Yesterday Home Secretary Theresa May told Parliament that a rapid review of key counter-terrorism and security powers is underway. The review, a commitment in the coalition agreement, published on 20 May 2010, will look at what counter-terrorism powers and measures could be rolled back in order to restore the balance of civil liberties and counter-terrorism powers “and, in so doing, restore the ancient civil liberties that should be synonymous with the name of our country.”

She said: “The review will consider six key powers: control orders; section 44 stop-and-search powers and the use of terrorism legislation in relation to photography; the use of the Regulation of Investigatory Powers Act 2000 by local authorities and access to communications data more generally; extending the use of deportations with assurances in a manner that is consistent with our legal and human rights obligations; measures to deal with organisations that promote hatred or violence; and the detention of terrorist suspects before charge.” She believes that these are the most controversial and sensitive powers. “In particular, the issue of pre-charge detention has been the subject of considerable debate in the House, and tomorrow we will consider whether to renew the current detention limit for a further six months.” That would provide sufficient time to look carefully at pre-charge detention and to explore how the period of detention below 28 days can be reduced. She added: “Personally, I was always in favour of 14 days, but the whole point of a review is to look at what the appropriate period should be, and I do not wish to pre-empt the review’s decision or the information with which it will come forward.”

The review will be conducted by the Home Office with the full involvement of the police, security and intelligence agencies and other Government Departments, including those in Scotland and Northern Ireland, and with oversight from Lord Ken Macdonald QC, former Director of Public Prosecutions. The proposals made by Lord Carlile, in his statutory role as independent reviewer of terrorism legislation, will be fully considered as part of the review. The Home Secretary concluded: “I want the review to be conducted as openly and transparently as possible. I have asked Liberty to contribute to the review, and it has said that it would be delighted to do so. I am keen to involve other civil liberty and community organisations and, as with other reviews, I would urge anyone with an interest to submit their views to the Home Office.” On timing, she said: “I have ordered that the review should be completed as quickly as possible, because it is important that the police and the security and intelligence agencies are able to do their vital work with certainty and confidence. I will report back to Parliament on the outcome of the review after the summer recess.”

Over the past decade there has been a wholesale removal of rights that were apparently protected by the Human Rights Act and set down nearly 800 years ago in Magna Carta. The liberties that were assumed to be guaranteed by British culture have been compromised, as have constitutional safeguards that were once considered beyond the reach of a democratically elected legislature. The attack has been as broad as it is deep, with over 25 Acts of Parliament and some 50 individual measures involved so far.

That is the conclusion of “What We’ve Lost”, a report by the UCL Student Human Rights Programme, compiled for the Convention on Modern Liberty. This conclusion is backed by many examples. The presumption of innocence and the principle that every defendant has the right to be tried by a jury have been weakened by the Domestic Violence, Crime and Victims Act 2004. The important distinction between standard of proof for criminal and civil law was eroded with the introduction of ASBOs. The right to silence was further eroded by the Counter-Terrorism Act 2008. Under the same Act an individual and his lawyers may be barred from court proceedings. Freedom to communicate in private has been effectively extinguished by the Regulation of Investigatory Powers Act 2000. Under the Identity Cards Act 2006 and the Children Act 2004 a record of all the important transactions in a person’s life will be created by electronic verification. The rights to freedom of assembly and demonstration have been eroded by the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. Jack Straw’s Coroners and Justice Bill will end the independence of coroners, who until now have been able to investigate the cause of suspicious or uncertain deaths and criticise government departments and agencies. And so on.

In “The Assault on Liberty”, a ‘radical polemic on the state of the nation’, Dominic Raab, Chief of Staff to the Shadow Home Secretary, asks whether we can really defend our freedom by sacrificing it. “In the last ten years the government has launched an unprecedented assault on our civil liberties”. Writing in the ‘Guardian’, Timothy Garton Ash maintains that Britain has more CCTV, a larger DNA base and more police powers and email snooping than any comparable liberal democracy, coupled with a bungling bureaucracy that keeps losing vital information. He asks “how can a government of intelligent and often liberal-minded persons behave so illiberally, arrogantly and stupidly?” He sees hope in a three pronged fightback, led by judges and lawyers, the House of Lords Constitution Committee (see ‘Big Brother parts 1 & 2’, posted here on 10 February) and a rainbow coalition, many of whom have joined together to launch the Convention on Modern Liberty.

The full text of the “What We’ve Lost” report is at:- http://www.uclshrp.com/images/uploads/pdf/Abolition_of_Freedom_Act_2009.pdf

An earlier blog (10.06.08) contrasted ‘Hitchhiker’s Guide to the Galaxy’, where 42 is the answer to the meaning of life, the universe and everything, with the Government, for whom 42 is more a problem than an answer. 42 achieved the status of a threat to the leadership of the Government through the wheeling, dealing and almost daily concessions to get the provisions of the Counter-Terrorism Bill through the Commons, with the actual number itself seeming to be sacrosanct.

This week the headache became a full blown migraine for the Government when plans to give police up to 42 days to question terrorism suspects were crushed by the House of Lords. Peers voted against the measure by 309 votes to 118. This came after opposition to the proposals from all sides, with 24 Labour rebels including two former Lord Chancellors, Lord Irvine and Lord Falconer, as well as Baroness Manningham-Buller, the former head of MI5, Lord Justice Woolf, the former Lord Chief Justice, and Lord Condon, the former Metropolitan Police Commissioner.

In an emergency statement to MPs, Home Secretary Jacqui Smith conceded defeat and said that the Counter-Terrorism Bill would continue its journey through Parliament without the 42 day measure. According to the ‘Guardian’, Government sources said the Prime Minister’s hand was forced because whips in the Commons told Downing Street that they would struggle to muster a majority in favour of the proposal. The 42 day plan was only passed by MPs in June by nine votes after the Prime Minister won the support of the nine Democratic Unionist MPs. If ministers had insisted on keeping the 42 day plan there would have been the need for a series of votes in the Commons to overturn the Lords’ rejection and eventually the use of the Parliament Act to force the bill through next year.

The capitulation was defiantly unrepentent. In her Commons statement, the Home Secretary was positively reproachful. She said “The other place has tonight voted to remove from the Counter-Terrorism Bill the protections that the government believes should be in place. Not to amend; not to strengthen; simply to remove. Mr Speaker, my priority remains the protection of the British people. I do not believe, as some hon. members clearly do, that it is enough to simply cross our fingers and hope for the best …that is not good enough. Because when it comes to national security, there are certain risks I’m not prepared to take.”

In what some see as a face saving gesture, the Home Secretary announced that she had “prepared a new bill to enable the police and prosecutors to do their work – should the worst happen, should a terrorist plot overtake us and threaten our current investigatory capabilities… The Counter Terrorism (Temporary Provisions) Bill now stands ready to be introduced if and when the need arises. This would enable the Director of Public Prosecutions to apply to the courts to detain and question a terrorist suspect for up to a maximum of 42 days. Individuals could only be detained where this is authorised by a judge.” Once again the totemic 42 days.

The climb down has pleased a wide diversity of groups, and it is reported that David Davies, who resigned his seat and fought a by-election over this issue, shared a celebratory bottle of champagne in the Commons with Shami Chakrabarti, the director of Liberty.