So it seems that forty-two is not only the ultimate answer to life, the universe and everything, but also (suddenly) the government’s favoured proposal for extending the maximum period during which a suspected terrorist can be held and interviewed without charge…

… and in the best traditions of Deep Thought, the fictional supercomputer who provided the ultimate answer, the government’s own answer to the question of how long the state should be able legally justify holding a suspected terrorist without bringing charges bring us no closer to an understanding of their own ultimate question -

Why is such a protracted period of detention without charge, the longest of any Western liberal democracy – if one excludes the extra-judicial detentions at Guantanamo Bay from consideration – (allegedly) necessary?

In commenting on this latest bid in the game of ‘Play your suspension of habeas corpus right’, one has to sincerely hope that Fraser Nelson is consciously playing dumb for effect in querying how the government arrived at the number 42, although perhaps even he thinks that the obvious suggestion that this may derive from nothing more substantial than the time-honoured haggling practice of ’splitting the difference’ is stretching credibility a little too far.

Personally, I wouldn’t be quite so sure.

Meanwhile, Nick Robinson suggests,with no small amount of credibility, that the alacrity with which the Home Secretary, Jacqui Smith, has accelerated from ‘I don’t know‘ to ‘forty-two days’ has rather more to do with news management and a desire to get the current run of dodgy donations stories off the front page, even to the point of pre-empting the publication of a report by the Home Affairs Select Committee on the same issue, than it has with advancing a considered, well thought-out proposal. Quite what has to say about the government’s reaction to a few days’ worth of rough headlines if it is the case that they’re prepared to announce a universally loathed policy to try and move the news agenda away from the current discomfort over party funding is something I’ll leave you to decide.

Smith’s contention that this latest rolling back of the ancient right of habeas corpus is needed “to ensure we prosecute people who want to cause murder and mayhem on our streets” is belied by her own department’s statement, a matter of only three weeks ago, that the exceptional circumstances in which detention without charge could be extended beyond the current 28 day limit would include “multiple plots, or links with multiple countries, or exceptional levels of complexity”, which strongly suggests that this policy is being driven more by intelligence considerations and a desire to try and ‘roll-up’ terrorist networks than by the simple prerequisite of securing sufficient evidence to mount a successful prosecution. The former is a laudable enough objective but falls largely outside the scope and traditions of the mainstream criminal justice system in which, quite properly, the focus of the system is directed towards bring those alleged to have committed criminal act swiftly and expeditiously to trial and then, if the case is proven, to justice.

Far worse, however, it the quite blatant bait and switch that the government are trying to pull in regards to the manner in which these extended powers would be used and, subsequently, subjected to parliamentary scrutiny. Nick Clegg is right on the money in explaining how these proposals are not all that the government is seeking to sell them as being, albeit that he misses one critical point of comparison from his analysis. If enacted, what the government are proposing would not only amount to an undeclared state of emergency but actually extend the period during which such powers could be exercised by ministerial diktat and without parliamentary scrutiny over and above the existing provisions for the use of such executive orders contained in part 2 of the Civil Contingencies Act 2004.

The devil is, as always, in the detail and in this case the critical detail is that what the government are proposing is to permit the Home Secretary to put the extended detention period into effect by executive order, after which the need for a continuation of the provisions for extended detention would be reviewed every 30 days by parliament, starting from the point at which the legal powers for extended detention had been in effect for 30 days.

By way of comparison, the provisions for parliamentary scrutiny of emergency regulations enacted under part 2 of the Civil Contingencies Act requires that ministers lay the regulations before parliament ‘as soon as reasonably practicable’, after which they have only seven days to secure the agreement of both houses or the regulations automatically lapse. Coupled with provisions that require both the Commons and the Lords to be recalled within five days of the introduction of emergency regulations, if either or both is not sitting at the time that the regulations come into effect, the only circumstances under which it would be possible to defer parliamentary oversight for 30 days would an emergency so serious that it was quite literally impossible to convene parliament at all.

Even by the usual low standards of modern governmental sophistry it takes either a serious amount of chutzpah or a near total contempt for the intelligence of the electorate for anyone in government to seriously think that they can successfully sell these proposals as either a concession or as evidence that they’re moderating their position.