BILLS (14-15 )069

Professor Clive Walker School of Law, University of Leeds

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Mechanics and agenda 1 The resort to fast-track legislation is most unwelcome and arguably unnecessary. The shortcomings of fast-track legislation have been illustrated by select committee1 and by experience. That HM Opposition should also be reportedly pressing for fast track legislation is rather disquieting.2 The invocation of this second-class form of scrutiny should be viewed in two contexts: • One is the context of the announcement of legislation by the Prime Minister on 1 September 20143 followed by further elaboration to the Australian House of Representatives on 14 November 2014. The result is that there has been two months in which no written paper was issued, or calls for responses to even the enunciated policies. Parliament and the public are being treated with a degree of contempt when no consultation process is conducted followed by the promise of truncated parliamentary scrutiny. • The second context relates to factual exigency. Is there a sudden mischief which is in urgent need of remedy? The most obvious candidate is the problem of returning foreign fighters. One might argue that UN Security Council Resolution 2178 requires decisive action. But it also urges respect for human rights and due consideration. In addition, it is not the case that no action could be taken against returning foreign fighters, and an increasing number have been prosecuted or have had passports taken away under existing laws. It should be accepted that those laws could be improved upon, but they have not been proven to be dangerously lax or impotent, as passport withdrawals and prosecutions have demonstrated.

2 Some measures are being taken up and incorporated in the Bill, even though there is no apparent urgency or connection to foreign fighters. The final provisions about British Overseas Territories Citizens might be said to fall into this category. In addition, the ‘Authority To Carry’ scheme is vastly expanded without any explanation of the logistics and practicalities of doing so (and bearing in mind that the previous, more modest scheme took 10 years to implement). Yet, other crucial proposals for reform have been entirely ignored. Most important are the proposals by the Independent Reviewer of Terrorism Legislation for reform of the and the processes relating to proscription. Overall, the Bill is a more modest and moderate package than originally envisaged, but that does not turn what is left into good quality or suitable legislation. The UK has the most extensive terrorism laws in the whole of Europe, and the necessity for new additions should always be questioned, as should their impact on rights and legitimacy.

Part 1 Temporary exclusion and seizure of passports 3 The seizure of travel documents (especially passports) had already taken a number of steps through the ’s announcement of 25 April 2013, as backed by the Anti Social Behaviour, Crime and Security Act 2014, section 147 and schedule 8. It should also be noted that there are Foreign Travel Restriction Orders in the CTA 2008, section 58 and Schedule 5, though these are predicated upon a terrorism conviction. The seizure of a passport at a port under the TA 2000, schedule 7 is not always possible because the real purpose here is denial of travel facilities

1 Select Committee on the Constitution, Fast-Track Legislation: Constitutional Implications and Safeguards (2008–09 HL 116). 2 Travis, A., ‘Labour seeks checks and balances for fast-track counter-terror laws’ The Guardian Online26 November 2014. 3 Hansard (House of Commons) vol 585 col 23 1 September 2014.

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rather than the investigation of terrorism. Clause 1 of the Bill is therefore not revolutionary and may be complementary to other problems. It may even be welcomed by anguished families as much as being resented by those affected. Clause 1 may also be welcomed in the sense of providing greater clarity than vague prerogative powers and in the sense of avoiding the use of a TPIM which could be a disproportionate response. Powers to seize passports do not create statelessness per se.

4 An argument of principle against clause 1 is that new powers are not needed to stop persons suspected of becoming involved in terrorism and that the nothing more is needed than an investigation (and possible criminal charges) by way of the arrest power under section 41 of the Terrorism Act 2000. But, in response, it might be argued that it is hard to dismiss the view that ports police are dealing with a spectrum of strengths for suspicion against a broad category of suspects and therefore to provide a spectrum of legal responses might be justifiable in that sense.

This spectrum of strengths of suspicion may range from pre-knowledge of definite plans, say, to meet X in Turkey to join group Y in Syria. Consequently, there has been a steady stream of arrests under section 41 for an offence under section 5 of the or an attempt to commit an offence under section 6. Some people have been arrested outbound, though more arrests are inbound because (presumably) the evidence from Tweets etc reveals better evidence of what has actually happened in Turkey and Syria (news from the battlefront). But what if facts X, Y, or both are not established? Imagine that a 15 year old girl arrives alone at Heathrow with a ticket to Turkey. She has little money, is unknown to the police, but has some of the milder tracts about jihad - The Absent Obligation, The Lofty Mountain etc which might not be extreme enough for an arrest under section 58 of the Terrorism Act 2000. A true civil liberties believer might say that the 1215 and indeed the , section 1 says she has a right to come and go as she likes. But we know in current circumstances that there is some risk that a person with this profile might have intentions which UNSCR 2178 says must be responded to. So what should be the response?

Should the way forward always consist of a section 41 arrest? For this option, there must be a 'reasonable suspicion'. The courts are sympathetic to the police attempts to establish this standard, as shown by the Raissi case where the threshold for reasonable suspicion was described as ‘low’.4 But also as shown by that case,5 the judges do expect some considered aforethought, such as through a briefing, even if it turns out to be materially mistaken and disproved.

Alternatively, a Terrorism Act 2000, Schedule 7 stop and even detention could apply to the girl, and so it is also legitimate to ask whether passport removal is needed in the light of that power. Of course, most of those persons to whom passport removal will be applied will probably first be subjected to a Schedule 7 stop, given that there are no independent powers of detention under clause 1. That questioning may lead to a section 41 arrest, but perhaps not if at the conclusion of six hours the police reasonably suspect there is afoot some unspecific terrorism related activity but are far from sure from any specific activity akin to a crime, which is what is required to comply with article 5 according to Brogan v UK.6

4 Commissioner of Police of the Metropolis v Raissi [2008] EWCA Civ 1237, para 20. For more details on this case, see Walker, C.P., The Anti-Terrorism Legislation (Third edition, Oxford University Press, Oxford, 2014) chap 5. 5 Ibid., para 21. 6 App nos 11209, 11234, 11266/84, 11386/85, Ser A 145-B (1988) para 50.

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Should the police in that situation be told to apply section 41 and not ask for further clause 1 powers? Let us assume that they have still not established hard facts X and Y. There could be two problems arising from an armoury consisting only of section 41 – underpower and overkill.

Underpower - In the absence of facts X, Y or both, could it be said that the police suspicion is based on reasonably objective facts? If not, clause 1 may be able to help by widening the basis for suspicion to terrorism related activity (TRA), which means that my girl could be a frontline terrorist but equally could be a backline cook or cheerleader not directly connected to any defined terrorist group but merely helping her brothers, whose daily work is unspecified to her. The police are allowed to hedge their suspicions by reference to TRA more than under Terrorism Act, section 1. The argument boils down to differences between section 1 and TRA. It might be argued that section 40(1)(b) (and especially the "is ... concerned in" part) is very wide and wide enough to cover involvement in TRA. But would every TRA amount to something in the nature of a crime, as required by Brogan? The ‘concern’ under TRA could hitherto be in helping a fellow who helps a chap who helps a friend, though the reform in clause 11(4)(d) reduces that possibility. But the forms of 'support or assistance' of possibly a non criminal kind remain wider than involvement by way of 'the commission, preparation or instigation of acts of terrorism' of some activity akin to a crime under section 40 for the purposes of section 41.

Overkill - Would the confinement of the police to section 41 powers run the danger of encouraging more section 41 arrests in dubious circumstances? That possibility might be balanced against more Schedule 7 stops which are likely to underpin action under clause 1. What would be the reactions of those affected, their families, and their associated communities? Which sort of state intervention would they prefer? It does of course depend how often the police use these powers, and the perception of overkill can be created if they are not proportionately deployed. But there are reports of a lot of anguished mothers who might be grateful to hear from the police as to the whereabouts of their daughters and that their unannounced and shocking plans to go to Turkey as jihadi cheerleaders has been nipped in the bud. They might also be grateful that their girls are returned home, subject to some restrictions and further re-education (Project Channel) rather than being arrested. But of course, no one will be grateful if there is intervention without any convincing reasons being demonstrated related to TRA. The lack of formality and independent judicial review under clause 1 does not help to ensure this essential attribute.

In conclusion, one can see the theoretical need for some further powers, and there is surely ever reason not to encourage section 41 arrests based on relatively flimsy suspicion (at least compared to the normal terrorism arrest operation). Much will depend on what guidance is given for the exercise of the clause 1 power. Guidance should also be given on how these extra powers should impact on Schedule 7.

5 Clause 1 raises various specific problems in detail. • There is a lack of independent oversight. ‘Where are the courts in all this’, rightly asks the Independent Reviewer of Terrorism Legislation. The answer is that, aside from the rather remote possibility of judicial review, the courts arrive on the scene only after 14 days. This is unacceptable and they should arrive much sooner. A good comparison might be with the

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powers to seize cash at a port under the Anti Terrorism Crime and Security Act 2001, Schedule 1 paragraph 3, where an application must be made to a court to retain the cash after just 48 hours. It is hard to explain why the property rights in a bundle of cash are more important than the interference with family and private life by the seizure of a passport under clause 1. • The criteria for seizure and review of seizure are weak – reasonable cause to suspect. Even the arrival of the court on the scene barely helps since court review in Schedule 1 paragraph 8 is confined to whether the police etc have been acting ‘acting diligently and expeditiously’ and not whether they have acted with good cause and proportionately. Surely after 14 days, more reasons should be demanded and tested than at the time of seizure. • These piecemeal reforms of practices relating to passports amounts to a most unsatisfactory method of law reform. Almost every other country in the world (including Australia and Canada) has a comprehensive statutory code on passports and so has avoided these obscure additions to counter terrorism laws. The time has come to provide a full statutory statement of the law on passports.

6 ‘Temporary exclusion’ under clause 2 is hopefully a misnomer, and what is being sought is a form of regulated re-entry and residence. What is being proposed, or perhaps should be proposed, would then not be much different to the normal situation if a passport is lost or stolen. Indeed, 160,050 passports were registered as either lost or stolen abroad between 2008 and the end of October 2013.7 Once a report is made, the British consulate/embassy will issue an emergency travel document which allows specific one-off travel.8 In this case, the proposal is that the passport is not lost or stolen but is being cancelled. The proposal is not the dire idea of the creation of statelessness or permanent exile, but it betrays the confusion of ‘legislating by soundbite’ whereby a half-baked policy was announced on 1 September 2014 and the details have not quite been sufficiently revised to back it up.9 Some of the problems might include the following. • The threshold for action is again relatively weak – reasonable cause to suspect. These arguments were raked over in regard to TPIMs. For the more serious incursions into the lives of suspects, reasonable cause to believe should be the minimum (as in the TPIM Act 2011, section 3 Condition A). • The courts are again conspicuous by their absence. The Temporary Exclusion Order is not confirmed or periodically reviewed by any court, even though, like a TPIM, it can last two years and can involve ongoing obligations (clause 8) which are not far removed from those of a TPIM. • One wonders whether the practical result of designating the person as a suspected terrorist is that the foreign country of stay will immediately seek to detain and deport the person. One rather suspects that such a fate would befall a foreigner in the UK who was so designated by the relevant foreign country. Why would they wish to assume the risk from a person for which another state has prime responsibility? Clause 6 recognises that the person must be allowed to return forthwith in that situation, otherwise the UK government is engineering a needless period of detention (even if it may not fall within the competence of article 1 of the

7 http://www.bbc.co.uk/news/magazine-26783486. 8 https://www.gov.uk/emergency-travel-document. 9 The Independent Reviewer of Terrorism Legislation called it ‘an announcement waiting for a policy’: JCHR, Counter Terrorism and Human Rights (2014-15 HC 836) p 5.

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ECHR, as claimed in the ECHR Memorandum10). There is still a right of abode under the Immigration Act 1971, s2, which the Bill does not seek to amend or deny (as shown by clause 6). Nor is there any proposal to have reciprocal agreements with other countries to accept terrorism risks caused by foreigners. So, it is always possible for the person to seek to return by any means possible (perhaps via Dublin), and a British deportee arguably cannot be barred from the country. The uncertain relationship between the Bill and the right of abode should be clarified. • Despite the uncertainty under the ECHR article 1, the has said that it will not knowingly place persons at risk of articles 2 or 3 treatment.11 This threat is very real in some of the jurisdictions most likely to be the countries of transit, including Kenya and Turkey. If taken seriously, does not this concession substantially undermine the operation of the policy? • Though the Home Office Memorandum on the European Convention on Human Rights deals with issues under that document (and thereby the ), there is no reference to potential challenges under the UN International Covenant on Civil and Political Rights. The point of interest is article 12: ‘(2) Everyone shall be free to leave any country, including his own. (3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4) No one shall be arbitrarily deprived of the right to enter his own country.’12 Article 12(4) is at issue here, and it is further interpreted by the Human Rights Committee, General Comment 27, Freedom of movement (Art.12).13 By paragraph 21: 'In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.' One might suppose that sound evidence of a terrorism threat from an individual would be exceptional circumstance, but there are some contra-indications: that no sound evidence is provided, no hearing or review is offered, and that the exclusion can last for two years. One might compare the Australian Counter

10 It is notable that the cited case related to a foreigner: Khan v United Kingdom, App no 11987/11, 28 January 2014. The Home Office seems on stronger ground in domestic law than international law, since the Crown’s duties of protection have been declared to be of imperfect effect: Mutasa v A-G [1980] QB 114; R v. Secretary of State for Foreign and Commonwealth Affairs, Ex parte Indian Association of Alberta and Others [1982] Q.B. 892; R (on the application of Abbasi and another) v Secretary of State for Foreign and Commonwealth Affairs and another [2002] EWCA Civ 1598. 11 ECHR Memorandum, (BILLS (14-15) 059) para 13. The UK state may become liable through implication in the operation: El Masri v FYR Macedonia, App no 39630/09, 13 December 2012. 12 Compare the situation in Ilyanov v Kazakhstan (CCPR/C/111/D/2009/2010, 23 July 2014) which related to re-entry by a foreigner, albeit one who previously enjoyed permanent residence status. 13 U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).

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Terrorism Legislation Amendment (Foreign Fighters) Bill 2013-14, where the suspension of a passport is limited to 14 days.14 • Is it appropriate or even lawful to ‘export’ terrorism risks to other countries, especially as they probably have less information and capability to deal with the risk than the UK? Aside from liability to act under international convention and under UNSCR 2178, one might question the sense of the policy. Whether it makes sense in policing terms to lose sight of one’s enemies was one of the doubts voiced by the Newton Committee in regard to the policy under the power of detention without trial under the Anti Terrorism Crime and Security Act 2001, Part IV, which involved the creation of a ‘prison with three walls’ — the absent fourth wall allowing foreign terrorists to depart the jurisdiction and plot abroad.15 The government promised that ‘we shall not use the powers to export risk’.16 The policy now being pursued is the opposite, and its unilateral imposition seems to be incompatible with the duty to cooperate with other States to address the threat posed by foreign terrorist fighters (UNSCR 2178 (2014), paragraph 8). • How will the operation of the policy be related to TPIMs? Condition C of section 3 of the TPIM Act 2011 means that not all cases under clause 2 could be dealt with as TPIMs. But there is some overlap given the breadth of ‘TRA’. How is the overlap to be handled? As it stands, the possibility of TEO obligations seems to be another incentive not to use the more regulated TPIMs system. The avoidance of oversight in this way should not be allowed. • Does the policy discriminate against persons who are not dual citizens (and therefore have an alternative form of citizenship and access to passport which allows free movement)? The power does not allow for the cancelling of foreign passports, and so the person could still travel on the foreign passport even to re-renter the UK (subject to the effectiveness of the Authority To Carry’ scheme and border checks). Does this mean that White British citizens are being discriminated against?

7 In conclusion, many of these problems might be solved or at least allayed if the TEO were to be more thoroughly transformed into a ‘notification of managed return order’. That order would not be far different from the case of someone who has lost their passport, save that it follows from the cancellation of a passport. But it would simply provide for return within specified parameters relating to place and mode of transport and within a specified time-frame. If the person does not return as directed, then another such document would have to be issued on expiration of the first travel document – and perhaps successively so until the expiration of the original passport. A state can lawfully withdraw or restrict the use of a passport, and there are existing laws which allow it as in other European countries - mainly relating to offenders like football hooligans and to bail conditions. A state might also insist on conditions as to the mode of return, provided the overall rationale of the regulatory intervention remains return and not exclusion. Such a transformation would make the power much less objectionable in international law terms at least. The government needs to recognise that its initial ideas were not acceptable and that hanging on to the old nomenclature does not help its clarity, acceptability, or legality.

14 See Attorney General, Revised Explanatory Memorandum (Canberra, 2014) para 56. 15 Newton Report (Privy Counsellor Review Committee, Anti-Terrorism, Crime and Security Act 2001 Review, Report, (2003-4 H.C. 100), Pt D, para.195. 16 House of Commons Standing Committee E col 271 (25 October 2005), Tony McNulty.

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Part 2 TPIMs 8 The two new measures relating to (a) weapons and (b) attendance for advice etc are worthwhile. However, as we have discussed previously, (b) should include a rule that any statements made in the course of the advice etc are not admissible in court.

9 Amendments of existing measures and rules • overnight residence – The return of relocation has been fully discussed already between us. There is no fundamental bar in human rights (as concluded by most High Court challenges to control orders pre-2011) to the power of relocation, and if this is needed to make TPIMs worthwhile (as seems to be the statistical evidence), then it should be considered. The only new comment arising is the slightly curious rule that the person should not be relocated more than 200 miles away from their established residence. Quite why 200 miles was chosen is unclear. A more generic rule would be better eg no more than a public transport journey of half a day from the place considered the main place of residence by reference to family ties, length of stay etc. • definition of TRA – Clause 16 does draw in how far removed from terrorism is the relevant activity. But not by very much. • standard of proof – Condition A is to require proof on the balance of probabilities for section 3. This change is strongly recommended by the Independent Reviewer of Terrorism Legislation. But it is rather grudging in that it is not applied to the subsequent court review.

Part 3 DRIP Act 2014 amendments 10 The idea is to specify as a requirement the retention of data regarding IP addresses. The point is to make potentially available the assignment of dynamic IP addresses to CSP customers (though, nowadays, customers can be logged on for days and weeks and so their dynamic addresses become rather ‘static’). It is not explained why this duty could not be covered already by section 1(2)(a) of the DRIP Act 2014 ie ‘require the retention of all data or any description of data’. An explanation should be given as to why the legislation is being depicted as inadequate so soon after passage. Why is the IP address data not ‘communications data within section 21 of RIPA? According to the Acquisitions and Disclosure of Communications Code of Practice:

‘2.13 The term ‘communications data’ embraces the ‘who’, ‘when’ and ‘where’ of a communication but not the content, not what was said or written. It includes the manner in which, and by what method, a person or machine communicates with another person or machine. It excludes what they say or what data they pass on within a communication including text, audio and video (with the exception of traffic data to establish another communication such as that created from the use of calling cards, redirection services, or in the commission of ‘dial through’ fraud and other crimes where data is passed on to activate communications equipment in order to obtain communications services fraudulently).’

11 These changes are subject to practicalities. For instance, the government has clearly thought about the situation in networks by referring in clause 17 to the retention of ‘or other identifier’ which could require the retention of port numbers of the MAC (Media Access Control) address. Yet, will these data be of use in the future if manufacturers move towards more random assignment

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of MAC addresses for each session. Does the use of IP masking defeat these methods? How much will it cost to retain all this data and who will pay?

Part 4 Authority to Carry Scheme 12 As noted above, the ‘Authority To Carry’ scheme17 is vastly expanded without any explanation of the logistics and practicalities of doing so (and bearing in mind that the previous more modest scheme took 10 years to implement).18 So, the question now is whether the costs of this bloated scheme (which when applied to international air passengers coming to the UK was expected to catch 2/3 persons per year)19 are being well spent. Another question is whether, given that it is intended now to apply to rail and ferry traffic, whether it will breach any EU laws about free movement.

13 That leads on to questions about the rules underlying the ‘Authority To Carry’ scheme. The Part 4 powers relate to the application of an underlying scheme which might be called the ‘no fly list’ scheme. In other words, it is first necessary to compile a database of persons to be banned from UK entry. But in so far as details have been revealed on such a scheme (such as the Home Secretary’s announcement of 25 April 2013), what is revealed is another vague and wholly non- judicial scheme which is vaguely predicated upon prerogative powers. This underlying scheme should be subjected to much greater transparency and due process before its associated implementation is hardened.

14 Another point is that it seems to be the intention to apply the ‘Authority To Carry’ scheme to British citizens. The possibility that a British citizen abroad could be on a ‘no fly list’ raises similar issues to those arising under the temporary exclusion scheme in Part 1 of the Bill and requires further consideration.

15 In the light of well documented computer and systems failings, one wonders whether the relevant border authorities have the computing and other capabilities to enforce this more ambitious scheme. Past experience strongly suggests otherwise.

Part 5 Prevent Strategy 16 Many of the issued papers talk about the Bill putting Prevent ‘on a statutory footing’. This phrase probably derives from the Home Secretary’s speech at RUSI on 24 November 2014: ‘we will legislate to put Channel - the existing successful programme for people at risk of radicalisation - on a statutory basis to improve the consistency of its delivery and ensure the participation of all the appropriate organisations.’ This claim is misleading in that comprehensive codification of Prevent is not delivered by the Bill. The shortfall is very disappointing and could undermine the statutory purposes which are now being weighted upon the Prevent programme.

17 Nationality, Immigration and Asylum Act 2002, section124. 18 See Nationality, Immigration and Asylum Authority to Carry) Regulations 2012, SI 2012/1894;Security and Travel Bans Authority to Carry Scheme 2012. 19 Hansard (House of Commons General Committee) col 4 21 June 2012, James Brokenshire.

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17 In particular, the following problematic features have not been addressed in the programme to date and certainly have not been remedied by the Bill. • The definitions of ‘extremism’, ‘radicalization’, and ‘Britishness’ remain unclear and subject to localised or personalized interpretation which may not be appropriate and certainly fail to match standards of legal certainty (legality) required under the European Convention on Human Rights. • The programme lacks detail. Even Project Channel, which is the basis for clause 28 is no more than vaguely alluded to in the clause, even though Project Channel is itself a wholly non-statutory creation. Likewise, what is expected to follow from the crack of the whip in clause 21 to undertake duties of preventing people being drawn into terrorism is wholly lacking in detail. The prime case seems to be considered to be universities. But there are plentiful national and local policy statements and indeed concrete actions in terms of bans of speakers and closures of societies. What have the universities done wrong? Where have they systemically failed? What more do they need to do now? It seems that the Home Secretary will have to be trusted with the answers because the Bill has none. • The programme lacks performance indicators and performance review. In what sense is the claim of the Home Secretary that the programme is ‘successful’ sustained by any evidence or research study? None has been published to date. • The programmes lack oversight. The Independent Reviewer of Terrorism Legislation has suggested review by his office, but his argument has not been taken up by the Bill. Otherwise, the programme is run through ACPO, which is a notoriously secretive and unaccountable body, as well as having no almost no legal standing.

18 Overall, it is suggested that if more public money, effort, and faith is to be invested in Prevent, especially in the guise of Project Channel, then the Home Secretary should deliver what she promised and should put Prevent on a statutory footing.

19 One other curiosity is why the duties under clause are confined to public authorities. Countering terrorism is a task for all (as reflected by the duty not to withhold information in section 38B of the TA 2000). So why not impose the same duty on employers or retailers or, take a topical example in the light of the Woolwich report, the media including CSPs? Given the shrinking public sector, it makes sense to think in wider terms – if the Prevent effort really is well-designed and delivering ‘success’.

Part 6 Ransom Payments 20 In general,20 payment of a ransom is not illegal or contrary to public policy,21 though payments suspected to be related to terrorism will fall within the terms of the Terrorism Act 2000, Part III. This position also affects the issuance of SARs – the money is only suspicious in the hands of the captor payee.

21 Clause 37 confines the new offence to an ‘insurer under an insurance contract’. The effect is to affect the business operations of big oil companies and the like who are insured in London. It will not affect those businesses insured in other jurisdictions, and the incentive to shift business is

20 See Easton, R., ‘Are payments of ransom illegal?’ (2014) 178 Justice of the Peace 593. 21 Masefield AG v Amlin [2011] EWCA Civ 24 – concerning a freighter captured by Somali pirates.

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evident. The second implication is what happens to non-business captives such as Judith Tebbitt in Somalia in 2011; her release was bought through private finance paid through private means (presumably Control Risks). The biggest sums of money and the biggest concessions have been paid by states such as France and Turkey. Should private vulnerable British citizens be paying for the sins of foreign government?

Part 7 Privacy and Civil Liberties Board 22 There are two main shortcomings with the present arrangement of the Independent Reviewer of Terrorism Legislation under the Terrorism Act 2006, section 36. • The first is work overload, which is getting worse not better. He suggests a more selective annual diet of work to be agreed in advance. • The second is limited coverage. Not even all parts of the core anti terrorism legislation is reviewed, let alone kindred schemes such as Prevent.

22 But it is not clear whether the Board of 3-5 (as envisaged by the Impact assessment paper) will help or not. Their roles are not delineated, and so there is a danger that they become a hindrance rather than a help – a talking shop which elongates and even confuses the route to publication of review reports rather than a real aid to effective working. Greater clarity as to how the Board is to work should be imported. Board members should be doers (by undertaking aspects of review under the direction of the Independent Reviewer of Terrorism Legislation) as well as advisers if the Board is to make a real difference.

23 It is astonishing that, despite a substantial increase in resources being devoted to review mechanisms, there is no proposal in the Bill to extend coverage. The need for extended coverage, not only to cover Prevent, as already noted, but also other core counter-terrorism legislation, has been fully explained and advocated by the Independent Reviewer of Terrorism Legislation.22

Contact details Professor Clive Walker Centre for Criminal Justice Studies School of Law University of Leeds Leeds LS2 9JT 0113 2335022 [email protected]

22 See also Walker, C., Terrorism and the Law (Oxford University Press, Oxford, 2011) chap 10.

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