Peers aren’t keen on 42 day detention without charge or inquests without juries
Detention without charge
Plans to extend terror detention to 42 days could undermine the independence of judges and lead to the collapse of trials, peers have warned.
The Lords constitution committee said letting Parliament vote on whether to allow extensions in the pre-charge time limit beyond 28 days was “muddled”.
This would create a “recipe for confusion”, rather than a “system of checks and balances”, it added.
The Home Office said the changes would protect people and civil liberties.
in a withering assessment of the plans, the committee said the “elaborate” decision-making process was a weakness, rather than strength, of the Counter-Terrorism Bill. It said: “It is likely to lead to high-profile litigation during a time when the response to terrorism will be a matter of high controversy.”
The peers warned that it might be impossible to give MPs and peers detailed enough information about investigations without prejudicing trials. “We are concerned that parliament would be asked … to make decisions that … it is institutionally ill-equipped to determine,” they said.
The Home Office said it will consider the committee’s concerns.
Once again, great that the media have brought this to the attention of the public, but why do they neglect to publish a link to the Committee’s report itself, so that readers can read it for themselves rather than rely on the middlemen?
Now, one very good point made by the Committee is this:
While anti-terrorist legislation is not new, each incremental instalment, generated by concerns about public safety, must be considered not only on its merits but also in relation to the totality of such legislation.
Here’s their summary of the Bill as it stands at present:
27. Under the scheme proposed by the Bill, Parliament will be involved in several different ways:
(a) The chairmen of three committees (the Home Affairs Committee, the Joint Committee on Human Rights and the Intelligence and Security Committee) will receive briefings on a Privy Counsellor basis about the Home Secretary’s decision to make a reserve power order
(b) Each House will debate and vote on a resolution approving a reserve power order, ahead of which the Home Secretary will lay a statement before Parliament and information about the independent legal advice she has received
(c) If a reserve power order is approved by each House, Parliament will subsequently be informed by the Home Secretary on each occasion when a court grants an application by the DPP for a warrant authorising detention up to 42 days
(d) Within six months of the reserve power order ceasing to be in force, Parliament will receive and scrutinise a report by the Independent Reviewer of Terrorism Legislation.
The Committee is critical of (a), can’t see the point in it, and thinks it will undermine the valuable work of the committees.
The Committee also points out that
- Parliament will have a quasi-judicial role – that even though the order will be expressed in general terms, it would in reality relate to specific individuals;
- “members and committees of both Houses will, in their questions, speeches and reports, have to tread a tightrope” between fulfilling their role of exercising parliamentary scrutiny and avoiding remarks that may prejudice fair trials;
- Parliament will have to operate without “fully knowing the factual background”, being asked to make decisions it is “institutionally ill-equipped to determine”;
- “Far from being a system of checks and balances, this is a recipe for confusion”.
The Committee remarks that,
In our letter, we asked Lord West to provide greater details—amplifying or adding to the matters referred to by the Home Secretary in the House of Commons on 11 June 2008—of what matters would in the Government’s view be (a) appropriate and (b) inappropriate for debate in Parliament on a resolution to affirm a reserve power order. No such further details have been provided. We are unconvinced that the Government have properly thought through this aspect of their proposed scheme.
In his response, Lord West says,
It is already the case that there are statements and debates in Parliament following major terrorist incidents (for example in relation to the alleged airline plot and following the incidents in London/Glasgow). Such statements can, and have, included details about scale and nature of the plot being investigated and the police response. Although these occasions do not deal with details that would be prejudicial to the ongoing investigations, they provide a very real and important opportunity for Parliament to question the Government about events and the response to them from law enforcement agencies and others, and to evaluate for themselves the seriousness of the plot or situation.
But they don’t involve the detention of suspects, do they?
The Committee report helpfully includes a summary of the decision process relating to detention and questioning before charge.
Inquests without juries and specially appointed coroners
The MSM seems silent about this, I don’t know why.
Lord West, for the Government, makes it clear in his response that the reason for not including these provisions in the forthcoming Coroners and Death Certification Bill is because it will otherwise not “come into force within a sufficiently short timescale to address the problems we are concerned about in relation to pending inquests which have brought this issue to our attention”.
I wonder what those inquests are about?
Is the inquest into the shooting of Jean Charles de Menezes one of them?
The Committee thinks that the decision to hold an inquest without a jury is a judicial function – Lord West maintains it’s an Executive function:
I understand that members of the Committee may have concerns about the Executive’s involvement in certifying inquests where the death may have been caused by the actions of agents of the state.
The Secretary of State may be privy to information or material which may go to national security or the relationship between the United Kingdom and another country for example. Assessing the sensitivity of this material requires not simply evaluation of information that is available, but also (for example) evaluating the significance to be attached to the overall intelligence picture informed by a further appreciation of national and international conditions (relating to security matters, and otherwise).
The Secretary of State would be in the best position to assess the requirements of national security and international relations and to determine, in any particular case, whether the public interest requires a certificate to be issued requiring an inquest to be held without a jury. Indeed, this has traditionally been a function for the Executive alone, with the judiciary giving due deference to the executive’s role.
The Committee thinks that, if specially appointed coroners are to be appointed and revoked, this should be a function of the Lord Chancellor, not the Secretary of State for Justice – at the moment these offices happen to be occupied by the same person, Jack Straw, but it is not a requirement of our constitution that this should be the case.
I must confess, I don’t see what difference it makes – as I understand it, the Lord Chancellor is a member of the Executive, and I thought we were concerned about the Executive having influence on investigations into the Executive.
Lord West says that the Bill has been amended so that the Secretary of State will “make appointments with the concurrence of the Lord Chief Justice”.
Lord West says,
One suggestion considered was whether a model could be devised which would split the fact-finding functions between the coroner and the jury—with the coroner being the finder of fact on any issue that involved the sensitive material, and the jury being the finder of fact on all other issues.
However, it soon became clear that such a model would not be capable of meeting Article 2 [of the European Convention on Human Rights, the Right to Life] requirements in all cases and would be unworkable in practice. The split could also invite constant challenges as to whether something was for the coroner or for the jury to decide, thereby delaying the inquest (which would be very much to the detriment of the bereaved families who await the outcome of the inquest).
As I understand it, case law as a result of Article 2 says that there has to be an expeditious, effective and independent investigation into the lawfulness or otherwise of a killing, particularly when it involves an agent of the state.
How can a coroner appointed by the Executive be considered independent of the Executive?
I don’t see how the Government’s plans meet the procedural obligations resulting from Article 2.
The JHCR said that the Government could use existing law on public interest immunity to persuade coroners not to release information harmful to the public interest, and that case law acknowledges this measure is compatible with Article 2.
An appendix to the report consists of a letter from Ken MacDonald QC, Director of Public Prosecutions, which gives a background to Threshold charging and how it works in practice.
Some politicians are good!
I must say, I do have a go at politicians on this blog, but this sort of work, and that from other Committees and debates I refer to, shows how valuable they can be in scrutinising legislation and keeping up the pressure.