ECHR concerns over Counter-Terrorism Bill, Society claims

Proposed anti-terrorism measures in the UK Government’s Counter-Terrorism and Security Bill could be vulnerable to challenge under the European Convention on Human Rights, the Law Society of Scotland has warned.

The bill introduces a number of measures to restrict the movement of individuals suspected of involvement in terrorism related activities. One is a system of temporary exclusion orders, which would prevent an individual with the right of abode from returning to the UK.

It also allows for the seizure and temporary retention of passports by the police, where an individual is suspected of intending to leave the UK, or has arrived in the UK with the intention of leaving soon after for the purposes of terrorist activity.

The bill is going through its parliamentary passage under the "fast track" procedure, which means that the House of Lords will be asked to waive the recommended minimum intervals between the stages of the bill. In a report published yesterday, the House of Lords and House of Commons Joint Committee on Human Rights said it had been inadequate time to scrutinise the bill properly, but raised a nunber of points of criticism.

Alan McCreadie, the Society's deputy director of law reform, said: “There have not been such restrictions on the movement of British citizens during peacetime, the last comparable piece of legislation being enacted during the Second World War.

“The right of abode is an attribute of citizenship, and being a citizen is a basis for holding certain rights enforceable under the European Convention on Human Rights. Providing the Home Secretary with the power to deprive a UK citizen of their right to live in the country of which they are a citizen is an unprecedented power in UK legislation. It is important that consideration is given as to how the provisions of the bill ensure the rights conferred under ECHR are upheld. We are pleased to see that the Joint Committee on Human Rights agrees with our views.

“We believe that the temporary exclusion order should be subject to court procedure prior to imposition, and that the imposition of such an order by the Secretary of State without recourse to the courts could be successfully challenged under ECHR.”

The Joint Committee, while welcoming the Government's retreat from proposals that could have resulted in people being made stateless, says it is "opposed in principle to any exclusion of UK nationals from the UK, even on a temporary basis". A simpler and better alternative would be to require terrorist suspects to provide advance notice of their return, making it an offence if they fail to do so.

Regarding passport seizure, the Joint Committee accepts there may be a a gap in the law but states that such a power must be carefully targeted and come with additional safeguards for the individual.

Mr McCreadie commented: “There are existing travel restriction powers which were introduced in 2011, which are designed to protect the public from persons believed to be engaged in terrorism-related activity. We question whether the provision to seize and retain a person’s passport is a justified interference with the individual’s rights of respect to a private and family life under article 8 ECHR.”

Among other conclusions, the Joint Committee also calls for further consideration of whether there are sufficient safeguards in the regime for the retention of communications data, and for the exclusion of universities, in the interests of academic freedom, from the proposed new duty on specified authorities to have due regard, in the exercise of their functions, to the need to prevent people from being drawn into terrorism. It also recommends that the proposed Privacy & Civil Liberties Board should be separate from, and not chaired by, the Independent Reviewer of Terrorism Legislation.

Mr McCreadie concluded: “We support any measure which addresses recognised terrorism threats, and which would prevent people from engaging in terrorism-related activity. However, the provisions of this bill have significant restriction implications on the fundamental rights of British citizens and we are concerned at the speed at which it is passing through Parliament. It is important that measures as significant as these have the opportunity for detailed scrutiny and debate, and we fear this is not the case.”