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Abstract
This article evaluates certain recent changes in counter-terror law and policy in response to rising threats to security in recent years, often associated with the activities of supporters of ISIS or similar groups, or suspected supporters. A range of security concerns and policy strands led to the introduction of a number of new counter-terror measures in the Counter-Terrorism and Security Act 2015. This article does not set out to provide a comprehensive examination of the Act's provisions, but covers its extension of coercive non-trial-based measures aimed at terrorist suspects generally, but particularly at persons who have gone abroad to support ISIS or may seek to do so: the introduction of Temporary Exclusion Orders, excluding persons suspected of travelling to Syria to fight with ISIS from the UK temporarily, travel restrictions, and the strengthening of TPIMs (a form of ‘light touch’ control order). This article considers, in the aftermath of the November 2015 Paris massacre, the roles to be played by the new and planned measures in terms of increasing security, and the extent to which their design has also been influenced by the ECHR, taking account of relevant jurisprudence under the Human Rights Act and at Strasbourg.
Notes
1 For example, about 3000 Metropolitan police officers were on duty at key locations around London and the river Thames on New Years’ Eve 2015: the Guardian 29 December 3015, K. McVeigh. Also the Prime Minister unveiled his Strategic Defence and Security Review (SDSR) plans shortly after visiting the scene of the Paris terror attacks: Ministry of Defence, HM Treasury, Cabinet Office and The Rt Hon Michael Fallon MP 23 November 2015.
2 A state of emergency was declared in France in the wake of the attacks that killed 129 people; French MPs then voted to extend the national state of emergency for three months, while François Hollande prepared a major tightening of security laws. The lower French house of parliament voted overwhelmingly to extend the measures until the end of February 2016 and to increase certain powers, including immediately placing people under house arrest if they are considered a risk: see Law No. 55-385 of 3 April 1955 on the state of emergency, Decrees No. 2015-1475, No. 2015-1476, No. 2015-1478 of 14 November 2015, No. 2015-1493 and No. 2015-1494 of 18 November 2015, and Law No. 2015-1501 of 20 November 2015; see also, for example, the Guardian report of 19 November 2015, A. Chrisafi and J. Borger.
3 The terrorist group variously known as ‘Islamic state of Iraq and Syria’ (ISIS) or ‘Islamic State’ (IS) or Da'esh.
4 Abdelhamid Abaaoud, who is thought to have left Brussels to join ISIS, appeared to have returned and co-ordinated the attacks: BBC News 19 November 2015. Officials stated that the attacks in Paris were co-ordinated by ISIS fighters: see, for example, the New York Times 14 November 2015. See also the case of Imran Khawaja from West London, who travelled from the UK to join a militant group with links to so-called Islamic State while overseas. He was pictured posing with severed heads during his six months in Syria. He was arrested on return and later admitted preparing for acts of terrorism, attending a camp, receiving training and possessing firearms. See R -v-Imran Khawaja, Tahir Bhatti, Asim Ali: R v Bhatti [2015] EWCA Crim 764; sentencing Remarks of Mr Justice Jeremy Baker Woolwich Crown Court 6 February 2015.
5 UNSCR 2178; Statement by the President of the Security Council S/PRST/2014/23, 19 November 2014. See also the Council of Europe's Additional Protocol to the Convention on the Prevention of Terrorism 12 March 2015.
6 See also Al Qaeda Sanctions Committee, Analysis and Recommendations with regard to the Global Threat from Foreign Terrorist Fighters (New York: S/2015/358, 2015).
7 See note 4 above.
8 Section 66: Deprivation if conduct seriously prejudicial to vital interests of the UK:
(1) In section 40 of the British Nationality Act 1981 (deprivation of citizenship), after subsection (4) insert –
(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if (a) the citizenship status results from the person's naturalisation, (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.
9 Al-Jedda v SSHD [2013] UKSC 62, [2013] WLR(D) 371; Theresa May discussed this point during the second reading of the Immigration Bill: 2014 HC Deb Vol 574, Col 1038, 30 January 2014.
10 Defined in s14(4) and in Schedule 1.
11 Under s2(2) the Secretary of State may impose a temporary exclusion order on an individual if conditions A to E are met:
(3) Condition A is that the Secretary of State reasonably suspects that the individual is, or has been, involved in terrorism-related activity outside the United Kingdom. (4) Condition B is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public in the United Kingdom from a risk of terrorism, for a temporary exclusion order to be imposed on the individual. (5) Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom. (6) Condition D is that the individual has the right of abode in the United Kingdom.
12 See Sched 3.
13 S2(7) Condition E is that –
(a) the court gives the Secretary of State permission under section 3, or (b) the Secretary of State reasonably considers that the urgency of the case requires a temporary exclusion order to be imposed without obtaining such permission.
14 S3(2): The function of the court on the reference is to consider whether the urgent case decisions were obviously flawed.
15 See the comments on this point in R (Razgar) v Secretary of State for the Home Department [2002] EWHC 2554 (Admin). The Human Rights Joint Committee – Fifth Report Legislative Scrutiny: Counter-Terrorism and Security Bill, HL Paper 86, HC 859, published 12 January 2015, in paras 3.8-3.15 recommended strengthening the judicial oversight and commented on the difficulty of relying on judicial review while abroad.
16 S9(3): ‘A notice under this section –
(a) comes into force when given to the individual; and
(b) is in force until the temporary exclusion order ends (unless the notice is revoked or otherwise brought to an end earlier)’.
17 Samra Kesinovic, 18, was reportedly murdered by Islamic State fighters when she tried to leave ISIS-held territory to return to Austria: New York Post 24 November 2015. See also ‘Life under ISIS in Raqqa and Mosul: we're living in a giant prison’: ‘hundreds are defying a ban on leaving, often paying large sums to smugglers to get them out. Those who are caught fleeing are punished severely’: the Guardian 9 December 2015.
18 See the leading decision in Al-Skeini and others v UK 7 July 2011 Application no. 55721/07; see also the Chagos Islanders case ECtHR 4th Section, 11 December 2012.
19 Counter-Terrorism and Security Bill – Temporary Exclusion Orders’, Impact Assessment: IA No: HO0144, 21 November 2014.
20 Application no. 39630/09 13 December 2012.
21 (1996) 23 EHRR 413 [113]. In order to detain, deportation proceedings should be in being and it should be clear that they are being prosecuted with due diligence.
22 See Gov.uk, ‘British passport eligibility’, 8 November 2013; https://www.gov.uk/british-passport-eligibility and Gov.uk HM Passport Office, ‘Royal prerogative’, 13 January 2012; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/118554/royal-prerogative.pdf. The power was exercised 53 times between 2006 and 2014: Melanie Gower ‘Deprivation of British citizenship and withdrawal of passport facilities'. Briefing Paper, Home Affairs Section, SN/HA6820, 4 September 2014, p. 4.
23 Evidence of David Anderson QC, 26 November 2014, Q 3 to The Joint Committee on Human Rights: ‘Legislative scrutiny of the Counter-terrorism and Security Bill’ HL Paper 86, HC 859, 12 January 2015.
24 The ECHR Memorandum, para. 3.
25 (2009) 49 EHRR 29 (Grand Chamber).
26 Secretary of State for the Home Department v AF and others [2009] UKHL 28.
27 The Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 No. 997.
28 This is to a sum not exceeding £50,000 where a carrier to whom the Scheme applies breaches (i) a requirement to seek authority to carry a person, (ii) a requirement to provide specified information by a specified time, (iii) a requirement to provide information in a specified manner and form, (iv) a requirement to be able to receive communications in a specified manner and form, or (v) a requirement not to carry a person when authority to carry has been refused.
29 See also David Anderson QC, ‘Terrorism Prevention and Investigatory Measures in 2012’ First Report March 2013 (‘TPIMS in 2012’), paras 6.23, 11.33–38; http://terrorismlegislationreviewer.independent.gov.uk/publications/first-report-tpims?view=Binary. David Anderson comments at para 1.13 of the First Report that ‘[t]he journey from indefinite detention (2001) through control orders (2005) to TPIMs (2011) has been in a liberalising direction’.
30 See David Anderson QC (Independent Reviewer of Terrorism Legislation) ‘Terrorism Prevention and Investigation Measures in 2013’ Second Report March 2014 (‘TPIMs in 2013’), p. 4. The Joint Committee on ETPIMs agreed that there was a need to retain such measures, see ‘Draft Enhanced Terrorism Prevention and Investigation Measures Bill'. First Report Session 2012–2013 HL 70 / HC 495, November 2012, (‘Draft ETPIM Bill First Report’) paras 90–100.
31 The government has recorded a commitment to use other measures, particularly prosecution or deportation, wherever possible; see for example ‘CONTEST: The United Kingdom's Strategy for Countering Terrorism’ July 2011 1.18 et seq; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/97994/contest-summary.pdf. The result of this commitment is that few individuals have been subject to such measures. Around 45 people were, at various points, subjected to control orders: JCHR 16th Report ‘Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill’ Session 2010-12, HL 180 / HC 1482, July 2011. See also: Terrorism Prevention and Investigation Measures Bill ECHR Memorandum by the Home Office https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98372/echr-memorandum.pdf; only nine TPIMs were imposed and a number of them expired in February 2014 (see ‘TPIMs in 2013’ note 30 above, at p. 2).
32 See Secretary of State for the Home Department v JJ [2007] 3 WLR 642 [105]; Secretary of State for the Home Department v AP [2011] 2 AC 1.
33 See David Anderson QC Independent Reviewer of the Prevention of Terrorism Act (PTA) pursuant to s14(6) PTA ‘Control Orders in 2011’ Seventh Report March 2012, executive summary; see at http://www.official-documents.gov.uk/document/other/9780108511417/9780108511417.pdf, at para 6.7–6.8; see also as regard TPIMs, ‘TPIMS in 2012’, note 29 above, at para 11.7.
34 Both Houses of Parliament voted to renew Control Orders for another year in 2010 despite a highly critical report on renewal from the JCHR (‘Counter-Terrorism Policy and Human Rights’ HL 64, HC 395 (2010)) pointing to the grave incursions into human rights norms they represented. See HC Deb vol. 717 col 506 1 March 2010, and HL Deb vol. 717 col 1545 3 March 2010. TPIMA s1 also provided for repeal of the PTA.
35 The Counter-terror review 2011 concluded that such measures should be maintained and that an enhanced version – which emerged in the form of ETPIMs – might also be needed to meet an emergency: Review of Counter-Terrorism and Security Powers Home Office, Report, Cm 8004, (2011), para 30(v). The introduction of the ETPIMS Bill in 2011 indicated that the government considered that TPIMs alone might not be effective in meeting a raised security threat posed by a certain group of suspects. But so far ETPIMs have not been introduced.
36 See Sched 1 para 1, TPIMA. Anderson was doubtful in his review of control orders in 2011, as to whether relocation should have been excluded from the TPIM scheme, in national security terms. His view was that relocation was effective and therefore freed up resources for surveillance of other suspects: at para 6.9. He took the view that relocation should have been retained if proportionate to the threat that appeared to be posed by the suspect to the reasonable belief level: Anderson ‘Control Orders in 2011’ note 33 above.
37 The 2011 Act provides in Sched 1 para 7(1):
The Secretary of State must allow the individual to possess and use (at least) one of each of the following descriptions of device (subject to any conditions on such use as may be specified under sub-para (2)(b)) – 3(a) a telephone operated by connection to a fixed line; 3(b) a computer that provides access to the internet by connection to a fixed line (including any apparatus necessary for that purpose); 3(c) a mobile telephone that does not provide access to the internet.
38 Sched 1 para 3 TPIMA.
39 On 1 November 2013; see Rosa Silverman ‘Terror suspect absconds while being monitored’ Daily Telegraph 4 November 2013. When he disappeared, Mr Mohamed was facing charges relating to 20 alleged breaches of his TPIM order. Mohamed was an alleged associate of Ibrahim Magag, another TPIM subject, who absconded on 26 December 2012. Chris Grayling ordered a review of the measures as a result, and David Anderson notes that changes were implemented on the basis of this review, but the results of the review are confidential (‘TPIMS in 2013’ note 30, paras 4.37,4.38). Yvette Cooper, formerly Shadow Home Secretary has said on this (see ‘Cameron and Clegg seek agreement in anti-terror talks’ the Guardian 1 September 2014): ‘There are currently no Tpims in use because the experts have warned that the police and the security services do not believe they are effective enough to be worth using … ’ (see at http://www.theguardian.com/uk-news/2014/sep/01/cameron-clegg-anti-terror-talks-british-born-jihadis-syria-iraq).
40 The Home Affairs Committee ‘Counter-terrorism’ Seventeenth Report, HC 231, 30 April 2014 (‘Counter-terrorism Seventeenth Report’), para 109 found that TPIMs need to be strengthened to prevent absconding; Yvette Cooper, former Shadow Home Secretary, has observed:
We warned from the start that weakening these crucial counter terror powers was a serious error of judgement by the Home Secretary … For so many TPIMs to end at once raises serious challenges for the police and security services – especially in London where most of the terror suspects are based. (Press Release, 5 November 2013; http://www.politicshome.com/uk/article/87796/sign_up_pro.html)
41 From Yvette Cooper, the former Shadow Home Secretary, Lord Carlile, the Government's independent reviewer of terrorism legislation from 2001 to 2011, Sir Bernard Hogan-Howe, Commissioner of Police of the Metropolis (speaking on LBC on 27 August 2014, as reported in the Telegraph ‘British jihadists should be stripped of citizenship says top police officer’ http://www.telegraph.co.uk/news/worldnews/middleeast/syria/11058319/British-jihadists-should-be-stripped-of-citizenship-says-top-police-officer.html.
42 On 29 August 2014 (see MI5 Press Release ‘Threat level to the UK from international terrorism raised to severe’ https://www.mi5.gov.uk/home/news/news-by-category/threat-level-updates/threat-level-to-the-uk-from-international-terrorism-raised-to-severe.html).
43 HC Deb Vol. 585, Cols 24-6, 01.09.14. The Government had previously stated that it intended to carry out a review of TPIMs as part of a broader review of counter-terrorism powers: JCHR ‘Post-legislative scrutiny: Terrorism Prevention and Investigation Act 2011’ Tenth Report of Session 2013–2014, HL 113 HC 1014, January 2014 (‘TPIMA 2011’), para 82. David Cameron's Task-force for Tackling Violent Extremism had also recommended a range of changes in 2013: ‘Tackling Extremism in the UK,’ December 2013; https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263181/ETF_FINAL.pdf.
44 That had also been recommended earlier in 2014 by David Anderson, the current independent reviewer of terrorism legislation: ‘TPIMS in 2013’ note 30 above, at p. 57, recommendation 4. David Anderson also recommended an extra power to compel attendance at meetings to establish communication with subjects, recommendation 6 (p. 57).
45 Secretary of State for the Home Department v AP [2010] 3 WLR 51.
46 Secretary of State for the Home Department v AP [2011] 2 AC 1 [15].
47 [2010] 3 WLR 51.
48 The Court relied on Guzzardi v Italy (A/39) [1981] 3 EHRR 333 in coming to this conclusion.
49 Lord Brown found that a control order with a 16-hour curfew and a fortiori one of 14 hours, would not be struck down as involving a deprivation of liberty, unless the other conditions imposed were ‘unusually destructive of the life the controlee might otherwise have been living’. Ibid at para 4. On the specific facts the forced relocation of AP was found to satisfy the ‘unusually destructive of normal life’ test.
50 AP v Secretary of State for the Home Department [2011] 2 AC 1.
51 In BM v Secretary of State for the Home Department [2011] EWHC 1969 (Admin), the High Court upheld the Secretary of State's decision to require BM to live in a city outside London. The Court considered that the relocation did amount to a serious infringement of his Article 8 rights, but the Court accepted the reasons for the relocation and found that any such infringement was both necessary and proportionate.
52 For example, in CD v Secretary of State for the Home Department [2011] EWHC 1273 (Admin) the relocation obligation was found to represent a necessary and proportionate measure to protect the public under Article 8.
53 In CD (ibid.) the court dismissed an appeal brought by CD against the Secretary of State's decision to refuse to remove an obligation that required him to reside away from his previous area of residence; the control order was not found to lead to a breach of Art 5. The judge also found that the Secretary of State should contribute to the travel costs incurred by CD's family in visiting him.
54 See ‘TPIMS in 2013’ note 30, p. 57, recommendation 4.
55 Human Rights Joint Committee – Fifth Report Legislative Scrutiny: Counter-Terrorism and Security Bill, HL Paper 86, HC 859, published 12 January 2015, para 4.10.
56 HC Deb 8 Jan 2013 col 161.
57 HC Deb 4 Nov 2013 col 23.
58 See in particular Human Rights Joint Committee – Tenth Report Post-Legislative Scrutiny: Terrorism Prevention and Investigation Measures Act 2011 15 Jan 2014, paras 64–68.
59 Estimated in 2014 at 500; see BBC ‘Tracking Syria fighters now main task for MI5’ 20 June 2014; http://www.bbc.co.uk/news/uk-27947343. In 2015 the number was estimated at 700 people at least from the UK ‘who have travelled to support or fight for jihadist organisations in Syria and Iraq, British police say. About half have since returned to Britain’: BBC News 21 December 2015.
60 The offence of being present at a place used for training under the Terrorism Act 2006 s8 is applicable to some British persons who have joined ISIS:. section 8 prohibits anyone from being at a place where weapons training is going on (whether in the UK or abroad), provided the person knew or believed that training was happening, or a reasonable person would have known. It must also be proved that the training was provided for purposes connected with ‘acts of terrorism’. A range of very broadly drawn terrorism offences was introduced in the Terrorism Act 2006 (TA), including a preparatory offence (s5) catching very early-stage preparation for terrorist acts.
61 See the Council of Europe's Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism 12 March 2015, Article 1.