more than simple law enforcement: it might want to calm public nerves, or release public anger, or demonstrate that it is capable of acting. It might be tempted to introduce laws that in ordinary times it might have had difficulty getting through either House (or both). The requirement to link proposed laws to law enforcement outcomes, to require Parliament to be persuaded of the necessity and the unavailability of alternatives is an important safeguard for civil liberties: it focuses legislators on the key issues and not on extraneous ones, however important these might seem at the time.
The current proposed legislation 12. The draft Bills before this Joint Committee are creatures of what an earlier witness has called ‘coalition politics’ rather than of reasoned contingency-planning. There is no logic to them. Either what they are is an effort to retain 28 day detention by the back-door of a legislative process that will be too readily invoked and then too regularly renewed (a frequent occurrence in the history of anti-terrorism law in this country) or they are a genuine effort to manage a situation of future catastrophe. But if they are the latter, how can we know in advance that an extension to 28 day detention will be all that will be required or that it will even be part of what is required? Everything will depend on the nature of the emergency the country finds itself in, the judgment as to whether the current powers are sufficient to meet this emergency and (if they are not) the further judgment as to what powers are absolutely required to meet the crisis confronting the state. The Civil Contingencies Act (‘CCA’) might be sufficient but then again it might not. A combination of CCA and special emergency powers might be judged essential: there may be the need for short term executive detention, for sweeping search powers, for regional curfews and the like. We simply cannot tell at this distance what would be required.
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13. The safest approach is to leave it to the government of the day to judge what is needed to be put before Parliament, and to rely on the law officers’ certificate to provide an early indicator to the legislature of the seriousness of the matter that is being put before the two Houses. I do not believe that drafting such laws would necessarily be a difficult process - it could be done, and the consultations that are required take place, while arrangements are being made for the parliamentary debate that would of necessity be required. Such laws should never be reactive to specific individuals or groups of individuals but should be rooted in a much broader and more serious set of facts, so the issue of prejudging trials through such debates should never ordinarily arise. Equally I would be very suspicious of assertions that full details of the fact of a national catastrophe cannot be supplied: such a catastrophe (the sort that warrants invocation of emergency powers) should be evident for all to see.
14. I am of the clear view that it is very much more preferable to have legislation of this nature dealt with as primary legislation on the floor of both Houses than it is to enact a law-making power to be exercised by the Secretary of State on the basis of his or her judgment of risk at some point in time in the future. The risks of slippage towards the expansion and the normalization of emergency law would be too great - and this would be the case even if such laws were made the subject of affirmative resolution: this was the experience of the renewal debates on terrorism laws between 1974 and 2000.
15. Once emergency laws are in place, to the extent that these involve extended detention and subject to the possibly extreme exigencies of the moment, I would say that the safeguard of the involvement of the law officers in the extension of detention beyond the norm (14 days after enactment of the Protection of Freedoms Bill currently before the House) would be appropriate. I imagine that there would also be a case for the involvement of the reviewer of terrorism legislation though how exactly that would be worked through is primarily a matter for the holder of that position.
16. It follows from what I have been saying above that I do not think there is any argument for developing some options that have been discussed recently but which Parliament is not now being asked to consider afresh. In particular I think proposals for judge-supervised conditional bail not linked to any reasonable suspicion of an offence sufficient to have warranted charges being brought are draconian and unnecessary. I am particularly concerned that the idea of ‘bespoke bail hostels’ have been mentioned, as well as the possibility of 24 hour curfews. We should remind ourselves that internment is rarely called internment by those who introduce it.
1 April 2011
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Memorandum by Professor Clive Walker, University of Leeds (DTS1)
Introduction 1 This paper responds to the call for evidence from the Joint Committee on Human Rights ('JCHR') in connection with its inquiry on the Home Office's Draft Detention of Terrorist Suspects (Temporary Extension) Bills ('the Draft Bills').1
2 Discussion in this paper derives from my research as an academic over many years into anti-terrorism laws and also, more recently, into the Civil Contingencies Act 2004. I also served as a special adviser to the parliamentary Special Joint Committee which was assembled to inquire into the draft Civil Contingencies Act. For fuller details and arguments on these issues, see principally:
• Walker, C., Terrorism and the Law (Oxford University Press, Oxford, 2011) • Walker, C. and Broderick, J., The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford University Press, Oxford, 2006)
The case for contingency powers to extend the period available for pre-charge detention beyond 14 days 3 The most fundamental point to be made here is that a limit of four days detention is 'normal'. That is the limit set in the Police & Criminal Evidence Act 1984, Part IV (the period is probably shorter in Scotland). That 'normality' applies following the arrest of mass murderers or suspected fraudsters no matter how complex or internationalised their frauds. The impression is too easily given that a return to 14 day detention for terrorists is somehow a return to 'normality'. This impression should be constantly deprecated and dispelled. A detention of 14 days is well beyond the equivalent in any western democracy2 and amounts to a grievous intrusion into personal liberty. Given that a period of 7 days for the detention of suspected terrorists was maintained from the Prevention of Terrorism (Temporary Provisions) Act 1974 until the Criminal Justice Act 2003, the focus of public debate should be more on how to return to the 'normality' of 4 days rather than going beyond 14 days or, in default, feeling comfortable with 14 days.
4 As for the justification of extended detention beyond 14 days, there are two main issues to be considered. One is the factual justification. The second is the overriding need for constitutionalism. For these purposes, 'constitutionalism' requires: that the legislative objective is sufficiently important to justify limiting a fundamental right; that the measures designed to meet the legislative objective are rationally connected to it; that the means used to impair the right or freedom are no more than is necessary to accomplish the objective. It should further be understood that these standards vary according to rights affected. For fundamental rights to liberty and due process (articles 5 and 6 of the European Convention on Human Rights), any limits must operate in very limited circumstances for the sake of the rights of others and not for 'balance' with wider societal goals. For derogation under article 15, any measure should be ‘strictly required’. The next constitutional principle is ‘accountability’ which includes attributes such as information provision, open and independent debate and an ability to participate in decision making. Finally, there must be
1 Cm.8018, London, 2011. 2 Foreign & Commonwealth Office, Counter-Terrorism Legislation and Practice: A Survey of Selected Countries (London, 2005); JUSTICE, From Arrest to Charge in 48 Hours (London, 2007); Russell, J, Charge or release: Terrorism Pre-Charge Detention Comparative Law Study (Liberty, London, 2007). 6 observance of ‘constitutional governance’, meaning the subjection of governmental action to norms, whether legal or extra legal (such as codes). ‘Constitutional governance’ also requires that the emergency laws reflect the overall purpose of the restoration of fundamental features of constitutional life.
5 In terms of factual justification, the claim is made that ‘the Parliamentary decision to increase pre charge detention limits from 14 to 28 days has been justified. We have been able to bring forward prosecutions that otherwise would not have been possible.’3 But hard evidence that the charging rate is increased by special powers or by the elongation of detention periods could only be discerned by far more detailed case studies than currently available. Just one decided case has been put forward as definitely warranting more than twenty-eight days; in the ‘ricin plot’ of 2003 (Operation Springbourne), one alleged lead conspirator had to be allowed to leave the country, and charges against the rest did not adequately reflect the severity of the plot.4 The nearest to a full case study of 28 day detention was the inquiry by Lord Carlile into Operation Pathway in 2009. He concurred with the view that more than 14 days was not necessary in that case. There is also quantitative data as to the usage of 28 day detention in Britain:
Period of No of Charged detention detainees 14 to 15 days 1 1 18 to 19 days 1 1 19 to 20 days 3 3 27 to 28 days 6 3 Total 11 8
The table reveals a restrained usage and a high rate of charging. But no convictions were sustained against any of the three detainees held for the full 28-day period arising out of the 'Liquid Bomb' plot. Furthermore, the powers have not been required for the past three years, a feature which convinced Lord Macdonald to recommend repeal.5 Of course, there are arguments from common sense rather than proof — that more incriminating evidence is likely to be uncovered if more time is afforded to investigators, as a result of which observation it follows that there is ‘no logical answer’ to setting a maximum which might be required for operational reasons.6 Lord Carlile has also used the common sense argument that it is impossible to rule out circumstances where more than 14 (or 28)7 days' worth of investigative time might be needed to ensure public safety either in the case of a major catastrophe involving many perpetrators or in an individual inquiry. But a western democratic society should be wary of adopting a 'no risks' solution when it knows that to do so is not justified by the facts of recent history.
6 In summary, there is no compelling empirical case for an extension beyond 14 days. Probably the best one can say is that police experience does show that arrest up to 14 days has been constantly utilised and valued. But the need for such powers should be, and is,
3 Home Office, Possible Measures for Inclusion into a Future Counter-Terrorism Bill (London, 2007) para 12. 4 R v Bourgass [2005] EWCA Crim 1943, [2006] EWCA Crim 3397. 5 Lord Macdonald, Review of counter-terrorism and security powers (Cm.8004, London, 2011) p.4. 6 Lord Carlile, Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill (Cm 7262, London, 2007) para 46. 7 Lord Carlile, Report on Proposed Measures for Inclusion in a Counter Terrorism Bill (Cm 7262, 2007) para 46. 7 diminishing because of new offences (the offence of the preparation of terrorism in the Terrorism Act 2006, section 5 is especially significant), the threshold charging policy,8 the greater resourcing of specialist policing and prosecution units, and the fallback of alternatives in terms of control orders (which have been used when trials have collapsed) or surveillance (which is now being given more funding). Too often, proponents of longer detention confuse the problems of the completion of an investigation in the face of a mass of evidence or the difficulties of liaison or translation, which may indeed take many months to complete, with the ability to bring charges, where the practice increasingly coheres around a 14 day limit. A surfeit of untrawled evidence is not a reason for more detention time.
7 Moving to the overriding need for legality and the observance of other constitutional principles, is it possible to secure these values if pre-charge detention is extended beyond 14 days (or indeed if pre-charge detention remains at 14 days)? This paper shall leave to one side the potential drawbacks in terms of the generation of miscarriages of justice and also of community distrust. Instead, the provisions of Article 5 of the European Convention will be considered in turn.
(a) Article 5(1): No time limit is set in Article 5(1)(c). But it is misleading to assert that therefore there is no limit, so long as there is occasional judicial review to satisfy Article 5(3). This wrongful interpretation, seemingly shared by this very Committee,9 assumes an unerring priority over personal liberty for the police’s reasonable suspicion and would invite them to find a conveyor belt of new reasons for suspicion or to refuse to accept that old reasons have been dispelled. The better view is that the European Court would place a strong value on liberty and would notice the important fact that the detainee remains in police hands under Schedule 8 rather than under the ‘competent legal authority’, as reflected in the Continental inquisitorial model. Precisely when judicial tolerance of genuine police endeavours should terminate will be determined on a case-by-case basis. But a police-led investigation, even under the circumstances of regular judicial audit, cannot be tolerated just because reasonable suspicion persists. This point was made in McKay v United Kingdom:10
'For at least an initial period, the existence of reasonable suspicion may justify detention but there comes a moment when this is no longer enough. As the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case.'
A 28 day detention is more susceptible to challenge than a 14 day detention on this ground. As indicated in Re Duffy (no.2),11 there is a need to show necessity and proportionality at all times. One factor mentioned in that case which would count against further detention is an
8 Code for Prosecutors (Crown Prosecution Service, London, 2010) para 5 (which represents a tighter formulation in so far as it requires identifiable evidence). See House of Commons Home Affairs Committee, Detention Powers (2005–06 HC 910) para 112; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention (2005–06 HL 240, HC 1576) para 131; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill (2007–08 HL 50, HC 199) para 77; House of Commons Home Affairs Committee, The Government’s Counter-Terrorism Proposals (2007–08 HC 43) para 67. 9 Joint Committee on Human Rights, Criminal Justice Bill (2002–03 HC 724, HL 119) para 102. 10 App no 543/03, 3 October 2006, para.45. 11 [2011] NIQB 16 para.30. 8 absence of any power to grant conditional release on bail under section 41 of the Terrorism Act 2000.12 As noted again in McKay v United Kingdom:13
'… there must exist the opportunity for judicial consideration of release pending trial as even at this stage there will be cases where the nature of the offence or the personal circumstances of the suspected offender are such as to render detention unreasonable, or unsupported by relevant or sufficient grounds. … such consideration, whether on application by the applicant or by the judge of his or her own motion, must take place with due expedition, in order to keep any unjustified deprivation of liberty to an acceptable minimum.'
In R (I) v City of Westminster Magistrates’ Court,14 Mr Justice Collins considered whether this absence of bail breached Article 5 of the European Convention. Formal reviews at, and after, forty-eight hours were considered to meet the requirements of Article 5 on the facts of that case. It was even suggested that a police review officer could impose conditions on continued detention for specific terrorist offences.15
The Home Office review presented to Lord Macdonald was favourably disposed to a new bail power, especially for those suspected of 'less serious offences', though not entirely as a substitute for extended pre charge detention.16 However, the Macdonald Report rejected conditional release on bail as akin to control orders.17 Yet, given that there must be a far clearer link to an investigation and more possibility of court intervention than for control orders (or their successors, Terrorism Prevention and Investigation Measures), it is hard to accept this argument.
(b) The detention powers are even more vulnerable to challenge under the remainder of Article 5. Article 5(2) requires prompt disclosure of the reasons for the arrest and the charges against the detainee.18 If the latter is taken literally, as requiring charges to be laid promptly, then the reasoning in Brogan19 hints that police detention without charge for more than a few days cannot be acceptable. At the same time, case law suggests that reasons can be given through the process of interrogation rather than expressly, as in Sher v Chief Constable of Greater Manchester Police.20
(c) As for Article 5(3), the European Court held in McKay v United Kingdom,21 that there must be review which is prompt, automatic, and without requiring action by the detainee, conducted by an independent officer who can order release, and examining the lawfulness of the detention as well as due diligence. The mechanisms under Schedule 8 go a long way to meeting these criteria. However, whether judicial inquiry during detention extending well
12 Ibid. para.31. 13 App no 543/03, 3 October 2006, para.46. 14 [2008] EWHC 2146 (Admin). 15 Ibid. paras 9, 22. 16 Home Office, Review of Counter Terrorism and Security Powers (Cm.8004, London, 2011) p 11 17 Review of Counter Terrorism and Security Powers (Cm.8003, London, 2011) p 4. 18 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Counter-Terrorism Bill (2007–08 HL 50, HC 199) para 18. 19 App nos 11209, 11234, 11266/84, 11386/85, Ser A 145-B (1988). 20 [2010] EWHC 1859 (Admin) paras 91, 94. 21 App no 543/03, 3 October 2006. 9 beyond seven days is sufficiently regular, sufficiently extensive, and, above all, sufficiently transparent,22 remains to be tested.
(d) As for Article 5(4), the form of judicial hearings is not fully adversarial since disclosure is limited and might be conducted ex parte.23 Nor are the hearings expressly based on a full review of the merits of the detention,24 although the terms of paragraph 32 are broad enough for the merits to be raised, and the decision by the Northern Ireland High Court in Re Duffy asserts that it would amount to ‘neglect’ if the lawfulness of the basis for the arrest was not considered.25 In Sher v Chief Constable of Greater Manchester Police, the argument that the Schedule 8 scheme breached Article 5(4) of the European Convention was rejected on the ground that, although there could be secret hearings, the judge was an active participant.26
The procedure for introducing a contingency power to extend the period available for pre-charge detention 8 The following solutions to introducing a contingency power to extend the period available for pre-charge detention will be explored as to their respective merits: • the current statutory order system under the Terrorism Act 2006, section 25, either as an existent power or as a contingent power • the model of the Draft Bills • the utilisation of the Civil Contingencies Act 2004
Terrorism Act 2006, section 25 9 In many ways, the current system, the annual renewal of the disapplication order under the Terrorism Act 2006, section 25, is administratively the most convenient. That system is in place, so no further debate is needed as to its design. But it seems forlorn to suggest that this model might be revived into current force. There is insufficient political will to support continuance, and, as already discussed, there is no evidence for a clear or present risk in the light of the history of the actual application of section 25. Terrorism risk will sometimes increase, such as during the London Olympics 2012. Yet, even then, to invoke a range of draconian security powers to welcome participants and visitors hardly seems the best strategy for holding a successful event, although it may generate the least risky environment.
10 As for using section 25 as a contingent power, by leaving it on the statute book but reviving it as and when necessary, that approach would incur the same disadvantage as arise with the Draft Bills as the mechanism for contingency, namely the problem of Parliamentary discussion at a time of ongoing investigations against identifiable individuals. These problems were fully canvassed by the House of Lords Constitution Committee's report on Fast Track
22 See Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 Days (2007–08 HL 23/HC 156) paras 83, 84 (in three out of seventeen cases of detention beyond fourteen days the suspect was excluded); Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Counter-Terrorism Bill (2007–08 HL 108/HC 554) paras 31–33. 23 See HC Hansard Public Bill Committee on the Counter-Terrorism Bill, Evidence from Susan Hemming, col 56 (22 April 2008). The use of ex parte hearings is said to be very limited: col 56. 24 See Garcia Alva v Germany, App no 23541/94, 13 February 2001, para 39; Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Counter-Terrorism Bill (2007–08 HL 108/HC 554) para 21. 25 [2009] NIQB 31 at para 26. Compare R (Hussain) v Collins [2006] EWHC 2467 (Admin) at para 16. 26 [2010] EWHC 1859 (Admin) at para 123. 10
Legislation.27 Of course, the level of parliamentary scrutiny and discussion might be diminished under section 25 since it demands only that 'a draft of the order has been laid before Parliament and approved by a resolution of each House' (section 25(6)). Yet, that affirmative resolution process might be viewed as offering inadequate scrutiny and accountability in the circumstances compared to the passage of a Bill.
Draft Bills 11 The Draft Bills represent above all a political signal that the Home Secretary of the day is not to be trusted with the initiation and direction of detention periods. Instead, Parliament must be fully engaged if any change is to be made. This new disposition should be supported if the premise is adopted that 14 day detention is the new 'normal' and that the only likely future direction of travel is upwards to 28 days. Yet, if the institution of 28 day detention is to become much more exceptional than hitherto, the Draft Bills mechanism might be attacked on two grounds: for not setting the triggers for invocation; and for not specifying enough safeguards around those triggers.
12 As for the triggers for invocation, quite simply there are none within the Draft Bills. The Home Secretary's best effort in the Draft Bills consultation paper is to mention 'urgent situations'.28 Lord Macdonald can offer no better, with his formulation of 'exceptional events'.29 The prime safeguard is that Parliament may not be convinced, though since the grounds are not specified, any decision may be somewhat confused. A further safeguard, less immediate, is that there may be a judicial declaration of incompatibility under the Human Rights Act 1998, section 4. This power has more limited impact than the power which might be asserted against a statutory order under section 25. Secondary legislative instruments can be declared outright to be invalid to the extent of their incompatibility under section 3. Whether a more or less extensive judicial power based on human rights review is desirable is of course itself a matter of some ongoing controversy. Since there are no triggers specified, should some be inserted into the Draft Bills? Herein resides a fundamental problem. On the one hand, a political signal is being given that the Home Secretary of the day is not to be trusted. On the other hand, if triggering grounds are rehearsed, then two detriments follow to the Home Office sponsor. First, they will point clearly to the need for evidence to show that the trigger has been met, but the revelation of hard evidence might endanger the investigation and indeed the security situation more generally. Second, the triggers are bound to be of a lower order than those in the Civil Contingency Act 2004. Thus, there would be a need to create some nebulous category of 'second order crisis' unrelated to an emergency situation, especially as it may relate to just a single individual. The attempt to create such a category is fraught with definitional problems and would encourage legal challenge on grounds of proportionality.
13 Regarding safeguards for invocation, one might again argue that there should be more safeguards than under section 25, since the intention is to make the use of 28 day detention more exceptional. Yet, the current formulation compares very poorly with the Civil Contingencies Act 2004 (discussed below) or even with the draft Counter-Terrorism (Temporary Provisions) Bill 2008. It may be recalled that this Bill was flourished by the Home Secretary30 within hours of defeat of the government's 42-day detention proposal in
27 House of Lords Constitution Committee, Fast Track Legislation (2008–09 HL 116). 28 (Cm.8018, London, 2011) para.3. 29 Lord Macdonald, Review of counter-terrorism and security powers (Cm.8004, London, 2011) p.4 para.7. 30 See HC Hansard vol 480, col 620 13 October 2008. 11 the House of Lords.31 The Counter-Terrorism (Temporary Provisions) Bill 2008, allowing 42-day detention, itself embodied few of the previous safeguards embodied within the defeated Counter-Terrorism Bill version. That version entailed independent legal advice, a favourable report from the DPP and the police, a statement by the Home Secretary, secret briefings of the chairs of the Home Affairs and Joint Human Rights select committees, as well as requiring debate and approval from Parliament on the implementing order within seven days, and a subsequent report from an independent reviewer. There would even be ex gratia compensation for those released without charge between 28 and 42 days. These were pared down in the draft Counter-Terrorism (Temporary Provisions) Bill 2008 to an application by the Director of Public Prosecutions and an independent review of every case. Several of these devices were controversial - ‘illusory and constitutionally illiterate’.32 The review of Parliament of the application of detention to named individuals was considered to be constitutionally ‘ill-advised’.33 In theory, the draft Counter-Terrorism (Temporary Provisions) Bill 2008 remains on the table, unloved and ignored. But the Draft Bills surely deserve no better fate. They entail all the same problems, as underlined in the later report on Fast Track Legislation by the House of Lords Constitution Committee, and yet contain none of the safeguards.
Civil Contingencies Act 2004 14 As for the utilisation of the Civil Contingencies Act 2004, Part II can be invoked in the circumstances of a defined emergency within section 19, which expressly and intentionally includes a terrorism emergency.34 It should be noted that the Act can be used where 'an emergency has occurred, is occurring or is about to occur' (section 21(2)) – thus, it can be proactive as well as reactive. The hindrances to open debate of emergency regulations again arise,35 though, unlike other options, the Act deals with the logistics of putting an order before Parliament even in times of prorogation (sections 27 and 28). The definition of emergency contends against intervention in individual cases, since emergency requires a degree of scale – it 'threatens serious damage to the security of the United Kingdom'. Thus, most terrorist attacks cannot justify a declaration of emergency. This is a problem if, like Lord Carlile, it is desired to hold open the possibility of 28 day detention for an individual problem case. It is not problematic if one believes, like Lord Macdonald, that 28 day detention is only conceivable in the case of a concerted set of serious terrorist attacks. Another advantage of Part II is that it contains details in sections 20 and 21 as to the triggers for the powers, all of which can be reviewed in Parliament and by the courts. There are also safeguards as to parliamentary scrutiny, a sunset clause, and the promise of subsequent independent review. More safeguards could certainly be imagined and would be worthwhile. Amongst the wider problems in Part II, there are the following of relevance: • There is no express requirement of objectivity in any of the tests or in the actual power to make emergency regulations – the Minister is allowed to use powers on the basis of satisfaction without the qualification of reasonableness. The condition of necessity is also left unexplained, except in section 21(5) and (6). Proportionality is not sufficiently
31 See HL Hansard vol 704 col 491 (13 October 2008), Lord Dear. 32 HL Hansard vol. 703 col.687 (8 July 2008) Lord Steyn. 33 House of Lords Constitution Committee, Counter-Terrorism Bill: The role of ministers, Parliament and the judiciary (2007-08 HL 167) at para.39. See further Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights, Counter-Terrorism Bill (2007-08 HL 108/HC 554) para.13. 34 See Draft Civil Contingencies Bill Consultation Document – June 2003 (Cabinet Office, 2004, Supplied free of charge with Cm 5843 para.5. 35 It would be possible to avoid Parliamentary debate in advance of action under the Civil Contingencies Act 2004 ss.20(2) and 27(1)(a), but to plan to do so would weaken the safeguards of the legislation. 12
explained aside from in geographical terms. The term is baldly stated when an emergency is declared (section 20(5(b)) and when the regulations are issued (section 23(1)(b)), but there is no requirement when the regulations are applied. • There is no temporal cut off point for either dealing with the aftermath of emergencies which have occurred or anticipating emergencies which are in the future. • It would have been very helpful to impose statutory duties to disclose the evidence and intelligence which convinced the Minister to intervene. There is no such duty in the Act beyond the assertive statement in section 20(5). • An unresolved issue is whether the conditions in section 21 apply as a trigger to the totality of regulation-making powers in section 22 or whether the conditions must be satisfied for every exercise of each regulation-making power. • Parliamentary scrutiny is designed to bite at a number of stages under section 27. But none of these forms of oversight affects the powers of Ministers to make new regulations or affects anything done by virtue of regulations before they terminate. A proposal for an ‘Emergency Powers’ Select Committee was made during the parliamentary passage36 but to no avail. The matter was settled at the last hour by a concession that:37 ‘…within one year of the end of the point at which the emergency regulations fall, a senior Privy Councilor appointed by the Government will review the operation of the Act in that instance.38 It is regrettable that the review and the appointment of the reviewer are not based on statute and that the reviewer is afforded no statutory powers to gather evidence.
15 Nevertheless, even as it stands, Part II offers safeguards in advance of what is offered by the Draft Bills. The Civil Contingencies Act 2004 includes 'Triple Lock' safeguards – that restraints will be imposed on the triggering definitions by reference to seriousness, necessity, and geographical proportionality. There is also the requirement of an affirmative Parliamentary resolution within seven days of the laying of an order in council which makes emergency regulations (section 27). In one sense, it is perplexing to be seen as encouraging the potentially widespread use of the ‘Doomsday’ powers in Part II. However, it should be appreciated that the exceptionality of the powers amounts to a strong safeguard. Despite the difficulties of terrorist attacks such as on 7 and 21 July 2005 or the Liquid Bomb conspiracy, Part II has not been invoked, even though resources were then stretched and, in 2005, there was no 28 day detention power. The fact that the Civil Contingencies Act 2004 requires the establishment of an emergency is itself a powerful safeguard, setting a high bar which should not be lowered by the Draft Bills.
16 Despite its attractions, there are two severe problems with using Part II as the contingent vehicle for 28 day detention: first, there is no clear power to issue detention regulations; second, there are no available drafts as to the details of those regulations.
17 The second point can be dealt with in brief. The government has refused to publish any drafts in regard to its potential response to any contingent emergency. In this case, if it believes that 28 day detention would be part of a set of contingent regulations to respond to a terrorism emergency, then it should publish the plans not only for 28 day detention but also for the other regulations which it envisages. It would be naïve to believe that such contingent plans do not exist. They would become better plans if subjected to the sunshine
36 Hansard (HC) Standing Committee F col.298 (10 February 2004) and Hansard (HC) vol.421 col.1388 (24 May 2004). 37 Hansard (HL) vol.666 col.1655 (18 November 2004), Lord Bassam. 38 Hansard (HC) vol.426 col.1515 (18 November 2004), Ruth Kelly. 13 of public scrutiny. By contrast, the Civil Contingency Act 2004 becomes a very dangerous option as a vehicle for 28 day detention if the intended regulations are to remain state secrets.
18 Returning to the first point, the lack of clear power to issue detention regulations, the relevant powers in section 22(3) of the Civil Contingencies Act 2004 are expressed to be 'particular' powers flowing from the more general purposes in section 22(2), which include '(a) protecting human life, health or safety'. It is true that the listed powers in section 22(3) refer to restrictions of movement and travel rather than detention, but these are only 'particular' powers. The contention that detention without trial can be authorised under civil emergency legislation has not been ruled out by the courts.39 The sponsor of the 2004 Act also refused to rule out the possibility of detention without trial,40 and, in terms of interpretation, there is a difference between creating an offence punishable without trial (expressly disallowed under section 23(4)(b)) and a power of detention without trial which can then be enforced through disciplinary offences tried in the usual way. One can envisage its use, for example, in connection with terrorist emergencies or during pandemics. Nor does section 22(3) rule out powers of summary arrest, such of all persons in the vicinity of a terrorism incident or in an area affected by disease or a chemical, biological, radiological or nuclear (CBRN) incident. The arguments are made more complex with police pre-charge detention powers since they might be said to affect 'criminal proceedings' contrary to section 23(4)(d). That restraint was inserted following pressure from the Joint Committee that regulations should not alter any existing criminal procedure.41 Whether a power of police detention affects criminal procedure might depend on whether it is applied to produce evidence at trial. For instance, it might be argued that any confession made between 14 and 28 days would be inadmissible because of section 23(4)(d), but the detention powers itself would not be invalid since it mainly pertains to article 5. It may be concluded that it would be a welcome reform to clarify further the detention powers under Part II of the Civil Contingencies Act 2004 and their impacts on any subsequent criminal proeedings.
Summary 19 In summary, the Draft Bills involve the worst of all worlds. The government should have the courage of its convictions in the Protection of Freedoms Bill42 and truly bring about the 'Permanent reduction' there mentioned of the detention period by simply abolishing section 25 without feeling the need to wave the shroud of the Draft Bills. There are sufficient protections through special offences, the threshold test, control orders or their successors, and the high professionalism of the police, security services, and prosecutors to give confidence to Ministers, Parliament and the public that liberty should not be put at further risk by the Draft Bills. If reassurance is nevertheless felt necessary for faint hearts, it should arise through two means. One is fuller contingency planning under the Civil Contingencies Act 2004. The government should take seriously the measures in Part II of that Act. They were well debated and contain sufficient safeguards to deal with the only situation in which special detention powers beyond 14 days are in truth likely to be invoked - in circumstances of national emergency rather the operational bottlenecks. The second
39 R v Halliday, ex parte Zadig [1917] AC 260; Attorney-General of St. Christopher, Nevis and Anguilla v Reynolds [1980] AC 637. 40 Letter from Douglas Alexander to the Joint Committee on the Draft Civil Contingencies Bill, 31 October 2003. 41 Cabinet Office, The Government’s Response to the Report of the Joint Committee, para.30. 42 2010-11 HC 146 cl.57. 14 reform measure would be to provide for the possibility of bail under the section 41 arrest power. As already indicated, there are strong human rights arguments for the necessity for such a power. In these circumstances, the device might allow for the continuation of an investigation in relation to a suspect who, while no longer in police detention after 14 days, could be released on bail conditions set by a judge akin to control orders for a period of up to 14 days. The transfer of power to judicial hands and away from either a Minister or Parliament is the best solution of all in regard to the fair treatment of the liberty of an individual.
The judicial authorisation process for extending pre-charge detention beyond 14 days 20 Recent cases have explored the bounds of the judicial role and extended the duties which the judges expect to undertake. • In Ward v Police Service for Northern Ireland,43 the House of Lords upheld the exercise of the power under paragraph 33 to exclude the detainee and lawyer from sensitive aspects of police representations. Their Lordships warned that judges who allow exclusion in this way take upon themselves an enhanced duty to check what the police are demanding. • The decision by the Northern Ireland High Court in Re Duffy asserts that it would amount to ‘neglect’ if the lawfulness of the basis for the arrest was not considered.44 In Re Duffy (no.2),45 it was emphasised that issues of proportionality are fundamental to the review process. In Sher v Chief Constable of Greater Manchester Police,46 the court again imposed strict requirements as to inquiry and review. • Challenges to decisions to extend detention might be possible by way of judicial review or habeas corpus within fourteen days. Thereafter, a decision of a High Court judge cannot be reviewed in these ways according to R (Hussain) v Collins.47
21 Overall, the testing of the necessity and proportionality of the loss of liberty are now firmly recognised as part of the judge's remit. This development is vital to ensure compliance with Article 5. As a result, the demands of the judicial scrutiny have increased. As a result, the police were caught out in Operation Pathway and treated judicial authorisation as too much like a bureaucratic exercise rather than a searching examination.
22 At the same time, scrutiny under Schedule 8 does not necessarily amount to a fair process because of the possibilities of suppression of evidence and exclusion of detainee (and lawyer) under paragraph 36. Some suggestions to make hearings more effective and fair include: • a presumption of detainee presence at review hearings; • the use of special advocates in cases of exclusion; • the greater structuring of hearings beyond fourteen days with more explicit checklists to encourage judicial involvement.48
43 [2007] UKHL 50. 44 [2009] NIQB 31 at para 26. Compare R (Hussain) v Collins [2006] EWHC 2467 (Admin) at para 16. 45 [2011] NIQB 16. 46 [2010] EWHC 1859 (Admin). 47 See [2006] EWHC 2467 (Admin). 48 See Lord Carlile, Report on the Operation in 2007 of the Terrorism Act 2000 (Home Office, London, 2008) para 105. 15
Safeguards 23 As for the sufficiency of safeguards during pre-charge detention, many other reforms or changes could be conceived and would be beneficial, though this list is not to imply that high standards of treatment in police detention do not already prevail.
(a) Since the availability of defence lawyers can be a significant factor which produces delays and thereby prolongs detention, it is counter-productive that changes in legal aid funding arrangements will decimate the number of available solicitors.49
(b) One recurrent proposal has been independent inspection of detention facilities and processes. Independent custody visitors may attend under the usual rules,50 a scheme extended to Northern Ireland in 2005 by the Independent Custody Visiting Scheme of the Northern Ireland Policing Board.51 The Independent Custody Visiting Association in England and Wales is intent on drawing up a special protocol for contacts with suspected terrorists in police custody.52 Although the lay visitors are allowed to witness interviews,53 they do not review the rules nor meet with detainees. Therefore, independent oversight of detention conditions could be made more effective by reviving the office of the Independent Commissioner for Detained Terrorist Suspects.54 The concept of an Independent Commissioner was conceded by the government in debates on the Counter-Terrorism Bill.55 However, the government later reneged on this promise because of feared delays to investigations.56 Instead, by the Coroners and Justice Act 2009, s 117, the remit of the Independent Reviewer of Terrorism Legislation under TA 2006, s 36, is modified to make explicit that the officer may ‘in particular’ investigate the treatment of persons detained under s 41 for more than 48 hours, including by real time observation. Aside from the fact it has not been brought into force, this scheme suffers from several limits. The additional burden is placed upon the single, part-time independent reviewer. Even the government expects attendance at no more than ‘the odd extension hearing’ and ‘the most serious investigations’.57 In addition, the exclusion of scrutiny during the first 48 hours puts beyond review around a half of detentions.
(c) Relatively small-scale reforms which build upon existing features could include more detailed rules as to living conditions, shorter time limits, and police internal reviews
49 There is also the problem that legal aid is not available for barristers at hearings under Schedule 8: Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: 42 Days (2007–08 HL 23/HC 156) para 97. 50 Police Reform Act 2002, s 51; Code of Practice on Independent Custody Visiting (Home Office, 2003). 51 Human Rights Annual Report 2006 (Belfast, 2006) pp 116–24. 52 Monitoring Places of Detention, First Annual Report of the United Kingdom's National Preventive Mechanism (Cm.8010, London, 2011). 53 Lay Visitors’ Reports Order 2005 SR (NI) 420. 54 See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UNGA 43/173 of 9 December 1988) Principle 29; Walker, C and Fitzpatrick, B, ‘Holding Centres in Northern Ireland, the Independent Commissioner and the rights of detainees’ [1999] European Human Rights Law Review 27; Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (Northern Ireland Office, Belfast, 1999), para 8.16. 55 HL Hansard vol 705 col158 (4 November 2008), Lord Lloyd. See Horne, A, An Independent Commissioner for Terrorist Suspects (House of Commons Library, London, 2009). 56 Hansard HL vol 714 col 867 (11 November 2009), Lord Tunnicliffe. 57 Ibid col 872. 16 continuing after 48 hours. There should also be verification of any application beyond seven days by a higher police officer such as an Assistant Chief Constable.58
(d) The arrest power itself in section 41 could be subject to reform. There is no guidance equivalent to PACE Code G (for the statutory power of arrest by police officers). Another deficiency is that section 41 is not limited by the ‘necessity criteria’, as specified by PACE, section 24(4).59 Next, the excessive use of section 41 for intelligence-gathering could be curbed by a ‘scheduled’ offence approach in place of reliance on the trigger of 'terrorism'.
(e) More fundamental changes directly related to the arrest and detention processes could include, first, more restrictive rules as to the admissibility of any statements or silences. For example, if there was a rule that any statement obtained after four or seven days was inadmissible, then it might speed up the investigation process. (f) Special rules should be instituted to allow for the growing practice of the ‘safety interview’ - an off-the-record interview in order to protect life or avert serious property damage.60 In R v Ibrahim,61 the defendant, one of those charged with the attempted attacks in London on 21 July 2005, wanted to exclude from trial as unfair evidence obtained in a safety interview. During the safety interview, the police had warned that his statements would be recorded and used in evidence, though, at trial, they were not the prime evidence of the offence. The court admitted the evidence, even though legal advice had also been improperly refused.62 These safety interviews are acceptable in principle. They allow for questioning without legal advice and some of the documentary formalities but occur in well-monitored circumstances. However, in the light of the Ibrahim decision, such statements should invariably be treated as being without evidential merit.
(g) Moving to reforms indirectly related to the arrest and detention processes, an initial issue is what happens before the arrival at the police station. It is all very well to have regulatory perfection at Paddington Green only to find that abusive behaviour has occurred before arrival, as sustained in the case of Barbar Ahmad.63
(h) Arising from his review of Operation Pathway, Lord Carlile called for a clear protocol between police and CPS in relation to the handling of applications for the extension of detention.64 No such protocol has been published.
(i) Another issue raised by Lord Carlile is the case of Kafeel Ahmed who died on 2 August 2007 from burns in the Glasgow Airport attack on 30 June 2007. Lord Carlile points out that no interrogation was possible during a 14 day period (though one might observe that a 28 day period also would have not have sufficed). However, there is a real defect in section 41. Unlike under the Police and Criminal Evidence Act 1984, absences from police detention spent in medical care do not stop the 'detention clock'. This defect should be remedied, but by
58 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights: Terrorism Bill and related matters (2005–06 HL 75, HC 561) para 102. 59 See Serious Organised Crime and Police Act 2005, s 110; Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007, SI 2007/288, art 15. 60 Code H, paras 6.7 and 11.2. 61 [2008] EWCA Crim 880. 62 Ibid. para104. 63 Four officers of the TSG unit at Paddington Green are being prosecuted for excessive force in the arrest of Babar Ahmed: The Times 13 August 2010 p.15. This followed the Metropolitan Police's admission of civil liability and offer of £60,000 damages for injuries in March 2009. 64 (Home Office, London, 2009) paras.81-88. 17 copying the Police and Criminal Evidence Act 1984 rather than allowing 28 days detention for all.
(j) The final, and broadest, issue to raise concerns the respective roles of police and security agencies in dealing with terrorism. The security agencies have been accorded since 199265 a more leading position in this country than many others. This priority for intelligence-led approaches reflects a greater emphasis on risk management for the sake of public safety than prosecution for the sake of justice. Whether the order of priority is right or not, one effect is that police's evidential starting point at the time of arrest under section 41 is at a lower level than for other serious crimes, exemplified also by the inadmissibility of intercept evidence.66 The effectiveness of terrorism policing and security agencies is beyond the current inquiry but is worthy of future attention.
1 April 2011
Oral Evidence
Taken before the
Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills
on Monday 4 April 2011
Members present:
Lord Armstrong of Ilminster (Chairman) Lord Davies of Stamford Lord Faulks Lord Freeman Lord Goodhart Baroness Liddell of Coatdyke Tony Baldry Sir Menzies Campbell Paul Goggins Alun Michael Mr Robert Syms ______
Witnesses: Rt Hon Mr Jack Straw MP, Rt Hon Mr David Blunkett MP, Rt Hon Mr Charles Clarke, former Home Secretaries, and Lord Goldsmith QC, former Attorney- General, examined.
65 House of Commons Debates, vol. 207, col. 297, 8 May 1992. 66 See Privy Council Review of intercept as evidence: report to the Prime Minister and the Home Secretary (Cm.7324, London, 2008). 18
Q138 Chairman: This is a very distinguished bench of former Members of the Government. We are here to look at this draft contingency legislation for temporary extensions of the pre-charge detention period. We hope that you may be able to help us from your own experience—which is, between you, very comprehensive—of the application of these pre-charge detention arrangements in dealing with terrorist suspects. We very much look forward to hearing what you are going to tell us. We are looking, first of all, at the need for contingency provisions for an extension, given that the proposal is to reduce the period to 14 days; secondly, the method by which that is proposed to be done—these draft Bills—or whether there are other methods which could be considered and might be as satisfactory or more so; and thirdly, the balance between the need to provide for security and the need to safeguard the rights of the individuals. You all had access to information, when you were in office, which convinced you that it was necessary to introduce powers to extend the period available for holding terrorism suspects without charge. I wonder whether you still all think it is necessary to have some sort of mechanism for extending the period beyond 14 days now that Parliament is expected to decide to limit the standing provisions to 14 days. Mr Clarke: From my point of view, as the most recent of the Home Secretaries, Lord Armstrong, I would answer yes to the question. I still think it is necessary to have a mechanism, subject to the qualification that it is five years or so since I have seen the intelligence material that is there, and it may be there has been some substantive change, although I have to say that, on a purely informal basis, I don’t believe there has been any substantive change. I still think that it is necessary, and finding a simple way of doing it is very important, which, as I understand them, the current proposals don’t do. Chairman: Thank you. We will come to that second part later. Mr Blunkett: I was responsible for putting before Parliament the extension from seven to 14 days, which was seen as unexceptional. Nobody, literally, batted an eyelid. Nobody raised the issue. Nobody inside or outside Parliament saw it as a difficult issue. It is quite clear to me that, irrespective of people picking numbers out of the air, it is necessary to have powers in circumstances where there are enormous complications.67 Chairman: Thank you very much. Mr Straw: I agree, Lord Chairman, with what my two colleagues have just said. The Government itself accepts that there can be circumstances in which the time period should be extended from 14 to 28 days, so it seems to me that that is now a given across Parliament. As Charles and David have both indicated, my concern—and I believe our concern—is about the method. I think the method proposed by the Government is simply unworkable, for reasons I am happy to spell out.
Q139 Chairman: Thank you very much. Lord Goldsmith, you were Attorney-General when 10 out of the 11 suspects who have been detained for more than 14 days were arrested. Were you consulted by the CPS about that? Lord Goldsmith: I was in relation to Operation Overt. I can’t remember whether I was in relation to the others. Operation Overt I remember very well. I remember being closely consulted and speaking, particularly, to the head of anti-terrorism, Sue Hemming—a professional for whom I have a huge respect—and also, I believe, Ken Macdonald who was, of course, DPP at the time. They persuaded me that it was necessary to extend the period of detention in those cases. I asked them pretty much the same questions that they would have
67 David Blunkett has subsequently clarified that international boundaries not only have to be crossed but are irrelevant to the terrorist, and such complications that therefore arise can put enormous pressure on collating such material within fourteen days. This is something we have to face up to, the only issue is: what is the most straightforward, sensible, common-sense way of doing that? 19 had to put before the judge, although not perhaps in the same detail. Did they have enough to charge? Did they really think they would find more evidence if they extended beyond that period? They persuaded me that was right. I have seen that Lord Macdonald, as he now is, now says that the decision was wrong in relation to two of those. That certainly didn’t seem to be the position at the time. I notice that the CPS itself, in its evidence to the review, still says it made the right decision. It is important to underline that these are difficult investigations. Operation Overt was terribly complicated—there were a number of suspects—and I know they were working very long hours, having to make difficult judgments in real time as the clock was ticking. For myself, I certainly wouldn’t now say, without clear evidence, that, somehow, somebody made a mistake and didn’t realise there was enough evidence to charge at that time. Going back to your first question, Lord Chairman, whether I was persuaded of the need to extend, I was. I was out of step with my colleagues at the time in thinking that 42 days or 90 days was necessary, because I didn’t. Actually, I seemed to be out of step with Lord Macdonald at the time, because I remember having to stop him going on the airwaves to argue in favour of 90 days on the day that the resolution was coming to the House of Commons. There we are. I am glad people now see that they were wrong at the time.
Q140 Chairman: Thank you very much. The fact is, of course, that all the cases where there was an extension were in 2007 or earlier, and it has not been necessary, since that time, to extend beyond 14 days. I wonder if any of you reads anything into that: whether, in those cases before 2007, people were being over-cautious or over-protective and whether, in the light of experience, 14 days is really enough in almost all circumstances. Lord Goldsmith: For myself, I don’t read into it that people were being over-cautious at the time. There were particularly complicated investigations, and of course, as all Members of the Committee will be well aware, one of the great difficulties for prosecutors and police in these cases is that they often have to act at a stage before they think something is about to happen, which necessarily means, perhaps, before all the evidence is there. That makes the task of being satisfied that there is enough evidence to charge particularly challenging. I certainly didn’t have the impression at the time that people were being over-cautious. They wanted to get it right. They didn’t want to charge people, which would have the consequences that they would be detained, no doubt, in custody for significant periods of time, unless they were satisfied that they could properly charge. Mr Blunkett: Lord Armstrong, could I underline that? There has to be an understanding of the difference between normal criminal prosecution, where an offence has been carried out and the offence is, therefore, extant, and where we have, in counter-terrorism, a major effort to stop individuals carrying out the attack, and the ability to intervene at a point where that will safeguard the public. In all the debates we have, I fear the fact that we are dealing with a very different situation doesn’t shine through. We are not waiting to pick up the pieces afterwards. We are trying to stop the pieces falling apart. Chairman: Thank you very much. Mr Straw: Lord Armstrong, could I add something? I saw from some of the submissions, and indeed Lord Macdonald’s review, an implication that somehow the fundamentals might have changed since 2007. The conclusion I draw from the fact that there has been no occasion to detain people for more than 14 days since that date is, simply, that we have been lucky. I have echoing in my mind—and maybe others here do, too—those chilling words of a Provisional IRA commander who said, “You have to be lucky every day. We only have to be lucky once.” I see absolutely no information or evidence to suggest that the nature of the threat is necessarily less than it was in 2007. I think it is still there.
20
Q141 Alun Michael: The starting point, obviously, is the advice you got from the police—a need for the power of longer detention, and successively longer recommendations. I know some of you—I know Jack has—have looked at comparisons with the way we do things in the UK and the USA. What are the differences in the way that we deal with this particular issue that make the powers seen by the police as being unnecessary over there, and unnecessary—I had the chance of testing this last week when I was in Los Angeles—to the extent of their being bemused at the idea that such long periods of detention before arrest would be needed? Is there something we are missing in terms of the way that there are similarities and differences? Is there a better way, perhaps, than the number of days that could be used to identify the way of dealing with the threat? Mr Straw: Mr Michael, I don’t profess expertise on the issue of comparative jurisdictions. Like everybody else in this room, I have spent a lot of time looking at them. A conclusion I have come to is that different systems, including different common law systems, have such a different character that it is very difficult to draw easy conclusions from them. At the level of slogan or rhetoric, we often had thrown at us that we are the worst in the world outside the former Soviet Union and Outer Mongolia or something, but, when you went into it, they quite often were very different. For example, in France, I very well remember a dinner with people involved in counter-terrorism and others, judicial figures, where the French were explaining their utter subscription to the rule of law—indeed, they claimed to have invented it—along with the fact that they could detain witnesses for a very long period so they did not really need specific powers of this kind. My view is that the moment you start looking at other countries—and it is interesting—you get into fundamentals about their criminal justice jurisdiction and you have to start to change the whole thing.
Q142 Alun Michael: Yes, it is. But, to go with it a little further, we have become so bogged down in the question of the number of days that it leads you to ask if this is getting in the way of finding solutions which work. I wonder whether you might have any suggestions. Mr Straw: I don’t, I think. The one which other colleagues could comment on better, because they were in post in the relevant Department, is about post-charge questioning. I notice, Lord Armstrong, that although the Government’s review says they might go ahead and bring the powers in, they are also sceptical about the value of post-charge questioning. Mr Clarke: Where I think things have gone wrong is that the elevation of the number to almost a theology is extremely unhelpful. Far more important questions, for example, are: “Was the 90 days proposed as a maximum or a routine?”—which got elided—and “At what interval was there judicial scrutiny of a decision to extend, within a 90-day period, the period of detention by seven days?” I completely agree with what Jack has said about comparative systems. It used to frustrate me immensely, particularly not being a lawyer. When I talked to some of the French magistrates there, for example, you were comparing apples and pears as far as this was concerned, but in the public debate it was somehow seen as significant. In fact, I don’t think it was substantive at all. Lord Goldsmith: Lord Chairman, could I add something in answer to Mr Michael’s question? There are some differences with the US system. They have the ability, under certain circumstances, to hold people as material witnesses. That deals with the safety element of keeping people, as it were, out of circulation. They sometimes hold people on holding charges, which on the whole we haven’t been in favour of, although post-charge questioning was intended not so much to make holding charges routine but to provide the opportunity that somebody could be charged and there could still be some realistic questioning at a later stage—subject to safeguards. They allow intercept evidence, and I am disappointed that, yet again, the Government has ducked the issue of intercept evidence. Often these arrests take 21 place because important things have been intercepted, yet they are excluded from consideration when the question arises, “Can we charge somebody?” Finally, of course, the United States came up with some extradition judicial solutions, which involved people being detained for much longer. Mr Blunkett: Absolutely, and they are having great difficulties in getting out of that now and dealing with it within their own jurisdiction.
Q143 Lord Davies of Stamford: I would like to ask questions following on things that have already been said. I am glad we have had an answer about the United States because I think it is a very interesting issue. Three of our witnesses this afternoon have been Home Secretaries themselves, and they obviously didn’t think it necessary to press for either post-charge questioning or the use of intercept evidence in courts. I am interested to know why they didn’t think those two things were necessary, and whether they still think they wouldn’t be helpful in this particular context. Mr Straw: If I can answer first, since I am, as it were, of the greatest antiquity as a former Home Secretary—I was Home Secretary before 9/11, not afterwards. I was fortunate in one respect, in that, with the exception of the Omagh bombing—which had and has very clear implications for whether it is going to be practical to go down the route the Government is proposing of recalling Parliament— Chairman: We will come to that later on. Mr Straw: I know you will come to that. —the level of concern about terrorism was declining. We had had the Good Friday agreement, so there was less and less Irish terrorism, and there hadn’t been any really significant international terrorism which had directly affected us. Therefore, the issue didn’t arise on my plate. As to intercept evidence, I certainly did look at that, and there was a further review held following Lord Lloyd of Berwick’s very active counter-terrorism review. The issue there was not whether one would like intercept evidence to be made available in court—the answer to that is always yes, as far as I am concerned—but to ensure that there are practical and proper safeguards around that evidence. That remains my view. I share the frustration of Lord Goldsmith about the fact, notwithstanding Sir John Chilcot’s published review has a complex, but I think workable, solution there, that no further action has been taken on this. Mr Blunkett: I was enthusiastic, in 2004, to try and find a solution, and was immediately bombarded with not just the technical difficulties of changing systems which were happening at the time— Lord Davies of Stamford: We are talking about intercept evidence here, are we? Mr Blunkett: Yes—and I remember Sir Christopher Bland coming to see me in high dudgeon at the time he was chairman of BT—but also the issues of disclosure and admissibility and the way in which evidence would have to be collated from the beginning. It is partly to do with the perfectly reasonable demands of the defence in terms of the timeline that has occurred before the immediate issues. That has obviously been a stumbling block all the way along but, like Jack Straw, I share entirely the view that, in principle, it would be a good thing. Mr Clarke: To complete the trio, I think there was a universal position on intercept evidence, that it was desirable to do it but we needed to look at the practicalities. The two main practicalities were, first, the issue that David has referred to about disclosure—if you had a bit of a phone call, or whatever, disclosed would the defence be able to ask for everything and what would be the cost and implications of that—and secondly, the question of whether it would reveal any particular techniques in open court which would be difficult for the security services to deal with. That was an issue. 22
There was disagreement in Government throughout the whole time I was there. Peter has been quite consistent about this all the way through. A discussion went on about this and Peter thought—he can speak for himself—based on American experience, it might be possible to achieve it. I came to the view, following the various reviews we had, that Jack and David had been correct in their position, and that remains my view. But if a way can be found to solve it, then that would be the right thing to do. Post-charge detention is a very interesting question. I would say— Lord Davies of Stamford: Post-charge questioning. Mr Clarke: Post-charge questioning, I beg your pardon. For myself, I felt that to some extent I was in the hands of a group of people talking about the legal system of this country, where that had not been permissible within our legal system as it worked at the moment, and people felt you could not change that system. It might have been interesting to look at that possibility harder as an alternative to where we went.
Q144 Lord Davies of Stamford: Let me ask the same question from a slightly different angle. If we did have post-charge questioning and if we did have the use of intercept material available in court, to what extent would that be a substitute for detaining people, pre-charge, beyond 14 days? Mr Clarke: In my opinion, it would reduce the need for it but it would not eliminate the need for it. Mr Blunkett: I agree with that. Mr Straw: I defer to Peter. Lord Goldsmith: I think that is probably right. I will say two other words, if I may. Lord Davies of Stamford: Do you say it would be a substitute? Lord Goldsmith: No, it would not be a substitute. I think it is right to say that it would not deal with it in all cases but I think it would, as Charles says, lessen the need.
Q145 Lord Davies of Stamford: Can you give me a hypothetical case where you need to keep someone detained beyond 14 days but you can’t charge, even though you had the opportunity to go on questioning once you had charged and you could use the intercept evidence, given that sometimes the purpose of the questioning must be to try to secure the kind of evidence already available to you through intercepts which are themselves not usable in court? Lord Goldsmith: First of all, you need to have had enough evidence—enough information gained—at the time of charge to justify charging. If you haven’t got enough evidence to charge, you simply can’t do that. Lord Davies of Stamford: That we all understand. Lord Goldsmith: The real point about post-charge questioning is that it enables you to continue to question and draw inferences from the absence of adequate answers. Normally, at the moment, the shutter comes down at the point of charge and the suspect doesn’t need to answer any further questions at all—unless it is some new and different offence. As far as intercept is concerned, and it is quite right that the US do manage it, I always remember being told by a man who went on to be Homeland Security Secretary—he had been the Attorney-General for New Jersey and a big part of the crime-busting system in New York—that they had put into prison the five top Mafia bosses all through using intercept evidence and couldn’t understand why we were having such difficulty with it. I don’t understand why we have such difficulty. I know that very powerful arguments were put to my colleagues, which they have just identified. I believe we had found a system to deal with it but, at the end of the day, it didn’t happen. 23
Chairman: This is going rather beyond our terms of reference, as you might say, and I wonder if we might turn to the second of these questions on the subject. Lord Davies of Stamford: Chairman, yes, but if there was a substitute for the kind of Bill which is before us— Chairman: Yes, I see that. Lord Davies of Stamford: —then clearly it would be very relevant to us and we might want to point out that substitute, which may be preferable either from the civil rights point of view, from the pragmatic effectiveness point of view, or both. Chairman: Thank you. Could we turn, then, to these questions on the blurring of the boundaries between Parliament and the courts that arise? Lord Goodhart, would you like to ask questions of the former Attorney-General?
Q146 Lord Goodhart: Yes. One of the things that concerns me here is that the Bill or Bills or draft Bills, as we are beginning to see, contain absolutely no statement as to what are the circumstances in which they could be enacted. Doesn’t that mean there is a problem in that there is no check on the circumstances in which this Bill is enacted? The Secretary of State cannot pass any significant evidence to the Members of Parliament, because that would spread immediately. Equally, it seems there is nothing that would enable a judge to say that you have gone beyond your rights in this Bill. What do you think about that? Mr Straw: Lord Goodhart, I agree with you. I have thought about this a lot. This idea of the Home Secretary requiring Parliament to be recalled, if indeed Parliament is sitting and if there is a Parliament—the terrorists are not going to oblige by avoiding general elections when there is no Parliament—is a fundamentally misconceived proposal on almost every ground that I can think of. I have tried to work out how intelligent people could have arrived at it. But, my Lord Chairman, having sat round the table with people who are more intelligent than me and, at the end of it, noted that we have come to a conclusion which, individually, none of us would defend, and which seems to have orphans for parents, I can only believe this was a product of some kind of inconclusive, awful discussion in a Cabinet Committee, where they decided they had to do something, so they came up with this. Frankly, it is absolute nonsense and it can’t work. The Home Secretary, I am sure, would seek to do what all Home Secretaries do, which is to apply themselves very carefully to the circumstances. But whether the case was a good one or a weak one, the Home Secretary of the day could not come to Parliament to say whether it was a good one, because they would be prejudicing the trial. What do they say? They say, “You have to take it from me that we have had to recall Parliament.” If that is all they can say—and it is—then, surely, it is far better and more appropriate to give the Home Secretary the power to extend detention to 28 days and then either to have an annual renewal of this or, at a time appropriate—i.e. not prejudicial to the trial, if one takes place—to go back for endorsement.
Q147 Lord Goodhart: Would you leave it entirely in the hands of the Secretary of State or would you accept that there should be some form of judicial review of the decision taken? Mr Straw: Lord Goodhart, you could go down the route of the Home Secretary having it endorsed by the House and it could be done on, say, an annual basis or a one-off basis when appropriate. That is one route and it is sometimes used. The alternative route, the one in the legislation which has now been dropped, as I understand it, was that, having provided for the power, it was then a matter for a judge to decide to exercise that power in the individual case. Personally, I feel more comfortable with the latter. However, I had ceased to be Home 24
Secretary when counter-terrorism became such a big issue, and I was never directly involved in this kind of decision. Mr Blunkett: We have an analogy with what happened post 11 September. Although people did not like the Special Immigration Appeals Commission, its process worked well, i.e., the Home Secretary had to take a difficult decision in relation to providing a certificate for those who were being held and there was appropriate oversight by the judiciary—a court of review. Peter can comment on whether he felt that worked really well. The decision in Part 4 of the Anti-terrorism, Crime and Security Act was overturned by the House of Lords because it discriminated against people who were not British citizens, not because of the way that the process itself had worked. I can’t see, like Jack Straw, how a Home Secretary could ever bring something meaningful to the House of Commons. They couldn’t spell out the detail of the case, because obviously it would be sub judice, and if they did, in some circumstance, spell out material that was prejudicial to those who were in the field and actually at risk, then of course they would undermine the very purpose of the process in the first place. It is a muddle, and it is necessary to go back to first principles. If we do have to extend it, then checks and balances can be built in to safeguard the individual without opening the door to everything else.
Q148 Lord Goodhart: Could I ask one last question? Lord Macdonald now has different views from those he had originally. His view is that it would only be appropriate to bring into effect any form of legislation to extend the time beyond 14 days where it is not a matter of a single or potential terrorist but, rather, a matter of the threat of very serious action—something like a version of 9/11. Do you think that is a reasonable basis? Mr Clarke: First, I agree with what Jack and David have said previously about the issue in general. But let us suppose there was intelligence which suggested 9/11 was coming round the corner. The Home Secretary would then have to go to Parliament and say, “Without being able to say why, I think 9/11 is coming round the corner. There is something going on which makes me think we ought to extend our abilities in this circumstance.” You would get into the most impossible situation, because the point about Parliament is that it does seek accountability, scrutiny and discussion, and the Home Secretary of the day has to justify. But, in this hypothesis, the Home Secretary of the day could not justify, in terms of any material circumstance, by describing what he was being told by the security services about a particular event. He would be, literally, in an impossible position. There would be a massive situation of credibility, or otherwise, in the situation. The more you take it to Parliament itself, being a court—I mean a court in the sense of people being able to defend themselves in front of it— and the more you take it down that route, the more a whole set of issues about fair trial start to arise above and beyond what you have at the moment. You then have the case that needs to be considered quite carefully, I think, of the circumstances in which any Home Secretary might go to Parliament at all. That is the reason why we ended up with the 90-day proposal, which I supported and proposed in Parliament. It was deliberately designed to have a wide limit, but with weekly recourse to judges to decide whether it could be extended each time. Parliament decided it didn’t agree with that, and, fair enough, it is the right of Parliament to do that. But, then, having to find another day number that works is extremely difficult. On what basis would recalling Parliament work? I don’t see it, and I agree very much with what Jack and David have said. Lord Goldsmith: Lord Chairman, could I add a word, looking at it from the point of view of prosecution, because Charles made a very important point about fair trial? What surprises me about the suggestion which Lord Goodhart put is that, if there is a political debate in the country that we are going to have this legislation but only if there is a 9/11 25 coming round the corner, the Home Secretary goes into Parliament and, first of all, says nothing because he or she has been told, “You really can’t say anything because this is in the middle of an active investigation and there are all sorts of problems about doing that.” Then the Attorney-General will come on the line as well and say, “You can’t even say this fits within what we have said before was the purpose of this emergency legislation, because ultimately the jury will all know that this was a case which the Government thought was close to a 9/11.” I was not Attorney-General when Jack was Home Secretary, but both Charles and David will recall the difficult conversations we had to have from time to time when I would be saying, “You really can’t say these things at the moment, because there is a risk to a fair trial, and there is certainly a risk that defence lawyers will pick that up and use it.” It is a very difficult area to have anything of that sort said publicly when there is an active investigation going on.
Q149 Lord Freeman: Lord Chairman, could I follow this, because it rather anticipates some of the questions which I will not now be asking? Could I ask Jack Straw whether there are any circumstances in which Parliament does have a role to play? I think he was hinting at some kind of review. The Committee understands the practical difficulties of recalling Parliament and the difficulty of having a fair trial, but could he comment on what role Parliament has? Mr Straw: My particular experience of recalling Parliament was following the Omagh bombing. There, we were not recalling Parliament in order better to question the suspects but because there was, frankly, a public demand to do something. You may want to look at the timetable that we had for that, but it certainly wasn’t particularly speedy. In answer to Lord Freeman, if you go down the route of giving this power to the Home Secretary of the day, which they would exercise in a quasi-judicial way, then, in my view, it would be perfectly satisfactory that either the exercise or otherwise of that power be reviewed on an annual basis, so it would not be case specific, or, quaere, whether you provided in the legislation that it would be subject to endorsement by the House. But it would have to be at an appropriate moment. If you said 40 days, there may then be a trial pending or continuing. It would be unsatisfactory to have a specific time limit, but one would say, “Wherever this power is specifically exercised by the Home Secretary, then the Home Secretary, at the earliest possible moment, reports it to the House and it is subject to endorsement or otherwise.” That endorsement or otherwise could take place many months or, in some cases, years after, because of the scale of investigation. If you go down that route, those are the only two alternatives for subsequent scrutiny by the House that I can think of. Mr Blunkett: Lord Chairman, very briefly, the idea of review is always helpful as a check. When I appointed Alex Carlile as the reviewer of terrorism legislation and the process, it was deliberate, to find someone of professional standing who was also not seen as being politically aligned with the Home Secretary of the day, namely me. That was a helpful continuing check. Anything that Parliament can do to do that would be a bonus, but it would not interfere with sensible decision-making.
Q150 Chairman: I think all three of you are saying—and I quite understand why you are saying it—that, rather than this arrangement of the recall of Parliament to pass emergency legislation, it would be better to trust the Home Secretary. Mr Straw: My Lord, yes— Mr Blunkett: Yes, with checks and balances. Chairman: I have some sympathy with that, having been in the Home Office. 26
Mr Straw: My Lord, there is a lot of suspicion of Home Secretaries these days—it is very different even from when I was Home Secretary—for all sorts of reasons, not least because of the scale of the threat of international terrorism and the fact that the powers of the state have to be used more extensively than we have been used to, except in Northern Ireland which was always seen as sui generis. It is tricky. Like David and Charles, I think that any power exercised by a Home Secretary should be the subject of review. I would never go round saying, “This is going to be perfectly all right. Trust the Home Secretary,”—or only among a very limited and carefully chosen audience—because any such argument would fail. As I say, my view, if you want to do this, is that you could say the use of the power could be triggered by the Home Secretary and that whether it applied in a specific case was a matter for a judge—both of which could happen very quickly. That may be a much better way of doing it. Mr Clarke: Exactly. “Trust the Home Secretary” isn’t a popular slogan, and possibly rightly so, but there are two possible types of check and balance. One is Parliament, the legislature, and the other is the judiciary. Parliament has certain roles in the Select Committee process and the reports that take place, and can operate appropriately. Parliament can receive reports, for example, as they do, from various commissioners—from Alex Carlile and from others—and can make judgments. You can write into statute the requirement to report to Parliament in a variety of different fora. Then you have the judiciary. As I said earlier, it is quite possible to see, both on individual decisions and in general, a role for the judiciary to play. The passage of the Human Rights Act and the establishment of a Supreme Court requires a better dialogue between the top judiciary of the country and Parliament and the Executive, as I have argued elsewhere, because an uncertainty about what the Home Secretary can or cannot do is a very dangerous thing, and I think that exists in certain areas of the Home Secretary’s discretion at the moment. I understand your sympathy with “Trust the Home Secretary”. I certainly felt it myself when I was Home Secretary, as would my colleagues as well, of course, but you have to build some checks and balances into the process.
Q151 Chairman: Do you think that the DPP might have a role there? In order to try to preserve a distinction between Parliament and the courts, the Home Secretary, in making an order, would have to have some kind of certificate from the DPP, or the Attorney-General— Mr Clarke: I was going to say, the Attorney-General—
Q152 Chairman: Then the judge would look at individual cases. Mr Clarke: The Attorney-General certainly has a role. I am less certain—and Peter can talk more accurately than I—about the relationship between the DPP and the Attorney-General, but I think the Attorney-General certainly can, and in some cases of public policy, does have exactly that kind of role. I think, for various reasons, the word “judge” is now seen as a very important “clearer” of all decisions, in a sense, and that is possibly because of the role of the Supreme Court. Personally, I would say having a judicial involvement in the whole process is quite important above and beyond the Attorney-General. That is my inclination. Lord Goldsmith: If I could touch on that, the starting point is that the decision whether or not a particular suspect ought, if possible, to be detained for questioning longer starts with being a decision between the police and the prosecution. They are the people who are assessing the evidence. The prosecutor is deciding whether there is enough evidence to charge. That is the starting point. That has to go, at some point, to a judge. Even before 14 days it has to go to a judge and the judge needs to be satisfied that, whatever test Parliament lays down, it is satisfactory to continue to detain this person, to keep him away from his liberty, on the grounds that proper inquiries are being made and also satisfaction by the judge 27 that, if he continues to be detained, this may result in a charge. That depends upon what the prosecution say and what the police say. Plainly, the DPP has a role, as the head of the Crown Prosecution Service under the Attorney-General, in that system. Do you then superimpose a requirement that the Home Secretary also should say it is appropriate to go beyond 14 days? I don’t have a huge objection to that, but it is not the Home Secretary deciding that it is appropriate to keep this person detained. That would be quite wrong. It has to be that the prosecution service and the police believe it is necessary—a judge is going to be satisfied about that and the Home Secretary is prepared to give a special fiat, as it were, which Parliament has authorised the Home Secretary to give—to go beyond 14 days. What I find unacceptable, and I agree entirely with my colleagues here, is suggesting that you can ask Parliament at that stage, in the middle of it, to do that. Parliament or the Government has to decide whether, in certain circumstances, you need more than 14 days. Parliament lays down the framework for that, and that can include many additional checks and balances—including, if one wants, the Home Secretary having to stand up and be prepared to defend it in Parliament later, which is not a bad safeguard at all—but ultimately it is going to be the police, the prosecution and the judge who will be making the decision.
Q153 Paul Goggins: Lord Chairman, I want to press this a little further. We have a panel before us today who have been in the hot seat and had to take crucial decisions at crucial times. To be very precise about what Lord Macdonald said in his evidence, he said the only circumstances in which the extension could be used was “a mass casualty attack simultaneously on a number of large cities in the United Kingdom”. In other words, an extraordinary and extreme set of circumstances. Given all that you have said about the practical arrangements and the risks associated with Parliament, is your conclusion, as seasoned parliamentarians and Ministers, that this draft legislation we are giving scrutiny to was designed by people who never intended that legislation to be used in practice? Mr Clarke: It is worse than that. I don’t think the current Home Secretary has looked at the situation that she inherited, taken advice and decided, on the balance between security and liberty, what the appropriate position is. I think she came in with the preconceived view that it was necessary to change the amount of days on pre-charge detention for essentially political reasons, and that is very serious. Mr Blunkett: Can I pick up, Lord Chairman, the civil contingencies element of this? It was not the Home Office but the Cabinet Office that took through the updating of the post first world war Civil Contingencies Act, and it was intended to deal with a situation where we were in meltdown. Effectively, Lord Macdonald is proposing that you would only extend beyond 14 days ever if the Civil Contingencies Act had been triggered. Of course, it is post the event, so we are in meltdown. We are effectively facing a national crisis—a national emergency. Therefore you are saying that you have to have reached that point in order for people to continue investigating and trying to find those who are the perpetrators. What we have been trying to say is that we would like to stop the perpetrators carrying out an act which would lead to the civil contingencies legislation being activated. Therefore— and Charles has intimated this—it is a complete Catch-22. You would never use it, so the advocacy of it is to say you will never, under any circumstances, go beyond 14 days and there would be no point in giving the Home Secretary power to come back to Parliament in the first place. Let us just be clear about it. It is either never ever over 14 days or you have to find a sensible route that doesn’t involve coming back to Parliament and going through a charade. Mr Straw: I agree with both my colleagues. The argument strikes me as being incredibly thin. It is either put forward in a disingenuous way or with great naiveté because, as David has explained, in practice it could not be used. It would be impossible. 28
I also challenge what the Government says—this is at paragraph 24 of their review— where they say that an order could be passed “for example in response to multiple co- ordinated attacks or multiple pre-emptive arrests or investigations.” This is a point where this is very naive. The whole purpose of the counter-terrorist effort in this country is to seek to interrupt terrorist planning before they get to the point of multiple co-ordinated attacks. Let us say there is identified one extremely skilful individual who is organising a series of multiple co-ordinated attacks which have not happened, but where a key arrest, which the police and the agencies wish for, is of that individual. They only have one arrest, but then the investigation is incredibly complex, and in order better to disrupt the whole atrocity they need more time. Is Lord Macdonald or the Government then saying, in that circumstance, it should not be possible to seek an extension, but in a circumstance where the potential threat was less but involved more people, it would be possible? This is in an area of the absurd and mocks Parliament, frankly, the more you think about it. I am surprised that the DPP has put his name to it. There we are. He did. I share Charles’s view. You either say 14 days and no more, or you say yes, you do have 28 days but you then describe the circumstances and, at that point, you don’t overprescribe, because they won’t be used. Mr Clarke: I don’t object, Lord Armstrong, to people who say 14 days and no more, provided they accept that a consequence of that is a possibility—I acknowledge only a possibility—that an atrocity happened which otherwise might not have happened. What I dislike in the argument is those people who say you can keep the period of detention down and, by the way, that makes no difference whatsoever to our ability to counter potential terrorist attack. Lord Goldsmith: If I could add to that, I broadly agree with what my colleagues have said. I was, as I said, out of step in terms of not agreeing with proposals to extend in the way proposed both under the Blair and under the Brown Government, but I do agree that Government has to decide. If it thinks the evidence is there that more than 14 days may be necessary, it should accept that and not come up with what does appear—it is very uncharitable to say it—to be a politically driven compromise that results in something which is unworkable and dangerous.
Q154 Chairman: You mentioned the Civil Contingencies Act. Do you think it would be possible to invoke that before an attack had taken place? Lord Goldsmith: The problem with the Civil Contingencies Act is that it was not designed, as David said, for this sort of circumstance at all. You can stretch the language as to what is meant by “emergency” and then say, “It would cover this situation.” The problem is the situation of an imminent serious terrorist attack. The trouble is, if you do that, you are also extending and stretching the definition for the purpose of the use of what are very important and serious emergency powers. You can’t say, “This is an emergency for the purpose of extending this from 14 days to 28 days”, but not accept it is also an emergency for the purpose, then, of allowing Ministers to impose critically important but very intrusive powers of the sort that you may need if there is a really serious emergency but not otherwise. It is a bad Act to use for that reason. Mr Blunkett: Not to put too fine a point on it, the people who appear to be arguing that you might in extremis use that Act are the first to say that we shouldn’t use the issue of a state of emergency that they didn’t believe existed to derogate from the European Convention. We have come full circle. Chairman: One point we wanted to talk about was the problems of recalling Parliament. Lady Liddell, you were going to ask a question about that.
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Q155 Baroness Liddell of Coatdyke: It is really to Mr Straw. You said in the House that it took three weeks to recall Parliament after the Omagh bombing. Can we have your view on that, and would you also roll it together with the issue of dissolution that you have already referred to? Mr Straw: Thank you, Baroness. The Omagh bombing took place on 15 August 1998. There was then a lot of discussion inside Government about what we do, because there was such anger on this side of the water as well as in Northern Ireland about this. We made a decision—and it was, in practice, made by the Prime Minister and myself on 25 August 1998—to recall Parliament, and very quickly. It could not be reassembled until 2 or 3 September—[Interruption.] Chairman: The Division bell has rung, and I am afraid we are going to have to adjourn for 10 minutes for business in the House of Lords. We will resume in 10 minutes’ time.
Sitting suspended for a Division in the House of Lords. On resuming—
Q156 Chairman: Whether it was to have legislation along the lines suggested by the Government or some other form of introducing contingency powers, I wondered whether you thought there could be a role for a committee of Privy Councillors or the Intelligence and Security Committee to consider—as it were, certify—whether there is a need for the period to be extended from 14 to 28 days. Mr Straw: I wonder if I could finish my answer to Baroness Liddell. Chairman: I am so sorry. Yes, do, please. Mr Straw: Thank you. The decision to recall Parliament was formally made on 25 August and it came back on 2, 3 and the small hours of 4 September. It was effectively a week. I remember that was the shortest possible time in practice. If the Chamber of the House had been subject to major maintenance, which it sometimes is in the summer months, then it would have taken longer or we would have had to Box and Cox with the Lords and I would have had to push you out to Church House or something, which would have been complicated. The other point, as I have said, is that it is only possible to recall Parliament if there is a Parliament. When Parliament is dissolved in the run-up to a general election, there is no Parliament, so it becomes impossible. This is a plane, it seems to me, that cannot possibly fly. It is not a serious proposition as an answer to a problem.
Q157 Chairman: The Queen couldn’t say, “Come back, all is forgiven.” Mr Straw: What do we do? We aren’t MPs any more. I know that your Lordships carry on, and I suppose we could provide you with delegated powers on our behalf. Mr Clarke: There is also a practical example, Lord Armstrong, of the Madrid bombings, which took place very shortly before the Spanish elections. The Madrid bombings took place at a time when there was no Spanish Parliament until the election that followed. Lord Davies of Stamford: Deliberately so. Mr Straw: Yes. It was quite deliberate. Chairman: We had better not pursue that. Mr Blunkett: On the question you raised, I—and, I am sure, my colleagues—have been on a committee of Privy Councillors put together for a particular purpose. If you were going to go down that road at all, then the Intelligence and Security Committee would be, by far, my preference. They, themselves, even within the terms of disclosure that they are able to take, would have to review the evidence. However, what we are really saying is that the Home 30
Secretary is not prepared to make a difficult decision, and I don’t think any Home Secretary should ever be in that guise. Mr Clarke: I agree with that, Lord Armstrong. A committee of Privy Councillors or the Intelligence and Security Committee could only advise. It couldn’t do anything more for a number of reasons. First, the reason David has just given about the authority of the Home Secretary, which is very important if, by hypothesis, the state is under some form of attack. The second reason is because of the information which would be available to the committee and/or the Home Secretary. The Home Secretary, normally speaking, unless an extraordinary set of events came to pass, along with the Prime Minister and the Foreign Secretary, would be the person who had the intelligence upon which he would be making these judgments, and if it was proposed that all that be shared in full with this committee of Privy Councillors or the Intelligence and Security Committee, it is a very difficult thing to say. I can’t see any advantage in it. There are values in committees of Privy Councillors and Intelligence and Security Committees, and, of course, committees of Privy Councillors have the value of going cross-party in certain circumstances—though I have to say when I was Home Secretary that didn’t add much to the debate as far as the then opposition was concerned—but I don’t think they could do much more than advise on the subjects rather than take decisions. Lord Goldsmith: It could only be adding some political cover of some sort, because the actual decision as to whether or not a particular suspect should be detained for longer has to be taken on different grounds and, ultimately, has to be approved by a judge. There is no getting away from that and no getting away from the requirements of Article 5 of the European Convention in that respect. Mr Clarke: The reason I mention my own experience of cross-parties is that, when we discussed the 90-day proposals, there is no doubt whatsoever in my mind that, though we had Privy Council discussions and though evidence and knowledge was given on a Privy Council basis to opposition party leaders, party political issues came fast ahead of them for a variety of reasons. That was most unfortunate, but it was the case. Chairman: Thank you very much. We have talked about the Civil Contingencies Act. Lord Goodhart wants to ask questions about the judicial authorisation process in schedule 8.
Q158 Lord Goodhart: Do you think there are grounds for strengthening the process taken by the judiciary? Mr Straw: I am afraid I didn’t hear the question. Mr Blunkett: Strengthening the process via the judiciary. Lord Goldsmith: I am not sure in what respects. I am happy to consider any respects. I would have thought the process that is laid down in schedule 8 is pretty robust as it is.
Q159 Lord Goodhart: There have been concerns from Liberty and JUSTICE about the role of the judiciary. Do you think those are justified? Lord Goldsmith: Forgive me, I can’t entirely recall just what the concerns about them are that they have.
Q160 Lord Faulks: It is compatibility with Article 5. Lord Goldsmith: The judges should apply Article 5. They have to read the legislation subject to Article 5. That is their duty. It is a duty that Parliament has laid upon them.
Q161 Lord Faulks: The suggestion is whether there might be some specific reference to Article 5 as opposed to relying on the judges to read it in, which the decision would suggest, i.e. would this provide an additional safeguard or is there in fact no need for that? 31
Lord Goldsmith: I don’t think there is. We had this debate all the time in Government. It was always the question. “Do we need to make some specific reference to some provision in the European Convention in legislation or not?” The argument always went the same way, “There is no need to do so,” and rightly no need to do so because the judges are required to read it in. If you start writing something in, does that then imply that in another piece of legislation it doesn’t matter or something else does not matter? I think it is a bit of a makeweight, myself. Mr Clarke: There is a related question where I think there is a contradiction in some of the organisations you are talking about. The more you say there should be judicial involvement in the process, the more there is the risk, in their view, that the judge’s independence of judgment could be compromised in the process because of the circumstance which is there. Personally, I think the more you separate the responsibilities of the Executive from the judiciary, the better.
Q162 Lord Goodhart: Do you think there is any difference as a result of the creation of the Supreme Court? Mr Clarke: Yes. I gave evidence to the House of Lords Constitution Committee on that matter a couple of years ago. I strongly believe that there needs to be a much clearer form of discussion between the Supreme Court and the Executive and legislature about the way in which things are interpreted. I have in mind, most, the control order regime rather than what we are talking about now. Where successive Home Secretaries were told that a control order could operate in this way, Parliament said they could do that and they took a decision. The Supreme Court knocked it back and said human rights had been violated in a serious way. The Supreme Court then simply said, “Have another stab and see if you can get it right.” It is a very unsatisfactory state of affairs, so I do think there is a case for finding some modus operandi. Many judges don’t accept what I am saying but it is my strong view that there needs to be a much more explicit dialogue between the judiciary at the most senior level and Parliament and the Government about how these things are dealt with, and in particular how the European Convention on Human Rights is interpreted when issues go right up to the top.
Q163 Lord Davies of Stamford: Perhaps I can start off by saying that we have heard, this afternoon, some extremely and unambiguously clear testimony. Any committee is always very grateful for that. As far as I can see, it is pretty unanimous. First, the matter of saying that the Bill, as presented to us, is seriously unworkable; secondly, that the alternative of using the CCA is not desirable or practicable; and thirdly, that the alternative of giving powers to the Home Secretary, together with a judge, to take action rapidly with only ex post and no ex ante parliamentary scrutiny is the right model. I want to fill in the gaps completely and ask two questions: one in relation to the CCA alternative, which our witnesses this afternoon have rather dismissed; and secondly, in relation to a proposal that they do seem to be in favour of—the Home Secretary plus judge route. On the CCA, would it be correct that an additional reason why the CCA might not be the right way forward is that, in the event that the intelligence has identified a potential threat but has not got to the point when it makes sense to make any arrests, because that would mean we would not catch all the people or we would not pick up the whole network, using the CCA would alert the terrorists to the fact that arrests were due and might frustrate the whole operation of making the requisite arrests and rolling up the terrorist network. Is that correct? Mr Clarke: Yes. Mr Straw: Yes, it is. It would be written up in the press as the declaration of a state of emergency, because that is what it is. I would give you this parallel example. I was Home Secretary of the day when we had the petrol crisis in September 2000, when there were a 32 series of protests at refineries and the country came closer to running out of fuel than I was willing to admit at the time. We looked at the possibility of using the predecessor of the Civil Contingencies Act, which is on all fours with the purpose of the earlier Act, but decided not to do it because of the public handling involved. There was no terrorist threat there. The people who were causing the trouble, as it were, were perfectly well known and, anyway, they weren’t committing any particular criminal offences. The consequence of calling a state of emergency would, in my view, have been to exacerbate the situation. I think that those who talk about using the CCA for counter-terrorist purposes are trying to avoid facing up to the need for action of a different kind. It is a very lame excuse for inaction, and they know it.
Q164 Lord Davies of Stamford: Thank you for that, Mr Straw. To put the record straight, it was not Lord Macdonald who put that proposal to us. It was the two organisations Liberty and JUSTICE who proposed the CCA. Can I now move on to the model which I think all four of you favour in principle, which is the Home Secretary plus judge route? I specifically put the question to Lord Macdonald as to what he thought about that. He said, quite strongly, he thought that would be completely wrong, because the police would interpret such a model as giving them licence to go beyond 14 days far too easily, and they would readily go beyond 14 days and think, “There is no problem about this at all. It is very easy to get a Home Secretary to sign a document and very easy to get the judges to agree to give us an extension,” and, by the same practice, they would always be working to a 28-day deadline, or longer if they could get away with longer, and then the time given under the extensions would be the time taken for the police investigation and the questioning. That, I think, is a fair although not verbatim summary of the testimony we had from the former DPP on this particular subject. I would be grateful if our witnesses this afternoon would comment on that view of Lord Macdonald. Lord Goldsmith: If I may go first, I think there is something in it up to a point, but you have to see what that point is. There is a risk that people will take advantage of the time if they think it is there. I don’t think the way to deal with that is to say, “Therefore, you can only do it if you involve Parliament,” because that doesn’t make any sense at all, for the reasons we have been discussing. What you have to do is make it very clear. First of all, my model is not Home Secretary plus judge. It is Parliament, first, saying that it is subject to review by a judge, and if you want to add in, “And the Home Secretary has also to be satisfied,” I don’t mind, because that provides some additional political cover, and Parliament makes it clear at the time it passes the legislation that it expects this only to be used exceptionally, and the judges will have that message and so will the Crown Prosecution Service and the Attorney-General who is responsible for them.
Q165 Lord Davies of Stamford: Clearly, Lord Goldsmith, Parliament creates the legal framework within which anybody decides anything, but Parliament would not, ex ante, review any particular case or any particular request for an extension. That is what I mean by saying there would be no ex ante role for Parliament. There would only be an ex post role for Parliament, and decisions would be taken by the Home Secretary and a judge in whatever combination. We do not need to go into it this afternoon, but for the purposes of convenience, we can refer to that as the Home Secretary plus judge model. Mr Blunkett: But we can’t have a situation, Lord Armstrong, where those who advocate that we should never ever allow more than 14 days use an argument that the police have not needed more than 14 days and then say, “But the police will be hungry to use more than 14 days,” because that just doesn’t add up. Secondly, I don’t know quite what wording was used in putting to the Committee the way that you have just described, but any Home Secretary who has had to go through the process of certificating, and any Home Secretary 33 who has had to deal with the warrants, will know that they turn down what is put to them. I think it is deeply insulting, to be honest. Mr Clarke: Yes. I want to add to that, Lord Armstrong. The argument that Home Secretaries have conventionally been the patsies of aggressive police officers in this is completely wrong at all levels. First, the police themselves are far more preoccupied about the legal framework within which they operate than that criticism gives account for. I would say that is something that has probably changed in that direction over the past, say, 25 years, in the way that the police are extremely exercised, in my experience, by the legal circumstances within which they can operate. Secondly, I don’t know a Home Secretary, Conservative or Labour, who would be ready to behave in the way that this suggestion posits. I simply don’t think it is the case. I can certainly say it is not the case for myself, but I don’t think it is the case more generally. If that is the comment he wants to make on the current Home Secretary, then he should do so and be explicit that that is what he is saying.
Q166 Lord Davies of Stamford: Can I ask our three former Home Secretaries whether they ever turned down an application by the police or the prosecutors in an analogous situation? Clearly, the framework we are now discussing speculatively has never existed. Mr Straw: Yes. Mr Blunkett: There is no question, absolutely. Mr Clarke: Yes. Mr Straw: Plenty.
Q167 Lord Goodhart: Can I ask whether the Home Secretaries ever considered the possibility of derogation of Article 5 of the Human Rights— Mr Clarke: Certainly I did, and the issue of the circumstances under which derogation would be appropriate—I did consider that. I was of the view that we should avoid that in all possible circumstances, but I went so far as to go to Strasbourg and speak to the President of the European Court of Human Rights about the issues around potential derogation because I thought, and I think, that there are issues where, if the crisis facing the country is so great and the Convention seems a block to the security of the country, that is a very dangerous state of affairs. Indeed, the then Leader of the Opposition specifically made the argument that we ought to consider leaving the European Convention, and I don’t think he was being frivolous about it. He thought it was something we should consider. I regard some of the current discussions about the so-called Bill of Rights as completely ludicrous, as set next to the question of whether you do or do not leave the European Convention. I certainly did consider it. It is a real issue and it is a very important reason for us—and by “us” I don’t mean your witnesses here, but for society—to think through what the right solution is on all this. Chairman: We ought to draw this session to a conclusion, because we are running rather late and we have kept you all for a very long time—longer than we said. That is a measure of the great value your coming here this afternoon has been to the Committee and I should like, on behalf of the Committee, to thank you all, every one of you, most warmly for coming to assist us in this inquiry. We are very grateful.
Witnesses: Professor Clive Walker, University of Leeds, and Professor Conor Gearty, LSE, examined.
Q168 Chairman: First of all, may I apologise for keeping you waiting for so long? It is good of you to wait. We have had an overlong session with the former Secretaries of State 34 and the former Attorney-General and we were interrupted by a Division in the House of Lords. Let us get down to what we have to do. First of all, thank you very much for coming to give evidence to us. We look forward to hearing from you and to asking you various questions. May I thank you, also, for your two papers which it is very good of you to have written for us. We are here to consider whether it is necessary at all to provide for a contingency where you need to have pre-charge detention for longer than 14 days, secondly, to look at the process which is proposed, this contingency legislation that is before us and, thirdly, of course, to look at the balance of rights, security and safeguards which has to be considered. Would you like to start with the first of those questions, whether you think it is justified that the Government is proposing to provide for pre-charge detention beyond 28 days in what you might call exceptional emergency circumstances? Professor Walker: The first point I would make is to bear in mind that I view as normality four days’ detention, so in a sense I find it disappointing that with 28 days we are thinking of increasing rather than reducing. I make that point in the light of the restrictions in the Police and Criminal Evidence Act. It is too easy to think that 14 days is a return to normality. It is not: it is a very exceptional period of detention, not only in comparison to the norm but also in comparison to virtually every other country, certainly any common law western country, which has powers of this kind. The second point is about the factual justification for having at least the potential for 28 days. I am fairly convinced by Lord Macdonald’s review that there has been in fact no need for such powers for some time. Indeed, it is disputed whether the exercise of those powers in 2006-2007 was, on reflection, strictly necessary. Lord Macdonald himself now disputes that fact, and certainly some of the barristers that I have talked to who were involved in those cases dispute the necessity for that period. We should have regard to the priority for Article 5, the right to liberty, which is a very important liberty, and accept that the requirements of proportionality do not seem to be made out for any clear and present need to go beyond 14 days, although I go back to where I started and remind the Committee that 14 days is, itself, to be viewed as extraordinary and not simply some kind of part normality that we have returned to. I can think of alternatives, but perhaps I could stop there and pass to my colleague. Professor Gearty: On the assumption that Parliament decides that 14 days before charge is to be the norm, there is a large question, of which these Bills are a small part, as to whether, and if so on what basis, Parliament should address any emergency situation that arises or is imminent at some point in the future. There is an important point here about the extent to which Parliament should arm itself in advance against the possibility of such an emergency. My view is that Parliament should acknowledge that there may come a time when there is a need for emergency legislation to react to some catastrophic or serious event. It may or may not encompass 28 day detention. It may go further. But to anticipate that there is to be such an emergency situation that warrants this kind of precise legislation in advance is, in my opinion, unnecessary. Chairman: Thank you. Lord Faulks, you want to ask about the implications of when this might be used.
Q169 Lord Faulks: Professor Walker, you start from the premise that four days is quite enough. Professor Walker: Four days is normality, is how I put it. That is not just my view. That is the view of the Police and Criminal Evidence Act. That is normality. That is our starting point. 35
Q170 Lord Faulks: Given that there is always the possibility of some form of emergency—that is what we are discussing and what these Bills are there to deal with—can you envisage circumstances in which you think, from a constitutional point of view, this is a reasonable route to go? Professor Walker: When you say “this”, do you mean the draft Bills or in principle? Lord Faulks: Yes, the draft Bills—what we are considering. Professor Walker: First of all, I can envisage, of course, that there may be circumstances where it is justifiable to go beyond four days, as I put it, as the level of normality. Of course, we have gone beyond that limit since 1974 in this country, so I think I am pushing uphill to try and argue for a return to four days at this point. Whether we say it is seven days or 14 days, I’m not sure, but that is the reality even if it is not, as I have put it, normality. What mechanism do we need to go further? Whatever mechanism, it should respect the rights to liberty under Article 5. It seems to me, if you want to do that, you have to think about two issues. One, what are the triggers for this power? How can you be sure when you are invoking the extra powers in the draft Bill that they are necessary and proportionate to the situation and to the need to reduce liberty? What are the triggers? The second issue you need to think about is, what the safeguards are around those triggers?
Q171 Lord Faulks: On the question of triggers, would you prefer it if there was a specific definition of what is classified as an emergency or a sufficient trigger? Professor Walker: You pick up on an obvious point that there is not any trigger in the draft Bills, so we don’t know exactly what circumstances would justify. It is left at large what circumstances would be justifiable. Professor Gearty: Can I come in on that one, Lord Faulks, because my paper before the Committee addresses this issue very precisely. I share, with some other witnesses you have had, a concern about the lack of any principled criteria set before the House in any future requests for legislation. I have suggested that the principles to be found in the European Convention are quite useful here in that Parliament should be asked to assure itself that there is a public emergency threatening the life of the nation, which is the language of the Convention, but with the important reminder that Parliament would be making this judgment as a legislative body. It wouldn’t be showing the deference that you rightly expect a court to show to the judgment of the executive and/or the legislature. It would be making an appraisal of whether such a situation exists, and this is a principled—to use your earlier word— approach which allows for some degree of discussion about gravity. Then I would share Professor Walker’s view about there being a need for a connection between the emergency and the provisions before the House. That is often forgotten in times of great anxiety generated by either an atrocity or the expectation of one.
Q172 Lord Faulks: Of course, one of the difficulties we have heard about is what you can actually tell Parliament. Professor Walker: That is probably why there is not a trigger, indeed. If you did put in a trigger it gives the basis for argument, does it not, and you are then expected to adduce evidence to show that you have met the trigger? Therefore, by leaving it at large it is rather easier, perhaps, to convince people. Professor Gearty: It does depend a little on how seriously one takes the trigger that one argues for. If one were to take, for example, the trigger I have suggested then you would be looking for “an exceptional situation of crisis or emergency affecting the whole population and constituting a threat to the organised life of the community”—I am quoting from an early 36 case in Strasbourg—in such circumstances you would be not easily persuaded that there was a threat which you didn’t see. If you are determined that the threat should be extraordinarily grave and that you want either actuality or imminence, it is quite hard to accept the assertions of Ministers, even, that there is such an emergency, without more.
Q173 Lord Goodhart: The Brannigan case shows a rather different attitude towards being able to derogate and it is not a very demanding one in that case. Professor Gearty: This is an important distinction between which branch of Government is assessing the question. It is perfectly proper for a court, as the court did in the A case here, to defer to the Executive and legislator’s judgment as to whether there is an emergency. I would share the court’s appropriate deference in that case and others, but where it is the legislature itself making a judgment on the invitation to the Executive, in a way they need to be less anxious about deference and more concerned to act directly on their judgment on the facts as they are presented to them.
Q174 Alun Michael: I was reflecting that our Chairman probably knows more than any of us about the advice to Ministers to accept loose drafting in order to cope with the unpredicted and the unpredictable. We have got to the situation where we have been round the debate on the number of days so often that views are very deeply embedded. It seems to me that it is useful to stand back a bit. That is why I asked our earlier witnesses to stand back and ask the question, “Why is the number of days not an issue in other jurisdictions?” We got the answer that it is very difficult to compare jurisdictions, and I accept that, but if there is a mischief, if there is difficulty that may come up from time to time, is there a better way of dealing with it? Why is it not an issue to the same extent—and I quoted the American jurisdiction—that senior police officers look askance at the idea of 14 days, never mind longer periods? Is there a mechanism? Is there something we are missing here, from your experience of different jurisdictions dealing with this type of issue? Professor Walker: The differences-between-jurisdictions argument is a fair point if one considers Continental jurisdictions, ie civil law jurisdictions, compared with Britain. The position of the inquisitorial magistrate is, for our purposes at least, a difference which makes direct comparison difficult. However, let us compare with the United States, with Canada and Australia, where I really don’t accept that there are such great differences. How do they handle terrorism cases? One point which is certainly different is intercept evidence, which you have rehearsed today. Intercept evidence, which is commonly used in terrorist cases, is often prime evidence in those cases. It does, of course, require you to have the possibility in mind, when intercept evidence is collected, that that might be some of its usage, so it does require a change of system and not simply an on-off switch that you now make it admissible. I would point to that as one of the major differences that I have noticed. The other point is that some of the difficulties that were faced perhaps in 2007 or 2005 or earlier—which, with respect to the previous witnesses, were difficulties they faced at that time—have been removed in our system. I should like, very quickly, to rehearse what some of those developments. For example, the nature of the available criminal offences has been altered. The offence of preparation of terrorism, for example, in the Terrorism Act 2006 is now one of the commonest charges made in terrorist cases. It helps prosecutors to be able to bring early charges at a point where evidence is perhaps less certain than for other charges which existed pre-2006. There are further resources which have been given to the prosecutors and the police which make them more able to gather the evidence pre-charge. Some of these issues are quite important to claiming that maybe the difficulties of charging are not as great as they used to be. A third factor which I will mention is the use of what is called “the 37 threshold test” by prosecutors. If there is evidence sufficient for a prima facie case and the reasonable belief that further evidence will come into being, they can bring the charge there and then without having, as it were, all their ducks in a row at the time of charge. That is the threshold test, roughly speaking. Again, that has been used in a lot of cases since 2005 or 2006. It was not available and was not so clear before that time. Professor Gearty: I share that point of view entirely, and would just add that it is sometimes tempting to rely on other jurisdictions for some easy wins in campaigns for change here. I have never shared that enthusiasm, for the reasons that Professor Walker has identified. Even the United States, as we heard in the session just completed, can choose shortcuts around a law that it appears to support in public. As to intercept evidence, this is one which I was glad to hear Lord Goldsmith talking about earlier. As a witness before Lord Lloyd, which is now going back a fair way into the history of terrorism law, leading up to the Terrorism Act 2000, I argued for this. It seems to me it is really one that has not gone away because it determines the question, “Why are we holding people?” If we are holding people with a view to prosecuting, the kind of evidence we have to hold them should be evidence that can stand up in court. I have never been persuaded that the argument against the use is a judicial insistence on reliability. That is rather an argument against use, full stop.
Q175 Lord Faulks: Professor, in your helpful written report to us, you deal with many of the points you have just said in answer to Lord Goodhart and you say this, at paragraph 6: “Too often, proponents of longer detention confuse the problems of the completion of an investigation in the face of a mass of evidence or the difficulties of liaison or translation, which may indeed take many months to complete, with the ability to bring charges, where the practice increasingly coheres around a 14-day limit. A surfeit of untrawled evidence is not a reason for more detention time.” That last sentence I find a bit difficult to understand and I wonder if you could help me with it. Assuming that there is an enormous amount of evidence, because of the nature of the emergency all over the country—all sorts of different suspects—are you suggesting that people should be charged earlier rather than wait? Professor Walker: I am certainly suggesting that the evidence shows—the statistics show, the practice shows—that in almost all cases in recent years it has been possible to charge within 14 days, and to charge with quite serious offences within 14 days. I am making that assertion, first of all, on the evidence that has been available in the statistics. The second fact I concede is that, at 14 days, one can expect there to be plenty of remaining evidence—or data, shall we call it neutrally—which has not yet been fully investigated. If one takes the 21/7 case or the Overt case, and so on, you have all the data from CCTV, computer disks, surveillance logs, and so on. I accept there may well be an argument that the police do not have the resources to go through all of that data within 14 days, but what I question is whether a “surfeit of untrawled evidence” is such a problem? There may indeed emerge future charges by going through all of that data.
Q176 Lord Faulks: But it could be the contrary. Further evidence might exculpate somebody. Professor Walker: It might. It might exculpate them from further charges, but if you have already charged them, with whatever it was you have charged them with in 14 days, let us go ahead with that, is what I am saying. In some cases you might view it as a holding charge. But take the liquid bomb case, Overt. They were not held on holding charges. They were quite serious charges. Likewise, with 21/7, which happened, of course, before 28 days came into force, there was the ability within 14 days to find pretty serious evidence, although I accept that the police did not have the time in 14 days to trawl through all the evidence. 38
Q177 Tony Baldry: Professor Walker, what you are really saying is that the way we square all these various circles is by trying to ensure that people are charged much earlier in the process. Is that right? Professor Walker: Let us settle on 14 days, when you say much earlier.
Q178 Tony Baldry: Yes, much earlier in the process, before 14 days. Professor Walker: Before or at 14 days.
Q179 Tony Baldry: Yes. Do you have any concerns about the police finding a holding charge to charge someone, to keep them in custody with a view to almost certainly charging them with more serious offences later on? Professor Walker: It depends how you define “holding charge”. A holding charge must be something which is a genuine, in-good-faith charge. Secondly, you are saying it would have to be a charge which was quite serious because it would justify pre-trial detention. It seems to me that if you have seriously and in good faith found the evidence for such a charge, the fact that you are still carrying on your investigation and may find more serious charges is not a reason to stop bringing the lesser charge in 14 days. I don’t think it turns a good-faith charge into a bad-faith charge because there might be something round the corner.
Q180 Tony Baldry: What happens in the circumstances where the police know—this is hypothetical—there is large number of young men from different towns in the UK who have been conspiring together to cause explosions or cause loss of life? There are multiple arrests, but it takes some time to sort out who is who, and identify who are the ring leaders and the main perpetrators. With the best will in the world, it may not be possible simply within the 14 days’ timetable to work out who is who and where they fit within the hierarchy of events. Do you not see that there may be circumstances when it may be necessary to hold people for more than 14 days? Professor Walker: First, the evidence is against it, in that if you take the example of, say, 21/7, or the liquid bomb case, which were exactly those scenarios, by and large, more than 14 days was not required, and 28 days was used in very few of those cases. But, yes, there might be conceivably, an emergency situation where the police can be overwhelmed. I accept that there can be an emergency which requires either the kind of criteria that Professor Gearty put forward for some kind of further legislation or that indeed justifies the triggering of the Civil Contingencies Act, which of course was passed to deal with this kind of overwhelming doomsday emergency of which you speak. I do have one further suggestion that you might like to consider for that kind of situation. One of the existing defects of the legislation which has not been adequately discussed—I know it was raised by Lord Carlile—is the absence of bail, the possibility of release on bail pending further investigations. At present there is no power of bail whatsoever allowable under section 41. If you were to grant a judge the power to allow bail, including the setting of conditions on those suspects, that might also assist in that situation. Professor Gearty: Mr Baldry, in the situation you have described, if Parliament has decided that there is a 14-day limit, then the suspects go free if there are no charges capable of being brought against them after 14 days. I should not regard this proposed legislation as appropriate if it were thought of as an invitation to Parliament to agree in specific cases, plural or singular, extended detention of the type that you describe. It would be inviting Parliament to engage in what is essentially a judicial task. My perspective is one which sees a calamity far in excess of the inability to get round the need to release these suspects, serious though the offence is of which they are suspected. 39
Q181 Tony Baldry: I apologise to the Committee because this is a sort of “Groundhog Day” discussion. Isn’t this the reality? Who can conceive of Parliament, in those circumstances, not giving a Home Secretary the approval they wanted? If the Home Secretary comes to the House and he or she says—whatever form of words they use—“I need these powers”, who can imagine the House not giving the Home Secretary those powers in those circumstances? Professor Gearty: That is why there needs to be a trigger with, as my paper suggests, an Attorney-General, DPP, or both, certificate, which creates some energy against a momentum towards accepting that there is this shocking prospect which we must guard against. After all, why stop at 28? Why not go for 42 or 96? Once we have created a hypothesis of the type you describe, there really is no argument against whatever the Home Secretary says is needed.
Q182 Tony Baldry: How long were people detained under the Defence of the Realm Act? Professor Gearty: For very great lengths of time. Tony Baldry: Exactly, yes. Thank you.
Q183 Chairman: We are asked to look at these contingency Bills and if the Bills were to be introduced there would have to be debate on that. Do you think that a balance could be struck between adequate Parliamentary scrutiny and protecting the rights of suspects? Professor Gearty: Following on from what I have said to Mr Baldry, the more specific the factual basis in regard to a specific individual or individuals is which causes the House to be asked to pass this law, the more difficult it is to have a proper discussion in Parliament about it. This would be to seem to discuss an issue of principle which is in fact one that is driven by a particular circumstance involving an individual or individuals. The more general the calamity, and the more obvious the situation, the easier it is to have that discussion, in my opinion. Professor Walker: That is right. Therefore, there is a distinction between, say, the invocation of the Civil Contingencies Act, which has a much broader situation of what Professor Gearty would refer to as calamity in mind than what might be possible under these draft Bills, which I understand either to be a broad calamity involving many conspiracies and many people, but equally could involve one individual case with one individual person. I was struck again by Lord Carlile’s evidence that he thought that was perfectly reasonable for a Bill of this kind to deal with. That usage would, particularly at that sharper end, undoubtedly involve the prejudicing of the case. I don’t see how the debate could avoid it.
Q184 Chairman: Thank you. Do you think there would be any scope for using a committee of Privy Councillors—we discussed that with the previous witnesses too—or the Intelligence and Security Committee for, as you might say, filters, who could hear more of the underlying reasons which could not be disclosed to Parliament as a whole? Do you think that would help to deal with this legislation in Parliament? Professor Walker: With those kinds of devices—I think I heard them earlier described as political cover—given that you are talking about a situation where the reasons for a decision cannot be disclosed in public by the Privy Councillors or by the ISC, I am not sure such filters have advanced the situation in terms of accountability or giving assurance to the public that the Home Secretary is doing the right thing. You simply have another statement, as it were, from on high, that these well-informed people believe it to be so. I am sure it 40
Professor Gearty: We are back again, if I may, my Lord, with the question of a trigger. If there is some known set of criteria which underpin the introduction of such a measure, then you can conceive of a situation where, on my scheme, the Law Officers are involved. On this scheme there are some senior parliamentarians who are involved, and they provide something rather more than political cover. They provide legal cover and they provide an assurance at a very, very dangerous time that the Home Secretary is not opportunistically deploying legislation to secure some short-term goal. It could well have a role to play. The difficulty arises where it is advice into a void, where there is no real guidance within the legislation as to the reasons for it, and there is a sort of sense in which a committee takes the place of the criterion and declares itself, as it were, to be the guarantor without any set of principles to fall back on. I think that would be wrong. Chairman: Thank you. Liberty and JUSTICE, of course, directed our attention to the Civil Contingencies Act. Lord Davies would like to ask questions about that.
Q185 Lord Davies of Stamford: I would like to ask three questions, if I might, Lord Chairman. The first is this. The testimony you have given us, Professor Gearty and Professor Walker—and I am sorry to say that I only received your papers one minute before this session this afternoon so I have not read them—this afternoon, orally at least, as I understand it, is that extending detention beyond 14 days is not desirable and is not necessary. That is correct, is it not? That is your view. If, despite that, it were considered necessary to do something to give the police—prosecutors—greater powers than they currently have, to what extent do you think a combination of the use of intercept material in court, a greater use of holding charges and questioning suspects beyond the charge, post charge, would be sufficient or more desirable, if a choice were made, than extending the maximum period of detention before charge beyond 14 days? Professor Gearty: My view at the moment is, with Professor Walker, that 14 days is already too much, and certainly not more. But I said “at the moment”. I acknowledge there is the possibility of a situation—the emergency which we have described—so while I am opposed at the moment, I acknowledge these possibilities can occur. On the specifics, I have argued, for a long time, that the concentration should be on achieving results via the criminal process and shifting away from administrative judgments underpinning actions against persons, which actions are based on fairly secret evidence—though we have conceded this and that over time on that—and are driven by the results of intelligence gathering. I have long been a proponent of some of the measures that you mentioned, the shift towards perhaps an easier range of charging and the shift towards intercept evidence, with the caveat that one must not turn these into new ways in which, as it were, to divert ourselves from the principle of liberty—that they do not just become blank cheques of a different sort. My expectation, which certainly the previous Government, and I suspect this one, has had has been that the criminal system and process can take up a lot of the slack here. There are great advantages to criminal convictions by juries in terms of the public message that is sent about the principles that underlie our system of law.
Q186 Lord Davies of Stamford: Thank you. Clearly, you are opposed to the Bill which has been put before us and on which we have to deliberate and make recommendations. There have been, broadly, two alternatives put forward. One of these alternatives is put forward by JUSTICE and Liberty, as you know, and consists of using the Civil Contingencies Act, the CCA. To what extent do you think the use of the powers of extended detention, which could be used under the Civil Contingencies Act, would have a different impact in 41 terms of the normalisation of extended detention than the provisions which are in this draft Bill? Professor Walker: I suggest that the Civil Contingencies Act is a doomsday option. One hesitates ever to draw it out of the cupboard, but it does have some advantages over the draft Bill. It certainly has triggers for the first part. We have clear grounds on which it has to be exercised, and those grounds are reviewable both by Parliament and the courts, I should add, because they are delivered by way of an Order in Council under section 20 of the Act. They specify seriousness, necessity and geographic proportionality. All of that is helpful. Also there are limits within, the lifetime of the use of emergency regulations which are helpful, including, again, the possibility of judicial review of any regulation which is issued, the fact that the regulation could only last for 30 days and not three months, and the fact that there is independent review. That was granted, I should add, as a concession. It is not on the face of the legislation itself. I prefer, therefore, that there should be quite a large gap between 14 days and what you might see as the next step. If 14 days is not enough, then the Civil Contingencies Act is quite long distant from 14-day detention in terms of the kind of triggers, proof and processes that have to be gone through, which make it quite difficult to use. There is thereby on purpose a cost to using the Civil Contingencies Act. It is not a cost-free option and it is a more costly option than using the draft Bill. I find that attractive because, like Professor Gearty, I am not currently persuaded that there is a need for this in-between option, which is the draft Bill, which does not have the same range of triggers and safeguards. At present, I prefer the position in the Protection of Freedoms Bill, which talks about the permanent reduction of section 14. I think the Government should have the courage of its convictions and implement a permanent reduction without having this contingency of the draft Bill. It already has the assurance of the Civil Contingencies Act if doomsday happens.
Q187 Lord Davies of Stamford: Do you agree with that, Professor Gearty? Professor Gearty: If there really were a serious crisis, we would probably end up with both, because the extension of detention up to 28 days might be thought of as part of a mosaic of responses to a really serious problem, but I doubt it would be the be-all and end-all. There would be a look at alternative legislative frameworks that might meet the demands that are generated by the crisis which are not simply resolved by longer but not indefinite periods of detention. We may end up with both, which is why my preference would be for legislation which is acknowledging the breadth of the emergency before the country and inviting a response based on what has happened rather than something which is the result of maybe a political dispute some years ago.
Q188 Lord Davies of Stamford: Thank you. I also want to have your view, if I may, on the other proposal we have discussed this afternoon. It was endorsed, as you know, by the previous witnesses we had, and was one which would involve the Home Secretary having powers which he or she could use, subject to getting a judge to agree, to extend beyond 14 days, essentially at his or her discretion. Without getting involved too much in the detail of such a model, that broad model was described in the earlier session, which I think you listened to. Do you share the view we received from Ken Macdonald that under such a model the police would be much too ready to go beyond 14 days, that they would assume they would always get power to extend beyond 14 days and, therefore, would not actually use the first 14 days as efficiently or as thoroughly as they might otherwise do, and de facto would slip into a regime in which the maximum was taken to be 28 days? That, I think, is a fair summary of the testimony we had from Lord Macdonald. Do you share that view, or have you any comments, critical or otherwise, on that view? 42
Professor Gearty: I am very concerned about moving to a framework, if I understand the question correctly, my Lord, which allows action by a Home Secretary and then a debate subsequently. The history of the terrorism laws is one in which laws are introduced, there is tremendous anxiety, there is an insistence on an affirmative resolution prior to renewal, then there is renewal and then there is continuing renewal. The renewal occurs whether or not there are attacks because the nature of this subject, without in any way suggesting that any Home Secretary is acting in any kind of bad-faith way, is such that political leaders invariably want to be cautious. Either there has been a series of attacks which warrant that the power be continued or, as happened in the 1970s and the mid-1980s there have been no attacks at all within Britain, and that is taken as proof that the powers are working. Once we embark on that road, we end up with what we got in the Terrorism Act 2000, which is a permanent law, because we acknowledge that the laws have been so often renewed that they have effectively become permanent. I would be anxious about a momentum being generated towards perpetual renewal if such a scheme were in place. Professor Walker: Could I add one point? It was not entirely clear to me—this is of course a facet of drafting by committee—what the difference was intended to be between what was being put forward this afternoon and what is the draft Bill model. The draft Bill model involves a Bill, which is tabled by the Home Secretary, but ultimately, of course, the detention is decided by a judge in any individual case. It seems to me that what was being called for this afternoon is not far different from the draft Bill model and, equally, is possibly quite close to what has just gone out of fashion, which is section 25 of the Terrorism Act, which, of course, although in legislation, has to be renewed each year on the order tabled by the Home Secretary. You still have a mixture, in other words, of political direction and judicial application under the model being presented this afternoon.
Q189 Lord Davies of Stamford: The distinction, and you may or may not judge it to be material—that is a value judgment you can make yourselves—is clearly that under the Bill model then Parliament has to act ex ante to provide for any extension of power to detain without charging beyond 14 days. The question this afternoon went round the issue of whether or not there would be practical difficulties in Parliament meeting and whether there would be legal hazards to a parliamentary discussion, which might perhaps make it difficult to have a fair trial, or whether there would be a danger of alerting terrorist networks prematurely to the fact that it was intended to make arrests. Those are the reasons why this difference is considered by some people to be not just material but an essential difference. You can make your own judgment as to whether that difference is important or not. Professor Walker: It doesn’t remove the difficulties of the fact that there is not a trigger and therefore it is difficult to know what the debate is going to be about and how effective that debate is, it seems to me. You have those same problems arising in either case. Lord Davies of Stamford: Yes. The Attorney-General dealt with the issue of a trigger, and I think you perhaps heard his answer on that point. Professor Walker: Yes.
Q190 Paul Goggins: Regarding the safeguards that were offered by the previous Government in 2008, when they sought to extend pre-charge detention to 42 days, one is independent review. What was offered then as a safeguard was that every case of extended detention would be the subject of a review. Lord Carlile, in his evidence to this Committee, said it should be left to the reviewer to decide. I wonder whether you had any advice. Do you think that safeguard would be sensible in this draft legislation and how should it operate? Professor Gearty: Something which involves the independent or Government reviewer, depending on how the person’s office is phrased, would be a good thing. My 43 intuition is to trust the individual concerned to identify the right way in which to proceed in the circumstances in which that individual finds him or herself. Therefore, I suppose, to some extent I am with Lord Carlile in taking the advice of the incumbent, who, as we know, is not now Lord Carlile, but is a first-class lawyer with (I would say) obvious independence. Professor Walker: I listened at a distance to Lord Carlile’s advice to you, and he kept saying that there was no complaint that he had received about 28 days. I was slightly surprised by that statement, on two grounds. One is that I am aware of at least five court cases where people have challenged their treatment in terms of extended detention, in some cases 28 days. I am also aware of some of the leading barristers in those cases having written and published papers in which they certainly complain of the use of the powers. There certainly have been complaints, if you want to put it in those terms. Secondly, and with the greatest respect to Lord Carlile, who I admire greatly, he is not a complaints commissioner. His remit is wider than that. He is there to give us all assurance that the system is working correctly, whether there are complaints or not. Of course, in a lot of the evidence, or the processes that he is looking at, there probably can’t be any complaints because the evidence is secret and nobody has ever been told what is being done to them. It is his ability to oversee the secret which is part of the assurance which is given to us. I conclude that it is a valuable safeguard, whether we talk about Civil Contingencies Act, control orders, which he also used to review, the draft Bills, and so on. It is a valuable safeguard to have some kind of expert ex post facto review as to what has happened.
Q191 Paul Goggins: The other safeguard was that the DPP should personally sign off any individual application for extended detention. I wonder whether you think that should be in as a safeguard and, perhaps particularly in relation to this legislation, whether you think the DPP should sign off on the proposal that this emergency legislation be introduced, in other words on his say-so, not completely his say-so but certainly with his support. Professor Gearty: On the scheme I favour, the DPP and the Attorney would be closely involved in presenting legislation. So yes on my ideal, and therefore yes on what we have before us. Further, yes on the specifics of the applications that, under the scheme of the Act, when in force, would be put before judges. It makes sense, for the reasons rehearsed by Lord Macdonald in his evidence before you, to involve prosecutors. We are back to that point of principle, which is that it is about securing evidence for prosecution and involving prosecutors early—I would not have sufficient knowledge of the mechanics to say that it has to be personally the DPP, but involving them early—i.e. anything beyond 14 days, seems to be a crucial indicator of the purpose of the detention being orientated towards charges, which is an important and good thing.
Q192 Lord Faulks: My question is to the point raised by Lord Goodhart in a question to Lord Goldsmith, the question of reading in Article 5 to schedule 8 and whether that would be an improvement and provide for better safeguards or whether, as he said, we read it in anyway as a result of the Human Rights Act incorporating the Convention. Do either of you think that is necessary or a useful additional safeguard? Professor Walker: I submit that it has become less important as a safeguard because of the fact that there have now been four or five cases before the court where these issues have been fairly fully rehearsed. There were, for example, two cases from the detention of Colin Duffy, who was detained after the killings in 2009 in Northern Ireland, one of which was just reported a week or two ago. There was also a case arising from Operation Pathway, the detention of students in the north-west of England a year or so ago. They have fully emphasised the point that the requirements of Article 5 certainly not only apply, which is no surprise to anybody, but that the judge who is reviewing the case must pay attention to Article 44
5, and although he is not required by schedule 8 specifically to look at the continued necessity for the detention, that has been implied by these cases. The case law has helped and, sure, if you are going to have a major consolidation of all the legislation and all the cases then maybe you should do that, but, in the absence of that exercise, I do not see it as a pressing need. Professor Gearty: On the assumption that we have a Human Rights Act, I do not think it is a pressing need, although some legislation does do this. For example, the enactment of coroners laws in 2009 included a specific reference to an interpretation overseen by the House of Lords, as it then was, which changed the way in which inquests are conducted in this country. Lord Faulks: Because of Article 2. Professor Gearty: Yes, because of Article 2. But the assumption is that we have a Human Rights Act, so it is not an impossible scenario in the course of this Parliament that we have a report from another committee which suggests a bigger and better Bill of Rights but which involves, for example, the repeal of the Human Rights Act and schedule 1 to that Act. Therefore, it is not impossible that the references could become extraordinarily material, but at this moment it does not seem probable.
Q193 Lord Goodhart: Could I ask one question of Professor Gearty? You said that it would be undesirable for the Attorney-General to be the person taking a decision about what the law should be because he in fact was committed to be an adviser of the Government. I am not sure exactly what you said but I think you did say something of that kind, did you not? Professor Gearty: Just now? Lord Goodhart: Yes. Professor Gearty: I do not quite remember that I did and therefore I am not sure whether I want to stand by it. Is it in relation to certifying legislation before the House? Lord Goodhart: Yes. Professor Gearty: It would make sense for the Attorney and the DPP together to have a statement analogous to but not the same as the section 19 statement under the Human Rights Act, which is the declaration of compatibility that the Ministers have, which is a statement which says that this legislation is warranted by a public emergency threatening the life of the nation, or whatever trigger we decide upon, and if it were the case that other parts of the United Kingdom were similarly covered, then it should be the law officers in those places. My idea in having two (or more) rather than one is to stop a situation where there is any single individual who has misgivings but is on his or her own, as it were, and that there is a sort of ballast to the legal officers which allows a coherent principled position which can resist the understandable pressure produced by atrocities, not just from Home Secretaries, but generated by atrocities with all the tensions these entail.
Q194 Chairman: Professor Gearty, I would like to make sure that I have understood your position. Your memorandum says: “12. The draft Bills before this Joint Committee are creatures of…‘coalition politics’ rather than a reasoned contingency-planning. There is no logic to them… 13. The safest approach is to leave it to the government of the day to judge what is needed to put before Parliament, and rely on the law officers’ certificate to provide an early indicator...of the seriousness of the matter... 14. I am of the clear view that it is very much more preferable to have legislation of this nature dealt with as primary legislation on the floor of both Houses than it is to enact a law-making power to be exercised by the Secretary of State.” That is your view, is it, properly summed up, even though there is no logic in the Bill? [Interruption.] 45
Professor Gearty: I have a minute, do I? Shall I speak over the bell? Chairman: Yes. Professor Gearty: My view is that this Bill does not address the problem that might well exist in the future which necessitates new legislation, which problem we cannot anticipate so much that we know exactly the kind of legislation we will want. My view is that, rather than proceed with this Bill, we should trust the Government of the day in the event of some calamity to produce draft legislation, albeit maybe on a recall of the House, or whatever, which is dealing with the emergency that the House at that moment finds itself faced with and which is targeting measures to deal with the emergency it has before it. It might be curfews, house searches, road closures, and it might be detention. This Bill—does not address the full range of problems that might be thrown up by an emergency of the type I contemplate. Chairman: Thank you very much. Professor Gearty: That is my position. Chairman: We have completed our questions, so we can adjourn. May we say thank you very much for coming to give evidence to us and for your memoranda? We are very grateful to you and we apologise for keeping you waiting, but it has been worth waiting for.