Equality and Human Rights Commission

The Commission has had concerns that proposals in the Counter-Terrorism Bill could breach provisions that protect people's human rights, and lead to discrimination against specific groups. We have taken advice from leading barristers in public law and human rights to help us work out whether the proposals are fair and lawful.  Particular concerns are that detaining people for up to 42 days could breach Articles 5, 6 and 14 of the European Convention on Human Rights, and lead to breaches under Article 3.

Counter-Terrorism Bill: Second reading, House of Lords, 8 July 2008

As the Bill has moved through its stages in the House of Commons and House of Lords, Rabinder Singh QC and Professor Aileen McColgan of Matrix Chambers have prepared and updated their advice to the Commission. Their opinion in advance of the Bill's 2nd reading in the House of Lords, with which the Commission agrees, argues that the proposals would:

• permit people to be detained without reasonable suspicion of their involvement in terrorist activity, contrary to Article 5(1) of the ECHR;
• breach the Article 5(2) requirement that arrestees are informed promptly of the reasons for their arrest and the charges against them;
• breach the Article 5(3) requirement that detainees be brought promptly before a judge; and
• breach the Article 5(4) requirement that detainees are entitled speedily to have the lawfulness of their detention ascertained by a court.

The opinion suggests the proposed scheme is also likely to:

• breach Article 3 (which prohibits torture and inhuman or degrading treatment) because of the physical conditions in which detainees will be held for extended periods and the psychological impact such detention without charge is likely to have; nor would the hearings envisaged by the legislation be an adequate safeguard against the possibility of ill-treatment; and
• breach Article 14 (which requires Convention rights to be applied in a way that does not discriminate); this is because of its impact on Muslim detainees and the absence of justification for the scheme which denies Muslim detainees and potential detainees the full protection of Articles 3, 5 and 6 of the Convention.

The opinion also suggests that the use in criminal proceedings of evidence gathered during extended periods of pre-charge detention may well result in breaches of Article 6 of the Convention (which safeguards the right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time and the presumption of innocence).

Below you can download a copy of the full legal advice on the Bill, and supplementary advice on the Bill, as introduced in the Lords on 12 June 2008.

• Consolidated legal advice on the Counter-Terrorism Bill (Word 497 kB)
• Supplementary advice on the Counter-Terrorism Bill (Word 117 kB)

Previous parliamentary briefings

Read our previous parliamentary briefings on the Counter-Terrorism Bill 

• Counter-Terrorism Bill briefing: Second reading, House of Commons 1 April 2008
• Counter-Terrorism Bill: House of Commons report stage, 10 June 2008 

Articles in the Convention

Article 5 - Right to liberty and security

Article 6 - Right to a fair trial

Article 14 - Prohibition of discrimination

Article 3 - Prohibition of torture

Read the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms (external site)

These same articles were also brought into the Human Rights Act 1998. Read the text of the Human Rights Act (external site)