Further safeguards are required in the Counter-Terrorism and Security Bill for some of the new measures proposed to plug gaps in the Government’s counter-terrorism powers. That’s the firm belief of the Joint Committee on Human Rights which has outlined its views in a new report.
The Committee suggests a number of ways in which safeguards could be put in place with regard to both the use of Temporary Exclusion Orders and the seizure of passports.
Temporary Exclusion Orders
With regard to Temporary Exclusion Orders, the Committee is concerned that there’s a very real risk that the Human Rights of UK nationals, including the right to return to one’s country of nationality, will be violated as a result of their imposition, and expresses its opposition – in principle – to any exclusion of UK nationals from the UK even on a temporary basis.
The Committee believes that the Government’s objective of managed return could be achieved by a much simpler system requiring UK nationals who are suspects to provide advance notification of their return to the UK on pain of criminal penalty if they fail to do so. The Committee recommends that the Bill be amended accordingly.
The Committee also recommends that the Bill be amended to provide for a judicial role prior to the making of such a notification of return order, and welcomes the indication that the Government will return to the issue of judicial oversight in the House of Lords in due course.
Seizure of travel documents
The Committee accepts that the Government has demonstrated the necessity for a power to seize travel documents, including passports, in circumstances not covered by existing powers.
However, it also believes that such a significant power to interfere with the right to leave the country must be carefully targeted and proportionate and should include adequate procedural safeguards to ensure that such a power isn’t exercised disproportionately.
The Committee recommends that the very limited judicial role currently provided by the Bill should be strengthened to make it a genuinely judicial system of ‘warrants of further retention’, and should be effective after seven rather than 14 days.
Further, the Joint Committee on Human Rights recommends that:
*the Bill should be amended to ensure that the district judge can only issue a warrant of further retention if satisfied not only that matters are being pursued diligently and expeditiously but that there are reasonable grounds to suspect that the person is intending to leave the country to become involved in terrorist-related activity abroad, and that it’s necessary to extend the period of retention to enable steps to be taken towards deciding what should happen next
*the person subject to the exercise of this power should also be informed of the reasons, be represented by a special advocate in any closed material procedure and be able to receive legal aid for such a hearing
*Part 1 of the Bill be made subject to a renewal requirement to enable Parliament to consider the case for continuing these powers in the light of the Independent Reviewer’s report on their operation in practice
Academic freedom and the Prevent strategy
The Joint Committee on Human Rights is concerned about the implications for both freedom of expression and academic freedom of the new duty on universities proposed in the Bill to have due regard, in the exercise of their functions, to the need to prevent people from being drawn into terrorism.
Lack of legal certainty over the definitions of terms such as ‘extremism’ referred to in the draft guidance on the use of this power means that universities will not know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order backed by criminal sanctions for contempt of court.
As this legal uncertainty will have a seriously inhibiting effect on bona fide academic debate in universities, and on freedom of association, the Committee recommends that the Bill be amended to remove universities from the list of specified authorities to which the new duty applies.
Alternatively, the Committee recommends that the Bill be amended to add the exercise of an academic function to the list of functions exempted from the application of the duty.
Terrorism Prevention and Investigation Measures
The Committee also:
*welcomes the Government’s acceptance of almost all the recommendations concerning Terrorism Prevention and Investigation Measures (TPIMs) made by the Independent Reviewer in his 2014 report, in particular the raising of the threshold for the imposition of a TPIM and the slight narrowing of the scope of the definition of terrorist-related activity
*reluctantly accepts the Independent Reviewer’s judgement that the changing nature of the threat justifies the reintroduction of relocation, but looks to the Government to be proactive in bringing forward ideas designed to mitigate the alienation and resentment likely to be caused in some minority communities by this measure
*recommends that the Bill be amended to make express provision to protect the privilege against self-incrimination when TPIM subjects are required to attend appointments with specified people
The Independent Reviewer of Terrorism Legislation and the Privacy and Civil Liberties Board
The Committee recognises the “high quality” of the work undertaken by the current Independent Reviewer of Terrorism Legislation, David Anderson QC, and calls for his remit be extended beyond the four specific statutes that he currently reviews to cover all terrorism legislation and other areas of law to the extent that they are applied for counter-terrorist purposes, such as immigration law and the prerogative power in relation to passports.
The Committee also recommends that the proposed Privacy and Civil Liberties Board should not be chaired by the Independent Reviewer, but rather should exist separately and report on matters which may be of use to the Independent Reviewer in his own work.
The Committee calls for David Anderson QC to be given the resources he says he requires in order to carry out his functions as effectively as possible.
The Committee welcomes the time which was provided for scrutiny of the Bill on the Floor of the House in the Commons, but is nevertheless “critical of the failure of the Government to find time for pre-legislative scrutiny of any of the measures in the Bill” (some of which were announced as early as 1 September 2014).
Dr Hywel Francis MP, chairman of the Joint Committee on Human Rights, said: “Recent events in Paris make clear the challenging times in which we live and the need for Government to carry out its function of fighting terrorism and assuring the security of its people. We are satisfied that in some areas there are gaps in the Government’s counter-terrorism powers, but some of the powers proposed in this Bill require extra safeguards so that they are not used unreasonably and to permit individuals affected to challenge them where there are grounds to do so. We should never forget that these are exceptional powers which could be mistakenly used against any of us. In a civilised democracy there must always be processes for subjecting the claims of the State to independent scrutiny.”
Francis concluded: “This balance between liberties and security is a difficult one to tread, but the Government’s attempt in this Bill to place a duty upon universities in connection with the Prevent strategy has not been well thought-through. It might result in that academic freedom and freedom of speech which we know are key to the functioning of a democratic society being restricted. As open and rigorous debate about ideas is itself one of the most powerful tools in the struggle against terrorism, and the extremism which often breeds terrorism, this is surely counter-productive.”
Response from Liberty and Big Brother Watch
Responding to the report, Isabella Sankey (director of policy for Liberty) said: “It’s heartening that the influential cross-party Human Rights Committee has been so forthright in its opposition to the exile provision of the Counter-Terrorism and Security Bill. Recent events surely demonstrate that terrorism has no borders and so must be dealt with by the full force of the criminal law.”
Emma Carr, director of Big Brother Watch, commented: “This report clearly shows that the Home Secretary has failed to answer a series of questions relating to the legal requirements for the blanket retention of communications. If the Joint Committee on Human Rights is unable to get a straight answer then what hope is there for the rest of us?”
Carr continued: “A lack of response for precise details from the Home Secretary combined with the failure to wait for the conclusions of the three reviews into current surveillance powers which are currently taking place is a disgrace. The rush through Parliament and lack of proper scrutiny will lead to little more than ineffective and unnecessarily intrusive legislation.”
In conclusion, Carr stated: “What’s required are powers which evidence suggests are actually necessary alongside provisions for transparency and effective authorisation, oversight and redress procedures.”