The report of the Joint Committee on the Draft Constitutional Renewal Bill received little if any media coverage.  However, the report of the Lords Constitution Committee on the Counter-Terrorism Bill has received substantial attention.  The report was published yesterday.

The report focuses on the provisions for pre-charge detention and questioning and on inquests.  The committee makes no criticism of the process by which the Bill’s proposals have been developed but rather directs its concern at the outcomes that have been reached.  It raises particular concerns about the proposed role of Parliament and of the relationship between Parliament and the judiciary in respect of dealing with reserve power orders.  The key finding on the latter is embodied in paragraph 39, which reads:

In developing this scheme, the Government have sought to devise ways in which Parliament may be involved in decision-making about police detention of terrorist suspects.  Insofar as the motivation is to ensure democratic accountability, this is understandable; in our view, however, it is muddled.  The Bill risks conflating the roles of Parliament and the judiciary, which would be quite inappropriate.  It is ill-advised to create a decision-making process that requires Parliament and the judiciary to ask and answer similar questions within a short space of time – or at all.  Far from being a system of checks and balances, this is a recipe for confusion that places on Parliament tasks that it cannot effectively fulfil and arguably risks undermining the right of fair trial for the individuals concerned.

The Committee does not address whether the proposed 42-day detention limit is compatible with Article 5 of the European Convention on Human Rights, since that is beyond its remit, but notes that if the House approves the time limit it will do so in the knowledge that the question of compliance is likely to be heard and ultimately determined by the courts.  On judicial review of reserve power orders, it notes that the scheme created by the Bill would put the administrative court in a position of having to assess whether there was a ‘grave exceptional terrorist threat’ and whether the need for a reserve power is urgent.  ‘The court would not be precluded from reaching different views from that of the Home Secretary and Parliament’.

On inquests, the Committee raises concerns about giving ministers  powers to require an inquest to be held without a jury.  It considers that ministers should be required to apply to the court for a non-jury inquest, not least because inquests are judicial proceedings and because inquests in which secret material may need to be considered may involve deaths that may have been caused by the actions of agents of the state.

The full report can be found at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldconst/167/167.pdf

The report is given added weight by the experience and expertise of the committee’s members: they include peers who have held office as Lord Chief Justice (Lord Woolf), Attorney General (Lord Morris of Aberavon, Lord Lyell of Markyate), and as members of the Cabinet (Lord Goodlad – the current chairman – and Lord Rodgers of Quarry Bank) or junior ministers (Baroness Quin, Lord Rowlands).  Apart from being a high-powered committee, it is notable for the assiduousness of its members, with a high attendance being a notable feature of meetings.