Fundamental constitutional principles not protected in Counter-Terrorism and Border Security Bill, warms Lords

29 October 2018

The House of Lords Constitution Committee has criticised the Government for failing to protect fundamental constitutional principles in the Counter-Terrorism and Border Security Bill. It follows two critical reports on the Bill by the Joint Committee on Human Rights.

The Bill is scheduled to begin committee stage in the House of Lords today.

Key points from the report include:

  • Access to confidential legal advice – a fundamental constitutional principle – is not adequately protected by the Bill.
  • Recommendations that the Bill is amended to require detainees to be informed of their right to consult a solicitor.
  • Concerns that the Government’s justification for the limits on access to confidential legal advice rely on the assurance that the powers will be used more benevolently than the text of the Bill requires.
  • Concerns that individuals could be prosecuted in the UK for criminal offences that do not exist in the country in which the relevant conduct occurred. This breaches the requirement, deriving from the principle of legal certainty, that people ought to have a fair opportunity to know about the law that applies to them.
  • The definition of ‘hostile activity’ in the Bill is too broad and raises concerns over human rights, the rule of law and legal certainty. The Committee supports the recommendation of the Joint Committee on Human rights to limit excessive powers by having a clearer definition.
  • Parliamentary scrutiny has been inhibited by the Government’s failure to publish the draft code of practice that sets out the planned use of the powers while the Bill was in the House of Commons.

Chairman of the House of Lords Constitution Committee Baroness Taylor said: “The Bill fails to respect important constitutional principles.

“Broad definitions for offences, excessive reliance on Government assurances, and barriers to proper Parliamentary scrutiny are all deeply problematic. We urge the Government to think again, considering both the recommendations from this Committee and those of the Joint Committee on Human Rights.”

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