Counter-Terrorism and Security Bill
1. The Counter-Terrorism and Security Bill was
brought from the Commons on 7 January. It is being semi-fast-tracked,
in that the House will be asked to waive the recommended minimum
intervals between the stages of the bill. Its second reading in
the House of Lords is scheduled to take place on 13 January and
its committee stage is to commence the following week.
2. The main impetus behind the bill seems to
be that, on 29 August 2014, the Joint Terrorism Analysis Centre
raised the UK national terrorist threat level from substantial
to severe (meaning that a terrorist attack is "highly likely").
Among the major concerns is the number of individuals who have
returned to the UK from fighting in Syria and Iraq. The explanatory
notes accompanying the bill state that there are about 550 individuals
"of interest to the police and security services" who
have travelled from the UK to Syria, of whom about half have returned
to the UK. The Prime Minister announced on 1 September 2014 that
legislation would be brought forward to stop people travelling
overseas to fight for terrorist organisations and subsequently
returning to the UK.
3. In the event the bill was introduced into
the House of Commons on 26 November 2014, nearly three months
after the Prime Minister's announcement. The last bill to be fast-tracked
was the Data Retention and Investigatory Powers Act 2014. In part,
that Act was needed in order to address a defect in the law identified
in a court judgment. The judgment in question was dated 8 April
2014; the bill was introduced into the House of Commons on 14
July 2014; thereafter the bill was taken through all its legislative
stages in both Houses in three sitting days. In its report on
the bill the Constitution Committee stated that "the contrast
between the time taken by the Government to consider their response
[to the court judgment] and the time given to Parliament to scrutinise
the bill is a matter of concern".
We repeat this concern now. Even though the Counter-Terrorism
and Security Bill is being only semi-fast-tracked, there remains
a contrast between the time taken within Government to prepare
the bill and the time given to Parliament to scrutinise it.
4. The Joint Committee on Human Rights (JCHR)
took oral evidence on the bill from James Brokenshire MP,
the Minister for Security and Immigration, on 3 December, the
day after the bill's second reading in the Commons. During that
evidence session the Chair of the JCHR, Dr Hywel Francis,
noted that the bill had been described as "being fast-tracked
but not urgent".
The question may be asked: if a bill is not urgent, why is it
being fast-tracked? The Minister's answer was that, because of
the raising of the threat level, "there is a degree of urgency".
5. In 2009 the Constitution Committee published
a report on fast-track legislation in which it recommended that
a Government introducing fast-track legislation should explain
and justify why, in their opinion, fast-tracking was necessary.
As has now become customary, this was done for the present bill
in the explanatory notes. We welcome this. In this instance
a number of the explanations given are particularly full: the
Government have supplied detailed answers on the efforts that
have been made to maximise parliamentary scrutiny and on the extent
to which various provisions are subject to sunset clauses. Nonetheless,
the House may wish to consider carefully whether the reasons put
forward by the Government for the fast-tracking of each element
of the bill offer sufficient justification.
6. While the Anti-terrorism, Crime and Security
Act 2001 and the Prevention of Terrorism Act 2005 were fast-tracked,
more recent terrorism legislation has tended not to be. Neither
the Terrorism Act 2006, the Counter-Terrorism Act 2008, the Terrorist
Asset-Freezing etc Act 2010, nor the Terrorism Prevention and
Investigation Measures Act 2011 were fast-tracked. We hope
that the present bill does not herald a return to the automatic
or frequent fast-tracking of terrorism legislation.
Temporary Exclusion Orders
7. Part 1 of the bill concerns "temporary
restrictions on travel" and comprises two elements. The first
(clause 1 and schedule 1) is a new power to seize passports from
persons suspected of involvement in terrorism, designed to prevent
such persons from leaving the UK. The second raises a constitutional
matter which we bring to the attention of the House. Clause 2
empowers the Secretary of State to impose a "temporary exclusion
order" on an individual, meaning that the individual cannot
return to the UK unless they have a permit to do so (such permits
being issued by the Secretary of State) or unless he or she is
deported to the UK. A temporary exclusion order ("TEO")
may remain in force for up to two years. TEOs apply to those with
the right of abode in the UK. The provisions of Part 1 are not
another means of using immigration law for the purposes of counter-terrorism:
the provisions of Part 1 apply to all British citizens (as well
as others with a right of abode in the UK).
8. A permit to return may be made conditional
upon any requirement imposed by the Secretary of State (clause
4(2)). The bill provides for no limitation as to the extent or
content of such requirements. Failure to comply with such a requirement
invalidates the permit to return, meaning that the individual
remains excluded from the UK (clause 4(3)).
9. David Anderson QC, the independent reviewer
of terrorism legislation, in evidence to the Joint Committee on
Human Rights (on 26 November 2014) and to the House of Commons
Home Affairs Committee (on 3 December 2014) described TEOs as
being "about controlled and managed return" to the UK,
rather than exclusion from the UK. None the less, he was insistent
in his evidence to the latter Committee that, as he put it, "you
absolutely have to inject some form of judicial control into it
because it is quite an onerous thing to do to somebody".
He suggested that, as with Terrorism Prevention and Investigation
Measures ("TPIMs"), a court should authorise the making
of a TEO and there should be a right of appeal to a court.
The bill as it stands provides for neither.
10. This is a point of constitutional importance,
raising as it does issues relating to both the rule of law and
the liberty of the individual. As Mr Anderson said to the
Home Affairs Committee, "in peacetime we have never accepted
the power of the Home Secretary simply to place someone under
Executive constraint for two years without providing for some
relatively speedy process of appeal".
11. An Opposition amendment was moved at report
stage in the House of Commons to bring the Secretary of State's
power to issue a TEO under judicial supervision but the amendment
was defeated on a division.
The Minister for Security and Immigration, James Brokenshire MP,
stated that "with responsibility for all other national security
and counter-terrorism matters, it is the Secretary of State who
is best placed to make an informed judgment about whether a temporary
exclusion order is appropriate in each case".
With respect to the Minister, this is not in doubt. Of course
it is the Secretary of State who must decide whether a TEO is
necessary but, given the gravity of the impact of a TEO on an
individual, it is constitutionally inappropriate for that decision
not to be subject to direct judicial oversight. The analogy with
TPIMs is apt: a TPIM (like a TEO) is made by the Secretary
of State but under the Terrorism Prevention and Investigation
Measures Act 2011, section 6, the court must thereafter determine
whether or not the Secretary of State's decision to impose a TPIM
is "obviously flawed". We recommend that the bill
should be amended to provide for appropriate judicial oversight
of temporary exclusion orders.
12. We welcome the fact that the Secretary of
State said at third reading in the House of Commons that "the
Government have committed to look very carefully at judicial oversight
of the temporary exclusion order power. We will return to this
issue in the House of Lords".
13. Part 3 of the bill concerns data retention.
It amends the Data Retention and Investigatory Powers Act 2014,
enabling the Secretary of State to require internet service providers
to retain data that would allow relevant authorities to identify
the individual or the device that was using a particular internet
protocol ("IP") address at any given time.
14. Whether existing data retention powers should
be enhanced or not is a contested matter. The constitutional
issue arising is that a semi-fast-track bill is being used to
amend sensitive and controversial provisions contained in earlier
legislation that was also fast-tracked. Moreover, the fast-tracking
of the Data Retention and Investigatory Powers Act 2014 was undertaken
expressly on the basis that it did "not enhance data retention
merely placed on a firm legal footing powers that the UK had already
provided for but the basis for which had been found unlawful by
the Court of Justice of the European Union.
15. The bill seeks to enhance the data retention
powers provided for in the fast-tracked Data Retention and Investigatory
Powers Act 2014. The House may wish to consider whether the semi-fast-tracking
of this bill allows Parliament sufficient time to scrutinise whether
the enhanced powers are proportionate.
1 Constitution Committee, Data Retention and Investigatory Powers Bill,
(3rd Report, Session 2014-15, HL Paper 31), para 6 Back
Oral evidence taken before the Joint Committee on Human Rights,
3 December 2014 (Session 2014-15), Q2 (James Brokenshire MP) Back
Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards
(15th Report, Session 2008-09, HL Paper 116) Back
Oral evidence taken before the House of Commons Home Affairs Committee,
3 December 2014 (Session 2014-15), Q138 (David Anderson) Back
Ibid., Q138 Back
Ibid., Q140 Back
HC Deb, 6 January 2015, col 211 Back
HC Deb, 6 January 2015, col 207 Back
HC Deb, 7 January 2015, col 340 Back
Explanatory Notes to the Data Retention and Investigatory Powers Bill,
[HL Bill 37 (2014-15)-EN] paragraph 36 Back