42 Days, with the kind of safeguard we used to get from Henry VIII

The House of Commons was persuaded to vote for the proposal to extend the power of the police to detain terrorist suspects for questioning to 42 days because of a ‘safeguard’ contained in clauses 23 to 25, which is that the power will only become operative if the Secretary of State informs parliament that it is necessary to exercise this power to deal with a particular case or cases which the police are currently investigating, and parliament is sufficiently convinced by what he says that it is prepared to pass a resolution to activate it.

Although accepted by the Commons as a palliative that makes the possibility of 42 days’ detention without charge acceptable, in reality I believe it makes the situation worse.

As a safeguard against the oppression of the individual it looks ineffective — and it has been bought at the cost of a dangerous departure from important constitutional principles.

The control that parliament is supposed to exercise by virtue of these Clauses is modelled on the procedures by which, under existing legislation, a basic period of detention for questioning can be extended at the request of the police by order of a court.

Under these procedures, the police say to the court (in effect): ‘Look, these people we’ve got in the cells just now are really dangerous. We are working as fast as we can to find more evidence, and want to confront them with it when we get it. In the light of that, please will you let us, in the public interest, hold them for questioning a little longer?’ ­— and the court, if it is convinced on both points, says. ‘All right, you can.’

In a court of law this procedure is a real safeguard, because a judge or magistrate, unlike parliament, can examine the claims of the police discreetly in a way that endangers neither national security, nor the chance of the suspect eventually receiving a fair trial.

But in parliament this would be impossible. There is no way in which the claims of the police or security services in a given case could be investigated properly in parliament without sensitive information entering the public domain.

If this procedure were ever used, it seems likely that in practice the Secretary of State would have to make extensive use of the power contained in clause 25(7) to suppress information which ‘would be damaging to the public interest, or might prejudice the prosecution of any person’. In other words, he would have to ask parliament to activate the 42-day power, not by telling it the facts, but saying Trust me!

Which means that parliament, unlike a court, would be expected to authorise the use of the 42-day power without actually investigating the evidence on which the claim is made.

The constitutional principles that are offended by this so-called safeguard are two: (i) the separation of powers, and (ii) the equality of all persons before the law. In this context they are closely intertwined, and it is possible to deal with both of them together.

As everybody knows, the doctrine of the separation of powers means, in essence, that it is the proper function of the executive to run the country, the proper function of parliament to make the laws, and the proper function of the courts to apply the laws that parliament has made: and none of these bodies has any business to invade the functions of the others.

When it enacts laws, parliament makes rules of general application; it does not (except when it makes Private Acts) make special rules for particular individuals in specific cases, least of all in the area of the criminal law. If parliament were to do so or make special rules of criminal procedure, for application to specific individuals only, this would of course undermine the principle that all persons are equal before the law.

But this, surely, is exactly what the so-called ‘safeguard’ contained in Clauses 23 to 25 of Counter-Terrorism Bill would actually involve.

The Bill devolves on parliament a power to disapply, at the request of the executive, the normal rule about the maximum period for which terrorist suspects can be detained for questioning by the police, and to substitute for this a different and much severer rule, for particular cases, involving particular persons, whom the Secretary of State has identified as particularly odious.

If it is contrary to principle for parliament to intervene in individual criminal cases in this way, it is not, alas, without precedent. The precedent, which is singularly unattractive, is the Act of Attainder: a procedure, fortunately now thought to be out of use, under which, when the executive wanted someone punished outside the normal rules of criminal law and criminal procedure, it would just get parliament to pass an Act ordering them to be punished.

It was by this procedure that in 1542 Henry VIII secured the execution of his fifth wife, Catherine Howard, on grounds of her alleged adultery, and an even more lurid example was the celebrated Act for the boiling of the Bishop of Rochester’s cook, accused of putting poison into a kitchen pot.

It was by an analogous procedure that, during the Interregnum, parliament punished James Nayler, an early Quaker accused of blasphemy, by ordering his tongue to be bored through with red-hot iron.

An expert in obtaining legislation of this sort was that famous friend of law and order and decisive government, Henry VIII. As F.W.Maitland reminds in his Constitutional History of England, this was because parliaments in Tudor times were ‘extremely submissive’, so that ‘practically Henry could get them to do what he wanted’. The future of these Clauses of the Counter-Terrorism Bill will show us whether today’s parliament is made of sterner stuff, or not.