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.
Kensuke Ueda outlines the context for the recent reinterpretation of Article 9 of the Japanese Constitution, which until now outlawed war as a means of settling disputes. He suggests the manner in which the changes were pushed through is worrying for Japanese constitutionalism.
On 1 July this year the Japanese Government passed the cabinet decision on the ‘development of seamless security legislation to ensure Japan’s survival and protect its people’. This new direction in national security legislation has attracted a great deal of attention because it contains a change in the interpretation of Article 9 of Japan’s 1946 constitution, which states that ‘the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes’.
‘Change of interpretation’
The conventional interpretation of Article 9 states that it prohibits military intervention. However in light of ‘the right to live in peace’, recognised in the preamble of the constitution, and Article 13, which guarantees the ‘rights to life, liberty, and the pursuit of happiness’ as worth supreme consideration in governmental affairs, Article 9 cannot be interpreted as prohibiting Japan from taking measures to maintain its peace and security and to ensure its survival. The ‘use of force’ abroad has thus been judged not permitted, but Japan has long maintained a Self Defence Force (SDF), which is not seen as unconstitutional as long as it is used purely for the purpose of self-defence.
Following this logic, the government has until now understood that the use of force is permitted only in the event of armed attack against Japan. However, the security environment surrounding Japan has been fundamentally transformed by shifts in the global power balance and the rapid progress of technological innovation since Article 9 was adopted. Many now feel that in the future even an attack occurring against a foreign country could actually threaten Japan’s survival, depending on its purpose, scale and manner.