* UK Home Secretary’s Review of Counterterrorism Powers
Last week, Home Secretary Theresa May announced completion of a much-anticipated review of UK counterterrorism laws and policies, and a corresponding set of recommendations that to some extent call for scaling things back. All the key documents are here. Or, there is a summary
here, the key points of which I reprint below:
The recommendations follow a comprehensive review of counter-terrorism powers and legislation which sought to assess whether they were necessary, effective and proportionate. Specifically, it looked at:
· how long terror suspects can be detained before being charged
· the use of section 44 stop and search
· the use of Regulation of Investigatory Powers Act (RIPA)
· the banning of groups that espouse or incite hatred or violence
· the deportation of foreign terrorists; and the control order regime
Key recommendations include:
· an end to 28 day detention without charge – returning to 14 days as the standard maximum period that a terrorist suspect can be detained before they are charged or released
· an end to the indiscriminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000
· the end to the use of the most intrusive RIPA powers used by local authorities to investigate low level offences and a new requirement that all applications
· by local authorities to use any RIPA techniques are approved by a magistrate
· a commitment to rationalise the legal basis by which communications data can be acquired and, as far as possible, to limit that to RIPA
· a stronger effort to deport foreign nationals involved in terrorist activities in this country, while fully respecting our human rights obligations;
the repeal of control orders and their replacement with a more focused and targeted regime which carries restrictions similar to powers used in the civil justice system
· additional resources to the police and security agencies to underpin the effectiveness of the new regime and our commitment to prosecuting wherever possible
On pre-charge detention, the government concluded that the period terror suspects can be held before they are charged should revert to 14 days and that provision should be made in draft primary legislation for this period to be temporarily increased to 28 days only in exceptional circumstances where the government judges it is essential.
The government proposes to replace section 44 stop and search powers with a more tightly defined power allowing a senior police officer to make an authorisation for stop and search powers where they have reason to suspect a terrorist attack will take place and searches are necessary to prevent it.
The ‘necessity’ test replaces the less stringent threshold of ‘expedient’. This targeted measure will also prevent the misuse of these powers against photographers.
On RIPA, the government will deliver the Coalition commitment to prevent local authorities from using these powers unless it is to prevent serious crime and has been authorised by a magistrate.
The government is committed to tackling those who incite or promote hatred and violence, exposing and confronting the bigoted ideology of extremists, and prosecuting those who step outside the law. After careful consideration the review recommends that it would be disproportionate to widen powers to deal with these groups as there would be unintended consequences for the principles of freedom of expression. It therefore proposes to draw upon the wide range of powers already available for tackling racial and religious hatred and public disorder as well as our work to tackle extremism and promote integration and participation.
The review also found that it is both legitimate and necessary to seek to extend arrangements with more countries to deport foreign nationals involved with terrorism.
The government is clear that prosecution, conviction and imprisonment or deportation will always be our preferred method for dealing with terrorists. But in the rare cases where that is not immediately possible, it would be irresponsible to allow these individuals to go freely about their terrorist activities. The review therefore proposes to repeal control orders and introduce a new, more focused regime.
Under the new regime:
· restrictions that impact on an individual’s ability to follow a normal pattern of daily life will be kept to a minimum
· the legislation will make clearer what restrictions can and cannot be imposed
· the new measures will have a two year maximum time limit and will only be imposed by the Home Secretary with prior permission from the High Court, except in urgent cases
The Home Secretary will need reasonable grounds to believe that an individual is or has been involved in terrorism-related activity – a higher test than under the current regime – and be satisfied that it is necessary to apply measures from the regime to protect the public from a risk of terrorism
A more flexible overnight residence requirement will replace the current curfew arrangements and forcible relocation will be scrapped and replaced with the power to order more tightly-defined exclusions from particular areas and to prevent foreign travel
The government will now bring forward legislation to introduce the new regime in the coming weeks to give Parliament the opportunity to thoroughly scrutinise this legislation.
However we cannot allow the existing regime simply to lapse; to do so would remove all restrictions on the activities of the present subjects of control orders.
So while Parliament considers that legislation, we will renew the current regime until the end of the year to allow the replacement to take effect.
The review also recognised that in exceptional circumstances, additional measures may be required. Legislation will be published, but not introduced until necessary, allowing more stringent measures including curfews and further restrictions on communications, association and movement. This would require an even higher statutory test for involvement in terrorism related activity to be met – the balance of probabilities – and the legislation would be introduced to Parliament only when necessary to protect the public from a risk of terrorism.
Lord Macdonald of River Glaven has provided independent oversight of the entire CT Review process, with access to all relevant papers and playing a role in testing thinking and ensuring all the evidence is given proper attention. His report is published today alongside the CT Review report and he makes clear that he found the overall process of the review to be sound.