Gordon Brown on 42 day detention without charge

From the interview with the Observer:

Q: Why are you pushing so hard with your plans to extend to 42 days the period in which a terror suspect can be held without charge? Many members of your own party, the Lib Dems, the Tories, the DPP, the former attorney general are all expressing doubts if not outright opposition.

With two committees, the JCHR and HAC, both concluding that there is no case for extending the period of pre-charge detention. Have a read through their documents and see what they had to say after looking at the evidence.

A: A few months ago Liberty, the former National Council for Civil Liberties published its proposals [see their overview – ukliberty] and said that there were circumstances in which they themselves understood you might have to go beyond twenty eight days. Now they proposed using the Civil Contingencies Act to do so [see the legislation]. They recognised therefore that there are circumstances in which, whether it’s a multiple terrorist plot or whether it’s a complex set of sophisticated investigations that cross continents you may have as a result of the complexity and sophistication to detain people beyond twenty eight days.

Yes, a substantial emergency for which drastic measures have to be taken – something along the lines of multiple jet airliners being hijacked, which to me seems fair enough…

Now what I said to that was look, if in principle people right across the political spectrum agree that it’s necessary, in certain instances – unique sometimes perhaps or special at least and understood to be rare then we ought to try and find a way and a consensus for doing that.

See Liberty’s “the real consensus” (376Kb PDF).

And that’s why I’ve been determined to build in what I think are the key elements of something that is acceptable to all sides. And that is if you have someone detained then you have got to have proper judicial oversight. You’ve got to have continuous accountability. You’ve got to have parliamentary scrutiny.

What we must have is fair proceedings. The prerequisites for fair proceedings include some form of independent decision-maker (eg a judge) and the opportunity and ability to challenge one’s detention.

Of course there may be limitations in sensitive cases – for instance, a ‘special advocate’ might act on the suspect’s behalf in order to challenge some sensitive information that cannot be divulged to the suspect or his ‘normal’ lawyers, as they do in immigration and control order hearings.

(Note however that this system has itself been criticised, with at least three people involved with it resigning because of their concerns: Brian Barder, a lay member of the Special Immigration and Appeals Commission panel; and Rick Scannell and Ian MacDonald, both Special Advocates. Worth reading their concerns.)

But returning to the topic at hand, I’m not sure why there has to be parliamentary scrutiny of detention, indeed I’m inclined to oppose politicians having a say in detentions whether or not a person is charged: first, because they cannot be said to be independent decision-makers; second, because they of course will not be given access to sensitive information. They will therefore be uninformed, biassed decision-makers, so how anyone thinks that is a good idea is being rather silly.

That is a different matter from them voting on whether or not there is an emergency sufficient to require 42 day detention. I’m not sure whether or not that is a good idea. The courts have said that the Home Secretary is best placed to determine whether or not there is a national emergency, and I’m inclined to agree. Where the courts come in is the Home Secretary’s use of his powers, or in the extreme circumstance, whether he is so obviously wrong that he must be held to account. I’m not sure where Parliament (well, the legislative bit of it) has a part to play in this process.

The Government is accountable to Parliament, of course(!), but note the JCHR’s comments that “It has been a constant theme of our reports on counter-terrorism and human rights that there are far too few opportunities for independent democratic scrutiny of the Government’s assessment of the level of the threat from terrorism. We have pointed out several times that unless both Parliament and the public are better informed about the nature and the level of that threat, it is impossible for them to make meaningful judgments about whether particular measures proposed by the Government to counter that threat are proportionate.”

And I believe that if we could show people that there is proper judicial oversight, in other words nobody stays in prison arbitrarily but there is judicial oversight and therefore it’s got to be regularly reviewed, that there is a means by which there is proper parliamentary scrutiny and we proposed a mechanism for that to happen, and if at the same time there’s proper public accountability, because the facts become known, because an independent reviewer who’s an independent figure looks at what has happened to guarantee that nobody will be detained arbitrarily and there has always to be a good reason if that were the case.

I like the talk of “independent figures” and “reviewers”: first, because the Government wouldn’t take notice of an independent figure if it was expedient to ignore him; second, because independent reviewers don’t always get things right (assuming judges’ decisions are ‘right’, which legally speaking they are until overruled I suppose).

Also see this earlier article about the broken promise regarding ‘judicial safeguards’ – ie there are no proposals for judicial safeguards, despite lots of talk about “there will be judicial safeguards”.

And it’s worth noting that the JCHR said “the existing judicial safeguards for extending even up to 28 days are inadequate because they do not provide a full adversarial hearing or an opportunity to challenge the basis on which someone is being detained”.

Then if you can satisfy all these things then it seems to me that there was a consensus that there were circumstances in which it may be necessary what you’ve then got to do is to satisfy people that all the mechanisms by which civil liberties are put in place. Now that’s where the debate is at the moment. And I think it’s a more rich debate than is simply summed up by a number of days.

I think it’s important to note that we already have the longest period of pre-charge detention (Liberty, 171 Kb PDF) in comparable legal systems. In that sense, the number of days is pertinent – why do other legal systems not have 28 days, let alone 42 days?

It’s about what matters to me because I gave a speech on liberty a few weeks ago [see this blog].

And I believe very strongly that what marks Britain out from the countries historically is that we were the pioneer of liberty. And liberty means amongst other things the freedom of speech and the freedom from arbitrary treatment. But if we can show people that A, there are circumstances in which it may be necessary and that I believe that there is a common view that people do understand that. And secondly that there are proper protections in place for the safeguarding of the civil liberties of the individual then I think people would look at this.

Well that’s what the argument is about, Gordon, whether or not we need so many days and whether or not civil liberties are in fact protected, furthermore are there other things we could introduce instead that you don’t seem to be so keen on? Such as the use of intercept evidence in court?

Q: Does it frustrate you that you’ve obviously changed the politics of this issue, by saying it’s not about an arbitrary number of days, and yet there still seems to be very strong opposition?

A: Well I don’t think, you see I don’t think there is as much difference of opinion as the headlines suggest. You know I’ve talked to, at length to Liberty as an organisation. I know that other political parties in the House of Commons are much influenced by what Liberty has said. I’ve got a great deal of respect for the arguments that have been put forward and I actually think we’re not as far away as people have mentioned from reaching an understanding about what the best way forward for Britain is.

If you accept that there may be circumstances in which you have to go beyond twenty eight days

Well, there’s the sticking point right there because pretty much everyone is saying you haven’t made the case for that.

and if you accept then as a precautionary principle you should have the power in legislation to do so, then what you’ve got to do in my view is convince people that you’ve got in place all the protections for any arbitrary treatment or protections against the possibility that there could be arbitrary treatment of the individual.

Now an independent reviewer, parliamentary accountability, parliamentary scrutiny, judicial oversight, in fact the application coming not just from the police but from the DPP and from the Home Secretary, gives you a sense that none of these things would be done lightly. They would only be done in the rarest of circumstances when there was a real problem that had to be dealt with. [here is an outline of the process]

But I don’t think people can rule out the possibility that investigations in this modern world – but look, I was at the Treasury for ten years. I had to deal with terrorist finance. And we had to if you like ensure that the accounts of people who were guilty of terrorist finance or using their accounts for terrorist finance were closed down. So we had to do asset freezing. And the complexity of these investigations. Sometimes you don’t know who initially is the person that you’re dealing with. Because they operate under a dozen names. Sometimes you don’t know where they stay because they’ve got a dozen addresses. Sometimes they have many, multiple passport numbers. Certainly they’ve got many email facilities. They’ve got mobile phones of a large number of people. And sometimes it’s taking you ages to find out who you’re actually dealing with before you can actually get to the position of investigating whether they should be charged for anything.

Update

A Liberty poll reveals widespread opposition to the plans in the Commons.