42 days: Promises of safeguards are a complete sham

OurKingdom is supporting Liberal Conspiracy’s campaign against 42 days detention, and will be publishing a series of posts about it over the next few weeks. Labour rebels will decide whether the bill passes or not. For a full list of those who rebelled last time (on 90 days detention), including email addresses, click here. 

Stuart Weir (Cambridge, Democratic Audit): Home Secretary Jacqui Smith is doing the rounds at Westminster busily reassuring Labour MPs that she has put in place strong safeguards against abuse of the government proposal to take "reserve powers" to hold terrorists suspects for up to 42 days without charge.  Some MPs who were initially opposed to the proposal are persuaded.

But they should not be.  Set aside for the moment the point that there is no case for extending the 28-day period (I will come back to that in another blog), the government's safeguards are a sham that the parliamentary Joint Committee on Human Rights report, Counter-Terrorism Policy and Human Rights: 42 days, ruthlessly exposes.  Indeed, the very idea that Parliament might debate whether it is justifiable to invoke the 42 day limit in any particular case is far from being a safeguard - it carries the serious risk that it might prejudice the trial of any people who were actually detained.  Parliament's proper role, as the Joint Committee reminded the government, is to create the framework for countering terrorism, not deciding who should or should not be detained.

What's more, the idea that invoking the 42-day period would be "subject to parliamentary approval" is a sham upon a sham.  Do the maths.  Even if both Houses vote against the order, it would almost always be made towards the end of a 28-day detention; and so it will lapse after those affected will have been held for 42 days since the order, even if countermanded, has a life of 30 days.

It is of course the courts, not Parliament, that should scrutinise the use of powers to deprive people of liberty, and here the government promise of  additional judicial safeguards is yet another sham.  The Joint Committee took evidence from David Ford, head of the Counter Terrorism Bill team, who said in terms that the government's new proposals were "not really extensions".  Finally the committee established that the only additional "safeguard" was that applications for 42 day periods of detention would require the consent of the Director of Public Prosecutions - which is not a "judicial" safeguard at all and anyway it is already the case that the Crown prosecution service applies for extensions of detention, not the police.

So the protection of people's liberty will still depend upon existing judicial safeguards that the Joint Committee has already shown to be inadequate.  The Guardian's Simon Hoggart compares Jacqui Smith to her namesake Delia.  But hers is a cooked-up recipe which Labour MPs should not swallow.