Counter-terrorism and Security Bill–updates after committee stage in the House of Lords by Bharath Ganesh
Despite legislation being passed through Parliament at lightning pace, the House of Lords debated the Counter-terrorism and Security Bill over three days in the committee stage. During this time, members of the House of Lords made amendments to a bill that is over forty pages long.
Judicial oversight
The first day of the committee stage was dominated by a discussion about judicial oversight, the question of ‘reasonable suspicion’ and the role of the courts in validating Temporary Exclusion Orders (TEOs), an issue that was divisive in the House of Commons and frequently mentioned in earlier stages in the House of Lords.
On the first day of committee, amendments were passed that add a new schedule to the end of the bill that stipulates that after the Secretary of State imposes a TEO (where a British national that has engaged in terrorism-related activities is prevented from returning to the United Kingdom for two years) the court, within seven days, must consider whether the imposition of such an order is “obviously flawed” (Hansard, 20 Jan 2015, Col 1260).
The success of some of the amendments (which were sponsored by Lord Bates, Parliamentary Under-Secretary for the Home Office) suggests that the government has taken a more conciliatory position on judicial oversight than their representatives did in the House of Commons. The amendments maintain the power of the Home Secretary to impose a TEO in the case of urgency while ensuring that the use of this power is circumscribed by appropriate due process.
During the second day of committee, discussion focused on the position of the courts in reviewing cases where Terrorism Prevention Investigatory Measures were put on individuals, forcing them to relocate in what has been referred to as ‘internal exile’. The amendment attempted to subject the Home Secretary’s power to impose forced relocation of a terrorism suspect to judicial oversight by having a court confirm if, “on the balance of probabilities, the individual is, or has been, involved in terrorism-related activity” (Hansard, 26 January 2015, Col 18). This amendment, despite a long debate, did not pass.
Data retention
Debate on the second day was also concerned with Part 3 of the bill, which includes clauses that call on telecommunications companies to retain relevant internet data, primarily IP addresses and MAC addresses that have identifiable information about users. There was serious debate over the limits to what data would be collected, how long it would be stored, and in what cases it could be used. Messages sent on the internet, for example, have identifiable metadata and telecommunications operators could be served with a data retention notice that would require them to hold such metadata and provide it to authorities for investigation purposes.
According to Lord Bates:
“Any messages sent over the internet, including via social media platforms, will have associated communications data. That has always been the case under existing legislation. Where those data are generated or processed in the UK by a company subject to the data retention notice, they can be used to resolve an IP address–that is, they can be retained under this Bill. Those data could then be accessed only where it was necessary and proportionate to do so for a specific investigation” (Hansard 26 January 2015, Col 31).
The inclusion of this section of the bill is due to a perception that electronic communication is being used to coordinate terrorist activity. However, according to Lord Paddick, this might actually obscure the intelligence picture and may undermine relationships with communities of interest:
“The problem…is getting good intelligence. That is about developing links with the Muslim community and with communities where the extreme right wing operates, and gaining their trust and confidence in order to get that intelligence” (Hansard, 26 January 2015, Col 50).
Despite a long debate with a number of interventions from those that believed that such data retention may not be effective in counter-terrorist policing and might be too invasive a form of surveillance, the clauses in Part 3 of the Bill remained mostly unchanged.
Prevent
On the third day of committee, January 28, debate centered on the question about making the Prevent strategy a statutory ‘duty’ across public institutions. Early on during the discussion, Baroness Warsi raised the point that the Prevent strategy has a number of problems that have been highlighted elsewhere:
“There have been concerns about the Prevent and counter-radicalisation programme for a number of years. There has been a view that it is being done badly, and reports going back as far as five or six years, from 2009 onwards, have consistently argued that the quality of Prevent work is questionable. Indeed in some cases it has been said that the Prevent work itself has further alienated communities rather than deradicalised them” (Hansard, 28 January 2015, Col 212).
A number of other members of the House voiced similar concerns about the Prevent strategy, though no amendments were brought forth that significantly curtailed the propositions made in the bill regarding Prevent. However, based on an outcry from a number of university officials about the Bill limiting free speech on campuses, an amendment was put forward (though it was ultimately withdrawn) that universities would be excluded from the Prevent duty. Baroness Manningham-Buller, a former MI5 head, worried that the bill’s provision for ‘non-violent extremism’ to fall under the Prevent heading would “conflict with university’s existing obligations to protect free speech” (Hansard, 28 January 2015, Cols 241-242). It is possible that there is enough opposition in Parliament to remove universities from the Prevent duty before the bill passes: Baroness Lister, who tabled the amendment, stated the following before she withdrew the amendment:
“I cannot remember many debates in your Lordships’ House where not one noble Lord has spoken in support of the Minister…We have heard important arguments of principle that go to the heart of what a university is about and have pointed out how we could undermine the very values that we are trying to protect.”
Given the skepticism in the House over the inclusion of universities in the Prevent duty, it does seem possible that with some reflection, the Government may change its position when the bill goes to the next round of debate. All the same, there has been little talk of the duty in schools and the NHS.
The amendment also led to an interesting discussion on where radicalisation was taking place and as well as challenging the notion that radicalisation is a linear process. Lords acknowledged that radicalisation does not necessarily occur in universities or even places of worship (see Hansard, 28 January 2015, Col 215). Rather than these sites that equally challenge radicalisation, it was in private spaces that members of the House of Lords mentioned: bedrooms and homes, cafés and online. This demands an approach that does not put a community under scrutiny, though the Prevent strategy as it stands in the bill would police universities and mosques, but have little effect in more private spaces.
Further discussion on the Prevent section of the bill referred to the guidance that the Home Secretary would be required to produce. One of the problems mentioned was the “prescriptive” guidance already produced by the Home Office on the Prevent duty (which refers to the requirement that officials of public institutions be responsible for reporting individuals at risk of radicalisation).
Lord Hannay of Chiswick called the guidance “horrifying” because of its “intrusiveness” and the “absolute impossibility for most universities to carry out these provisions” (Hansard, 28 January 2015, Col 247). He hoped that the Government would revisit the role of universities in the Prevent strategy in future stages of the bill.
An amendment was also put forth pushing the Home Secretary to issue guidance that referred to equalities and discrimination, with the sponsor Baroness Hamwee citing specifically that “Prevent is regarded as a security prism through which all Muslims are seen and that Muslims are suspect until proven otherwise” (28 January 2015, Col 267).
Given the fact that in reality, many terrorist attacks do not involve Muslims and far-right terrorists, who target Muslims directly, have been successful in attacks in Europe recently, it seems that equalities and discrimination guidance would be of particular import in ensuring that the Counter-terrorism and Security Bill takes a balanced approach in protecting all British citizens instead of singling out one community.
After significant debate over the issue, however, the amendment was withdrawn, with Baroness Hamwee calling for “transparency and safeguards” (28 January 2015, Col 279) to ensure that the power that the bill provides is not used in discriminatory fashion. The debate ended on the 28th (the end of the committee stage), with a number of amendments regarding devolution and local authorities’ roles in a statutory Prevent strategy under the CTS Bill that were not particularly controversial.
Going forward
The report stage of the bill remains in the House of Lords. This means that the opportunities for revision and reflection on the Prevent strategy will have to take place in the next week as the report stage begins on February 2.
Despite a number of opinionated members of the House of Lords strongly against universities being involved in the Prevent duty and discussion of the ineffectiveness and problems of the strategy in terms of alienating the Muslim community, it seems the government has managed to keep most of its Prevent strategy intact.
It remains to be seen if pressure can, in the next few weeks before the bill is voted on and passed into law, dilute the strong position that the Prevent strategy will take if the bill is given Royal Assent in its current form.