Farewell Magna Carta: the Counter-Terrorism and Security Bill

January 16, 2015 — Comment

Written by Frances Webber

The Bill currently going through Parliament, with virtually no opposition, impinges on basic freedoms and seems calculated to entrench the treatment of British Muslims as non-citizens.

The Bill is being rushed through parliament with no pre-legislative scrutiny or public consultation on most of its provisions – a speed justified by the increased terror threat posed by the return of young Muslims from Syria and Iraq.[1] Introduced at the end of November, it finished its Commons stages on 7 January and had its second Lords reading on 13 January. It is scheduled to finish its Lords stages on 4 February and to become law shortly afterwards. Consultation documents on draft statutory guidance and codes of practice were published just before parliament went on its Christmas break, and consultations close on 30 January.

In essence what the Bill proposes is to apply immigration policing measures – including border controls, carrier sanctions, refusal of entry, conditions of residence, the outsourcing of controls to local authorities, colleges and universities and other public bodies – to the national security policing of both British and foreign citizens, while at the same time doing away with or diluting judicial safeguards. But this national security policing is policing of thoughts, intentions, opinions and attitudes, in a climate in which the Muslim community is by definition suspect. Inevitably, the brunt of this policing will be borne by the Muslim community. Because immigration controls are the vehicle, more British Muslims will find the rights of citizenship increasingly precarious and contingent.

Travel bans

Under the Bill, a police or immigration officer will be able to seize someone’s passport at the port to prevent them leaving the country (whether they are British or foreign), on a reasonable suspicion that the person ‘intends to leave the UK in connection with terrorism-related activity’ abroad. No reasons need be given. Refusal to hand over the passport will be a criminal offence. Force can be used to seize the passport, which can be retained for two weeks, or thirty days with permission from a magistrate, who can’t refuse if the officer is investigating with diligence and expedition. The hearing before the magistrate will be subject to the ‘closed material procedure’ which will exclude the person concerned and his or her lawyer. There is no provision for compensation if the seizure turns out to be wrongful and the suspicion groundless, and the power can be used repeatedly, with minimal safeguards.

There is already power under the royal prerogative to cancel or withdraw British passports (a power used twenty-nine times in the 18 months from April 2013)[2]. The power was used against Moazzam Begg who has campaigned against UK complicity in torture and rendition since his release from Guantanamo, when he returned from Syria in December 2013. (Begg was later arrested on terrorism charges and held in maximum-security prison until his trial, which collapsed in October 2014.) As well as the prerogative power, a ban on international travel can be imposed on anyone believed to be engaged in terrorism-related activity as part of a Terrorism Prevention and Investigation Order (TPIM). But the TPIM contains much more stringent safeguards, including the need for police or security services to obtain judicial authorisation before imposing the order. JUSTICE observed that the government’s justification for the extra powers was as scant as its protection against arbitrariness in their implementation.

The observation has particular cogency in relation to Muslims, who bear the brunt of what Muslim organisations see as the systematic misuse of anti-terrorist examinations under Schedule 7 of the Terrorism Act 2000 at ports, both on arrival and on departure. For some, such examinations have become a routine harassment. Questions about prayer (seen as an indicator of terrorist propensities), and requests to spy on their communities, sometimes combined with threats, are common, they say. Muslim organisations CAGE, the Muslim Council of Britain and the Islamic Human Rights Commission have campaigned against the discriminatory and disproportionate use of Schedule 7 on Muslim passengers, which has become an occasion for ethnic and religious profiling, with people identifying as Pakistani 154 times more likely to be stopped than those identifying as white. Unlike the Schedule 7 powers, the new power to seize a passport needs reasonable suspicion. But with no need to give reasons, no judicial scrutiny unless documents are retained for two weeks, and even then, no scrutiny of the reasons for seizure, the scope for systematic misuse, for suspicion based solely or largely on racial and religious profiling, is as great as under Schedule 7.

Temporary exile

To deal with the threat to national security posed by the return of suspected jihadists from Syria or Iraq, the Bill proposes a ‘temporary exclusion order’ (TEO), under which British citizens abroad suspected of involvement in ‘terrorism-related activity’ can be prevented from returning for up to two years (renewable indefinitely). Those excluded can apply for a ‘permission to return order’ (PTR) which will include conditions similar to those in TPIMs. The TEO invalidates the holder’s British passport, presumably meaning no consular assistance is available against the possibility of arrest and ill-treatment in the country in which he or she happens to be when branded a suspected terrorist.

Magna Carta – to be celebrated with much pomp this year, its 800th anniversary, as the founding document of English liberties – provides that ‘no free man shall be … outlawed or exiled’. The UK has also signed up to the right of citizens to leave and return to their own country, in the International Covenant on Civil and Political Rights. Former attorney-general Dominic Grieve, sacked in July 2014 for his attachment to the European Convention on Human Rights, observed in a debate on the Bill that exile had not been used in the UK since the seventeenth century. But the lack of opposition to the exile provisions indicates either that Magna Carta has become merely a heritage accessory, or that it isn’t intended to apply to people who aren’t ‘really’ English. Shockingly, the human rights memorandum attached to the Bill stated that once British citizens were out of the country, the Human Rights Act did not apply to them – a flagrant misreading of established human rights law. It was left to a former Law Lord who had been deeply involved in reviewing counter-terrorism measures for forty years, Lord Lloyd of Berwick, to express real anger about the powers to seize passports and to exclude British citizens from returning to the UK, which he said were ‘so objectionable in principle that they should be resisted on that ground’. He pointed out that if, as the government believed, half the 500 or so suspected jihadists in Syria and Iraq returned, that would give the security services 250 new suspects to monitor, on top of the 1,500 suspected terrorists in the country already. The increased risk created by allowing return was, he believed, negligible, in relation to the harm created by alienating the estimated 2.5 million Muslims in the UK. You don’t bring a community on side by putting people behind bars, he said.

Magna Carta’s most famous provision promises ‘To no one will we … deny right or justice’. Yet the Bill not only provides for the exclusion of citizens from their own country, it does so by purely executive act, with no prior judicial authorisation or post-hoc appeal. There was a degree of parliamentary dismay at the minister’s glib references to judicial review as a panacea, given that the coalition has made this remedy virtually inaccessible to those without private means by removing legal aid from the preparatory stages and are still trying to remove it from those not resident in the country, after regulations to that effect were quashed by the High Court as unfair. The government has promised to introduce judicial oversight ‘of some form’ to the exclusion orders. But in any event, the coalition’s Justice and Security Act of 2013 hollows out judicial safeguards by providing for closed hearings, so that effective challenge to exclusion will be frustrated by the subject’s ignorance of the reasons for it.

The travel bans and exclusion orders follow hard on the heels of the much-increased powers to revoke British citizenship contained in the Immigration Act 2014, which gave the home secretary the power to revoke the citizenship of a naturalised Briton with no other citizenship, provided she has reasonable grounds to believe he can acquire another nationality. The provision was strongly criticised because it ignored international obligations to prevent statelessness. According to the Bureau of Investigative Journalism, the coalition government had revoked the citizenship of 37 (dual-national) Britons since January 2013, and two former Britons were killed by US drones and one ‘rendered’ to Djibouti and from there to the US shortly after losing their citizenship.

Carrier sanctions

To enforce the travel ban and exile provisions, the Bill proposes new, tougher ‘authority to carry’ schemes for carriers – airlines, shipping and train companies – whereby they will have to supply advance passenger and crew information and refuse boarding to anyone on a government list, on pain of civil penalties and (for repeated infractions) potential withdrawal of UK landing rights. Such carrier sanctions, used since the 1980s to prevent the arrival of undocumented migrants, have not been used before to prevent the arrival of passengers with British passports.

Internal exile

The TPIM regime, which was introduced in 2011 as a ‘lighter-touch’ regime of controls on those suspected of terrorism-related activity, abolished forcible relocation or ‘internal exile’, which was considered the most draconian element of control orders. Human rights solicitor Gareth Peirce had observed that relocation orders ‘may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice, it is colossal’.[3] The government now wants to bring the power back, if the minister is satisfied the person concerned engaging in terrorism or its preparation or instigation. For someone subject to a TPIM, the penalty for breaching a travel ban by leaving the ‘specified area’ where he has been put, is to be doubled, from five to ten years.

Preventing free thought

The proposals causing most concern to groups such as CAGE are those which compel education providers from nurseries to universities, as well as health workers, local authority officials, prison and probation staff – to enact the government’s anti-radicalisation programme, with imprisonment for contempt of court as a possible final outcome of failure to cooperate. The highly controversial Prevent programme, which has been operated on a voluntary basis until now, seeks to root out radical extremist ideology in order to counter terrorism. The government seeks to make it compulsory for education, health, penal and local government bodies to identify and tackle ‘extremism’ and to protect those ‘vulnerable to being drawn in to terrorism’. In practice this means vastly extensive policing of free expression, at all levels and in all spheres.

The Bill requires public bodies to ‘have due regard to the need to prevent people from being drawn into terrorism’, in performing their functions. This is extraordinarily vague. The draft guidance proposed by the minister to flesh it out imposes a vast array of component duties, which will require Stasi-like networks of surveillance and bureaucracy.

Amongst other duties, local authorities must use community safety partnerships and counter-terrorism local profiles produced by police to assess local risks of non-violent extremism, informing their assessment by engagement with schools, colleges, universities, prisons, probation and health services, immigration enforcement teams, police and Prevent coordinators in their areas. They must ensure that publicly owned venues and resources (including IT equipment) are not used as a platform for extremists or to disseminate extremist views, and that organisations they work with do not engage in extremist activity or espouse extremist views. They must ensure that children in children’s homes, after-school clubs and supplementary schools are safeguarded from exposure to extremism, and must set up multi-agency panels to develop action plans for those at risk of being ‘drawn in to terrorism’. Staff must be trained to understand risks and capabilities built to deal with them. Personal information and suspicions must be shared, compatibly with data protection obligations, and records maintained to demonstrate compliance.

Universities, colleges, schools and nurseries and childminders, health workers, prison and probation staff must also prevent and deal with extremism, including identifying, referring or supporting, and sharing information on anyone believed ‘vulnerable to being drawn in to terrorism’, and developing policies and procedures to ensure that extremist views do not get a hearing. This means not just vetting and banning proposed speakers, but also vetting students and monitoring classroom discussions for signs of ‘extremism’. Duties in respect of children might include involving social services. Failure to comply with these duties will enable the minister to issue instructions to the recalcitrant institution, and if necessary to apply to a court for enforcement of the instruction.

Extremism does not appear in the Bill, but it is defined in the Prevent guidance (to be made statutory) as ‘vocal or active opposition to fundamental British values including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs’.[4] This might sound unexceptional on its face, although the reference to ‘fundamental British values’ suggests a political agenda. But recently, pro-Palestine posters in a student union office drew unwelcome police attention; and a Manchester teenager was referred to the Prevent programme for attendance at a peaceful protest against the Israeli ambassador. It seems that in the name of freedom and democracy, freedom of expression is once again under attack. Universities UK, UCU, the NUS and the JCHR, among others, have asked, how is this new duty to be balanced with the obligation on universities to defend academic freedom and freedom of speech?[5] In the wake of recent revelations about police or security services’ surveillance of highly reputable historians, anti-racist activists and bereaved family members of black victims of racist murders, a statutory duty to prevent ‘non-violent extremism’ could easily be directed against ‘vocal or active opposition’ of any sort, including the sort which is vital to democracy – and the provisions will certainly have a chilling effect on the ability to have passionate political arguments in public arenas. JUSTICE has expressed concern that authorities will ‘take an overly restrictive approach to support for freedom of expression and association’.

It also points out the discriminatory potential of the powers under Prevent. In today’s climate of intensifying demonisation of Islam, in the wake of the Trojan Horse affair and condemnation of faith schools in a blatantly political way, would peaceful community protests against offensive images be considered ‘extremist’? Would young children’s expression of faith be justification for nursery staff to warn police, or for social services to remove children from overly pious homes? These fears are not fanciful. Since the start of the Channel programme (on a voluntary basis) in 2007, 1,400 children, including 153 under-11s, had been referred for anti-extremism programming, out of a total of 3,600. The referrals were overwhelmingly of Muslims. As Arun Kundnani observes in A decade lost: rethinking radicalism and extremism (Claystone, 2015), for young Muslims in Britain there is ‘little space for strongly worded criticism of foreign policy … in the Middle East, South Asia or East Africa’, when passionate dissent is seen as radical extremism.

The Prevent programme, and the counter-radicalisation industry it has spawned and which will profit from these provisions, as Kundnani points out, is based on a fundamentally flawed premise: that radical religious ideology causes terrorism. Former CIA officers and academics alike are beginning to realise that holding radical Islamist beliefs is not predictive of terrorism, he says. Religious ideology ‘provides the vocabulary and cohering identity’, ‘but politics provides the impetus’. And as Liz Fekete points out, for Muslim communities in Europe, the politics has been structural racism, deprivation, marginalisation.

The context

The Bill appears at a time when confidence in the executive’s willingness to adhere to the rule of law has been badly shaken, in the wake of the continuing attempts to conceal the collusion of the government in the CIA’s rendition and torture programme, revelations of systematic interception of confidential lawyer-client communications, of long-term police illegality and systematic unlawful surveillance. These revelations have done nothing to stop the continuing discriminatory misuse of police powers, whether stop and search or Schedule 7, or the stream of hasty and ill-conceived headline-grabbing announcements, investigations and measures against Muslims.

In the second-reading debate in the House of Lords, two Law Lords, Brown and Lloyd, expressed regret for the over-hasty internment provisions of the 2001 Terrorism Act. Lord Brown said, ‘the Belmarsh detention scheme … in retrospect can be seen as a really shocking form of open-ended preventive detention of foreign suspects’.[6] Although these measures directly impacted on less than twenty terrorist suspects, they had a profoundly damaging effect on the Muslim communities of the UK and their confidence in the rule of law in the UK, because they were used solely to intern Muslims, and created not only fear but a strong sense of injustice. It is likely that if these provisions go through, in a decade or so parliamentary elder statesmen will concede that another grave mistake was made.

The Islamic Human Rights Commission has decided not to participate in the consultation process, which it believes to be a sham. (See its statement here.) By contrast, CAGE wants as many people as possible to respond to the government’s consultation on the public-sector duties under the Prevent programme. See its appeal here.

See the Counter-Terrorism and Security Bill here.

[1] See the explanatory notes to the Bill here. [2] Theresa May, Counter-terrorism and security Bill second reading, Hansard HC 2 December 2014, col. 208. [3] Joint Parliamentary Committee on Human Rights, 9th report 2009-10, Counter-terrorism policy and human rights (16th report): annual renewal of control orders legislation 2010, para. 41. [4] See HM Government, Prevent duty guidance: a consultation, December 2014. [5] A point made by Baroness Lister in the Lords 2nd reading debate, Hansard HL 13 January 2015, col. 719. [6] Lord Brown, House of Lords 2nd reading debate, Hansard HL 13 January 2015, col. 686.

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.


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