Creating a fairer Britain
by John Wadham, Group Director Legal.
This comment piece appeared in the Guardian Comment is Free on 14 July 2010.
Protecting its citizens is one of the most important roles any Government has. As terrorists often act with a disregard for the ultimate human right – the right to life – governments are right to consider measures that will restrict the freedoms of the few in order to protect the many. However, some rights are so fundamental – for example the right not to be tortured – no government should ever breach them.
Using these powers has to be considered carefully by governments and should only be used within limits which are rightly in place to protect us, the people, from an overzealous state. We therefore welcome the government’s review of terrorism legislation because there are real concerns about its provisions.
In the past, we have sometimes seen governments, however well intentioned, go beyond these limits. This happened most recently with the previous administration’s proposals to extend the period for detention without charge to 42 days.
As a national human rights institution recognised by the UN, the Equality and Human Rights Commission is responsible for protecting and promoting human rights in Britain and we have statutory powers to achieve these aims. We can, and will, take action where our powers enable us to do. This is why we wrote to the previous government outlining our concerns about the counter-terrorism measures it put in place, which we believed were unlawful, breaching the fundamental rights to liberty guaranteed by the European Convention of Human Rights.
The first real test of the coalition government’s commitment to "restore the ancient civil liberties that should be synonymous with the name of our country" comes today as Parliament debates whether the temporary extension of powers to hold terrorist suspects for up to 28 days should be renewed for a further six months.
Long periods of detention without charge, along with some other counter-terror measures in place in the UK, raise serious matters of principle and practice.
As a matter of principle, this is contrary to British constitutional history and values as well as our human rights. Starting with the Magna Carta to the present laws, the individual has been granted and enjoys fundamental rights including liberty, protection against unlawful imprisonment, presumption of innocence, the right to be told promptly of the reasons for arrest and charge and non-discrimination and equality.
As a matter of practice, can holding someone without charging them for 28 days be justified? The UK currently has one of the longest periods for pre-charge detention of any western country, some of which face similar terrorist threats.
Since the maximum period of detention was raised from 14 to 28 days in 2006 only five suspects have been held for over 26 days, of which three were later released without charge. Two were charged and subsequently acquitted of terrorism offences.
The Commission believes the starting place for length of detention without charge should be the current provisions for all offences up to murder - four days.
That is why we rejected previous proposals to allow terror suspects to be detained for 42 days detention without charge, as our considered view was they were unlawful, breaching the fundamental rights to liberty guaranteed by the European Convention of Human Rights
We welcome the government's overall review of counter-terrorism measures, including the detention rules being debated today. However, at this stage Parliament ought to subject the request for renewal of authorisation for up to 28 days detention to utmost scrutiny.