The Government’s battle to extend the maximum number of days of pre-charge detention for terrorist suspects is doomed, argues Roger Smith



Jacqui Smith clearly does not do irony. If she did, then she would not, on that ground alone, have picked 42 as the answer to the biggest question facing her since she assumed the mantle of Home Secretary.



Ms Smith’s proposal for the maximum number of days of pre-charge detention eerily echoes the answer to the ultimate question – the meaning of the universe and everything, in Douglas Adams’ Hitchhiker’s Guide to the Galaxy. There, the revealing and precise wording of the question to which 42 is the answer was lost. Such was the result of the regrettably precipitate destruction of the Earth by a passing Vogon space fleet constructing a hyperspace bypass. Something as bizarre has happened to Ms Smith’s political calculations.



Ms Smith does not do advocacy very well either. Few have been impressed by her case to extend the hard-won previous compromise of 28 days by another fortnight. Her proposals certainly got pretty short shrift from two heavyweight parliamentary committees that reported in early December, both incidentally chaired by solicitors of praiseworthy independence from their own party – Andrew Dismore on human rights and Keith Vaz on home affairs. The former objected both to the proposal and to failure of the government consensual approach. The latter just did not find Ms Smith’s arguments ‘convincing’.



The Home Secretary’s actual proposal is hemmed in with qualifications. She promoted a range of at least nine separate safeguards as a ‘triple lock’, requiring the consent of the police and the Director of Public Prosecutions, and the Home Secretary, and parliamentary and judicial safeguards. The Home Office must have been pretty desperate. It was even willing to concede the explicit availability of judicial review to challenge the grounds of the Home Secretary’s decision.



Indeed, the proposal is so half-hearted that it almost makes one yearn for a return to the chutzpah of Tony Blair. At least he was clear: the police say they need it and that is good enough for me – it is 90 days, take it or leave it. Unfortunately for him, Parliament left it, and then him. Some 49 Labour MPs defected to the opposition to inflict the first parliamentary defeat of Mr Blair’s period of office, thereby accelerating his own departure. He only just saved his dignity by persuading MPs that the limit could be extended to 28 days from the pre-existing 14.



The government’s approach is particularly hard to understand because the prosecution can use the ‘threshold test’ to decide whether to charge a terrorist suspect and finish collecting the evidence afterwards. That simply requires reasonable suspicion of the commission of an offence. It is lower than the ‘full code test’, which requires a reasonable prospect of conviction. In the absence of reasonable suspicion, it would be difficult to justify arrest, let alone detention. If post-charge questioning is allowed in this kind of case, as groups such as Justice have argued, then the practical prejudice of a 28-day limit to the prosecution begins to look pretty speculative.



Thus, the politics of the government’s posturing are unclear. Jacqui Smith makes exactly the same arguments as Charles Clarke in the previous debate: the increased seriousness of the threat of international terrorism and the complexity of the evidence-gathering process. These are understandable and they might be convincing if anyone with any knowledge of the facts could support them. However, even the terrorism minister, Tony McNulty, agrees that the threat level has not changed since July 2006, when the 28-day limit came into force. He is simply seeking a re-match.



The former Attorney-General, Lord Goldsmith, stuck the knife in by saying he had never been persuaded of any case to go over a 28-day limit. The government itself acknowledges that no existing investigation has actually been impeded by the 28-day limit. The Director-General of the Security Services, Jonathan Evans, sounds off about increasing the limit, but would not publicly meet with the joint parliamentary human rights committee to justify it. Crucial for Ms Smith is that she got no support from the Crown Prosecution Service or the Director of Public Prosecutions. Until she does, her proposals are surely doomed.



In that case, why on earth is Gordon Brown leading his government into this battle? The Charge of the Light Brigade is celebrated only in literature; in reality, it was a bloody carnage. The only explanation can be that he sees some political advantage with the public in being seen to be as tough as his predecessor on terrorism and the causes of terrorism. But, actually, it looks more like yet another symptom of a government in drift, acting on the auto-pilot set by a previous regime.



It also misses the wood for the trees. Terrorism will only be broken with the co-operation of the minority to whom it is designed to appeal. Seeking a battle over the number 42 is gesture politics that will not reassure the majority and simply feeds the sense of victimhood of a minority. And it manifestly is not needed at the present time.



Ms Smith’s arguments are about as fanciful as Douglas Adams’ – and considerably less engaging.



Roger Smith is director of the law reform and human rights organisation Justice