Counter Terrorism Bill 2008

The new Counter Terrorism Bill 2008 proposes several changes to existing UK laws, but it is the controversial extension to the period of detention without charge that has grabbed most of the media attention. There is a danger that robust scrutiny of other provisions will be overlooked amidst the debate over pre-charge detention.

As Jacqui Smith presented the Counter Terrorism Bill to Parliament on 24 January, the furore surrounding the pre-charge detention period for suspects cast a shadow over this piece of legislation, leaving scant consideration among the media and politicians alike for other important aspects of the Bill. Aside from the intended provision of up to forty-two days for the police and security services to gather evidence, the Bill will amend the UK’s anti-terror laws in a number of interesting ways. The post-charge questioning of terrorism suspects; the prosecution of terrorism offences and the punishment of convicted terrorists; asset freezing procedures under UN terrorism orders; inquests and enquires dealing with sensitive information; and the disclosure of information to the secret services will all be covered.

Of particular significance appears to be the new powers for the security services to gather and share information. The provisions of the Bill mean that DNA samples obtained under the Terrorism Act 2000 could be placed on the national DNA database. As a result, the security services would, for the first time, be able to cross-reference their data with that of the national police database.

The Bill is also very interesting for being silent on a whole raft of powers and provisions that could have been introduced. While it comes as no surprise, the Government’s latest raft of proposed legislation declines to address the question of intercept evidence and its submission in cases against suspected terrorists. The Government is concerned that the use of intercept evidence could jeopardise the work of the security services in the field and that demands for access to hundreds of hours’ worth of data by defence barristers could be overwhelming. Opponents of the Government position note that intercept evidence is used successfully in every other common law country in the world. Tellingly, opponents also argue that the use of intercept evidence might mean that cases against suspects can be gathered more quickly and thus diminish the need for extended periods of detention without charge.

And so, inevitably, discussion of the Counter Terrorism Bill returns to the question of pre-charge detention.Tony Blair was insistent that he could force through the Government's original attempt at ninety days. For some, this insistence could be attributed to the strange delight that long serving Premiers appear to take in setting themselves against popular opinion. Gordon Brown, having been PM for such a short period, has surely not succumbed to such a taste for defiance. Nevertheless, he and his Home Secretary do not appear to have taken on board fully all of the lessons derived from the Blair era. Then, the complaints were twofold: consultation had not been sufficiently wide and the substance of a ninety day limit appeared to be at once excessive and arbitrary. This time, efforts at consultation have been much more assiduous, including various promises of Parliamentary safeguards and one-to-one audiences with Jacqui Smith for unconvinced back-benchers. However, the second complaint, that of an arbitrary time limit with no supporting evidence, remains.

The Government concede that there has thus far been no instance when the current twenty-eight day limit resulted in the release of an individual who would otherwise have been charged. However, they argue that the size and complexity of terrorist operations is increasing and it is foreseeable that at some point twenty-eight days might not be enough. The debate raises the question of whether we are prepared to legislate for hypothetical security scenarios. Or, whether we must legislate for hypothetical security scenarios because, by the time they become ‘un-hypothetical’, it may be too late.

One can only assume that somebody somewhere, privy to knowledge that is not in the public domain, has given the Government a compelling case for extending the length of pre-charge detention. It is hard to see what political advantage is to be gained from pressing such an unpopular measure through Parliament at such risk of failure.

The British Parliamentary system is grounded in the theory that good legislation is forged from rigorous debate and scrutiny. However, one cannot help but feel that all the political energy being expended by all sides on this issue could be more constructively used in pursuit of national security. This is possible, by pushing ahead with the Government’s long awaited new Security Strategy.                  

Anthony McGee
Head of Risk and Resilience, Homeland Security and Resilience Department

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The views expressed above are the author's own, and do not necessarily reflect those of RUSI.