Conclusions and recommendations
Background
1. We
do not consider that the provision of an ECHR Memorandum at the
time of the introduction of a fast-tracked Bill amounts to giving
us a proper opportunity to scrutinise the legislation. (Paragraph
1.8)
2. We welcome the
amount of parliamentary time that has been made available for
scrutiny of the Bill on the floor of the House of Commons, despite
its accelerated legislative timetable, but the compressed timetable
has inevitably affected our ability to scrutinise the Bill fully.
The long delay between our letter of 10 September and the provision
of the ECHR Memorandum on 25 November represents a great deal
of lost scrutiny time. In our view, draft clauses on the key
provisions and a draft human rights memorandum could have been
provided to the Committee much earlier to enable it to begin its
scrutiny work. (Paragraph 1.10)
Preventing travel by seizure of passports
3. We
accept that the Government has demonstrated the necessity for
a power to seize travel documents, including passports, in circumstances
not covered by existing powers, in order to prevent travel and
to facilitate investigation by the police with a view to possible
further action being taken, including the cancellation of a passport
by the Secretary of State, criminal proceedings, or other counter-terrorism
measures such as TPIMs. Preventive action of this sort in the
interests of those who may be drawn into terrorism-related activity
could prove more effective than taking action at a later date.
Such a significant power to interfere with the right to leave
the country, however, must be carefully targeted to fill the gap
in powers that has been shown to exist, and it is therefore also
necessary to scrutinise carefully the proportionality of the proposed
measure, and in particular the procedural safeguards which exist
to ensure that it is not exercised disproportionately. (Paragraph
2.15)
4. In our view, the
best way to ensure compatibility with the right to a fair hearing
in Article 6 ECHR is to amend Schedule 1 to the Bill so that it
provides a genuinely judicial system of "warrants of further
retention" which is directly analogous to the system of "warrants
of further detention" of terrorism suspects in Schedule 8
to the Terrorism Act 2000, read so as to be compatible with the
ECHR: that is, a system for the judicial authorisation of a further
period of retention of travel documents, complete with proper
procedural safeguards. (Paragraph 2.23)
5. We recommend that
the requirement to apply for a judicial warrant of further retention
should arise after 7 days rather than 14 days. We recommend that
paragraph 5 of Schedule 1 be amended by substituting 7 for 14
days. (Paragraph 2.26)
6. We recommend that
Schedule 1 to the Bill be amended so as to make explicit that
the district judge can only issue a warrant of further retention
of travel documents 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. (Paragraph
2.29)
7. We recommend that
the Code should provide that a person subject to the exercise
of the power should be informed of the reasons for its exercise
at the earliest opportunity in every case, and not merely where
the individual makes a request for such reasons. (Paragraph 2.31)
8. We welcome the
express provision in the Code for a summary of the reasons for
retaining travel documents to be provided to the person concerned
before an application is made for an extension of the retention
period. In our view, however, such provision is so fundamental
to meeting the requirements of a fair hearing that it should be
made on the face of the Bill itself. We recommend that the Bill
should be amended to require that the person be informed of at
least the gist of the reasons for suspecting that they intend
to travel abroad to be involved in terrorism-related activity,
in advance of the hearing before a judicial authority. (Paragraph
2.33)
9. We recommend that
the Bill should be amended to ensure that the interests of the
excluded party are represented by a special advocate in any closed
material procedure. (Paragraph 2.35)
10. We recommend that
the bill should be amended to ensure that there is a right to
legal aid at such a hearing. (Paragraph 2.37)
11. We recommend that
consideration should be given to the circumstances in which compensation
should be payable where travel documents are seized under this
power and returned with no further action taken, to cover financial
loss suffered as a result of any unreasonable exercise of the
power (e.g. the cost of missed flights, cancelled accommodation,
etc.). (Paragraph 2.39)
12. We welcome the
inclusion in the draft Code of requirements to ensure that the
power is not exercised in a discriminatory way. We recommend that
in addition to self-monitoring by the police, the use of the power
should be carefully monitored by other independent oversight mechanisms,
such as the Equality and Human Rights Commission and the Independent
Reviewer of Terrorism Legislation, to guard against the risk that
the new powers will heighten the perception that certain minority
communities are treated differently in the exercise of counter-terrorism
powers. (Paragraph 2.42)
Temporary exclusion orders
13. We
welcome the Government's preparedness to make significant modifications
to the proposal announced by the Prime Minister on 1 September,
to exclude UK nationals from their country of nationality. That
proposal would have put the UK in breach of a number of its international
legal obligations, including the human right not to be made stateless
and not to be deprived of the right to return to one's country
of nationality, and we are pleased that the Government is not
pursuing it. (Paragraph 3.8)
14. However, as the
Minister confirmed in his evidence to us, the provisions in the
Bill still have the effect of invalidating a UK national's passport
while they are abroad, and of preventing their return unless they
comply with conditions imposed by the Secretary of State, without
any judicial process apart from ex post facto judicial review
which, by definition, will have to be pursued from abroad. In
our view this gives rise to a very real risk that the human rights
of UK nationals will be violated as a result of the imposition
of Temporary Exclusion Orders. We are opposed in principle to
any exclusion of UK nationals from the UK, even on a temporary
basis. (Paragraph 3.9)
15. In our view, 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. "Notification
of return" orders, which could be substituted for temporary
exclusion orders without too much drastic surgery to this Part
of the Bill, would constitute a more proportionate interference
with the right of a UK national to return to the UK, as they would
not involve any cancellation of a citizen's passport or prohibition
of their return, nor make that return conditional on the individual
accepting conditions imposed by the Secretary of State. We recommend
that the Bill be amended to replace temporary exclusion orders
with notification of return orders in order to achieve the Government's
objective of safe and managed return in a way compatible with
the UK's human rights obligations. (Paragraph 3.12)
16. We welcome the
Minister's indication that the Government will return to the issue
of judicial oversight in the House of Lords. (Paragraph 3.15)
17. We therefore
recommend that the Bill be amended to provide expressly for a
judicial role prior to the making of a notification of return
order, which is currently lacking in this part of the Bill. (Paragraph
3.15)
18. Like the Independent
Reviewer of Terrorism Legislation, we believe in principle that
the operation in practice of the new powers to impose restrictions
on travel of terrorism suspects should be subject to independent
review and therefore we recommend that the powers in Part 1 of
the Bill, concerning both passports and managed return, be subject
to review by the Independent Reviewer. (Paragraph 3.17)
19. We recommend 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. (Paragraph 3.20)
TPIMs
20. We
welcome the fact that the Government has accepted and given effect
to nearly all of the Independent Reviewer's 10 recommendations
about TPIMs in his last annual report on the operation in practice
of the TPIM regime. We particularly welcome 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.
As the Government's ECHR Memorandum rightly claims, these changes
represent an increase in the level of safeguards against TPIMs
resulting in the unjustified interference with ECHR rights.
(Paragraph 4.2)
21. Just as in our
recent Report on TPIMs we said that we do not feel sufficiently
informed about the threat picture to be able to conclude that
the power to impose TPIMs is no longer required, so we do not
feel in a position to gainsay the judgment of the Independent
Reviewer on a question of this nature. We therefore reluctantly
accept his judgment that the changing nature of the threat justifies
the reintroduction of relocation. We look to the Government to
be proactive in bringing forward ideas about how to mitigate the
alienation and resentment likely to be caused in some minority
communities. (Paragraph 4.10)
22. We welcome the
Government's preparedness to raise the threshold for imposition
of TPIMs to "balance of probabilities", which potentially
strengthens the safeguards against disproportionate use of the
power. However, in order for this change to make a real practical
difference, we recommend that the TPIM Act be amended to require
the court also to consider whether the balance of probabilities
standard was satisfied, in place of the current, lighter-touch
judicial review standard. Such an amendment would give effect
to the unimplemented part of the Independent Reviewer's recommendation.
(Paragraph 4.14)
23. We agree with
the Independent Reviewer that the power to require TPIM subjects
to engage with de-radicalisation programmes should be accompanied
by complete clarity as to the use to which their answers to questions
could be put, and in particular whether they could be used as
evidence against them in a criminal trial. We recommend 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. (Paragraph 4.18)
Data retention
24. We
draw this correspondence to the attention of both Houses as it
is relevant to Parliament's consideration of whether the UK's
legal regime for the retention of communications data, viewed
in the round, and including the provisions of Part 3 of the Bill
and the draft Codes of Practice, contains adequate safeguards
to prevent disproportionate interference with the right to respect
for privacy and personal data. (Paragraph 5.6)
Prevent
25. We
welcome the important recognition in the draft Guidance that the
terrorist threat to the UK comes from a variety of groups, including
the extreme right, and that the Prevent strategy must be aimed
at all kinds of terrorist threat. However, we are concerned about
the implications for both freedom of expression and academic freedom
as a result of the applicability of the proposed new duty to universities.
The Chief Constable of Greater Manchester Police, Sir Peter Fahy,
has been reported in the press as having concerns that the lack
of legal certainty over terms such as "extremism" leaves
too much discretion to the police to decide, in the heat of the
moment, what counts as "extremism". We have similar
concerns. In our view, universities are precisely the places where
there should be open and inclusive discussion of ideas. Broad
terms such as "extremist" or "radical" are
not capable of being defined with sufficient precision to enable
universities to 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.
(Paragraph 6.10)
26. This legal uncertainty
will have a seriously inhibiting effect on bona fide academic
debate in universities, and on freedom of association, as lecturers
and students worry about whether critical discussion of fundamentalist
arguments, or of the circumstances in which resort to political
violence might be justified, could fall foul of the new duty.
(Paragraph 6.10)
27. In our view, because
of the importance of freedom of speech and academic freedom in
the context of university education, the entire legal framework
which rests on the new "prevent" duty is not appropriate
for application to universities. We recommend that the Bill be
amended to remove universities from the list of specified authorities
to which the new duty applies. Alternatively, we recommend that
the Bill be amended to add the exercise of an academic function
to the list of functions which are excepted from the application
of the duty. (Paragraph 6.11)
28. We also remind
Parliament that is has previously given statutory recognition
to academic freedom in s. 202 of the Education Reform Act 1988
which provides that University Commissioners "shall have
regard to the need to ensure that academic staff have freedom
within the law to question and test received wisdom, and to put
forward new ideas and controversial or unpopular opinions, without
placing themselves in jeopardy of losing their jobs or privileges
they may have at their institutions". (Paragraph 6.12)
29. We therefore also
recommend that the Bill be amended to require the guidance to
be approved by affirmative resolution of each House. (Paragraph
6.13)
Privacy and Civil Liberties Board
30. We
welcome the fact that the proposed Privacy and Civil Liberties
Board is no longer to replace the Independent Reviewer of Terrorism
Legislation and the Government's recognition, in its consultation
paper, of the importance of ensuring that in making any changes
to the current oversight arrangements, the key elements of the
Independent Reviewer role are reflected and incorporated into
the new approach. However, we are concerned by the proposed function
of the Privacy and Civil Liberties Board and its relationship
with the Independent Reviewer. In our view, the purpose of the
proposed Privacy and Civil Liberties Board should not be to provide
"advice and assistance" to the Independent Reviewer
in the discharge of the Reviewer's functions, but to publish reports
about matters which are within the Reviewer's remit. We also consider
that the Independent Reviewer should not chair the new Board,
particularly if there is to be differential access to sensitive
material. We recommend that the Bill be amended to give effect
to our recommendations that the proposed Privacy and Civil Liberties
Board should exist separately from the Independent Reviewer and
issue reports which may be of use to the Independent Reviewer
in his work. (Paragraph 7.7)
31. We also recommend
that the opportunity should be taken in this Bill to give effect
to the Independent Reviewer's recommendation that the major gaps
in his functions should be filled by extending his remit 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 Government should also make available the resources necessary
to provide the Independent Reviewer with the additional assistance
of the kind he says he needs to help him to carry out his functions
effectively. (Paragraph 7.8)
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