The Counter-Terrorism Bill has now been published, with explanatory notes. Clause 22 and Schedule 1 are what everyone’s been waiting for: the proposed extension of pre-charge detention beyond 28 days.
The idea under the amendments brought in by Schedule 1 is that the normal maximum detention will remain at 28 days, but that the Home Secretary should be able to make an order allowing for longer detention if she receives a report from the DPP and a Chief Constable saying it’s needed. If she makes the order, the DPP can then apply for extended detention; the Home Secretary then has to refer the issue to Parliament: both houses must vote to back her order, or else extended detention powers cease being available after 30 days. And if either house votes her down within that time, the power to detain further also ceases. Any detention in the meantime remains lawful, of course.
Equally interesting though is clause 23, which permits post-charge questioning on the basis of a new PACE code of practice. It’s difficult to imagine, given this important new power, together with the threshold test for charging in terrorist cases, why the reserve power to extend pre-charge detention would ever be necessary. If I were a backbench Labour MP, I wouldn’t understand why longer pre-charge detention is needed against that background.
Incidentally, clause 23 is a not very pleasant application of Parliamentary Counsel’s new “gender neutral” drafting practice. I’m in favour of this change, although the Interpretation Act 1978 means it’s legally unnecessary; but I hope replacing “he” with “they” will not become standard. I’d have preferred “she or he”. Even simply calling everyone “she” would have worked, under the Interpretation Act.
Hi Carl,
With respect to interpretation, I’ve always found it rather baffling that many learned texts pertaining to criminal law use the female gender and those petaining to Human Rights/Property/Jurisprudence use the Male. One cannot help but wonder if this played a significant part in the new
gender neutral drafting practice.
But I digress, since I’m probably stating the obvious, and note that the present governments determination to stretch pre charge detention to rediculous limits is, as ever as confusing as it is ludicrous. Should the bill pass successfully through Parliament without a big row, I forsee a vertiable BOUQUET of arguments queueing for a hearing before the Lords/Supreme Court….
I think it was the Child Support Act that “done” for the old Interpretation Act way of approaching gender. Well, that and a general cultural shift to feeling that covering everyone by saying “he” just isn’t good enough any more. I mention the CSA though because by adopting (as it did if I remember right…) the practice of talking about “absent parents” as he and the “parent with care” as she, it blew a hole in the purist view of any gender reference being insignificant, and showed that the legislative choice of words did reveal social preconceptions.
I think draftsmen could without difficulty use “she or he”, and that’d be miles better in many cases than they. Not always – think “they” may be best sometimes. But if Parliamentary Counsel have dreamt up some secret bonkers objection to “she or he” (e.g. we can’t say that cos the Interpretation Act result is that it means she or he or he or she) and plumped for “they” generally, I think we’ll end up with some nasty bits of drafting.