Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill

Charlie Hebdo Attack: Picture Credit - The TelegraphThe Counter-Terrorism and Security Bill currently being hustled through Parliament with unseemly haste was announced in a blaze of rhetoric. Theresa May told a rapt 2014 Conservative Party Conference that she wanted to see “new banning orders for extremist groups”. There was talk of re-establishing the Broadcasting Ban (which did so much in the 1980s and early 1990s to help out jobbing actors who could do a passable Gerry Adams impression – Stephen Rea included). “Foreign Fighters” would be prevented from returning to the United Kingdom. Foreign Secretary Phillip Hammond even floated the idea of levelling treason charges against those taking part in Islamic State activities overseas, even though various modern terrorism offences of universal jurisdiction exist.

Most of these policy proposals, however, remain no more than a wish list for a future Conservative Government. With Theresa May constrained by the requirements of coalition governance, the Bill presented to Parliament in November is something of a paper tiger. Whilst it introduces Temporary Exclusion Orders (TEOs) these orders do not fulfil the function that their title suggests, and are far removed from the powers first outlined last September, where the emphasis was firmly on “exclusion” and not on “temporary”. Whilst the Orders do give government the power to invalidate the passport of a UK national overseas, the passport is replaced by the ability to return subject to conditions. For Professor Clive Walker, in his evidence to the Joint Committee on Human Rights, this is not so much exclusion as ‘a form of regulated re-entry and residence’.

Setting aside for one moment that the rhetoric swirling around these new orders puffs up their effect far beyond their actual reach, the most pressing human rights issue with the proposals is the Government’s insistence that no form of judicial scrutiny beyond ordinary judicial review “after the event” is necessary. This was because the European Convention on Human Rights had no extra-territorial effect regarding exclusion orders (ECHR memorandum, [12]):

[T]hat the ECHR does not apply extra-territorially applies a fortiori in respect of temporary exclusion as opposed to deprivation. Compared with deprivation, temporary exclusion involves manifestly less significant interference with an individual’s ability to request the UK’s assistance overseas or to travel to the UK.

Professor Guy Goodwin-Gill does not accept that the UK’s obligations would stop in such a clear-cut manner. As it is a UK Government action which is affecting the rights of individuals subject to a TEO it is difficult to avoid the conclusion that such individuals are under the control of the UK in this regard. Where a foreign government deprives UK citizens of their rights, the Court of Appeal has recognised that the UK Government is under a duty to consider providing consular support and making diplomatic representations. When it is the UK’s actions which directly impact upon the lives of UK citizens overseas, it would be nonsensical for lesser duties to exist on the part of the UK Government.

One the need for some oversight, at least, the Government seems to have relented. The Joint Committee on Human Rights, reporting on the proposals this week, considered (at [3.9]) that the absence of such oversight ‘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’. The latest reports have indicated that some oversight process will be introduced during the Bill’s process through the House of Lords. The adequacy of such arrangements will largely depend, however, upon the Government’s acceptance of their underlying human rights obligations.

Significantly, the Bill does extend the powers available under Terrorism Prevention and Investigation Measures (TPIMs). TPIMs are measures imposed upon individuals suspected of links to terrorism when evidence against them is insufficient to form the basis of criminal charges or inadmissible in criminal trial. When TPIMs were introduced to replace Control Orders in 2011 the Independent Reviewer of Counter-Terrorism Legislation heralded them as a “new model” of executive measure which would not conflict with human rights. And sure enough, in the three years of TPIMS, no exercise of the power has been subject to successful human-rights challenge. With the MI5 Director, Andrew Parker, reporting an upsurge in the number of plots against the United Kingdom, one might have expected a surge in reliance upon TPIMs. Following a series of high-profile absconding incidents, however, the UK’s security agencies have concluded that the disruptive effect of TPIMs is not worth all of the effort involved in maintaining a such measures.

With the current TPIM powers not being used, there is arguably little justification for the extensions to these measures proposed in the new legislation. The government’s contention, however, is that restoring a relocation power (removed in 2011 in one of the most significant liberalisations introduced with TPIMs) might also renew the usefulness of these measures. Relocation is attractive to the security services in that it makes it harder for individuals to maintain their local networks, which they might use to continue to pursue “extremist activities” or to support an effort to abscond from the TPIM. Alongside these outcomes, relocation also makes it much harder for an individual to pursue their ordinary family life (protected under Article 8 ECHR). The new legislation does propose limiting a relocation to a 200 mile radius to limit this adverse effect. Given that the courts overseeing control orders excised relocation requirements of 100 miles from orders as being disproportionate on Article 8 grounds, it can only be concluded that this safeguard will not be sufficient to ensure rights compliance in new cases.

With these reforms, the supposedly “new model” will look very like the control orders regime it replaced. But to soften this extension, the standard to which the authorities must prove that an individual is linked to terrorism is raised from one of mere “reasonable belief” to proof on the balance of probabilities. Requiring the authorities to establish that it is more likely than not that someone is involved in terrorism is not an unimportant safeguard, but it is one that the government feel that they can introduce without seriously impairing the operation of TPIMs. It still falls far below the standard required for a criminal conviction. The reason for turning to a TPIM, rather than a prosecution, is moreover often not linked to the weight of evidence but its admissibility. Evidence from intercepted communications is excluded from criminal trial, but can be heard in closed session in TPIMs cases, with the subject being expected to mount a defence with knowledge only of the gist of the case against them.

These measures are likely to satisfy none. For Human Rights groups they mark a further ramping up of counter-terrorism powers by rushed-through legislation, the very essence of a knee jerk response designed to show the public that something is being done to tackle terrorism. And the security services, on the other hand, might well agree. The powers on offer are far removed from Andrew Parker’s main “wish list” in the wake of the attack on Charlie Hebdo and the Le Marais supermarket siege (at [80]):

[I]f we are to do our job, MI5 will continue to need to be able to penetrate their communications as we have always done. That means having the right tools, legal powers and the assistance of companies which hold relevant data. Currently this picture is patchy.

The Bill does propose amendments to the Data Retention and Investigatory Powers Act 2014 (with the ink barely dry upon that legislation). These reforms would extend internet service providers’ data-retention obligations to enable the authorities to identify which devices (and their users) are using particular internet protocols at a given time. Whilst this is a specific and targeted reform it is a harbinger of the shift back towards the agenda set out in Communications Data Bill. This Bill, labelled the “Snooper’s Charter”, was shelved amidst Liberal Democrat concerns in April 2013 (opposition that Nick Clegg has continued this week). Public outcry surrounding the Edward Snowden revelations of summer 2013 seemed to have pushed the proposals into cold storage. But amidst the heightened security fears of the last week, and with an election fast approaching, the current Bill is likely to mark just the first phase of a slew of new counter-terrorism legislation.

Après Charlie: The Progress of the UK's new Counter-Terrorism and Security Bill

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