Constitution Committee Counter Terrorism Bill pn050808

Embargo: 00:01 Tuesday 5 August 2008
Contact: Owen Williams 020 7219 8659


The House of Lords Constitution Committee, which examines the constitutional implications of all bills coming before the House, has today criticised aspects of the proposed involvement of Parliament in the detention of terrorism suspects under the Counter-Terrorism Bill.

The Bill, which would enable the extension of the period terrorist suspects can be held without charge to 42 days in exceptional circumstances, is criticised by the Committee because Parliament would be asked to make decisions that it is “institutionally ill-equipped to determine”. The Committee argue that while the Government’s attempt to involve Parliament in the detention of terrorist suspects is understandable to ensure democratic accountability, it is muddled. They say “The Bill risks conflating the roles of Parliament and the judiciary, which would be quite inappropriate”.

The Committee go on to state that it is “ill-advised” to create a decision-making process that requires Parliament and the judiciary to answer similar questions within a short space of time. They point out that a judge determining an application for extended detention will be asked to exercise powers a matter of days or perhaps hours after what may have been a highly politicised debate in Parliament. As well as potentially being perceived to undermine judicial independence, the Committee state that “This is a recipe for confusion that … arguably risks undermining the rights of fair trial for the individuals concerned”.

The Committee are also critical of the proposal for the Government to show the chairmen of three parliamentary committees the confidential information upon which the Home Secretary will have based her decision to extend the maximum period of pre-charge detention. The Committee concludes that this “untenable” proposal would undermine the “consensual ethos” of parliamentary committees and “should be removed from the Bill”.

With regard to the role of the Home Secretary and Government in the process, the Committee conclude that “the Bill preserves a constitutionally proper division of responsibilities between the Home Secretary and the judiciary” because it “maintains the principle that in any given case it will be a judge, not a minister, who determines whether an individual suspect continues to be detained”.

The Committee also expresses concern that the Bill would allow ministers to order that an inquest be held without a jury, arguing that it is inappropriate for the Government to intervene in judicial proceedings in this way-particularly given that some inquests may concern deaths caused by the actions of agents of the state. The Committee concludes that the decision should be taken by a judge, possibly following an application by the Government.

Commenting, Lord Goodlad, Chairman of the House of Lords Constitution Committee, said:

“We are concerned that some of the proposals being put forward by the Government in the Counter-Terrorism Bill would place inappropriate responsibilities on Parliament.

“We have invited the House to consider the demands that the Bill will place on Parliament to act in a quasi-judicial manner in deciding the pros and cons of detaining suspects beyond 28-days without charge. Considering that any debate will be highly political in nature and any vote may well be whipped by the political parties, we are deeply concerned that the independence of the judiciary may appear to be undermined and that trials may be prejudiced.

“We are also critical of the proposal that ministers should be able to order that an inquest be held without a jury. This should clearly be a matter for the judiciary, not ministers, to determine.”

Notes to Editors

1. The report Counter-Terrorism Bill: The Role of Ministers, Parliament and the Judiciary, is available from the Stationery Office, House of Lords Constitution Committee, 10th Report of 2007/08, HL Paper 167.

2. The report will be available online shortly after publication at: