The United Kingdom’s Counter-Terrorism and Security Bill, HC Bill 127, had its first reading in the House of Commons on Wednesday, November 26. The Bill has been published at a time when the British Home Secretary has described “the threat we face right now is perhaps greater than it ever has been and we must have the powers we need to defend ourselves.” The Explanatory Notes to the Bill estimate that half of the 500 persons believed to have traveled to Syria and Iraq to participate in the conflict, have returned to the U.K., and this Bill is the response to this challenge.

Press in the U.K. and elsewhere have summarized the new measures, (see, for example, this article, and this one). Proposed new measures include amending the Terrorist Prevention and Investigation Measures (TPIMs) to permit relocating an individual away from his home to another part of the country in sections 12 and 13, prohibiting an individual’s possession of weapons or explosives in section 14, and requiring individuals to attend specified appointments in section 15. The reasonable belief standard required for the imposition of TPIMs has been lowered to satisfaction on the balance of probabilities. Powers to retain internet data are expanded in section 17. Border security measures, such as relating to no-fly lists, are strengthened in section 18. Local governments, prisons, schools and universities will be required to prevent people from being drawn into terrorism, in sections 21 through 27 and Schedule 3. And insurance against payments being made in response to terrorist demands is criminalized in section 34.

Following on from my recent post concerning confiscation of passports, this post examines two of the most controversial new powers in the bill: (1) the seizure of passports from persons intending to leave the U.K., and who are suspected of involvement in terrorism, and (2) temporary exclusion from the United Kingdom.

Section 1 and Schedule 1 deal quite extensively with the procedure for seizing passports at a port or border area. A traveler may be required to hand over all travel documents and be subject to search for travel documents by a police officer. Police may retain travel documents if an officer has reasonable grounds to suspect that the person has the intention of leaving the U.K. for the purpose of terrorism-related activity outside the U.K, or has arrived in the U.K. with the intention of leaving it soon for that purpose. Terrorism-related activity is interpreted extremely broadly, and covers giving support or assistance, or encouragement to the commission, preparation or instigation of terrorist acts. No guidance is found as to the meaning of “reasonable grounds to suspect.”

The retention of the travel document must be authorized by a senior police officer, and the traveler must be told that he is suspected of leaving the U.K. for the purpose of involvement of terrorist-related activity abroad. The travel document may be retained for fourteen days. After the first seventy-two hours a senior police officer of chief superintendent rank must review the retention, and if confirmed, inform the Secretary of State. After fourteen days, further retention of the travel documents may only be authorized by judicial authority, after the traveler has had an opportunity to make oral or written representations, with the benefit of legal representation. However, the traveler and his representative may be excluded from any part of the hearing or from access to any information if there are reasonable grounds for believing that the disclosure of information might result in hindering specified counter-terrorism activity. This is similar to current provisions in proceedings to challenge detention before charge, in Schedule 8 Terrorism Act 2000. Any further retention will be authorized for up to an additional sixteen days, in other words, thirty days in total. Although the same person’s travel documents can be retained more than once, after this happens on two or more occasions in a six-month period, the retention period in any subsequent seizure is reduced from the initial fourteen days to five before a challenge can be made.

This passport-seizing power appears to have been carefully crafted to include certain levels of procedural fairness. The same cannot be said for the temporary exclusion order provisions in sections 2 through 1. According to the Explanatory Notes, the temporary exclusion order provisions “would enable the law enforcement and intelligence agencies to disrupt and control the return to the UK of British citizens who have travelled abroad to engage in terrorism-related activity, and place requirements on them once returned, in order to manage the threat they pose at that point.” The proposed power to order temporary exclusion from the U.K., has prompted an instant storm of criticism from human rights groups, and the opposition Labour Party. The immediate response of Independent Reviewer of Terrorism Legislation, David Anderson Q.C. was to query “where are the courts?”

The order will prevent an individual from returning to the U.K. unless the Secretary of State has issued a permit to return. Until now the Government could prevent the entry of foreign nationals. The new provision extends this prevention power to British citizens.

Four conditions must be met before the Secretary of State can order a temporary exclusion. The Secretary of State must: (A) reasonably suspect that an individual is, or has been involved in terrorism-related activity outside the U.K; (B) reasonably consider that the temporary exclusion order is necessary to protect the U.K. public from a risk of terrorism; (C) reasonably consider that the individual is outside the U.K; and (D) the individual must have a right of abode in the U.K.

A temporary exclusion order can last for up to two years, and the same individual can be subject to further exclusion orders after the expiry of the first order. There is no cap on the number of exclusion orders that may be made in respect of an individual. The individual who is to be excluded must be given a notice that the order has been imposed and an explanation of how to make a permit to return. That permit may be made subject to specified conditions, as well as instructions as to the date, mode of transport and permitted place of arrival. Once a person applies for a permit to return, the return date must fall within a reasonable period after the date of application. A permit to return may be refused if the individual is required to attend an interview with a police or immigration officer at a specified time and place, and he fails to attend. Neither the Bill nor the Explanatory Notes specify where that interview will take place. Presumably officers will have to travel outside the U.K. for this purpose. If an individual is to be deported to the U.K. a permit to return must be issued. Once an individual has returned the Secretary of State may impose TPIMs, and the range of measures is extended in the Bill.

What is notably absent is a right for the individual to challenge the imposition of a temporary exclusion order. This will undoubtedly have some human rights implications. The rights and mechanics need to be worked out. Where, when and by whom may challenge take place?

The Bill will be undergoing Parliamentary scrutiny and debate, together with representations from human rights and other organizations. No doubt several changes will be seen in the final form of this legislation.