I’ve been investigating the UK’s use of counter-terrorism legislation – particularly in the form of executive power – for a number of months now.
It’s been a busy few weeks in particular. The Home Secretary, Theresa May, forced through a provision contained in her Immigration Bill that would allow her to strip the UK nationality from terror suspects even if that rendered them stateless – “a form of punishment more primitive than torture”, in the words of the US Supreme Court in the previous century.
The Bill ping-ponged between the House of Commons and the House of Lords, with the latter proposing further scrutiny on a power “beloved of the worst regimes of the 20th Century”, according to one peer. The government then offered what it termed to be a “compromise” measure – that, instead of cross-house scrutiny on these executive powers that would “remove the right to have rights” from people suspected of wrongdoing, the government would pick its own reviewer of the legislation. This reviewer – which crucially is not referred to in the Bill as “independent” – would issue a report on a three-yearly basis, the contents of which would then be laid before parliament after the Home Office has had at it with a redactor. In other words, rather than further investigation of the legality or feasibility of the power to render people stateless, the government will now get to choose every three years what it divulges in public over the measures.
Still, it could have been worse. There is currently no independent review of deprivation of citizenship or the stripping of passports by Royal Prerogative orders – both executive and nominally counter terrorism (CT) measures – and May wanted to assume the mantle of ultimate arbiter of individuals’ fate with zero accountability. The examination of the power in the Lords has helped at least avert this state of affairs.
Periodically, the UK’s Home Affairs Select Committee (HASC) reports on the state of terrorism and counter terrorism within its borders. The latest instalment, published last week, has some interesting admissions.
For example, under the Terrorism Act (2000), Schedule 7 orders (which you may have heard about) give the police the ability to detain and interrogate anyone for six hours at a time in the name of national security. One is then forced to answer questions without any presence of legal counsel; you can go to jail for three months if you claim your rights and refuse to cooperate. There is no need for any law enforcement official to even suspect you of involvement in terrorism to invoke Schedule 7. The HASC says this power is used an average of 60,000 times every year.
In addition, the report tackles the issue of passport stripping, which the Home Secretary can do under Royal Prerogative power – an antiquated provision that can be used in a variety of situations but in a CT scenario, I was told by one MP, “had withered on the vine” until Theresa May was appointed. We are told that since April 2013 the “public interest” part of the power – in reality used for national security – have been used 14 times since April 2013. It is thought that these measures relate to Syria and the number of Britons travelling there to fight against Bashar Al-Assad.
The HASC welcomed passport stripping but added:
However, we note that its use is not subject to any scrutiny external to the executive. We recommend that the Home Secretary report quarterly on its use to the House as is currently done with TPIMs and allow the Independent Reviewer of Terrorism Legislation to review the exercise of the Royal Prerogative as part of his annual review.
The current Independent Reviewer of Terrorism Legislation is David Anderson QC, who is remaining tight lipped for the time being on the issue.
Returning to deprivation of citizenship, the HASC’s findings might well have influenced the minds of some MPs (although, in reality, not many) had it appeared before last week’s parliamentary debate on the Immigration Bill. As it turned out, the report was published two days after the Bill passed its final reading. The committee criticised May’s fixation with a man called Hilal al-Jedda, who is the primary reason why the Home Office wants to make suspects stateless in the first place. His back story is here.
Anyway, here’s what the committee had to say:
We have grave concerns about how effective the deprivation of mono-citizenship powers will be. Drafting legislation on the basis of an individual case lessens the impact of the legislation because the exact circumstances are unlikely to repeat themselves. We support the Minister’s commitment to the power being used sparingly. We recommend that the Government endeavour to use the power only when the person subject to the decision is outside the UK.
This is an interesting one, since individuals who have been stripped of their UK citizenship while abroad (the vast majority under current legislation) have trouble accessing legal advice or appeal funding and in reality are cut adrift abroad, not afforded protection or rights or anything approaching safety. Still, the HASC is concerned primarily in keeping the UK “safe” and – despite a significant body of legal opinion saying that making people we believe to be so dangerous stateless, while abroad and without any ability to challenge the ruling, will not make us safer – its mind is clearly made up. Terror suspects? Someone else’s problem.