The Bill is due for its Second Reading in the House of Lords on Tuesday 13 January. 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 is 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 and recommends that the Bill be amended accordingly.
It 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 Minister’s indication that the Government will return to the issue of judicial oversight in the House of Lords.
The 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, must be proportionate, and should include adequate procedural safeguards to ensure that it is not 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 7 rather than 14 days.
The Committee also 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 is necessary to extend the period of retention to enable steps to be taken towards deciding what should happen next;
- that the person subject to the exercise of this power should also be informed of the reasons, should be represented by a special advocate in any closed material procedure, and should be able to receive legal aid for such a hearing; and
- that 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 Committee 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 which are exempted from the application of the duty.
The Committee also:
- welcomes the Government’s acceptance of almost all the recommendations concerning 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 terrorism-related activity;
- reluctantly accepts the Independent Reviewer’s judgment that the changing nature of the threat justifies the reintroduction of relocation, but looks to the Government to be proactive in bringing forward ideas to mitigate the alienation and resentment likely to be caused in some minority communities by this; and
- recommends that the Bill be amended to make express provision to protect the privilege against self-incrimination when TPIMs subjects are required to attend appointments with specified people.
Independent Reviewer of Terrorism Legislation, Privacy and Civil Liberties Board
The Committee also 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 should exist separately, and report on matter which may be of use to the Independent Reviewer in his work. It calls for him to be given the resources he says he requires 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 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.
Dr Hywel Francis MP, Chair of the Committee, said:
Recent events in Paris make clear the challenging times in which we live and the need for Government to carry out their function of fighting terrorism and assuring the security of their 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, and in a civilised democracy there must always be processes for subjecting the claims of the State to independent scrutiny.
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.