As the world’s press and public stand vigil in support of Charlie Hebdo and the families of the victims of Wednesday’s attack, we wake this morning to reports that our security services are under pressure and seeking new powers. The spectre of the Communications Data Bill is again evoked. These reports mirror renewed commitments yesterday to new counter-terrorism measures for the EU and in France.
This blog has already covered the reaction to the shootings in Paris in some detail. The spectrum of reaction has been about both defiance and fear. The need for effective counter-terrorism measures to protect us all, yet which recognise and preserve our commitment to the protection of fundamental rights is given a human face as people take to the streets to affirm a commitment to protect the right of us all to speak our mind, to ridicule and to lampoon, to offend and to criticise, without fear of oppression or violence. It is against this backdrop that we might remember that UK Ministers are already in the process of asking Westminster to expand our already broad framework of counter-terrorism legislation.
The Counter-Terrorism and Security Bill completed its fast-track progress through the House of Commons earlier this week, after a handful of days’ debate and only six weeks after its publication in late November. In a departure from ordinary procedure, the Bill will have its Second Reading in the House of Lords on Tuesday.
A quick consideration of its contents illustrates the seriousness and breadth of the proposals it contains:
- The Bill will introduce a power for the Secretary of State to exclude a UK citizen from returning to the UK, except on conditions stipulated by the Minister. Early announcements by the Prime Minister promised a new “exile” for terrorist suspects travelling overseas to Syria and Iraq; after the publication of the Bill and likely consideration of legal advice, Ministers now seek “managed return” (Chapter 2) (See further below).
- The Government proposes that police and immigration authorities should have new powers to seize passports at ports and airports (Chapter 1) (See further below) .
- The Bill makes new provision for the extension of TPIMs orders under the Terrorism Prevention and Investigation Measures Act, including to reintroduce old ‘control-order’ powers of relocation formerly criticised as a form of “internal exile”, permitting the Secretary of State to move a person suspected of involvement in terrorist activity to a place of her choosing up to 200 miles from their home (Clause 12). The Bill will provide that the ordinary civil standard of proof that must apply when a TPIMs order is made by the Secretary of State – she must be satisfied on the balance of probabilities that a person is more likely than not to be involved in terrorism related activity (Clause 16).
- It also adds to the controversial surveillance powers in the Data Retention and Investigation Powers Act 2014 (DRIPA), requiring internet service providers to collect and retain additional data about their users, including communications data and/or other relevant data which can be used to identify the user of a particular IP address any particular time (Clause 17). It appears that the power to inspect goods is to be amended to permit the interception of mail without a warrant (Clause 35).
- It would introduce a new Privacy and Civil Liberties Board to assist in the oversight of surveillance and counter-terrorism legislation. However, even after debate in the House of Commons, it is far from clear what the functions or membership of this body will be, how it will relate to the work of the Independent Reviewer and whether it will add any value to the existing limited provisions for the scrutiny of Government work in counter-terrorism and national security (Clause 36).
- Finally, the Bill will introduce broad new powers – principally in secondary legislation – which will permit the Secretary of State to direct a range of public bodies, including schools, universities and local authorities, to take steps to “prevent people from being drawn into terrorism” (Part 5).
Yet, even before Paris rightly dominated the headlines, the Bill’s progress attracted little public or press attention. Briefings of organisations like JUSTICE rarely spark the excitement of the mainstream press. Given the support in principle of the official opposition for many of these measures, there seems little political excitement for journalists to report. David Anderson QC – the Independent Reviewer of Terrorism Legislation – has this week produced two detailed comment pieces in response to the Commons debates. He highlights real concerns about a lack of clarity in the Bill and a lack of even the most basic of safeguards in the proposals for exclusion. Beyond the Twitter-sphere and Radio 4, his interjections have passed little-noticed.
A more detailed examination of the two most high-profile of these measures helps illustrate the legal and constitutional questions that the Government is yet to grapple:
- Temporary Exclusion Orders: Chapter 2 of the Bill creates a procedure whereby any individual outside the United Kingdom, including a British citizen, may be subject to a Temporary Exclusion Order (TEO) barring their entry into the UK except subject to conditions set by the Secretary of State. Any TEO may last for up to 2 years and can be renewed, seemingly without limit. When a TEO is in place, an individual may only return to the UK if granted a “Permit to Return” (PTR). A PTR will only be issued if the individual concerned returnsto the UK under its terms, which may include conditions under the direction of the Secretary of State. Those conditions may mirror some of the TPIM conditions including reporting to a police station, compulsory attendance at interview and keeping the police informed of your place of residence at all times. These proposals were originally mooted in August this year as a commitment to bar individuals from the UK fighting in Syria from returning to the UK. This prospect of effective exile is now termed “controlled” or “managed” return. It has been suggested that in the interim, the Government may have taken advice and considered that exile of British citizens overseas may violate our international law obligations, or at least damage our international relations with third countries. These proposals will only apply to individuals who have a right to abode, including British citizens. Cancelling a passport or other right to return while someone is outside the country will have a serious impact on their individual rights in practice. The extent of that impact will depend on the individual circumstances of any case, but Article 8 and the right to private and family life will clearly be engaged. In some circumstances, Article 3 ECHR may also apply. Notably, if individuals are in countries where a regime is known or suspected to use torture, targeting them as a known terror suspect and/or as an individual with a desire to return to the UK.
To make a TEO, the Secretary of State must “reasonably suspect” that an individual is involved in terrorism-related activity outside the United Kingdom. This is likely, in practice, to be a purely administrative exercise. There is no provision in the Bill for review or judicial oversight. Judicial review is available, but is likely to be difficult to access, not least in light of new proposals to restrict eligibility for legal aid in judicial review cases and to bar non-residents from legal aid entirely.
The debate on the Bill thus far has focused on this lack of judicial involvement. David Anderson QC, as the Bill was published, asked “Where are the judges?” During debate on opposition amendments, the Minister conceded that this was one area of the Bill that – in light of the Independent Reviewer’s concern – the Government may need to consider further. In his latest comment, the Independent Reviewer explains further his concern:
“First, prior permission of the court should be required. A court warrant is required to search my house: why should equivalent authorisation not be needed for an order that will delay the subject’s ability to return to his own country, that will be followed by the imposition of restrictive conditions in the UK, and that will be complex and time-consuming to challenge?”
It is clear that the argument for these powers to be subject to judicial oversight is “overwhelming”. However, we must ask whether, in practice, these safeguards will be of much value to individuals who are subject to restriction while outside the country? Despite the fact that they would be subject to the ordinary restrictions associated with closed material proceedings – they will, in fact, never know or be able to challenge the true case against them – these clients will be particularly disadvantaged in trying to secure advice and representation from abroad. It is difficult to see how, in practice, they might be able to influence the court asked to authorise a TEO or launch an effective appeal. While the Court of Appeal has lauded the important safeguarding role that special advocates and the judges play in the TPIMs process, the new purported safeguards would have the same degree of impact on the associated legal and practical difficulties which arise in connection with the operation of a de facto power of administrative exile proposed in the TEO.
Surely Parliament must first ask whether these measures would be a necessary and justifiable interference with individual rights? Individual concerns aside, would these measures be effective to serve the aim of enhancing our national security and preventing terrorist activity? If we suspect that an individual is concerned in illegal activity and is a danger to the interests of the UK; shouldn’t the first priority be to secure his return, arrest and prosecution? Internationally other countries are grappling with the intelligence implications of individuals who seek to return after fighting in Syria and Iraq. The approach of the Danish Government to return has been widely reported, focusing on return as an opportunity for rehabilitation and reintegration, with associated intelligence benefits. This programme integrates the consideration of whether an individual should be charged with a criminal offence in connection with their activities overseas. How likely is it that individuals will submit to conditions on return or instead will they choose to remain at large, perhaps becoming further integrated within any network they may have in the host country, beyond the view of our intelligence services?
At Committee Stage, Parliament was encouraged to consider a less draconian alternative which would appear to meet the Government’s concerns – provision for the Government to be notified at any time a certified individual sought to return to the UK. This would permit the Secretary of State to consider using a panoply of existing counter-terrorism measures on their return – including prosecution or the use of TPIMs. It would permit the Secretary of State to use the type of “managed” return which she considers necessary. It would however avoid the need to resort to exile, however temporary. Unfortunately, these proposals were given short shrift by the Minister (Col 1229 on).
Regardless of the language used, this measure would create a Ministerial power to strip individuals, including British Citizens, of a right of abode. It could then only be reinstated on the acceptance of administrative controls. It could, in practice, leave people at the mercy of third states, including at risk of torture, as they are identified as a national security risk by the UK. This would be a serious constitutional step and it is one which the world is watching (following the statements of the Prime Minister, similar powers are being considered in a number of other countries) . Purported safeguards aside; Parliament must bear a responsibility to ask whether this step is one which is appropriate, necessary and consistent with our commitment to the rule of law and human rights.
- Extending Police powers to seize passports: Clause 1, together with Schedule 1, would enable police (and other authorised persons, who may include customs officers) to seize passports and other travel documents of any British person or foreign national “suspected of intending to leave Great Britain or the United Kingdom in connection with terrorism-related activity”. Officers are granted associated search powers, and the power to use reasonable force ancillary to the powers of seizure. It will be a criminal offence to refuse to comply.
The impact of this decision on the individual concerned is clear: if travel documents are seized at a point of departure, not only will free movement be restrained, but it is likely that the individual will suffer any financial and other non-pecuniary loss associated with that immediate restriction. A missed meeting, a cancelled holiday, a lost opportunity to see your family, a fruitless expense; it is easy to imagine the personal impact of having your own passport confiscated at the boarding gate. In practice, this may engage a range of individual rights in domestic and EU law. For example, the right to respect for private and family life (Article 8 EHRC) is likely to be engaged in most cases if an individual is prevented from travelling.
Documents can be held for up to two weeks where an officer has “reasonable grounds to suspect” that a person has the “intention of leaving the United Kingdom for the purpose of involvement in terrorism-related activity outside the United Kingdom”. Documents are kept while the Secretary of State considers whether to cancel the person’s passport; while a charging decision is being taken; or the Secretary of State is considering making a TPIM Order. After 72 hours, the seizure and retention of documents will be subject to review by a senior police officer with at least the rank of chief superintendent. After 14 days, the police may extend their retention of the documents to 30 days but must persuade a magistrate that they (and the Secretary of State, and any other persons relevant) are acting ‘diligently and expeditiously’. The Court will have no power to examine whether the documents were seized lawfully – that is, to scrutinise the grounds for the seizure.
There is no limit on how often this power may be used against a single individual. If used more than twice in six months, retention is limited to 5 days rather than 14. This restriction may have little effect on the impact on an individual. Planned travel booked and paid for becomes impossible. Within the scope of this Bill, these powers could be exercised repeatedly, or without restriction four times a year, against a single individual, without any charge or any other action. In effect, these measures could operate as a de facto travel ban, without any of the, albeit limited, procedural standards which might accompany the making of a travel restriction associated with a TPIM Order.
There are a great number of problems with this proposal, but the scope for its arbitrary and discriminatory application is clear. The only apparent safeguard provided for in the Bill is that police or immigration officials must have “reasonable grounds” to suspect that an individual is planning to travel for the purposes of “terrorism-related activity” before these powers become available. However, if reasonable, intelligence-led, grounds exist to suspect an individual at the point where they have turned up at a point of departure, shouldn’t steps have already been taken to restrain their activities, perhaps through the imposition of a TPIM Order, including a relevant travel restriction? If a lower standard of suspicion is applied in practice – one suggestion has been made that heading to the Middle East with camping gear might be sufficient grounds to suspect someone of terrorism-related activity – there is a real risk of this power being applied arbitrarily and with discriminatory effect. The impact of Schedule 7 of the Terrorism Act 2000 – which applies a no-suspicion standard – has been applied most consistently against a small group of minorities, with criticism surrounding arbitrary application at ports and airports by officers and customs officials widespread.
The Joint Committee on Human Rights will publish its report on the Bill on Monday, a day before Peers have their first opportunity to consider its provisions. That debate will take place – as many terrorism bills which have gone before – against a background of political tension, fear and threat. Too readily abandoning our values in the name of national security would pander to those who use terror for their own political ends.
As the world proclaims “Je Suis Charlie”; it says loudly that fear won’t override our most precious of constitutional protections. This week, MPs and Peers from all parties lifted their pens aloft in Westminster Hall. They too were Charlie. A better, more lasting symbol of support and defiance would be a full and proper debate before we further erode our commitment to the rule of law and the protection of individual rights in the interest of security. As Peers prepare to debate, may they meet fear and threat with vigilance and defiance, strong in their commitment to the constitutional standards we hold dear.
Angela Patrick is the Director of Human Rights Policy at JUSTICE. The Counter-Terrorism and Security Bill will have its Second Reading in the House of Lords on Tuesday 13 January 2015. Full JUSTICE briefing on the Bill is available, here.
Are you a student, pupil barrister or trainee solicitor? The first JUSTICE Student Human Rights Network event of the year will see David Anderson QC in conversation with Zahra Al-Rikabi on 20 January 2015. Book here.