"42 days"

The big news this week was of course the close vote on the proposal to allow up to 42 days pre-charge detention in certain terrorist cases. It's an issue I've mentioned in my blog before.

I decided to support the government, and as I know this is a controversial issue, I will do my best to explain my reasons why, particularly as it is no secret that I had a great number of reservations about the proposal.

Firstly, having looked at all the information available to me, I was persuaded that there was a case for a 'reserve power' of the type proposed, as long as it was genuinely that, and not a power which became used on a regular basis.

Secondly, the various amendments and concessions made by the government have made it clear that the power will indeed be a reserve power. It is certainly not the case that there will become an automatic 42 day detention period. The power will only be able to be used in closely specified circumstances, for a limited time period, with parliamentary approval on each occasion, and will require the approval of the Director of Public Prosecutions or the Lord Advocate. It is therefore a very different proposal from the '90 days' proposals, to which I was very strongly opposed and which I had no hesitation in voting against. (See the letter from the PM below).

Thirdly, the Prime Minister has personally made it clear that there is no intention to seek any further changes in the number of days for which pre-charge detention is available, and that he expects these powers to be used very sparingly, perhaps (hopefully) never.

It is always of course possible to exaggerate the threat of terrorism - but equally, we should not ignore that it is a real threat as well. That does not mean that our primary response should be security measures - the most important thing is to tackle factors underlying terrorism, whether that be social divisions at home, poverty, and sometimes foreign policy. But sometimes security measures are important as well.

I know my decision will be unpopular with some; but I considered this issue very carefully, and eventually thought it was right to vote in the way that I did - and so I did.

Copy of Prime Minister's letter to all Labour MPs

To All Labour Members of Parliament

7 June 2008

Dear Colleague

I am writing in advance of Wednesday’s vote on the Government’s proposals to detain terrorist suspects in exceptional circumstances for up to two weeks more than the currently permitted 28 days - with new safeguards to protect civil liberties. I believe that it is right to act now so that we are prepared for the future, rather than waiting for events to force change. It is better to prepare for the worst than simply hope for the best.

It is important to understand - and I think most people agree - that the terrorist threat today is radically different from that faced in the decades that have passed - changes that like others I have seen at first hand as Chancellor in relation to terrorist finance cases and now in the position I hold as Prime Minister.

In 1997, 19 mobile phones, one computer and seven computer disks were seized in terrorist investigations. In 2006, 1,620 mobile phones, 353 computers and 2,541 computer disks were seized.

This complexity is clear in examples of individual cases. In 2001, when the police investigated the last major IRA case, they had to analyse the contents of one computer and a handful of floppy disks. The suspects used their own names, and their activities were confined to the republic of Ireland and the UK. In 2004, when the police and security services had to investigate Dhiren Barot, the key conspirator in an al-Qaeda operation in this country, it led to the seizure of 270 computers, 2,000 computer discs and over 8,000 exhibits. There were seven co-conspirators and, during the investigation, the police carried out enquiries in the USA, Malaysia, the Philippines, Indonesia, France, Spain and Sweden. In the 2006 alleged airline bomb plot the sophistication of the investigation was even greater - 400 computers, 8,000 discs and over 25,000 exhibits.

So with terrorists deliberately using new technology, as well as multiple identities to cover their tracks, and with investigations often involving countries where co-operation is not easy, it is unarguably true that the amount of time it takes to properly investigate a case before charges can be brought has increased very significantly.

Nor should the scale of the threat we face today be underestimated. Recently the security service has estimated that there are at least 2,000 known terrorist suspects, 30 current plots and 200 organised terrorist networks. These individuals and groups are prepared to use suicide attacks and want to cause mass casualties without warning. So it is particularly important that the police and security services are able to act early to prevent carnage.

Throughout this debate, I have always sought to operate on the basis of consensus. So I have been encouraged by the fact that there is a wider consensus that there could be circumstances where detention beyond 28 days may be necessary. The main question is how we actually do it. Some argue that it would be right only if we declared a state of emergency, but I believe that to declare a state of emergency would be to hand a propaganda coup to terrorists. I also want more safeguards than there would be if we were to declare a state of emergency under existing law.

And in the legislation currently before parliament we have done everything in our power to protect the civil liberties of the individual against any arbitrary treatment, because in Britain liberty is and remains at the centre of our constitutional settlement. The challenge has been to make sure that, through proper judicial and parliamentary oversight, we both keep the public free and safe from the threat to our security and secure the fundamental liberties of the citizen.

We have built in a comprehensive range of safeguards.

Applying to go beyond 28 days will only be possible where there is a grave, exceptional terrorist threat. We have defined this in the legislation to make it impossible that this could happen in anything other than what people would consider a terrorist crisis situation.

Any decision to go beyond 28 days will have to be agreed by the Director of Public Prosecutions as well as the Home Secretary and the police. The Home Secretary will have to make independent legal advice available to Parliament.

There will be a maximum limit on pre-charge detention. In no circumstances will anyone be held for more than 42 days - two weeks more than the current maximum.

The power to hold anyone for more than 28 days will only stay in force if both Houses of Parliament vote that the circumstances warrant it. It will then automatically lapse after 30 days.

Decisions on the detention of individual suspects will have to be approved by a senior judge every seven days.

And there will be independent reporting to Parliament and the public on all cases.

It has been put to us that, as we consider this bill, we should in this specific instance proceed by secondary rather than primary legislation, which, it is pointed out, would open up the scope for judicial review more widely. I, and Jacqui Smith, have considered this position very carefully and do not believe in this instance that this is the best way forward. The bill is put before the House as primary legislation and we have taken the view that it is better for elected representatives to allow the temporary use of these special powers in what people might consider a crisis situation. Of course this is in no way to affect the role of the judiciary in considering individual cases.

I can nevertheless assure you that I am confident that what we are proposing fully complies with the European Convention on Human Rights. Article 5(1)(c) of the Convention permits deprivation of liberty in the case of ‘the lawful arrest or detention of a

person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’. There has been no case where the detention of a terrorist suspect being held under the existing maximum period of

pre-charge detention has been found to be incompatible or unlawful, and we do not believe that the extension of pre-charge detention for up to 14 days beyond 28 days raises qualitatively different human rights issues. Judicial oversight every seven days helps safeguard this.

One of the arguments sometimes presented in this debate is that what we are proposing places us on the unacceptable fringes of Europe. In fact, in France, the phase of pre-trial detention can last for up to 4 years. In Spain a terrorist suspect may also be held in preventative judicial custody for up to 4 years. And in Italy the maximum period of detention permitted during preliminary investigation is one year. Many of your constituents will know about the case of Amanda Knox, the American student accused of killing her flatmate in Perugia, who has been held by the Italian authorities without charge for nearly a year.

We have built in major safeguards and I invite you to support the principle of protecting the public without undermining civil liberties and this is at the heart of the legislation we propose on Wednesday.

Yours faithfully