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A draft terror law giving British authorities 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 in a briefing paper released today.

The House of Lords will begin debate on a counterterrorism bill on July 8, the day after the third anniversary of the July 2005 bomb attacks on London’s transport system. The bill includes 42-day pre-charge detention and other harmful proposals.

“The third anniversary of the 2005 bombings in London reminds us that Britain faces a real terror threat,” said Judith Sunderland, Western Europe researcher at Human Rights Watch. “But locking people up without charge for six weeks will not make the country safer. The Lords should take a principled stand against this dangerous and unnecessary proposal.”

The 19-page briefing paper analyzes measures in the Counter-Terrorism Bill 2008 that Human Rights Watch believes are incompatible with the UK’s obligations under international human rights law.

Much of the debate around the bill has focused legitimately on the government’s renewed effort to extend pre-charge detention beyond the already-excessive 28-day period, which Human Rights Watch believes should be rolled back rather than extended. But the bill contains other provisions that raise serious human rights concerns.

“The problems with this bill don’t begin and end with 42 days,” said Sunderland. “The Lords need to take a hard look at post-charge questioning, notification, and secret inquests, all of which raise serious human rights concerns.”

Other key problems with the bill include:

  • Post-charge questioning without effective safeguards against self-incrimination and oppressive police interviews. The bill allows the courts to draw negative inferences during the terrorism trial when a defendant exercises the right to remain silent after being charged, and fails to require explicitly the presence of a lawyer at all times when a defendant is questioned once charged.
  • Blanket lifelong notification requirements. Persons convicted of terrorism offenses and sentenced for more than five years of imprisonment must let the police know their whereabouts for their entire lives after they are released from prison. For those sentenced to between one and five years of imprisonment, the requirements last for 10 years. The measure applies even where the person was convicted of a terrorism offense outside the UK. Failure to comply can result in up to five years in jail.
  • Secret inquests. The power to order, on the grounds of national security, that an inquest into a person’s death be held in secret and without a jury.
  • A further broadening of the UK’s already overly-wide definition of terrorism.
The briefing paper argues that counterterrorism measures that violate human rights protections are not only illegal under international law, but also counterproductive. They run counter to the British government’s efforts to prevent radicalization and recruitment, and risk alienating the communities whose cooperation is vital in the fight against terrorism. As the House of Commons Home Affairs Committee has acknowledged, there is a real “danger…of antagonizing many who currently recognize the need for cooperating with the police.”

Faced with criticism from many quarters, including the current Director of Public Prosecution Sir Ken MacDonald, former Justice Minister Lord Falconer and former Attorney General Lord Goldsmith, the government has offered “concessions” to improve safeguards to the extended pre-charge detention measure in the bill.

But the most important safeguard – robust judicial scrutiny to prevent arbitrary detention – remains wholly inadequate, said Human Rights Watch. The senior judge reviewing extended detention under the bill does not evaluate whether there are reasonable grounds to believe the person committed a terrorist offense, the ultimate issue at stake in considering whether detention is lawful or not.

Nor are the government’s additional safeguards sufficient to bring the bill in line with the United Kingdom’s international human rights obligations, Human Rights Watch said. The 42-day detention power, authorized by the home secretary, is valid for 30 days, down from the two months originally envisioned. But after 30 days, the home secretary could immediately reauthorize a new extension (albeit subject to subsequent approval by Parliament), raising the potential for rolling periods of 42-day pre-charge detention.

The power requires the home secretary to invoke an “exceptionally grave terrorist threat.” But the formulation is open to wide interpretation, not least because it covers planned or executed attacks anywhere in the world. Parliament needs to approve the power within seven days of the home secretary initially authorizing it. But Parliament is ill-equipped to scrutinize decisions on individual cases, a function best performed by the courts.

The Human Rights Watch paper contains concrete recommendations to the House of Lords for its consideration as it debates the draft law, including the following:

  • Reject the power to extend pre-charge detention to 42 days;
  • Improve safeguards for current 28-day pre-charge detention, until it is repealed, including the requirement that any judge authorizing extensions to detention be satisfied that reasonable grounds exist to believe the detainee has committed a terrorist offense;
  • Reject the proposal to allow adverse inferences to be drawn in post-charge questioning, and an explicit requirement that a lawyer be present all times;
  • Change the notification system so, as a minimum, decisions to impose such requirements are based on an individual risk assessment, with regular reviews, and notification cannot be based on overseas terrorism convictions; and
  • Narrow the definition of terrorism to ensure that acts aimed at influencing the government are only criminalized where their purpose is to coerce or unduly compel to act or abstain from acting.

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