Lord Armstrong of Ilminster talks about the report "Draft Detention of Terrorist Suspects (Temporary Extension) Bills"

This is a transcript of the podcast of Lord Armstrong of Ilminster, Committee Chairman, talking about the report "Draft Detention of Terrorist Suspects (Temporary Extensions) Bills".

I am the Chairman of the Joint Committee which has just finished considering the two draft bills which could be used to increase the maximum period that a terrorist suspect can be held without charge.

There is general agreement that someone arrested and detained on suspicion of having committed a terrorist offence should not as a general rule be detained for more than fourteen days without being charged.   That is already a very long time. The Government believes, however, that exceptional circumstances could arise in which it is necessary to detain suspects) for longer than fourteen days for the purposes of completing investigations and reaching satisfactory decisions whether or not to charge them with specific offences.  So last February it published two draft bills – essentially two versions of the same bill –which could be introduced as a matter of urgency to authorise extended detentions up to a maximum of 28 days if need be. The Joint Committee of members of the House of Lords and of the House of Commons was set up to scrutinise the draft bills. It was hoped that this process of pre-legislative scrutiny would make it easier and quicker for Parliament to pass one or other of the bills if it ever had to be introduced.

After considering a wide range of oral and written evidence the Committee came to the conclusion that the Government was right to consider that it was necessary to provide for the contingency that it might on rare occasions be necessary and justifiable to extend the period of pre-charge detention of terrorist suspects beyond 14 days up to not more than 28 days, and right to consider that that should happen only in exceptional circumstances and subject to rigorous safeguards. We understood why the Government thought that this would be so serious a decision that it ought to be taken by Parliament. We concluded, however, that the draft bills would not be a satisfactory way of proceeding, for two main reasons:

  1. it would be almost impossible for the Secretary of State to present the legislation or for Parliament to scrutinise it effectively without incurring the risk of prejudicing the right to a fair trial of any  suspect who was subsequently charged with a terrorist offence;
  2. the legislation would probably need to be introduced and passed in a hurry: it could well be difficult to do this at a time when Parliament was in recess, and it would be impossible to do so at a time when Parliament had been dissolved for a general election, because there would be no Parliament.

We looked at other possible ways of making contingency provision for extending pre-charge detentions to up to 48 days if it ever became necessary to do so and narrowed the choice to two options:

  1. The introduction of primary legislation which would reaffirm that the period of pre-charge detention of terrorist suspects should not as a general rule exceed 14 days but would provide standing authority for the Director of Public Prosecutions, with the agreement of the Attorney General,  to decide, subject to rigorous safeguards but without reference to Parliament or the Secretary of State, that the circumstances were sufficiently exceptional to justify extending the period of pre-charge detention of terrorist suspects to up to 28 days, and to apply to a High Court judge for leave to detain beyond 14 days in individual cases.
  2. The introduction of primary legislation which would reaffirm that the period of pre-charge detention of terrorist suspects should not as a general rule exceed 14 days, but would authorise the Secretary of State, with the agreement of the Attorney General, to make an executive order, of limited duration and subject to rigorous safeguards, declaring that there were circumstances sufficiently exceptional to justify extending pre-charge detention of terrorist suspects to up to 28 days.  The making of such an order would provide the basis for applications by the Director of Public Prosecutions to a High Court judge for leave to detain beyond 14 days in individual cases.

Neither of these options is free from difficulty. The first would have the merit of simplicity, and would obviate the need for further legislation if and when the need for extended pre-charge detention arose. But we have concluded that the decision whether the circumstances are sufficiently exceptional to justify extension of pre-charge detention beyond 14 days is one that, if it cannot effectively be taken by Parliament itself, should be taken by someone directly accountable to Parliament, and that that can only be the Secretary of State.  The second option respects the essential distinction between the responsibility of Ministers to make rules of general application and the responsibility of the judiciary to decide whether those rules are applicable in individual cases. We recognise that the Secretary of State would not be able to be held to account by Parliament until there was no risk of prejudicing judicial proceedings; his order could not therefore be subject to the early approval of Parliament. But we recommend that he should be eventually be called to account for his decision, and we make clear proposals as to the factors which should be taken into account and the safeguards that should be complied with in making the decision. We believe that the fact that the Secretary of State would know that he was likely eventually to be called upon to account to Parliament for his decision by reference to these factors and safeguards would ensure that his decision was not taken lightly or unadvisedly.

We are therefore recommending the second option.