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The power to detain terrorism suspects for up to six weeks without charge violates the fundamental right to liberty and risks undermining counterterrorism efforts, Human Rights Watch said today. On June 11, 2008, the House of Commons narrowly approved a provision in a counterterrorism bill that allows for 42-day pre-charge detention.

“This vote is a terrible disappointment and it’s dangerous,” said Judith Sunderland, Western Europe researcher at Human Rights Watch. “The bill won’t make people in Britain safer. It’s now up to the House of Lords to reject extended pre-charge detention, on grounds of both principle and efficacy.”

Under the complex provisions of the bill, the home secretary could temporarily authorize 42 days of pre-charge detention in terrorism cases, if the director of public prosecution and a chief police officer deem that an extension beyond 28 days is warranted. Parliament would have to approve such authority within seven days, and it would lapse after 30 days.

Faced with criticism from many quarters, the government had offered “concessions” to improve safeguards in the bill. But the most important safeguard – robust judicial scrutiny to prevent arbitrary detention – remains wholly inadequate, said Human Rights Watch. A senior judge must review the detention, but only to assess 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 the person committed a terrorist offense, the ultimate issue at stake in considering whether detention is lawful or not.

“If you were detained, wouldn’t you want the judge to ask whether there are any grounds to believe the accusations against you?” Sunderland said. “It’s not just about whether the police are continuing to investigate, it’s about whether there’s enough evidence to investigate in the first place.”

Human Rights Watch said that the government’s amendments are not enough to bring the bill in line with the United Kingdom’s international human rights obligations:

  • Global trigger: the Home Secretary can authorize extended pre-charge detention by invoking an “exceptionally grave terrorist threat” – a broad formulation that’s open to wide interpretation, not least because it covers planned or executed attacks outside the UK.
  • Blind parliamentary oversight: Parliament will be asked to approve the temporary power within seven days, instead of the 30 days in the original proposal. But MPs should not be deciding on whether a given person should be locked up or not, and in any event they would not be given detailed information, to avoid prejudicing future prosecutions.
  • Temporary but indefinitely renewable: The authority would lapse after 30 days, down from the two months originally envisioned. However, the home secretary could immediately reauthorize a new extension, raising the potential for rolling periods of 42-day pre-charge detention.

A broad consensus of individuals and groups oppose the measure, including Director of Public Prosecution Sir Ken MacDonald, former Justice Minister Lord Falconer, former Attorney General Lord Goldsmith, senior police officials, civil rights groups, and Muslim organizations. The parliamentary Joint Committee on Human Rights called the 42-day detention plan “fundamentally flawed” and warned that it violates the European Convention on Human Rights.

The Muslim Council of Britain has told the government that any extension of pre-charge detention – already the longest by far in the European Union and significantly longer than the permissible period in the United States and Canada – is likely to be counterproductive, and damaging to the battle of hearts and minds that Prime Minister Gordon Brown has identified as crucial to countering terrorism effectively.

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