Theresa May has attracted widespread criticism of her Counter Terrorism and Security Bill from all sides of the political spectrum, including Conservative backbenchers.
May’s proposed bill has serious ramifications for the liberty of all citizens, even though she has been keen to emphasis the impact it will have on terrorism suspects.
The backbencher backlash concerns May’s proposals to block suspects from returning to the UK without having to go through due judicial process. In effect, if passed, the legislation would permit politicians to decide if a person is refused entry back in to the UK.
If implemented through political rather than judicial process, critics argue that blocking or controlling a person’s entry back into the UK may render them stateless.
A number of senior Conservatives are preparing to back a Labour-led amendment that would force the Home Secretary to go to the courts. May told concerned MPs last month that “as the minister with responsibility for national security, it is right that I, as Home Secretary, and not the courts, impose an order of this kind”.
Former shadow home secretary David Davis told The Independent “My view is that these orders should not be in the gift of the government; there should be a judicial mechanism,” Mr Davis said. “There are plenty of countries that can take away your passport at the stroke of a pen, but they tend to be places like North Korea.”
Mr Davis said that he will back the amendment, which was tabled by Shadow Home Secretary Yvette Cooper last week.
Ms Cooper said: “We are putting forward amendments this week including additional judicial safeguards. The police and security agencies need to be able to take swift action, but there also needs to be proper oversight and judicial safeguards to make sure powers are not abused. We also believe further reforms are needed to ensure that measures are effective and proportionate, and we expect further debate in the House of Lords.”
David Anderson QC, the Independent Reviewer of Terrorism Legislation, told MPs in November: “My central concern is, where are the courts in all this?”
He is also worried about the Bill’s introduction of a Privacy and Civil Liberties Board. This would be used to support the work of the Independent Reviewer. Mr Anderson has previously argued that the post is under-resourced yet also does not cover a wide enough range of laws.
Last night he warned: “If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope. But if the Board is allowed to become a talking shop for the great and the good, the Reviewer’s efforts will be dissipated by competing agendas and the requirements of compromise.”
The main points of May’s Counter Terrorism and Security Bill are:
Barring returning terrorists
New temporary exclusion orders to control the return to the UK of British citizens suspected of involvement in terrorism-related activity abroad. The orders will be enforced through the cancellation of travel documents and inclusion of the individual’s details on British border “watch lists”, including no-fly lists.
This is the most problematic of the proposals, both legally and practically. This “managed return” of British citizens tries to get around the international conventions to prevent people being made stateless by making the suspect choose between being allowed into Britain on condition they are monitored by the security services and tagged – possibly with other measures – or face the prospect of being banned from the country for up to two years, even though they will in effect be left stateless. It is also unclear yet how the ban on entry will be enforced, given loopholes in current “e-borders” coverage such as minor ferry ports and small aircraft.
A new statutory duty on colleges, schools, prisons, probation providers, police and councils to “prevent individuals being drawn into terrorism”. Ministers will have powers to issue directions, enforceable by a court order, to organisations that repeatedly invite extremist speakers or fail in their duty in other ways.
Universities will have to put in place extremist speaker policies and prisons will have to show they are dealing with extremist prisoners in “an appropriate way”. Organisations will have to take into account guidance published by the home secretary. If they consistently ignore it, ministers will be able to issue directions to them, which will be enforceable by a court order
Monitoring air passengers
Tougher measures on airline security requiring airlines to provide passenger data, including credit card details, in advance, changing the law to extend the no-fly list and imposing new screening requirements on those travelling to the UK.
Airlines that fail to provide advance passenger lists could be denied landing rights. Currently, 90% of flights from within Europe supply this data, with most of the 10% remainder involving German airlines, where data protection laws prevent such disclosure. The law in Germany is changing, but while this would provide 100% coverage of internal EU flights this is not the case for the rest of the world, where the coverage is far lower. Advance passenger lists do not yet fully extend to ferry or train companies either, so these could be loopholes.
Preventing travel abroad
Police and Border Force officers to be given new powers to seize passports and tickets of British citizens at the border, for up to 30 days, if they suspect they are leaving to engage in terrorism-related activities
This will extend the current limited detain and question for up to six hours schedule 7 anti-terrorist port powers. The ban on leaving the country for 30 days will be new and will depend on the effectiveness of the Home Office watch lists, which do not have a 100% record.
Reforming the terrorism prevention and investigation measures (Tpims) regime so that suspects can be relocated to a different part of the country. The threshold for issuing a Tpim is to be raised to the civil standard of proof of “reasonable balance of probabilities” and the definition of terrorism narrowed to exclude those caught up on the periphery of terrorist-related activity.
With only one Tpim currently in force, the package is likely to revive their use for jihadis returning from Iraq and Syria who cannot be prosecuted for lack of evidence. The number could run into the low hundreds and the orders could prevent them from using phones and the web or meeting certain associates, and compel them to stay at a certain address for a set number of hours a day.
Banning insurance companies from paying ransoms
A criminal offence will be created to tighten the law to make it illegal for UK-based insurance companies to provide cover for terrorist ransom payments.
The UN estimates that ransom payments to Isis have totalled £28m in the past 12 months. The law already makes it illegal for insurance companies to underwrite terrorist ransom payments. Ministers say this measure will clarify the law and end uncertainty.
A requirement for internet service providers to retain data on internet protocol addresses to allow individual users to be identified.
Temporary addresses are attached to computers and phones while they are online, but the records of these are patchy, which means they cannot easily be matched back to individuals. The new law will require internet and phone companies to generate the records, retain them and hand them over to the police and security services on request.
Civil liberties monitoring
A new civil liberties and privacy board will be set up to support the work of David Anderson QC, the independent reviewer of terrorism laws.
The board will review the operation of the counter-terrorism laws and advise on whether they adequately take account of privacy and liberty concerns. Originally, ministers said the new board would replace Anderson. The home secretary said on Monday that the board would now support him in his work.
On the face of it, most of the requirements of the bill may seem reasonable. The problem is that this kind of legislation is presented as a solution to a ‘problem’ when in fact it sets the foundation for other oppressive legislation in the future.
If we combine the proposals in this bill with legislation already passed into law (such as the ‘emergency’ Data Retention and Investigation Powers Bill which was rushed through parliament earlier this year), it gives the government unprecedented powers to severely restrict most actions which could be used to demonstrate against, or significantly criticise, the government. The legislation also gives the government unprecedented powers to snoop on the entire population of the UK. Although the data communications bill failed to get through Parliament, piece by piece May is trying to introduce it through other measures.
Refusing entry to a UK citizen is probably one of the most contentious issues of May’s current proposal, and we don’t see how this is going either to prevent or control terrorist (or potential terrorist) activities. All it does is move the problem somewhere else.
What we need is for the very robust existing legislation to be applied. This is more than capable of dealing with terrorist suspects.
Former MI6 Director, Richard Barrett, has been critical of government plans to change or add to terrorism legislation.
Barrett’s primary concern is the lack of legal process in banning UK citizens from returning to the country and the potential for abuse by politicians.
Logically, if someone is known to be involved in terrorist activities they should be made to pay the price for their actions through due legal process – not allowed to remain free somewhere else in the world where they can continue to wreak havoc.
Perhaps this proposed legislation has little to do with terrorism and is about introducing more controls on the population in order to protect government interests.
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