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
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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
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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
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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
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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
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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
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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
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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.
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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
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