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42 days is still too long

The government has not yet provided enough evidence that six-weeks' detention is necessary or even judicially viable

Tomorrow, the House of Commons will vote on a counter-terrorism bill which the government claims offers significant "practical safeguards" to ensure the protection of the rights of those accused of terrorism. It doesn't. Despite all the consultations and concessions, the government's proposals remain unnecessary, disproportionate and counterproductive.

Several aspects of the bill raise serious questions about the UK's compliance with its international human rights obligations. The main problem is that it would extend the permissible period of pre-charge detention from the current 28 days, which is already bad enough, to 42 days, which is quite simply a terrible idea.

Even the government admits that the police and security services have not yet faced a situation in which 42 days was required. Nonetheless, the bill envisages the use of 42 days' pre-charge detention in the face of a "grave exceptional terrorist threat".

What constitutes such a threat (defined as "serious damage to human welfare and the security of the UK") is open to wide interpretation. Under the proposed legislation, the home secretary herself would determine that such a threat existed without further checks. Furthermore, the determination that such a threat existed could be based entirely on evidence of attacks planned or executed outside the UK. Once triggered, the power would lapse after 30 days, but there is no limit on how many times the power can be renewed, raising the prospect of rolling periods.

Much has been made of parliamentary oversight, and the home secretary has shortened the timeframe for seeking approval from MPs from the original 30 days to seven days. But parliament wouldn't vote on whether a grave enough threat existed, nor would it be given much information about individual cases so as to avoid prejudicing future prosecutions. Given these constraints, it is hard to see what practical effect this parliamentary oversight would have.

The real question is how much meaningful judicial oversight of extended pre-charge detention there is. There is none.

Imagine a person suspected of plotting a very serious terrorist attack. The judge will be empowered to consider only two things: whether the police are showing due diligence and expediency in the investigation, and whether the investigation requires the person's continued detention. The judge is not asked to evaluate whether there exist reasonable grounds to believe this person committed a terrorist offence. But this is the ultimate issue at stake in considering whether detention is lawful or not. This is why the joint committee on human rights has concluded that a 42-day pre-charge detention is a violation of the European convention on human rights that requires that people have an effective right to challenge the lawfulness of their detention.

Six weeks of detention without charge is also likely to be extraordinarily counterproductive in the fight against terrorism, which Gordon Brown himself has admitted is in great part a battle of heats and minds. The bill creates a significant risk of unjust extended detention, which can only undermine the willingness of those in affected communities (and we are talking about Muslim communities) to cooperate with the police in dealing with terrorism cases. It will also damage the UK's image abroad.

The bill contains other troubling proposals that MPs should oppose unless considerably improved upon. Two of these involve reasonable ideas taken to unreasonable extremes.

The government wants police to be able to question terrorism suspects after they've been charged. This is a sensible idea that many have endorsed as an alternative to extended pre-charge detention (here the government is really trying to have its cake and eat it too). But the bill, as drafted, would allow a court to draw adverse inferences from a terrorism suspect's refusal or failure to answer certain questions. This would fundamentally undermine the right to silence under international human rights law. Proposed amendments improve on the government's original proposal, including by ensuring greater judicial supervision, time limits, and audio and video recording of interrogations. Before a vote, the scope for drawing adverse inferences should be scrapped.

The bill also creates "notification requirements" for terrorism offenders. Anyone convicted of a terrorism offence and sentenced to five years or more, including those convicted outside the UK, would be subject automatically to these requirements for the rest of their lives. (Those sentenced to between one and five years would have to do so for 10 years.) Violation of a notification requirement would be a criminal offence punishable by up to five years in prison. Notification requirements can be reasonable measures when there exists a genuine risk of re-offending. But they shouldn't be a blanket measure; instead, there should be an individualised risk assessment, and periodic review of the continuing need. Imposing these requirements on individuals convicted abroad, without any guarantee they had a fair trial according to international standards, is shameful. Think about someone convicted by a kangaroo court with faceless judges moving to the UK to escape further persecution.

The government's counter-terrorism policies, like extended pre-charge detention, have already taken the UK far from the norms followed by European countries as well as other common law countries. It's up to MPs on Wednesday to reaffirm fundamental human rights values. Too much is at stake in this bill to accept anything but a principled vote.

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