42-days detention: the Lords’ mauling begins

It was inevitable that Parliament’s scrutiny body would rip the 42-days legislation to shreds.  I wish I could say that it is not really a fair fight - that the arguments against the proposals have always been so strong that it’s a bit like watching a cat play with its food.  Sadly, as identified by Lord Lyell speaking on the Today programme this morning, the debate in the Commons was largely a party-political one; the merits of the legislation not really what was discussed.

The all-party Lords constitution committee has dealt the first blow not to the proposal itself but to the ’safeguards’ that Home Secretary Jacqui Smith offered.  The committee complains of the ‘muddling’ involved in giving Parliament a Judicial role for which they are ‘institutionally ill-equipped’.

The problem is essentially that, where the prolonged detention of an individual is sought, Parliament will be presented with an incomplete picture of why the individual should be detained.  They will not, for example, know that individual’s name.  Of course, another reason why they cannot be presented with much evidence is that by definition it will be lacking: if there was evidence that the person was involved in terrorism, they could be charged.

On the basis of that incomplete picture, the Commons will have to vote to decide whether or not the individual might be so dangerous as to warrant further detention.  Were you an MP, would you want to vote against the advice of the security services and be accused of risking the lives of your constituents?  Following that vote, days or even hours afterwards, a Judge will have to make the same decision, which will by then have the weight of not only the security services’ opinion but a vote by Parliament declaring the individual to be dangerous.

How can a Judge operate independently when asked to make a decision in such circumstances, with little evidence on which to base their opinion?  If the individual is later charged, how can they expect a fair trial when they have already been declared dangerous by the security services, Parliament and a Judge?

The answer to both questions is that they cannot.  The decision as to whether to detain someone should not be open to any sort of political pressure.  It must be made by an independent court, who must ask whether there is sufficient evidence to determine that the individual has broken the law.  There is no way to fit detention without charge into that mold.