Tag Archives: Liberty

MPs unite behind counter-terror legislation amendment opposing Temporary Exclusion Orders

Following the introduction of the Counter-Terrorism and Security Bill by Home Secretary Theresa May, a cross-party amendment has now been tabled opposing the Government’s proposed Temporary Exclusion Orders.

According to fundamental rights and freedoms concern Liberty, Temporary Exclusion Orders (TEOs) would effectively exile British citizens by revoking their passports when outside of the UK and risk exposing them to torture or possibly delivering them into the hands of terror factions.

The proposed amendment to the Bill, drafted by Liberty, would replace TEOs with a Notification and Managed Return Order (NMRO). These would allow the Home Secretary to require airlines and other carriers to notify her of the return plans of those whom she suspected of terrorism abroad. The authorities could then use their existing powers against a suspect when they return to the UK.

Crucially, the Home Secretary would not have the power to revoke passports while individuals are outside of the country.

Shami Chakrabarti: director of Liberty

Shami Chakrabarti: director of Liberty

Shami Chakrabarti, director of Liberty, commented: “Instead of abandoning British citizens abroad to the possibility of torture or further radicalisation, shouldn’t we deal with them within the rule of law? This amendment would put some much-needed common sense into this counter-productive and illiberal Bill. We urge Parliamentarians to support it.”

The amendment is supported by the Labour Party’s front bench and the Green Party.

TEOs – and Liberty’s suggested amendment – were debated on the Second Day of Committee Stage of the Counter-Terrorism and Security Bill on Monday 15 December.

Speaking out against the Government’s proposals

A number of MPs have already spoken out against the Home Secretary’s proposals.

At Second Reading, Sir Menzies Campbell MP said: “I confess that I’m by no means convinced of the legality of what is being suggested under TEOs. What’s the position of someone who declines to accept conditions of return and who is not subject to deportation by the country in which they temporarily find themselves? Are they not de facto stateless in such circumstances?”

Also during Second Reading, former Attorney General Dominic Grieve QC MP pointed out: “It’s a fundamental principle of the common law in this country that an individual, unconvicted – the presumption of innocence applies – should be free to reside in his or her own land. The principle of exile, as a judicial or even administrative tool, has not been tolerated in this country since the late 17th Century. Even if exclusion is on a temporary basis, what’s being proposed is a draconian and unusual power being taken by the State. The point has been made that the proposal could be in breach of our international legal obligations by rendering a person stateless.”

Chris Bryant MP said: “TEOs would, in effect, result in the exile – albeit short-term and temporary – of British citizens, in many cases to other countries. All history suggests that such action further radicalises people and makes them more dangerous enemies to this country.”

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“RIPA not fit for purpose” states Home Affairs Select Committee

The Regulation of Investigatory Powers Act (RIPA) 2000 – the legislation governing communications data – “needs a complete overhaul”. That’s the conclusion of the latest Home Affairs Select Committee report.

The Home Affairs Select Committee acknowledges the operational need for secrecy both during investigations and afterwards (so that investigative techniques more broadly are not disclosed). However, there has to be proper oversight and scrutiny. The Committee recommends that the Home Office uses the current review of the RIPA Code to ensure that law enforcement agencies discharge their RIPA powers properly.

The Committee noted that the Rt Hon Sir Paul Kennedy, the Interception of Communications Commissioner, launched an inquiry in October 2014 to determine whether the acquisition of communications data had been used to identify journalistic sources. He wrote to all chief constables and directed them, under Section 58(1) of RIPA, to provide him with details of all investigations that had used powers under Chapter 2 of Part I of RIPA to acquire communications data to identify journalistic sources. His office will undertake a full inquiry into these matters, report the findings to the Prime Minister and then publish them.

The Committee believes all local police forces must communicate openly and efficiently with the Commissioner regarding the information they give him about their work. The Committee considers that IOCCO should be given further resources to carry out its job in an effective and timely manner, particularly in respect of its inquiry into the use of RIPA powers regarding journalistic sources.

Keith Vaz MP: chairman of the Home Affairs Select Committee

Keith Vaz MP: chairman of the Home Affairs Select Committee

Updated Code of Practice

The Communications Data Code of Practice was drafted eight years ago and, unlike the interception or the Surveillance Code which were recently updated, contains no advice on dealing with professions that handle privileged information nor any guidelines on the use of confidential helplines.

The Committee notes Sir Paul’s recommendation to the Home Office concerning the need for improvements to the statistical requirements in the RIPA Code of Practice. It’s vital that the statistical requirements are enhanced so that the public can be better informed about the use which public authorities make of communications data.

On 15 October this year, the Home Secretary Theresa May announced that the Home Office was conducting a review of the use of RIPA in response to concerns over its deployment to access journalists’ phone records. The Government has stated that a revised Code will be published in draft form “this autumn” and will be subject to public consultation. With only 26 days until the New Year, the Home Affairs Select Committee has stated that the Home Office has failed to meet its own timetable.

Keith Vaz MP, chairman of the Home Affairs Select Committee, said: “RIPA is not fit for purpose. We were astonished that law enforcement agencies failed to routinely record the professions of individuals who have had their communications data accessed under the legislation. Using RIPA to access the telephone records of journalists is wrong and this practice must cease. The inevitable consequence is that this deters whistle-blowers from coming forward.”

Vaz continued: “The recording of information under RIPA is lamentably poor. The whole process appears secretive and disorganised without proper monitoring of what is being destroyed and what’s being retained. We’re concerned that the level of secrecy surrounding the use of RIPA allows investigating authorities to engage in acts which would be unacceptable in a democracy with inadequate oversight.”

Home Secretary Theresa May

Home Secretary Theresa May

In conclusion, Vaz explained: “The Home Office has failed to publish its review within its own timetable, and not for the first time. It should hold a full public consultation on an amended RIPA Code of Practice. Any updated advice should contain special provisions for dealing with privileged information such as journalistic material and material subject to legal privilege. It’s vital that the Home Office uses the current review of the RIPA Code to ensure that law enforcement agencies discharge their RIPA powers properly.”

Response from Liberty and Big Brother Watch

Responding to the Home Affairs Select Committee’s report on RIPA, Isabella Sankey – director of policy for Liberty – said: “The secret use of RIPA to investigate journalists’ sources will chill anyone who values free speech and a free press, but what’s really disturbing is that the abuses detailed in this damning report are the tip of the iceberg. Records about your phone calls and e-mails build up an incredibly detailed data picture of every single one of us – who we are, where we go and what we do.”

Sankey added: “We urgently need safeguards to stop this valuable data being accessed without judicial warrant. What we’re getting is the Government handing itself even more powers to snoop in the form of the ill-targeted Counter-Terrorism and Security Bill.”

Emma Carr, director of Big Brother Watch, said: “When a senior Parliamentary Committee says that the current legislation is not fit for purpose then this simply cannot be ignored. It’s now abundantly clear that the law is out of date, the oversight is weak and the recording of how the powers enshrined in RIPA are used is patchy at best. The public is right to expect better.”

Emma Carr: leader of Big Brother Watch

Emma Carr: director of Big Brother Watch

Carr continued: “The conclusion of the Committee that the level of secrecy surrounding the use of these powers is permitting investigations that are deemed ‘unacceptable in a democracy’ should make the defenders of these powers sit up and take notice. At present, the inadequacy and inconsistency of the records being kept by public authorities regarding the use of these powers is woefully inadequate. New laws would not be required to correct this.”

Big Brother Watch’s director said: “While this report concentrates on targeting journalists, it’s important to remember that thousands of members of the public have also been snooped on, with little opportunity for redress. If the police fail to use the existing powers correctly then it’s completely irresponsible for the Home Office to be planning on increasing those powers. Failure by the Government to address these serious points means we can already know that there will be many more innocent members of the public who will be wrongly spied on and accused. This is intolerable.”

Watch a video of Emma Carr being interviewed on this issue by BBC News:

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Home Secretary Theresa May introduces Counter-Terrorism and Security Bill

Home Secretary Theresa May has introduced “urgently-needed legislation” which will give the UK some of the toughest powers in the world to tackle the increasing threat from international terrorism.

According to the Home Office, the all-new Counter-Terrorism and Security Bill will bolster the UK’s already considerable armoury of powers to disrupt the ability of people to travel abroad to fight, reduce the risks they pose on their return and combat the underlying ideology that feeds, supports and sanctions terrorism.

The collapse of Syria, the emergence of ISIL and ongoing instability in Iraq present significant dangers not just in the Middle East but also in Britain and across the West. Many of the 500 British citizens who have travelled to Syria and Iraq have joined terrorist organisations alongside foreign fighters from Europe and further afield.

Home Secretary Theresa May MP

Home Secretary Theresa May MP

The Bill, which will be enacted at the earliest opportunity, will disrupt those intending to travel by:

*Providing the police with a temporary power to seize a passport at the border from individuals of concern

*Creating a Temporary Exclusion Order that will control the return to the UK of a British citizen suspected of involvement in terrorist activity abroad

*Enhancing the UK’s border security by toughening transport security arrangements around passenger data, ‘No fly’ lists and screening measures

Enhancement of existing terrorism prevention and investigation measures

To deal with those returning to or already in the UK, the Government is:

*Enhancing existing terrorism prevention and investigation measures, including the introduction of stronger locational constraints and a power requiring individuals to attend meetings with the authorities as part of their ongoing management

To support those at serious risk of succumbing to radicalisation, the Government is:

*Creating a general duty on a range of bodies to prevent people from being drawn into terrorism

*Putting Channel – the voluntary programme for people at risk of radicalisation – on a statutory basis

To help disrupt the wider activities of these terrorist organisations, the Bill is:

*Enhancing vital investigative powers by requiring communications service providers to retain additional information in order to attribute an Internet Protocol address to a specific individual

*Amending existing law to ensure that UK-based insurance firms cannot reimburse the payment of terrorist ransoms

Use of these powers – which are consistent with all of the UK’s existing international legal obligations – will be subject to stringent safeguards. These include appropriate legal thresholds, judicial oversight of certain measures and a power to create a Privacy and Civil Liberties Board designed to support the work of David Anderson QC, the current Independent Reviewer of Terrorism Legislation.

Removal of terrorism-related material

The Bill will sit alongside the existing range of tools already used extensively to combat the terrorist threat, including powers to withdraw the passports of British citizens, bar foreign nationals from re-entering the UK and strip British citizenship from those who have dual nationality.

The Government is also working with the Internet industry to remove terrorist material hosted in the UK or overseas. Since February 2010, the Counter-Terrorism Internet Referral Unit has taken down more than 65,000 pieces of unlawful terrorist-related content.

Speaking about the new Bill, Home Secretary Theresa May said: “We’re in the middle of a generational struggle against a deadly terrorist ideology. These powers are essential to keep up with the very serious and rapidly changing threats we face. In an open and free society, we can never entirely eliminate the threat from terrorism but we must do everything possible in line with our shared values to reduce the risks posed by our enemies.”

The Home Secretary added: “This Bill includes a considered and targeted set of proposals that will help to keep us safe at a time of very significant danger by ensuring we have the powers we need to defend ourselves.”

Shami Chakrabarti: director of Liberty

Shami Chakrabarti: director of Liberty

Responding to the Home Secretary’s announcement that the Counter-Terrorism and Security Bill will oblige Internet Service Providers (ISPs) to retain information linking IP addresses with individual users, Liberty’s director Shami Chakrabarti commented: “There’s no problem with the targeted investigation of terrorist suspects, including where required the linking of apparently anonymous communications to a particular person. However, every Government proposal of the last so many years has been about blanket sur‎veillance of the entire population. The Snowden revelations demonstrate that they were even prepared to act outside the law and without Parliamentary consent. Forgive us if we look for the devil in the detail of this new Bill.”

Big Brother Watch director Emma Carr added: “There are key issues to be addressed with these IP-based proposals. For example, there are questions over whether or not this will be technically feasible. Proper safeguards must be introduced to ensure that these techniques are used transparently, that there’s a proper level of authorisation and that the oversight and redress mechanisms can function effectively. Also, if such a measure is introduced, time should then be allowed to ensure that its effectiveness in relation to law enforcement investigations can be evaluated with due care and transparency.”

Disruption of terrorist attacks

The National Policing Lead for Counter-Terrorism is Assistant Commissioner Mark Rowley of the Metropolitan Police Service. As far as he’s concerned, countering terrorism has for too long been thought of as the sole preserve of the police service, the security agencies and the Government.

Rowley is calling for people and businesses to be prepared to play their part in keeping the country safe. He said: “The danger posed by violent extremists has evolved. They are no longer a problem solely stemming from countries like Iraq and Afghanistan, far away in the minds of the public. Now, they are home-grown in our communities, radicalised by images and messages they read on social media and prepared to kill for their cause. The tragic murder of Lee Rigby last year was a stark warning to us all about how real and local the threat really is.”

Rowley continued: “Police officers and our partners are continuing to work 24 hours a day, seven days a week to protect the UK from a terrorist attack. So far this year we’ve disrupted several attack plots and made 271 arrests following counter-terrorism investigations, but the eyes and ears of law enforcement and other agencies alone cannot combat the threat.”

The UK’s counter-terrorism strategy CONTEST focuses on four key areas: Pursue, Prevent, Protect and Prepare. Most of the publicity around terrorism is based on Pursue and Prevent, as these involve arrests, the disrupting of actual attack plots and turning people away from extremism.

AC Rowley is keen to stress that everyone can be doing more to Protect and Prepare, ensuring security in crowded places, the monitoring of our borders and being ready to respond to a terrorist attack.

“We don’t want to scare people, but we do want them to understand the threat and be vigilant to things that are out of place or suspicious and report it to the police. We need businesses to check that their security measures are effective and train their staff to detect potential threats and, if necessary, respond to an attack.”

Metropolitan Police Service Assistant Commissioner Mark Rowley

Metropolitan Police Service Assistant Commissioner Mark Rowley

AC Rowley also stated: “Experience shows us that terrorists target busy, well-populated places to ensure that attacks have a maximum impact. Businesses, particularly those in crowded places, have an invaluable role to play in our fight against terrorists, violent extremists and other criminals. Their staff are often the first people to spot signs that something is wrong.”

The police regularly hold security events with businesses, and the Metropolitan Police Service alone gave 29 presentations during 2013 and 2014.

Since the UK terror threat level increased on 29 August, reports of suspicious behaviour have nearly doubled. This is a direct result of reporting by members of the public, and every one of those reports is investigated.

However, AC Rowley wants more members of the public to have confidence in reporting their suspicions. “Please tell us if you know or suspect something,” he urged. “Your information could save lives. We will deal carefully with all of the information passed to us and respond sensitively and proportionately.”

*The Counter-Terrorism and Security Bill is the seventh major counter-terrorism law introduced in Britain since 9/11. The Bill can be accessed here

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Liberty represents MPs David Davis and Tom Watson in legal challenge to Government’s “emergency” surveillance law

At 11.00 am this morning, Liberty announced that it will seek a Judicial Review of the Government’s ’emergency’ surveillance law on behalf of MPs David Davis and Tom Watson. The announcement comes days after the Data Retention and Investigatory Powers Act 2014 (DRIP) was – according to Liberty – “rushed through Parliament” onto the statute book.

Liberty is arguing on Davis and Watson’s behalf that the new legislation is incompatible with Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life, and Articles 7 and 8 of the EU Charter of Fundamental Rights relating to respect for private and family life and the protection of personal data.

Since 2009, communications data has been retained by public communications services and network providers under a 2009 EU Data Retention Directive. However, back in April the Court of Justice of the European Union (CJEU) ruled that the Directive was invalid because it was so sweeping in its interference with individual privacy rights. The judgement made clear that existing UK legislation, including the Regulation of Investigatory Powers Act 2000 (RIPA), required urgent review.

On 10 July 2014, the DRIP Bill was introduced by ministers claiming that “emergency” legislation was necessary. The Bill was privately agreed following discussions between the three main party leaders. It became law within just three days – a timescale which Liberty feels has rendered proper parliamentary scrutiny, amendment and even debate impossible.

James Welch: Liberty's legal director

James Welch: Liberty’s legal director

James Welch, legal director for Liberty, said: “It’s as ridiculous as it is offensive to introduce an “emergency” law in response to an essay crisis. The court ruling that blanket data retention breached the privacy of every man, woman and child in the UK was more than three months ago. The Government has shown contempt for both the rule of law and Parliamentary Sovereignty. This private cross-party stitch-up, rail-roaded onto the statute book inside three days, is ripe for challenge in the Courts.”

David Davis, Conservative MP for Haltemprice and Howden, added: “This Act of Parliament was driven through the House of Commons with ridiculous and unnecessary haste to meet a completely artificial emergency. As a result, Members of Parliament had no opportunity to either research it, consider it or debate it properly. The aim of this legal action is to make the Government give the House the opportunity to do what it should have been allowed to do in the first place – in other words proper, considered and effective law-making. The overall aim is to create law which both protects the security of our citizens without unnecessarily invading their privacy.”

David Davis MP

David Davis MP

Tom Watson, Labour MP for West Bromwich East, added: “The three party leaders struck a private deal to rail-road through a controversial Bill in a week. You cannot make good laws behind closed doors. The new Data Retention and Investigatory Powers Act does not answer the concerns of many that the blanket retention of personal data is a breach of fundamental rights to privacy.”

Tom Watson MP

Tom Watson MP

The Human Rights Act 1998

The Human Rights Act 1998 incorporates the ECHR into UK law. Section 3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

Section 4 stipulates that in any proceedings in which a court determines whether a provision or primary legislation is compatible with a Convention right, the court may – if it’s satisfied that the provision is incompatible – make a declaration of that incompatibility.

Liberty’s clients (ie David Davis MP and Tom Watson MP) claim that Section 1 of the DRIP 2014 is incompatible with the Human Rights Act and, in particular, Article 8 of the ECHR, together with Articles 7 and 8 of the EU Charter.

The powers within Section 1 of DRIP are extraordinarily wide. In its letter before claim to the Home Secretary, Liberty argues that such powers are incompatible with Article 8 of the ECHR and/or Articles 7 and/or 8 of the EU Charter for a number of reasons, including the following:

*Communications data can provide a very intimate picture of a person’s life – who they communicated with, by what means, the time and length of the communication, where the communication took place and the frequency of the communications. As the CJEU ruling said: “Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them”

*Communications data retained under DRIP is subject to an extremely lax access regime – still governed by the RIPA (Communications Data) Order 2010 – allowing such data to be acquired by hundreds of public authorities

*The Act allows the Home Secretary to command, by order, the blanket retention of all communications data for 12 months – no link with the prevention or detection of serious crime is required

Via its letter before claim, Liberty has invited the Home Secretary Theresa May to concede that the Act is indeed incompatible and to publish and present a replacement Bill, in turn allowing Parliament to fulfil its proper constitutional function.

Alternatively, the Home Secretary is invited to concede that Peter Davis MP and Tom Watson MP’s claim is arguable and that a substantive hearing ought to follow.

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British Security Services held to account in open court over “blanket surveillance”

This week, Liberty is appearing at the Investigatory Powers Tribunal in its legal claim against the British Intelligence Services over what the civil liberties concern dubs “the ongoing surveillance scandal”.

The group is bringing the claim on its own behalf and on behalf of a number of its partner organisations in other countries, including the ACLU.

The Investigatory Powers Tribunal is also hearing claims brought by Privacy International and Amnesty International.

The organisations are concerned that their private communications may have been monitored under GCHQ’s electronic surveillance programme Tempora, whose existence was revealed by Edward Snowden.

Shami Chakrabarti: director of Liberty

Shami Chakrabarti: director of Liberty

They also complain that information obtained through the NSA’s Prism and Upstream programmes may have been shared with the British Intelligence Services in a way that gets round the protections provided by our legal system.

Article 8 and Article 10

James Welch, Liberty’s legal director, explained: “As legislation is introduced to paper over one crack in the crumbling surveillance state, another faces challenge. Not content with forcing service providers to keep details of our calls and browsing histories, the Government is fighting to retain the right to trawl through our communications with anyone outside and many inside the country. When will it learn that it’s neither ethical nor efficient to turn everyone into suspects?”

Liberty argues that the interference with its – and its clients’ – communications is a breach of Article 8 (the right to respect for their private life) and Article 10 (freedom of expression) of the European Convention on Human Rights.

There is no clear legal framework – within the Regulation of Investigatory Powers Act (RIPA) 2000 or otherwise – that permits Tempora’s collection and storage of such vast amounts of communications.

Liberty states that the scale of data being obtained cannot be described as either necessary or proportionate.

The preliminary hearing started on Monday 14 July and is scheduled to continue all week at Court 19 of the Rolls Building, Fetter Lane, commencing daily at 10.30 am.

The Parties in the case are Liberty, the American Civil Liberties Union, Privacy International, Amnesty International, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties and the Legal Resources Centre (South Africa).

Liberty is represented by Matthew Ryder QC (Matrix Chambers), Eric Metcalfe (Monckton Chambers) and Edward Craven (Matrix Chambers).

Read Liberty’s Grounds of Claim

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