Legislative Scrutiny: Counter-Terrorism and Security Bill - Human Rights Joint Committee Contents

Conclusions and recommendations


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)


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)


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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Prepared 12 January 2015