Hayley J. Hooper assesses the notion of ‘temporary exclusion orders’ proposed in new anti-terrorism legislation. She highlights the orders can be made without judicial oversight and argues that passing the Bill risks giving parliamentary legitimacy to a policy adverse to human rights.
The Counter Terrorism and Security Bill was introduced into the House of Commons on 7 January 2015 using a semi-fast-track procedure. The Bill provides for new powers to seize travel documents from individuals suspected of terrorism, for increased powers to retain internet data under the Regulation of Investigatory Powers Act 2000 (RIPA), and more intrusive measures under the Terrorism Prevention and Investigation Measures Act 2011.
This comment focuses on one aspect of the Bill: the ‘temporary exclusion orders’ (TEOs) proposed in Chapter Two. These TEOs would allow the Home Secretary to make an executive order to invalidate an individual’s passport whilst s/he is abroad if there is ‘reasonable suspicion’ that s/he has been involved in terrorism or terrorism related activity outside of the United Kingdom. Such orders may remain in force for up to two years. This means that affected individuals can only return to the UK if they become the subject of a ‘managed return’ during which they may be subject to conditions consistent with obligations in the existing Terrorism Prevention and Investigation Measures Act.
Reports suggest that increasing numbers of British citizens are travelling abroad to fight and train with Islamist terrorist organisations. Official figures suggest that more than 500 Britons may have travelled abroad for this purpose. However, the main concern with the Bill in its present form is that these orders are to be made without judicial oversight of any kind. The Bill continues a trend towards the broadening of the deprivation of citizenship power and the weakening of legal procedural protection. So much so, that deprivation of citizenship can now be applied retrospectively and on the basis of closed or ‘secret’ evidence.
Historically, under the British Nationality Act of 1948 deprivation of citizenship could take place only in the event of ‘disloyalty [to Her Majesty], trading with the enemy, criminality, commitment and fraudulent acquisition’. However, the Nationality, Immigration, and Asylum Act 2006 lowered the threshold significantly by requiring that an individual’s holding of citizenship was merely ‘not conducive to the public good’. In 2014 the power to denaturalise was expanded even further by the Coalition government. Section 66 of the Immigration Act 2014 introduced a new presumption of retrospective effect by allowing citizenship to be deprived on the basis of conduct which took place ‘before this section came into force.’ To illustrate the impact of this test we should consider the case of suspect Y1, who was deprived of citizenship for allegedly travelling to Pakistan to train for and participate in acts of terrorism on the Pakistan/Afghanistan border. During his appeal the court re-emphasised the need for deference to the executive in respect of counterterrorism decisions. The correct test was not whether the suspect was a danger to national security in fact, but whether (s)he ‘represent[ed] such a danger’. In practical terms this meant that lower courts should attach great weight to executive judgments of individuals and the Home Secretary was entitled to apply a ‘preventative or precautionary approach’.
But it is undoubtedly the use of closed evidence which is the most detrimental aspect of this trend. The Closed Material Procedure (CMP) used in deprivation of citizenship cases (and other civil proceedings sensitive to national security) allows the government to use secret evidence by dividing a court hearing into ‘open’ and ‘closed’ sessions which include ‘open’ and ‘closed’ judgments. During the closed proceedings the affected individual and his own lawyer are excluded from the hearing, and their representation is undertaken by a government appointed, security-cleared lawyer known as a Special Advocate. Once the Special Advocate has seen the closed evidence against the individual it is unlikely that he or she will be able to communicate with the suspect again regarding the evidence. In immigration and citizenship proceedings the affected individual may not even receive a summary of the national security evidence on which the case against him/her is based. The proposals for judicial review of the powers described in the Counter Terrorism and Security Bill currently provide for such closed hearings to take place. However, they fall seriously short of the meagre procedural protections found in parallel powers on the statute books: they provide for neither the availability of Special Advocates, nor the provision of summaries to assist the affected individual and his lawyers to make his or her case.
This new Bill will not begin a trend of denaturalisation of persons whilst abroad if it becomes law: such a phenomenon already exists. It merely risks such a human rights adverse policy gaining parliamentary legitimacy. The courts have already rejected challenges relating to the impracticalities and unfairness resulting from denaturalisation or exclusion decisions taken whilst the suspect was abroad. In 2012 an individual known as ‘G1’ was deprived of citizenship whilst abroad and prevented from returning to the UK to appeal in person. The Court of Appeal ruled that despite an appeal from overseas having ‘a degree of unreality about it’ the power to exclude a citizen was a feature of the residual ‘legal authority remaining in the hands of the Crown’. To that end, requiring G1 to appeal from Sudan was legal because ‘the legislature intended to allow deprivation and deportation appeal proceedings to take place concurrently.’ The Court of Appeal ruled that the burden of proving any difficulties with the procedure fell upon the appellant. This decision goes against a long common law tradition of the right to face one’s accusers in person.
After World War II nations joined together to declare ‘never again’ in the wake of mass human rights violations and statelessness. Whilst international human rights treaties have proliferated, citizenship nonetheless remains a vitally important status from which other rights flow. In the words of Hannah Arendt, citizenship remains ‘the right to have rights.’ However, the combination of increased executive discretion and weakening of legal protection (of a procedural and substantive nature) has contributed to a serious erosion of the most meaningful of rights.
This blog is based on a longer analysis published 15 January 2015 on constitutionnet.org.
About the Author
Hayley J. Hooper is Junior Research Fellow in Law at Homerton College, Cambridge