Counter-Terrorism and Security Bill 2014-15 Second Reading, House of Lords January 2015 For more information, please contact: Parliamentary lead: Melanie Field, Director of Corporate Affairs melanie.field@equalityhumanrights.com DD: 0207 832 7848 Legal lead: Clare Collier, Senior Lawyer DD: 020 7832 7847 clare.collier@equalityhumanrights.com 1 1. Introduction This briefing provides the Commission’s analysis of the implications for equality and human rights law of measures contained in the CounterTerrorism and Security Bill. In practice, compliance with equality and human rights law will depend on methods of implementation of the measures in the Bill and of associated regulations, orders, rules, policies and guidance (still to be devised). This analysis highlights areas of potential risk, identifying where the proposed measures could be incompatible with the Equality Act 2010, the European Convention on Human Rights (ECHR) or and the International Covenant on Civil and Political Rights (ICCPR). 2. Our analysis In relation to Clause 2, the Commission considers that: i) ii) requiring individuals subject to temporary exclusion orders to attend an interview with a police officer in circumstances where legal representation is unlikely to be available is likely to breach the privilege against self-incrimination under Article 6 of the ECHR; and that the proposed exclusion orders are incompatible with Article 12(4) ICCPR. There is insufficient provision for independent oversight or scrutiny of the exercise of several of the proposed powers. This is particularly important where the powers appear potentially to interfere with fundamental rights. Appropriate oversight mechanisms should be introduced to ensure the use of these powers is proportionate and necessary. This applies in relation to passport seizure, temporary exclusion orders, the proposed additional data retention measures set out in Clause 17 and the proposals in Clause 21 regarding the duty on public authorities to have due regard to the need to prevent people being drawn into terrorism. The proposed reintroduction of internal relocation under Clause 13 is likely to engage Article 8 ECHR and may constitute a disproportionate 2 interference with the private and family life of those affected by the relocation. The Commission accords the highest importance to efforts made to prevent individuals from being drawn into terrorism. In order that this is achieved effectively and lawfully, we consider there is a need for clear guidance from the Secretary of State concerning how the duty under Clause 23 will sit alongside the duty in section 6 of the Human Rights Act 1998 for public bodies to act compatibly with Convention rights (including freedom of expression) and the public sector equality duty under s.149 of the Equality Act 2010. Detailed analysis of these provisions are provided in sections three to seven. 3. Part 1: temporary restrictions on travel: power to seize travel documents, seizure of passports etc from persons suspected of involvement in terrorism, and temporary exclusion from the UK Clause 2 – Temporary exclusion orders Under Clause 2 and the framework set out under Chapter 2 of Part 1 of the Bill, the Secretary of State may issue a ‘temporary exclusion order’ to a UK national or resident who is currently outside the UK if a number of conditions are met, most notably that the Secretary of State (i) reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom and (ii) that she considers it necessary to impose the order for the purpose of protecting the public. The effect of a temporary exclusion order, which may last up to 2 years (Clause 3(3)(b)), is that the person who is subject to it commits a criminal offence if he or she returns to the UK in contravention of the order without reasonable excuse (Clause9(1)). In addition, their UK passport will not be valid for the period that the order is in force (Clause 3(10)). A person subject to an exclusion order may return to the UK only in accordance with a permit to return issued by the Secretary of State, which may be subject to a requirement to comply with certain conditions 3 upon return (Clause 4(2)), including any of the obligations that the Secretary of State may impose under a Terrorism Prevention and Investigation Measures (TPIM) (Clause 8(2)). A person subject to an exclusion order may apply for a permit to return (Clause 5(1)), which the Secretary of State must then issue within a reasonable period. However, the Secretary of State may require the person to attend a prior interview with a police officer or immigration officer (Clause 5(2)(a)). If the person fails to do so, the Secretary of State is not required to issue a permit. The Commission believes that the proposed scheme for temporary exclusion orders is at odds with the requirements of TPIMs themselves, including certain of the reforms proposed elsewhere in this Bill. Under the Terrorism Prevention and Investigation Measures 2011 Act, the Secretary of State can currently make a TPIM against an individual if she “reasonably believes” a number of conditions are met, following which she is required to apply to the High Court for permission to make the TPIM. Under Clause 16(1) of the Counter Terrorism Bill, however, in order to made a TPIM, it will no longer be sufficient that the Secretary of State “reasonably believes” that the conditions are met. Instead she must be “satisfied, on the balance of probabilities” – a markedly higher threshold which the Commission considers to be a better safeguard of the appropriate exercise of the power. However, under the proposed scheme for temporary exclusion orders, by contrast, the Secretary of State can act according to the threshold of “reasonably suspects” – a much lower threshold than “reasonably believes”. As the temporary exclusion order regime can in effect require an individual to subject themselves to a TPIM, this enables TPIMs to be made without first obtaining the permission of the High Court. Another area of concern is the requirement under Clause 5 for an individual to attend an interview with a police officer or immigration officer, without which the Secretary of State will be under no obligation to issue a permit to return. The Bill is silent on the extent of any cooperation that the person may be required to provide at interview and the Bill contains no safeguards against self-incrimination, such as those provided by sections 64 and 65 of the Serious Organised Crime and Policing Act 2005. In the absence of such safeguards and the probability 4 that legal representation will not be available, the Commission believes that requiring individuals subject to exclusion orders to attend an interview with a police officer is likely to breach the privilege against selfincrimination under Article 6 ECHR. The Bill also places in an invidious position a person who wishes to challenge the making of a temporary exclusion order, since they cannot return to the United Kingdom to bring judicial review proceedings. In evidence before the Joint Committee on Human Rights (JCHR), the Minister for Security and Immigration cited the example of nonsuspensive appeals in asylum cases. However, as Mr Justice Richards noted at the outset of his judgment in R (Razgar) v Secretary of State for the Home Department [2002] EWHC 2554 (Admin), a person who can only bring an appeal from outside the UK ' is plainly [at] a very serious disadvantage as compared with an in-country appeal'. In 2004, the House of Commons Constitutional Affairs Committee expressed concern at “the extremely low success rate of appellants' appeals” and recommended that the government “investigate the fairness of the nonsuspensive appeal system” (para 81, Asylum and Immigration Appeals, HC 211, February 2004). In evidence before the JCHR, the Minister for Security and Immigration was also unable to confirm whether persons subject to exclusion orders would be eligible for legal aid. As with the passport seizure power, the proposed exclusion orders appear to be incompatible with the UK’s obligations under the ICCPR, specifically Article 12(4) which states that “nobody shall be arbitrarily deprived of the right to enter his own country”. On the basis of the features of the regime outline above, the Commission is concerned that requiring a person to comply with a temporary exclusion order would breach that right. Lastly, no provision appears to have been made for oversight of the scheme for temporary exclusion orders by the Independent Reviewer. 4. Part 2 – Terrorism prevention and investigation measures Part 2 of the Bill sets out a number of proposed changes to the TPIMs regime, most notably the reintroduction of the internal relocation measure (Clause 12) which was a much-criticised aspect of the previous 5 control order regime but was absent from TPIMS, and also provision for an appointments measure (Clause 15), under which the Secretary of State can require a person to “attend appointments with specified persons” as well as “comply with any reasonable directions given by the Secretary of State that relate to matters about which the individual is required to attend an appointment”. Clause 16 also raises the threshold for making TPIMS, from the “reasonable belief” of the Secretary of State, to her being “satisfied, on the balance of probabilities”. In respect of the proposed reintroduction of internal relocation, the Commission notes the views of the Independent Reviewer of Terrorism Legislation that it is “of assistance in preventing people from meeting associates and in preventing them from absconding”, as well as being “much more resource-intensive to try to keep an eye on people when they are in their own area” (Evidence to the Joint Committee on Human Rights, 19 November 2014, Q20). We also note his broader view, however, that TPIMS more generally have tended to favour prevention rather than investigation (Q4). While the Commission agrees that the effectiveness of the prevention strand is important, mere expedience is not sufficient to justify the very significant interference that internal relocation will constitute to an individual’s private and family life. In the Commission’s view, this substantial interference is unnecessary since it appears that TPIMS have been able to operate effectively without this measure. We therefore consider that the proposed reintroduction of internal relocation may breach Article 8(2) on the grounds that it is likely to involve a disproportionate interference with the private and family life of affected persons. In respect of the appointments measure, the Commission raises the same concern regarding the lack of any safeguards concerning selfincrimination as raised in para 22 above in relation to temporary exclusion orders. In particular, if the Secretary of State were to require a person to attend an interview with a police officer and answer questions, this could – for the reasons set out previously – breach the requirements of Article 6 ECHR. As regards the proposal to increase the threshold from ‘reasonable belief’ to the ‘balance of probabilities’, the Commission very much welcomes this step. We note, however, that the role of the High Court under section 6(3)(a) of the TPIMS Act is limited only to considering 6 whether the Secretary of State’s decisions were “obviously flawed”. We consider that without corresponding amendment to that section, the effect of the proposed amendment under clause 16 is likely to be more limited than may otherwise appear. 5. Part 3: Data Retention Clause 17 – Retention of relevant internet data Clause 17 provides a series of amendments to the recently enacted Data Retention and Investigatory Powers Act 2014 which, in effect, requires internet service providers to retain so-called “linking data”, which is data identifying which given communication was made via which IP address. We note that clause 17 introduces two new terms - ‘internet access service’ and ‘internet communications service’ – without defining them. In our view, given that the power involves the retention of personal communications data, which the Grand Chamber of the Court of Justice of the European Union found in April 2014 to engage the rights to privacy and data protection, the intended scope of these terms must be defined. Moreover, we note that no provision has been made for oversight of this power, whether by the Independent Reviewer of Terrorism Legislation or the Interception of Communications Commissioner. 6. Part 5, Chapter 1: Risk of being drawn into terrorism. Preventing people from being drawn into terrorism Clause 21(1) provides for a general duty to be imposed on a wide range of public bodies to “have due regard to the need to prevent persons from being drawn into terrorism”. The public bodies subject to this duty are set out in Schedule 3 but include all local authorities, schools, universities and colleges, NHS trusts and police forces. The Commission agrees that public safety is not the responsibility of the police and security services alone. It is plainly important that other public bodies play their part in preventing terrorist attacks, including alerting the police where the bodies in question have cause to suspect that one or more persons may be engaged in terrorism. More generally, the 7 Commission accords the highest priority to preventing individuals from being drawn into terrorism. The Commission notes that imposing a statutory duty of this kind on such a wide range of public bodies requires certainty in order to be effective and this is particularly the case given the extremely broad scope of the statutory definition of terrorism. For example, the expression of support for the overthrow of the North Korean regime would constitute ‘terrorism’ within the meaning of section 1 of the Terrorism Act 2000, yet it is doubtful that it should be the responsibility of a school, university or local authority to interfere with the ability of students to receive or express such ideas. In particular, the Commission considers that there is a pressing need for clear guidance from the Secretary of State concerning how the duty under clause 23 will sit alongside the statutory duty of public bodies to act compatibly with Convention rights (including the freedoms of expression and association) under section 6(1) of the Human Rights Act 1998 and alongside the Public Sector Equality duty under section 149 of the Equality Act 2010. Particular care will need to be taken to ensure that there is no undue interference with the right of individuals to express and receive information and ideas, even those which may “shock, offend and disturb”. The power of the Secretary of State under clause 25(1) to “give directions” to a public authority “for the purposes of enforcing the performance” of its duty is problematic. The power arises if the Secretary of State is “satisfied that a specified authority has failed to discharge the duty imposed on it by [clause] 21(1)”. However, determining whether a public body has acted in accordance with its statutory duties is properly the function of the courts, rather than the executive. For this reason, we consider that the proper course should be for the Secretary of State to bring proceedings for judicial review of the relevant public body’s decision or failure to act rather than abrogate that function to herself. Lastly, we note that Part 5 makes no provision for scrutiny of its operation, whether by the Independent Reviewer or another suitable independent body. 8 7. PART 7: Miscellaneous and General, Privacy and Civil Liberties Board (Clause 36) The Commission shares the concerns expressed by the Independent Reviewer in his evidence to the JCHR in November 2014 concerning the role of the proposed Board. The Commission notes that previous proposals for review of the oversight arrangements for surveillance, for example, were canvassed in the Justice and Security Green Paper before being addressed in legislation. Further explanation would be helpful as to the thinking behind the proposal to have a Board and how it will work with the role of the Independent Reviewer. In our view, the concerns of the Independent Reviewer should be accorded particular weight since, in addition to the use of sunset clauses, provision for annual review by the Independent Reviewer is now one of the strongest safeguards against the disproportionate use of counter-terrorism measures. This is especially important in light of the fact that this Bill is likely to become the eighth piece of counter-terrorism legislation introduced in the last fifteen years. About the Equality and Human Rights Commission The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It is an independent body responsible for promoting and enforcing the laws that protect fairness, dignity and respect. It contributes to making and keeping Britain a fair society in which everyone, regardless of background, has an equal opportunity to fulfil their potential. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an ‘A status’ National Human Rights Institution. Find out more about the Commission’s work at: www.equalityhumanrights.com 9