Thursday, 27 November 2014

The Counter-Terrorism and Security Bill ~ Overview

Once enacted, the latest Counter-Terrorism and Security Bill will be the 6th terrorism-related Act since year 2000.  The announcement of the need for additional legislation was covered in my blogpost of 15th November.   Earlier this week the Home Secretary spoke about the terrorism threat to the UK, the Intelligence and Security Committee issued a report relating to the murder of Fusilier Lee Rigby and the Prime Minister spoke in the House of Commons about the report (Law and Lawyers 25th November).

Parliament's website has this PDF version of the Bill as introduced on 26th November.  The publication of the Bill is accompanied by Explanatory Notes (PDF 56 pages).   Matters such as the need for the legislation and the need for fast-tracking it through Parliament are addressed in the first 54 paragraphs.  Thereafter is a more detailed look at the clauses in the Bill.  The Explanatory Notes are well worth reading in full by any reader requiring a detailed look at the Bill.

The Bill is divided into 7 Parts and 5 schedules. The following paragraphs take a brief look at each Part.

Part 1 - Temporary Restrictions on Travel

Essentially, Part 1 -

(a) enables seizure and temporary retention of travel documents where a person is suspected of leaving Great Britain or the UK in connection with terrorism-related activity;

(b) enables the Secretary of State to impose Temporary Exclusion Orders provided that a number of conditions in Clause 2 are met.

A TEO will require the individual not to return to the UK unless the return is either in accordance with a Permit to Return issued by the Secretary of State or the return is because the individual is being deported back to the UK.    A TEO can last for 2 years and can be renewed.  If a TEO is issued it will invalidate any British passport held by the individual.  Permits to Return may contain conditions such as those that can be applied to TPIM.  The individual has to be given notice of the TEO.  Just how this is to be done is to be set out in Regulations.  Practitioners will need to look carefully how "service" is to be achieved.

This is a draconian new power that will be used against those who hold British Nationality and its legality may well be tested in the courts.  Whilst the individual can always apply for a Permit to Return, it may be - (not sure) - that lengthy exclusion might be held to amount to making the individual "stateless" for all practical purposes.  (For another view on this see the Head of Legal Blog 14th November - The PM's 'foreign fighters' plan: probably lawful).  The Independent Reviewer of Terrorism Law (David Anderson QC) has expressed concern at the lack of recourse to the courts in relation to the imposition of TEOs - The Guardian 26th November.

Part 2 - Terrorism Prevention and Investigation Measures (TPIM)

The Terrorism Prevention and Investigation Measures Act 2011 (TPIMA) replaced control orders with TPIM. The latest Bill amends this Act.

The various measures in Schedule 1 of TPIMA are either amended (Overnight Residence; Travel) or added to (Weapons and Explosives measure; Appointments Measure).  The result will be a list of 14 possible measures.

At present, a TPIM may be imposed provided that the requirements in TPIMA section 3 are met.  Conditions A to E have to be met.  Condition A states:

Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

This will be amended by the Bill to read:

Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity (the “relevant activity”).

This enhances the degree of evidence required by the Secretary of State before a TPIM may be imposed and so it is an improvement to the legislation and the courts have a role in relation to TPIM - see TPIMA sections 6 to 9 and 16 to 18.

Part 3 - Data retention

Thinkbroadband takes a useful look at the likely impact of the Bill on use of the internet.

Part 4 - Aviation, Shipping and Rail

This Part is concerned with "Authority to Carry" Schemes.  A scheme will require the carrier (i.e. an airline, shipping company or railway operator) to obtain authority from the Secretary of State to carry specified persons.

By Clause 18(2) - An authority-to-carry scheme must specify or describe -

(a) the classes of carrier to which it applies (which may be all carriers or may be defined by reference to the method of transport or otherwise),
(b) the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise), and
(c) the classes of passengers or crew in respect of whom authority to carry may be refused.

An authority-to-carry scheme may specify or describe a class of person under subsection (2)(c) only if it is necessary in the public interest.  [Note: The Secretary of State will be the judge of what is in the public interest and it will be far from easy to challenge that - ].

Such schemes are not a new idea.  There is an existing scheme under the Nationality, Immigration and Asylum Act 2002.  However, the scheme in the Bill will replace existing schemes.

Part 5 - Risk of being drawn into terrorism

This Part is concerned with prevention of individuals becoming terrorists or supporting terrorism or extremism. 

Clause 21 imposes a duty on "specified authorities" to exercise their functions having due regard to the need to prevent people from being drawn into terrorism.  The Specified Authorities are set out in Schedule 3 and the list includes local councils.  The duty does not apply to judicial functions, to the House of Commons, to the House of Lords, the Scottish Parliament or the National Assembly for Wales.  There is an Henry VIII power in Clause 22 enabling the Secretary of State to amend Schedule 3 but certain authorities cannot be added - e.g. Houses of Parliament, Scottish Parliament, National Assembly for Wales, the General Synod of the Church of England etc.  The exclusion of the General Synod is interesting and I have not been able to find an explanation for this.  However, Schedule 3 does not refer to any other religious bodies.

The Secretary of State is empowered to issue guidance as to how the duty in Clause 21 is to be applied and Directions may be issued to a specified authority considered by the Secretary of State to be in breach of the duty.

This Part goes on to require local authorities to have a panel of persons to assess the extent to which identified individuals are vulnerable to being drawn into terrorism.  The Police will refer individuals to the panel.  Such individuals can become subject to a plan of support determined by the Panel - see Clause 28(4) for the detail of such plans.

Part 6 - Amendments to the Terrorism Act 2000

There will be a new section 17A inserted into the Terrorism Act 2000 to make it an offence for insurers to make payments in response to terrorist demands.  This is reflective of the UK government's stance - not necessarily agreed to by other States - to not pay ransom demands - see, for example, The Guardian 4th September 2014.

Lloyd's looks at the impact on insurers

Schedule 5 of the Bill amends Schedule 7 of the Terrorism Act 2000.  (Not considered further here).

Part 7 - Miscellaneous and General

This enables the Secretary of State to create a Privacy and Civil Liberties Board to be chaired by the person appointed under section 36 of the Terrorism Act 2006 - i.e. the Independent Reviewer of Terrorism Legislation.  At this stage, it is not clear to me how independent of government the Board will be in practice.

Part 7 covers the extent of the Bill - Part 5 extends to England, Wales and Scotland.  Other provisions extend also to Northern Ireland.  Part 7 also deals with commencement.

Independent Reviewer of Terrorism Legislation:

The Joint Committee on Human Rights has issued this uncorrected transcript of the evidence given to the committee by David Anderson QC on 26th November 2014.

House of Commons Library Research Paper:

On 28th November, this research paper into the Bill was made publicly available.

Some media reaction:

The Telegraph asks - How many counter-terrorism laws can we invent before terrorism is defeated?  It's a fair question and law alone is unlikely to defeat it.  Nevertheless, the latest Bill is highly unlikely to be the last in this area.  Powers granted to government - however justifiable individually - never seem to be quite enough.

The new TPIM provisions will enable a form of "internal exile" in the UK argued The Guardian on 21st November. 

Counter-terrorism and Security Bill: proposals and pitfalls - The Guardian 24th November

Counter-Terrorism Bill published, slammed by civil liberty groups - RT UK 26th November

Henry Jackson Society 26th November - Today's Counter-Terrorism and Security Bill is essential to effectively tackle heightened terrorist threat

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