Counter-Terrorism Policy and Human Rights (Eighth Report): Counter-Terrorism Bill

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    House of LordsHouse of Commons

    Joint Committee onHuman Rights

    Counter-Terrorism Policyand Human Rights

    (Eighth Report):

    Counter-Terrorism Bill

    Ninth Report of Session 200708

    Report, together with formal minutes, and oral

    and written evidence

    Ordered by The House of Commons to be printed

    30 January 2008

    Ordered by The House of Lords to be printed

    30 January 2008

    HL Paper 50HC 199

    Published on 7 February 2008by authority of the House of CommonsLondon: The Stationery Office Limited

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    Joint Committee on Human Rights

    The Joint Committee on Human Rights is appointed by the House of Lords and

    the House of Commons to consider matters relating to human rights in the

    United Kingdom (but excluding consideration of individual cases); proposals for

    remedial orders, draft remedial orders and remedial orders.

    The Joint Committee has a maximum of six Members appointed by each House,

    of whom the quorum for any formal proceedings is two from each House.

    Current membership

    HOUSE OF LORDS HOUSE OF COMMONS

    Lord DubsLord Fraser of CarmyllieLord Lester of Herne HillLord Morris of Handsworth OJ

    The Earl of OnslowBaroness Stern

    John Austin MP (Labour, Erith & Thamesmead)Mr Douglas Carswell MP (Conservative, Harwich)Mr Andrew Dismore MP (Labour, Hendon) (Chairman)Dr Evan Harris MP (Liberal Democrat, Oxford West &

    Abingdon)Virendra Sharma MP (Labour, Ealing, Southall)Mr Richard Shepherd MP (Conservative,Aldridge-Brownhills)

    Powers

    The Committee has the power to require the submission of written evidence and

    documents, to examine witnesses, to meet at any time (except when Parliament

    is prorogued or dissolved), to adjourn from place to place, to appoint specialist

    advisers, and to make Reports to both Houses. The Lords Committee has power

    to agree with the Commons in the appointment of a Chairman.

    Publications

    The Reports and evidence of the Joint Committee are published by The

    Stationery Office by Order of the two Houses. All publications of the Committee

    (including press notices) are on the internet at

    www.parliament.uk/commons/selcom/hrhome.htm.

    Current Staff

    The current staff of the Committee are: Mark Egan (Commons Clerk), Bill Sinton

    (Lords Clerk), Murray Hunt (Legal Adviser), Angela Patrick and Joanne Sawyer

    (Committee Specialists), Jackie Recardo (Committee Assistant), Karen Barrett

    (Committee Secretary) and Jacqueline Baker (Senior Office Clerk).

    Contacts

    All correspondence should be addressed to The Clerk of the Joint Committee on

    Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P

    3JA. The telephone number for general inquiries is: 020 7219 2467; the

    Committees e-mail address is jchr@parliament.uk.

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    Counter-Terrorism Bill 1

    Contents

    Report Page

    Summary 31 Introduction 52 Pre-charge detention 7

    Background 7Compatibility with the right to liberty 8

    3 Post-charge Questioning 11The provision in the Bill 11The range of views about post-charge questioning 11The need for adequate and effective safeguards 14

    4 Control Orders and Special Advocates 17Introduction 17Special advocates and the right to a fair hearing 17

    The House of Lords judgment in MB 17The fairness of the special advocate regime 19Amendments to the control orders regime to make hearings fair 21

    5

    The Threshold Test for Charging 25

    Introduction 25Independent safeguards 25Statutory authority for lowering charging threshold 27The threshold test for charging: conclusion 27

    6 Intercept 28

    Conclusions and recommendations 29Formal Minutes 33List of Witnesses 34List of Written Evidence 35

    Reports from the Joint Committee on Human Rights in this Parliament 36

    Oral Evidence Ev 1

    Written Evidence Ev 10

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    Counter-Terrorism Bill 3

    Summary

    The Committee reports on the Governments Counter-Terrorism Bill before its Second

    Reading in the Commons and concentrates on five significant human rights issuesneeding thorough parliamentary scrutiny: pre-charge detention; post-charge questioning;

    control orders and special advocates; the threshold test for charging; and the admissibility

    of intercept. The Committee will report again on the detail of the Bill and is likely to

    comment on a number of other significant human rights issues raised by the Bill.

    Meanwhile it draws to the attention of both Houses a new measure about coroners

    inquests involving material affecting national security. In the Committees preliminary

    view it has the most serious implications for the UKs ability to comply with the

    obligation in Article 2 of the ECHR to provide an adequate and effective investigation

    where an individual has been killed as a result of the use of force (paragraphs 1-9).

    In its Report of December 2007 on the Governments outline proposal to extend the

    period of pre-charge detention from 28 to 42 days, the Committee concluded that the

    Government had not made a compelling, evidence-based case for the change. This Bills

    provisions on pre-charge detention are substantially the same as that proposal. The

    Committee welcomes provisions for limits on the scope of statements to Parliament

    about extended detention but still doubts that parliamentary safeguards would be

    meaningful. The Committee reaffirms the analysis in its previous Report and emphasises

    that, in its view, the Governments proposals for pre-charge detention are not compatible

    with the right to liberty in Article 5 ECHR. In particular, it considers that the proposals

    are in breach of the right of a detained person to be informed promptly of any charge

    against him; are an unnecessary and disproportionate means of achieving the aim of

    protecting the public; and fail to provide sufficient guarantees against arbitrariness. As

    such they are incompatible with Articles 5(1), 5(2), 5(3) and 5(4) ECHR. (paragraphs 10-

    21).

    The Bill provides for a new power of post-charge questioning. The Committee and others

    have already expressed support for such a power, subject to safeguards, although

    concerns have also been voiced by some. The Committee recommends amendments on

    the face of the Bill to include important safeguards against the power being usedoppressively (paragraphs 22-38).

    The Bill contains detailed amendments to the control orders regime, some of which are in

    the Committees view beneficial from a human rights perspective. But they do not

    address its most controversial aspects, including the fairness of control order

    proceedings. In the Committees view it would have been more consistent with the

    democratic scheme of the Human Rights Act if in the MB case the House of Lords had

    made a declaration of incompatibility under the Human Rights Act. The Committee

    believes that Parliament should consider again what a fair hearing requires in this

    context and recommends amendments to the control order regime to make hearings fair(paragraphs 39-73).

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    4 Counter-Terrorism Bill

    The Committee continues to welcome the use of the threshold test for charging in

    terrorist cases but has concerns about the lack of parliamentary scrutiny of the

    introduction of the measure and the lack of independent safeguards. It recommends

    amendments including putting the threshold test on an express statutory footing and

    introducing some independent safeguards (paragraphs 74-85).

    The Committee is disappointed by the limited scope of provisions to extend exceptions tothe statutory prohibition on the admissibility of intercept evidence. In the Committees viewit is essential that the Chilcot review should report in time to enable any proposal to relax theban in terrorism prosecutions to be brought forward as part of this Bill. It calls on theGovernment to publish the product of its review of this question, including the publicinterest immunity plus model (paragraphs 86-89).

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    Counter-Terrorism Bill 5

    1 Introduction1.The purpose of this report is to identify, in advance of the Second Reading in theCommons of the Governments Counter-Terrorism Bill,1 some of the most significanthuman rights issues raised by the Governments proposals, and to indicate some of whatwe consider to be the most important debates which should take place in Parliamentduring the passage of the Bill.

    2.In our view the five most significant human rights issues which are in need ofthoroughgoing parliamentary scrutiny and debate are:

    (1) Pre-charge detention

    (2) Post-charge questioning

    (3) Control orders and special advocates

    (4) The threshold test for charging

    (5) The admissibility of intercept.

    3.This Report concentrates on those five issues, with a view to framing the debate on t