Problematic Clauses Remain Despite Vote Against Detention
The counterterrorism bill being debated in the House of Lords still contains provisions that would undermine human rights, and they should be defeated, Human Rights Watch said today. On October 13, the Lords rejected a provision that would have allowed the government to hold terrorism suspects for up to 42 days without charging them.

“The Lords have delivered a significant victory for human rights and the rule of law.” said Benjamin Ward, associate Europe and Central Asia director at Human Rights Watch. “But the problems with this bill don’t begin and end with 42 days.”

The problematic provisions still contained in the Counter-Terrorism Bill 2008, which the Lords are set to debate on October 15 and 21, 2008, include:

• Post-charge questioning without effective safeguards against self-incrimination and oppressive police interviews. The bill would allow the courts to draw negative inferences during a terrorism trial if 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 who has been charged is questioned.
• Blanket lifelong notification requirements. Persons convicted of terrorism offenses and sentenced to more than five years in prison would be required to 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, the requirements would last for 10 years. The measure would apply even if the person was convicted of a terrorism offense outside the UK. Failure to comply could result in up to five years in jail. Imposing such notification obligations under penalty of serious criminal sanction, without the possibility of amendment or removal, is a disproportionate response to a genuine public safety concern.
• A further broadening of the United Kingdom’s already overly wide definition of terrorism. The bill would widen the definition to encompass acts or threats designed to advance a “racial” cause. The definition, which also includes acts designed merely to influence government (as opposed to compel or coerce it) has been severely criticized, including by the Parliamentary Joint Committee for Human Rights, as overly broad and lacking in legal precision.

“The Lords need to take a hard look at post-charge questioning, life-long notification requirements for convicted terrorists, and the definition of terrorism,” said Ward. “The focus on the 42-day detention provision was right, but there are still serious problems with the bill.”

Another proposal in the bill, criticized by Human Rights Watch, that would have allowed inquests into a person’s death to be held in secret and without a jury was dropped by the government on October 14, although it may be included in future legislation.

The government announced on October 13 that it would drop 42-day pre-charge detention for terrorism suspects from its counterterrorism bill following the 309 to 118 rejection of the measure by the House of Lords. The current law allows for 28 days of detention before charges are brought, a period that already violates human rights law.

Home Secretary Jacqui Smith said today that she would introduce emergency legislation allowing for 42 days of detention in the event that it was needed following a future terrorist attack. But it remains unclear whether the new proposed legislation, said to consist of a single line of text, is a genuine proposal or a face-saving exercise.
Peers who voted against the bill included the former attorney general, Lord Goldsmith; the former lord chancellor, Lord Falconer; the former head of the Secret Intelligence Service (MI5), Lady Manningham-Buller; the former chair of the Joint Intelligence Committee, Lady Neville-Jones, and the former West Midlands chief constable, Lord Dear.

“The government has lost the argument on pre-charge detention,” said Ward, “It should have the courage to admit that 42 days would undermine rights and make us less safe, and drop the proposal completely.”
Link to HRW