Temporary exclusion orders: is reasonable suspicion enough for the government to prevent British citizens from returning to the UK?

Tell MAMA is following the progress of the Counter-terrorism and Security Bill as it moves through Parliament. The large bill spans travel restrictions, the seizure of passports, making the Prevent programme statutory under the law, and has implications on data, communications and monitoring the population. Follow Tell MAMA to stay up to date on the debates as the bill moves through various stages.

A new law that will significantly expand government powers to counter terrorism is being sped through Parliament. The Counter-Terrorism and Security bill is proposes a number of changes to existing legislation. The bill will significantly impact civil rights in the UK. Introduced for its first reading in the House of Commons on 27 November 2014, the bill is now in at committee in the House of Lords and will be debated further on the 26th of January, 2015.

The stakes of the bill are very high: it includes ‘temporary exclusion orders’ (Chapter 2 of the bill) and will make the Prevent programme statutory law. Discussion of #ToddlerTerror just after the New Year came out after new guidance from the Home Office (with a consultation closing on the 30th of January, before the bill will become law) about a ‘Prevent duty’ asserted that all public officials—from university chancellors to police officers, GPs and yes, even nursery school teachers—will be responsible for monitoring and reporting on individuals that might have a propensity to violent extremism.

Discussion in the House of Commons on the 6th and 7th of January essentially focused on a debate about judicial oversight of temporary exclusion orders (TEOs). The bill would allow for the seizure of passports of individuals suspected of leaving the UK for terrorism-related activity, but the TEOs, a new power, will require an individual not to return to the UK unless the Secretary of State gives them leave to return. A TEO will be in place for two years and can be placed on an individual that meets four conditions:

  1. The Secretary of State ‘reasonably suspects’ that the person in question is engaging in terrorism-related activity.
  2. It is expedient to prevent the person from returning to the UK in order to protect other members of the public from the risk of terrorism.
  3. The person should be outside the United Kingdom.
  4. The person has the right to live in the UK.

MPs broadly agreed that all four conditions were satisfactory. The debates on the 6th focused on amendments that would require the Secretary of State to apply to a court for permission to impose a TEO (Hansard, 6 January, Col 164). Much of the debate in the long session focused on this question. It got a bit heated after Dominic Grieve (former Attorney General, and a Tory MP) called for judicial oversight:

“Sir Edward Leigh (MP Gainsborough and Horncastle, Con): the people that the Secretary of State is trying to exclude are crazed jihadists who hate our liberties and our country, who cut off the heads of aid workers and who would love to come here and kill our children.” Sir Leigh goes on to say that Grieve’s “old-fashioned” and “legalistic” arguments for judicial oversight of TEOs “are not appropriate for dealing with those sorts of people” (Hansard, 6 January, Col 181). This emotive appeal is disheartening to say the least and it ignores the fact that terrorist attacks in Europe have come from a number of different sources—most of them non-Muslim. Mr Grieve responded that he agreed with the Government’s approach but believes that the courts must be involved: “I happen to believe in the presumption of innocence…judicial oversight would be helpful in giving…authority to the decisions and thereby ensuring that they are accepted within the communities.”

The dialogue between Sir Leigh and Mr Grieve skirts around a key issue: the abuse of ‘reasonable suspicion’ and its disproportionate application on specific communities. Since Section 44 of the Terrorism Act was struck down because it did not require ‘reasonable suspicion’ the clause that replaced it has rarely been used. All the same, according to Liberty, in evidence submitted to Parliament, “reasonable suspicion” offers “little protection from arbitrary use of power” (Liberty, page 6). A clear process of judicial oversight would ensure that TEOs are effective by only excluding those who can be proven to have engaged in illegal activity before excluding them from the UK for two years. As Liberty points out, without courts being involved, the proposed bill could actually terrorist related activities further underground (page 11).

On the 6th, the amendment for judicial oversight ultimately failed. On the 13th of January, the House of Lords stated that it will be considered in the committee reading due to happen on Friday. If the law does pass as it is, then it will leave out effective oversight over what counts as reasonable suspicion. At the end of the debate on Tuesday the 6th, James Brokenshire MP said they would look “carefully” at the suggestions made by David Anderson QC. In his response to the debate, he states quite clearly that the courts should be involved before the imposition of a TEO: “prior permission of the court should be required…such procedures are short and simple [but] they serve to concentrate the Home Secretary’s mind, and ensure that she places all her cards on the table. […] It would not only prevent the abuse of a strong executive power, but offer a guarantee that it will not be abused…to short-cut civil liberties is to play into the terrorists’ hands”. It is imperative that the Lords committee debate take the Independent Reviewer of Terrorism’s recommendations to heart in order to make sensible counter-terrorism policy.