Travel Bans and Due Regard: The UK’s New Counter-Terrorism and Security Act

On Feb. 12, 2015, the Counter-Terrorism and Security Act 2015 (CTSA) received Royal Assent and many provisions are already in force. The full version is available here.

The CTSA is important primarily because it introduces two new powers and one new duty. The new powers (a) enable the seizure and retention of the passport of a person suspected of leaving the UK for the purpose of a terrorism-related activity outside the UK, and (b) enable the “temporary” exclusion (for up to two years) of individuals from the UK if they are believed to be involved in terrorism-related activity outside the UK. The new duty, imposed on certain authorities — including universities — requires them to have “due regard” to the need to prevent people from being drawn into terrorism. This is a deradicalization duty. As such, the CTSA is the UK Government’s latest attempt to curb the radicalization of British youth.

This is apparent from the Explanatory Notes to the CTSA, which summarize why the Government considered there was a need to legislate:

Nearly 600 people from the UK who are of interest to the security services are thought to have travelled to Syria and the region since the start of the conflict, and the security services estimate that around half of those have returned. In the context of this heightened threat to our national security, the provisions of this Act will strengthen the legal powers and capabilities of law enforcement and intelligence agencies to disrupt terrorism and prevent individuals from being radicalised in the first instance. … The provisions in this Act will ensure that the law enforcement and intelligence agencies can disrupt the ability of people to travel abroad to fight, such as in Syria and Iraq, and control their return to the UK. It will enhance operational capabilities to monitor and control the actions of those in the UK who pose a threat, and help to combat the underlying ideology that supports terrorism.

In addition to amending provisions of existing terrorism legislation, the CTSA addresses six broad areas: 

• Travel documents/temporary exclusion from the UK: new powers now enable the seizure of travel documents and the imposition of temporary restrictions on travel where a person is suspected of involvement in terrorism.
• Deradicalization: provision is made for deradicalization programs.
• Terrorism Prevention and Investigation Measures (TPIMs): provision is made regarding (the pre-existing) TPIMs, which monitor and control the actions of individuals in the UK who are considered to pose a threat.
• Data retention: the CTSA enables the retention of data to identify who is responsible for sending a communication on the Internet or accessing an Internet communications service.
• Transport: new security arrangements are included regarding aviation, maritime, and rail transport.
• Independent Reviewer of Terrorism: the statutory remit of the Independent Reviewer is extended and provision is made for a Privacy and Civil Liberties Board to support that office.

The first two areas, the Travel and Deradicalization powers, have attracted perhaps the most debate and are most likely to spawn ongoing controversy. A short primer on the content of these powers is set out below.

Travel Powers

The CTSA makes provision for two distinct powers.

First, the power to seize travel documents, which is covered in Section 1 and Schedule 1:

• The power to seize travel documents (i.e., a passport or ticket) may be exercised in the case of a person at a port if a constable has reasonable grounds to suspect that the person intends to leave Great Britain for the purpose of terrorism-related activity outside the UK or has arrived in Great Britain with the intention of leaving it soon for that purpose.
• The power includes: (a) the power to seize all travel documents (and it is an offense to fail, without reasonable excuse, to hand over the documents; (b) the power to search the person, his belongings and his vehicle for travel documents; (c) the power to inspect the travel documents; and (d) the power to retain the travel documents.
• Travel documents seized may only be retained if a constable obtains authorization from a senior police officer.
• If such authorization is obtained, the travel documents may be retained for 14 days whilst (a) the Secretary of State considers whether to cancel the passport, (b) consideration is given to charging the person with an offense, or (c) consideration is given to making the person subject to any order/measure for purposes connected with protecting members of the public from a risk of terrorism (e.g., a TPIM).
• The 14-day period may be extended to a 30-day period if a senior police officer applies to a judicial authority prior to the expiry of the 14-days. The person to whom the application relates must have an opportunity to make oral/written representations to the judicial authority, but the judicial authority may exclude that person/his representative from any part of the hearing and specified information may be withheld from that person/his representative.
• If an extension is granted, one further application may be made.
• Certain restrictions are imposed on the repeated use of the power in relation to the same person.
• The Secretary of State must issue a Code of Practice regarding the exercise of these powers.

Secondly, the CTSA includes a power to temporarily exclude individuals from the UK.

This power is additional to the power in Section 66 of the Immigration Act 2014 (see my earlier posts here and here), which enables the Secretary of State to strip a person of his British citizenship if (a) the citizenship status results from the person’s naturalization, (b) the deprivation is conducive to the public good because the person has conducted himself in a manner which is seriously prejudicial to the vital interests of the UK, and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country outside the UK, to become a national of such a country.

The CTSA now provides the following power to temporarily exclude individuals from the UK, granted by provisions in Sections 2–5 and 9–10:

• A temporary exclusion order (TEO) requires an individual not to return to the UK unless (a) the return is in accordance with a permit to return issued by the Secretary of State or (b) the return is the result of the individual’s deportation to the UK.
• The Secretary of State can impose a TEO on an individual if five conditions are met. The five conditions are that: (i) the Secretary of State reasonably suspects that the individual is/has been involved in terrorism-related activity outside the UK; (ii) the Secretary of State reasonably considers that it is necessary to impose the TEO for purposes connected with protecting the UK public from a risk of terrorism; (iii) the Secretary of State reasonably considers that the individual is outside the UK; (iv) the individual has the right of abode in the UK; and (v) the court gives the Secretary of State permission (under Section 3) or the Secretary of State reasonably considers that the urgency of the case requires a TEO to be imposed without obtaining such permission.
• The court’s function, in giving permission for the TEO, is limited to determining whether the Secretary of State’s decisions are “obviously flawed.” The court is permitted to consider the Secretary of State’s application for a TEO (a) in the absence of the individual, (b) without the individual having been notified of the application, and (c) without the individual having been given an opportunity to make any representations to court.
• The imposition of a TEO must be notified to the individual on whom it is imposed (together with an explanation of how to make an application for a permit to return under Section 6) and may last for up to two years. When the TEO comes into force any British passport held by the excluded individual is invalidated.
• The Secretary of State may give the excluded individual a “permit to return” and require his compliance with conditions set out therein.
• The validity of the TEO is not affected by the excluded individual returning to the UK or departing from the UK.
• The Secretary of State may impose certain “permitted obligations” on an individual who is subject to a TEO and has returned to the UK. The “permitted obligations” are any obligations of a kind which may be imposed on an individual subject to a TPIM (e.g., to report to a police station) and an obligation to notify the police of the individual’s place(s) of residence.
• Returning to the UK without reasonable excuse and in violation of a TEO is an offense.
• An excluded individual may apply to the court to review the Secretary of State’s decisions regarding a TEO.

Deradicalization Powers

Government policy regarding deradicalization is summarized in the Explanatory Notes to the CTSA:

The purpose of the Government’s Prevent programme is to stop people becoming terrorists or supporting terrorism. It deals with all kinds of international terrorist threats to the UK. The most significant of these threats is currently from Al-Qa’ida-associated groups and from other terrorist organisations in Syria and Iraq. But terrorists associated with the extreme right also pose a continued threat to our safety and security. Prevent activity in local areas relies on the co-operation of many organisations to be effective. Currently, such co-operation is not consistent across Great Britain. In legislating, the Government’s policy intention was to make delivery of such activity a legal requirement for specified authorities and improve the standard of work on the Prevent programme across Great Britain.

Thus, in Sections 26, 29–30, 32–33, and 36, the CTSA provides as follows:

• It places a general duty on specified authorities (those listed in Schedule 6) to have “due regard to the need to prevent people from being drawn into terrorism.” (This provision is not yet in force.)
• The Secretary of State may issue guidance to specified authorities about the exercise of their duty under Section 26(1) and the specified authorities must have regard to any such guidance in carrying out that duty.
• Where the Secretary of State is satisfied that a specified authority has failed to discharge the duty imposed on it by Section 26(1), the Secretary of State may give directions to the authority for the purpose of enforcing the performance of that duty. (This provision is not yet in force.)
• Section 33 specifically addresses freedom of expression in universities and further education institutions. It provides that “particular regard” must be given to the “duty to ensure freedom of speech” and to “the importance of academic freedom” when a university carries out the Section 26(1) duty and when the Secretary of State issues Section 29 guidance and considers Section 30 directions. The “duty to ensure freedom of speech” and “academic freedom” are defined statutory terms.
• Further and higher education bodies are required to provide information to the Secretary of State, which the Secretary of State may require for the purposes of monitoring that body’s performance in discharging the duty imposed by Section 26(1).
• Local authorities must ensure that a panel of persons is in place for its area with the functions of (a) assessing the extent to which identified individuals are vulnerable to being drawn into terrorism, and (b) in relation to such individuals, to discharge various obligations, including to prepare a plan to support such individuals for the purpose of reducing their vulnerability to being drawn into terrorism. (This provision is not yet in force.)