A worrying new anti-terror law is sneaking through Parliament – Angela Patrick

westminsterAs 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.

Next steps

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.

15 thoughts on “A worrying new anti-terror law is sneaking through Parliament – Angela Patrick

  1. Its is not often that I agree with further state powers but in this instance I do. The first duty of a government is to protect its citizens, and this is what they are seeking to do. Any UK citizen who has been radicalised and travelled overseas to commit acts of terrorism, violence and possible murder of innocent people, should not be allowed back into this country. The facts are that they made there own choice and the public at large should not be put in harms way by their return and so called reintegration into society.

    Do the events of the last few days not send a clear message to you ? The Paris terrorists have already been imprisioned for their activities a decade ago – you cannot deradicalise these people, its sheer folly. The beheadings broadcast world wide have been carried out by someone who is probably a British citizen. Do we want him back ? Hell no is the answer of the vast majority of our citizens.

    No legislation is ever perfect, but should that stop the government trying to do the right thing ? According to you it should. But of course its very easy to sit in ivory towers pontificating over every word and providing lots of ifs, buts and maybe’s and scenarios that may never happen.

    The HR industry talks about individual rights, but never about responsibilities, which is easy and convenient when you dont actually have to deal with the problem.

    • Then dare you criticise Israel?
      Je ne suis pas sioniste, merci.
      Je crois en la liberté d’expression.
      Voltaire: “To find out who rules over you, simply find out who you are not allowed to criticize.”
      Nobody condones the appalling attacks in Paris, but the ugly spectre and double standard of this French paper to disparage and insult Muslims and Islam yet it fired in 2009 – yes fired – one of it’s own reporters for even the suggestion he was anti-Semitic as he was charged with “Inciting racial hatred” begs scrutiny of who we are allowed and even encouraged to insult and who we are not!
      French cartoonist Sine on trial on charges of anti-Semitism over Sarkozy jibe! bit.ly/1xTz4m8
      A Left-wing cartoonist is to go on trial on Tuesday on charges of anti-Semitism for suggesting Jean Sarkozy, the son of the French president, was converting to Judaism for financial reasons.

  2. @terrorwatchdog here – thanks for the mention. The issues you raise are significant and well illustrate the dangers of doing this sort of legislation on an expedited timetable. it will be worth looking out for the report of the Joint Committee of Human Rights (@UKParlJCHR), which will be published on Monday – in time to influence the progress of the Bill in the House of Lords.

  3. Thanks David.

    Part of the motivation for the blog was to try to highlight the limited attention that the Bill has had during its short passage through the Commons. Your contributions earlier this week highlight some of the key concerns about the measures proposed.

    While people and organisations might disagree on the substance of the measures; it must be right that they are properly debated in Parliament. The fast-track procedure has, so far, provided little opportunity for informed consideration.

    The JCHR Report will be crucial reading on Monday. It will, hopefully, influence a fuller opportunity for debate in the House of Lords.

  4. This looks good to me, and I am very glad that more action is being taken to catch more of the scum which is causing so much trouble for the French, right now.

  5. Timely article – in part, the protests in Paris were against THEIR new Anti-Terrorism Bill, which was rushed through the Senate after one reading last month, breaches their Equality principle, and is so badly drafted, even the Constitutional Court have expressed concern: http://willyloman.wordpress.com/2015/01/07/charlie-hebdo-attack-in-france-right-on-time-for-new-controversial-anti-terrorism-law/ and http://www.laquadrature.net/en/terrorism-bill-the-french-senate-adopts-the-law-eroding-liberties – vigorously opposed by CharlieHebdo fanatics who value their freedom to access the internet and its use to criticise their own government.

  6. As I see it if a person goes to fight for the Islamic State they are renouncing their British citizenship and becoming citizens of the Islamic state which is de facto in existence though not recognised by other states. Therefore the cancellation of their passports is a reasonable response.

  7. Western politicians are hypocrites and are desperate to take away people’s right to debate what the politicians are up to. Hollande is okay for these islamists from France to go and terrorise the people in Syria but when these nutters come back and kill (you can question why they were allowed back in France) he feigns Charlie Hebdo mocked the terrorist attacks in Moscow metro by the way – none of them deserved injury or to die of course, however, it lets you know what type of publication they really are.

    The UK government is also openly supporting far right elements in Ukraine who are killing their own people. These laws will eventually be used to stop debate about things like this and that is what its really all about.

    The EU support these terrorists when it suits and use what they do to take away free speech. The first duty of a government is to protect its citizens but sadly the majority of politicians really do not care about its citizens and only their own interests and agendas.

  8. Reblogged this on Beastrabban’s Weblog and commented:
    This article analyses and critiques the new anti-terror laws the government is trying to rush through parliament. These laws will allow the authorities to prevent anyone suspected of terrorism or ‘terrorist-related activity’ from returning to Britain. It will also allow the authorities to seize their passports, and make them liable to exclusion orders that will act as a kind of ‘internal exile’, that could see them relocated up to 200 miles away from their friends and family. There is also, inevitably, increased powers for the authorities to demand details of their electronic communications.

    The blog raises concerns over the lack of judicial oversight for these new powers. Those subject to these measures may not be able to mount a challenge as they unable to know the reasons for them. Furthermore, some of them can be carried out without proper review by judges or magistrates. A human rights board is intended to be part of the oversight process, but it is not clear how this will function or who will sit on it. The measures for effectively exiling suspected terrorists also leads to possible further radicalisation, as they remain embedded within their terrorist organisation, or at risk of torture by third countries.

    The article contrasts this approach, with that of the more sensible Danes. The Danes see the return of suspected terrorists as an opportunity for their rehabilitation, and to gather further intelligence from them about their former organisation.

    Finally, this piece of legislation amounts to nothing more than a further threat to precious British liberties, all in the name of safeguarding us from terrorism. Yet throughout the 1970s and ’80s, when Britain was effectively at war with the IRA and similar terrorist organisations in Northern Ireland, measures as extreme as this were not introduced and the existing anti-terrorism legislation was considered sufficient. Also, viewers of Star Trek will remember that series’ message that the authorities’ attempts to limit freedom in response to a perceived enemy threat is as dangerous as the threat itself. Star Trek was, of course, fictional, and much of the rhetoric surrounding this message contrived and unrealistically idealistic. But the point remains a good one, and bears repeating.

  9. I highlight your sentence “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.” So does this mean we can freely abuse homosexuals with homophobic insults in the national press? Should we allowed to call a black person the “N” word on television and in the papers? My point is there is no such thing as free speech, even in the West. People have been jailed for comments on Facebook and Twitter, so no, we don’t particularly have the “right to offend” a person of the Muslim faith by repeatedly insulting their Prophet. It merely shows our collective contempt and disdain for all people of the Islamic faith, even those who have committed no crime, nor any violent action. I am in no way condoning the horrific attacks in Paris, but can we even be sure they were committed by radical Islamic fundamentalists? I once read that whenever a crime is committed, you should look at who benefits from that crime and THEY should be your number one suspects. Who benefits from the shooting at Charlie Hebdo? Certainly not European Muslims who are now in danger of reprisal attacks. Suddenly our Government wants to radically impose draconian powers that can be used to further restrict ALL our freedoms, should we step out of line, not just those of jihadists. A fearful public could well accept these proposals without question in the name of security.

    Remember 82-year-old Walter Wolfgang, the lifelong Labour supporter who exercised his democratic right to heckle Tony Blair at the Labour Party conference in 2005? He was “arrested” under the new anti-terrorism legislation that had only just been passed into law back in 2005. The law that was ‘meant’ to restrict terrorists was used to prevent an 82-year-old British citizen from disagreeing with the Prime Minister. These powers, if granted, WILL be abused by our police and security services and will be used against anybody who steps out of line in their eyes, just like Wolfgang. The French Government recently requested that sanctions be lifted from Russia because they were also harming the French economy, something the Americans were non too pleased about. Now, after these attacks, the Americans are reminding the French that they need to stick to the agenda if they want American help and expertise in counter-terrorism. Who REALLY gains from these attacks? This looks like a false flag attack to me, but then again all the ‘terrorists’ are dead, so no questions can be asked of them in a court of law. Don’t believe everything you see or read in the national media. These are the same media people who bought every single lie about the illegal invasion of Iraq and asked no questions when we blind stumbled into the war that actually started all of this horror. The whole thing stinks like a rotten fish.

  10. while we may plead for those guilty of acts of terrorism, spare a thought for the innocent who do not deserve to become the victims of those who have allowed themselves to become radicalised. Those who choose to allow themselves to become radicalised, have no place in our country – or any other country. They deserve to be isolated and sent into the wilderness of statelessness. The quickest, safest method of justice would be to treat them as they would treat others – summary justice and a quick burial with nothing to mark their passing. Sentiment has no place in this equation; justice must be done – and be seen to be done.

    • I have changed the image. Sorry that this has upset you. I sometimes use images of terrorist atrocities, although I don’t think I have ever used one which shows human victims,, but given this wasn’t directly about 9/11, I have changed the image.

  11. This is worrying for those muslim converts who moved to islamic states, this will pave the way to exclude innocent people, sounds more like a dictatorship in the UK every day

  12. I predicted internal exile years ago. I also predicted a massive civil unrest for later this year. Ill thought through legislation. Irish passport holders subject to the same measures? Or other EU citizens? Ban travel in UK? Fine, there is a 232 mile border in Northern Ireland. Try policing that.

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