---

Counter-Terrorism Bill

Briefly, I bring to the attention of the Committee the role of Parliament envisaged in Clause 28, and point out that it cannot work well and should therefore be revisited. Your Lordships’ Select Committee on the Constitution, in its report of 5 August, said that, in seeking ways in which Parliament may be involved in decision-taking about police detention of terrorist suspects, the Bill risks conflating the roles of Parliament and the judiciary—the noble Lords, Lord Thomas and Lord Carlile, alluded to this—inviting Parliament and the judiciary to ask and answer similar questions; placing on Parliament tasks it cannot effectively fulfil; and risking undermining the right to a fair trial of the individuals concerned. Under the Bill, an order declaring the reserve power exercisable will, like normal legislation, be expressed in general terms and will, on the face of it, merely permit the DPP to seek warrants for further detention from a court. However, the reality would be that the order would be made in relation to investigations into particular individuals. As the Home Secretary has acknowledged, the debate on an order is likely to include the ““outline of the plot”” and, "““the what, why and when””.—[Official Report, Commons, 11/6/08; col. 400.]" Your Lordships’ committee found principled and practical difficulties with this arrangement. Members and Select Committees of both Houses would have to tread a tightrope between exercising parliamentary privilege and duty of free speech to ensure proper scrutiny while, on the other hand, avoiding remarks, individual or collective, that might serve to prejudice fair trails and threaten the independence of the judiciary. Effective debates in Parliament would need not only to avoid touching on potentially prejudicial matters but also to ensure scrutiny commensurate with the fact that individual liberty would be at stake. Parliament would operate without knowing the full factual background. The Home Secretary’s legal advice would be redacted to remove material the disclosure of which might damage the public interest or prejudice a prosecution.