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Proposed law on forty-two-day pre-charge detention in the United Kingdom

Resolution 1634 (2008)

Parliamentary Assembly
Assembly debate on 2 October 2008 (35th Sitting) (see Doc. 11725, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr de Vries). Text adopted by the Assembly on 2 October 2008 (35th Sitting).
1. The Parliamentary Assembly reaffirms its conviction that terrorism can and must be fought with means that fully respect human rights and the rule of law, excluding all forms of arbitrariness. Injustice breeds terrorism and undermines the legitimacy of the fight against it.
2. The Assembly is concerned about elements of draft legislation with regard to counter-terrorism in the United Kingdom. The proposed law, if enacted, would enable the detention of a person suspected of terrorism for up to forty-two days without charge and with limited judicial review.
3. The Assembly has serious doubts whether all the provisions of the draft legislation are in conformity with the European Convention on Human Rights (ETS N°. 5) and the case law of the European Court of Human Rights. A lack of appropriate procedural safeguards may lead to arbitrariness, resulting in breaches of Articles 5 (right to liberty and security) and 6 (right to a fair trial) of the Convention. The Assembly is particularly concerned that:
3.1 the judge determining the extension of a person’s detention may not be in a position to examine whether there are reasonable grounds for suspecting that the arrested person has committed an offence;
3.2 legal assistance and representation by a lawyer may be inappropriately restricted or delayed;
3.3 information concerning the grounds for suspicion of a person having committed an offence may be unduly withheld, even from institutions which decide on whether detention should be prolonged;
3.4 the draft legislation may give rise to arrests without the intention of charging the detainee;
3.5 prolonged detention without proper information on the grounds for arrest may constitute inhuman treatment of the detainee.
4. The Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers in 2002, which confirm the established case law of the Strasbourg Court, serve as a model for such legislation. In particular, any person arrested or detained for terrorist activities must be told of the reasons for his or her arrest and must be able to challenge the lawfulness of his or her arrest and continued detention at an adversarial hearing.
5. Legislative provisions concerning the deprivation of liberty, including the detention of persons suspected of terrorism, must be clear, precise and easy to comprehend. The draft legislation is, however, unduly complicated and not readily understandable.
6. Parliamentary involvement in the extension of pre-charge detention, as proposed, is not appropriate. From the perspective of the separation of powers, the decision to maintain a person in custody is a judicial function with respect to which a legislative, political body should, as a matter of principle, have no say.
7. In view of the importance of fighting terrorism while respecting human rights and the rule of law, the Assembly resolves, with the assistance of the European Commission for Democracy through Law (Venice Commission), to undertake a thorough study on this subject. The British draft legislation should be examined within the framework of a more general comparative study of anti-terrorism legislation in Council of Europe member states in order to assess, in particular, the compatibility of such legislation with the European Convention on Human Rights.