Theresa May’s Record on Surveillance, Human Rights, and Counterterrorism

Theresa May, Britain’s newly appointed Prime Minister was previously the UK Home Secretary. In that role she fought for expansive state surveillance powers, blamed human rights for standing in the way of immigration and security and developed a counterterrorism strategy which erodes citizenship rights and purports to tackle extremism. A short primer on her record on these issues is set out below.

May’s Record on Surveillance

Over the past few years May has been at the forefront of Government efforts to increase State surveillance powers. In 2013, as Home Secretary, she supported the police’s nine-hour detention of Glenn Greenwald’s partner, David Miranda, under the Terrorism 2000 Act during his layover at Heathrow airport where officers seized his personal electronic goods looking for information related to the Snowden leaks, which Greenwald played a key role in publishing. A Home Office statement – which may give an insight into May’s personal approach – said

“If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.”

This was dubbed “a rather ugly argument” by former director of public prosecutions, Lord MacDonald who said:

“To suggest that people who are concerned about the use of a power of this sort against journalists are condoning terrorism, which seems to be the implication of that remark, is an extremely ugly and unhelpful sentiment. People who are concerned about these issues are not condoning terrorism. They are asking a perfectly legitimate question, which is: are we striking the balance in the right place between security and liberty?”

Since 2014, May has introduced the most significant and controversial surveillance legislation into the UK Parliament: the Data Retention and Investigatory Powers Act 2014 (known as DRIPA, see here and here for my earlier posts on it) and the Draft Investigatory Powers Bill, aka the Snooper’s Charter:

  • May gave two reasons for introducing DRIPA. The first was that it was a response to the European Court of Justice’s ruling in the Digital Rights case. In that case, the Court held that the Data Retention Directive – which imposed obligations regarding the collection and retention of data – was incompatible with certain human rights and therefore invalid. The other reason May gave in support of DRIPA was the need to clarify the nature and scope of obligations on telecommunications service providers outside the UK.
  • The speed with which DRIPA was rushed through Parliament was criticized: it was described as a “short term sticking plaster” by the then Shadow Home Secretary. A year after it became law, in July 2015, the English Divisional Court upheld a judicial review claim challenging the data retention powers in DRIPA. The Court held that section 1 of DRIPA was inconsistent with EU law because it did not lay down clear and precise rules providing for access to, and use of, communications data and since access to the data was not made dependent on a prior review by a court or an independent administrative body. The Home Office said that it disagreed “absolutely” with the judgment and would appeal: it did so. The appeal has not yet concluded since the Court of Appeal has referred certain questions of EU law to the European Court.
  • The Investigatory Powers Bill – essentially May’s legislative response to Snowden – was introduced in November 2015. (See my posts here, here, and here for coverage of its significant State surveillance powers. May’s evidence to the Joint Committee on the Bill is here.) As with DRIPA, there are concerns about the speed with which the Bill is being pushed through Parliament. See, for example, the March letter signed by over 100 prominent individuals, which reads:

“All three parliamentary reports on the draft Investigatory Powers Bill concluded that it does not meet the requirements of clarity, consistency and coherence. They call for new drafting, further safeguards, further evidence and further consultation. Given these recommendations, the Government’s intention to pass the [Bill] this year is not in the nation’s interest.”

  • Last month, Parliament’s Joint Committee on Human Rights (JCHR) published a report on the Bill. Amongst its conclusions were that bulk surveillance powers were not inherently incompatible with the right to respect for private life but the Independent Reviewer of Terrorism Legislation, David Anderson, QC, should assess the Government’s operational case for such bulk powers. The Government has accepted this and asked for the review to be done but concerns have been expressed about the effectiveness of the review given Anderson’s 2014 report which included the observation that GCHQ case studies “leave me in not the slightest doubt that bulk interception, as it is currently practised, has a valuable role to play in national security.”
  • The JCHR also said that the Bill’s provisions regarding the possible subject-matter of targeted interception and targeted equipment interference warrants were too broadly drafted and required amendment and that the level of protection accorded to journalists’ sources should be increased. This was taken up in the House of Lords earlier this month, with a proposed cross-party amendment to the Bill calling for stronger protections for such sources.

May’s Record on Human Rights

May is well-known for her antipathy against the Human Rights Act 1998 (HRA), which requires UK public authorities to act compatibly with certain human rights outlined in the European Convention on Human Rights (ECHR). She has often expressed this in the context of immigration and national security issues. For example:

  • At the Conservative Party Conference in 2011 she made a claim – since discredited – that it was because of the HRA that an immigrant with a pet cat was able to resist deportation:

“We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat. This is why I remain of the view that the Human Rights Act needs to go”.

  • In 2013 she blamed the European Court of Human Rights for the delay in deporting Abu Qatada to Jordan and said that all options – including a withdrawal from the ECHR – should “remain on the table” to ensure his deportation.
  • Also in 2013, after a legal complaint she backed down and removed government-sponsored vans sporting advertisements reading, “go home or face arrest,” from UK roads. The Advertising Standards Agency said the posters on the vans were misleading because they referred to inaccurate arrest statistics but cleared the campaign of the charge of being offensive and irresponsible.
  • In April 2016, as part of the Brexit (Remain) campaign, she said:

“But as I have said before, the case for remaining a signatory of the European Convention on Human Rights – which means Britain is subject to the jurisdiction of the European Court of Human Rights – is not clear. Because, despite what people sometimes think, it wasn’t the European Union that delayed for years the extradition of Abu Hamza, almost stopped the deportation of Abu Qatada, and tried to tell Parliament that – however we voted – we could not deprive prisoners of the vote. It was the European Convention on Human Rights.

The ECHR can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals, and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.

I can already hear certain people saying this means I’m against human rights. But human rights were not invented in 1950, when the Convention was drafted, or in 1998, when it was incorporated into our law through the Human Rights Act. This is Great Britain – the country of Magna Carta, Parliamentary democracy and the fairest courts in the world – and we can protect human rights ourselves in a way that doesn’t jeopardise national security or bind the hands of Parliament. A true British Bill of Rights – decided by Parliament and amended by Parliament – would protect not only the rights set out in the Convention but could include traditional British rights not protected by the ECHR, such as the right to trial by jury.”

  • Despite this, she launched her bid to lead the Conservative Party in June with a comment that suggests that she may not be campaigning to pull the UK out of the ECHR.

May’s Record on Counterterrorism

May’s counterterrorism initiatives coalesce around an erosion of citizenship rights and deradicalization measures. This is apparent from her principal legislative counterterrorism initiative –  the Counter Terrorism and Security Act 2015 (CTSA, my earlier posts on this are here and here) – and from the proposed legislation announced in the Queen’s Speech in May 2016.

  • The CTSA introduced two new powers and one new duty into English law. The first of the new powers enables the seizure and retention of the passport of someone suspected of preparing to leave Britain to commit a terrorism-related activity outside the UK. The second enables 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 backdrop to these two powers is the citizenship-stripping power enacted in 2014 (see my earlier post here). The new deradicalization duty, imposed on certain authorities — including universities — requires them to have “due regard” to the need to prevent people from being drawn into terrorism, a move that has been criticized as restricting academic freedoms.
  • In her speech in May 2016, the Queen said that legislation – the Counter-Extremism and Safeguarding Bill – will be introduced to prevent radicalization, tackle extremism in all its forms and promote community integration. The Bill will include “stronger powers to disrupt extremists and protect the public” such as a new civil order regime to restrict extremist activity. A coalition of organizations and individuals has criticized the Bill, commenting : “These proposals will serve to alienate communities and undermine free speech, but there is scant evidence that they will tackle the terrorism we all want to confront.”

 

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers