Legal Opinion: Forty-two days exposes Brown's cold expediency

Today is crunch time for the Prime Minister and his plan to lock up terror suspects for 42 days without charge. Robert Verkaik, Law Editor, surveys the battle lines
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The Independent Online

Gordon Brown is determined to force the issue on 42 days even though he risks a bloody nose in a House of Commons vote later today. While just about every lawyer in Britain can find nothing to say in support of such an arbitrary detention period, the Prime Minister believes there is a great political prize at stake.

In his cold calculation he knows that even if he loses the argument in the Commons he will still be able to say to the public that he risked his political leadership out of statesman-like desire to protect us all from terrorist attack. And if he does win the vote – then he wins double.

But is the public so easily fooled? Will they take the Prime Minister's word on 42 days? Where is the evidence to support the claim that, without a 42-day detention period, the police will have no option but to release terror suspects to go about their deadly business?

Despite the behind-the-scenes arm-twisting it is clear that only the police, and by no means all of them, believe this.

Yesterday it was the turn of the head of the security service, MI5, to throw tepid water over the plan. Following claims that MI5 had failed properly to back the plans, Jonathan Evans said that his organisation was not the appropriate body to advise on detention limits as it was not responsible for prosecutions or criminal investigations.

Much more helpful to the Prime Minister would have been a sense that Mr Evans supported the views of his colleagues in the police who are also charged with protecting the state against terrorism. Instead, all we got was his observation that investigating terrorism was a complex and lengthy business.

Yet MI5 was much more willing to give a forthright opinion when it came to the use of intercept evidence in court first mooted more than three years ago. Such a move, the security service told ministers, would undermine their investigations by giving away vital information to terrorists about how they worked – thus increasing the risk to the public. What this shows is that there clearly are criminal justice procedural matters upon which MI5 believes it is the appropriate authority to offer an opinion.

Meanwhile, Gordon Brown was having to face down much more open hostility to 42 days. A twin attack from Scotland's chief law officer and the head of the Equality and Human Rights Commission could not have come at a worse time.

The Lord Advocate, Eilish Angiolini, who was appointed by the previous Labour Holyrood administration, told The Herald newspaper: "While there has been a limited number of cases in Scotland which were investigated in terms of the Terrorism Act 2000, I am not aware of any case where an extension of the period beyond 28 days would have been required. I, therefore, share the view of the DPP [Director of Public Prosecutions] Sir Ken Macdonald and the former Attorney General, Lord Goldsmith, that the requirement for an extension to the current 28 day is not supported by prosecution experience to date."

And Trevor Phillips, head of the Equality and Human Rights Commission, told BBC Radio 4's Today programme that his organisation may seek a judicial review, if the 42-days limit becomes law. "Human rights are essentially just that – you can't just get rid of them if you think they are inconvenient," he said.

With so many key figures ranged against the Government, it is hard to see how Mr Brown will restore the peace after the vote – whichever way the decision goes. More importantly, if he wins, will he be spurred on to try to bring back plans for 90 days?