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News: Reforming electoral law across the UK

In a consultation opening today the Law Commissions of England and Wales, Scotland and Northern Ireland set out provisional proposals for reforming the law that governs the conduct of elections and referendums across the UK.

Electoral law in the UK is spread across 25 major statutes. It has become increasingly complex and fragmented, and difficult to use. The last century has seen a steady increase in the numbers and types of election. Today we may be asked to vote – at the same time – for a range of representatives. We could be casting votes for our local mayor, police and crime commissioner and councillors while also voting for our MP, MSP or MLA, Welsh or London AMs or our MEPs. Each of these election types comes with its own set of rules and systems, and combining them to produce one election event introduces yet more layers of electoral laws.

The Law Commissions are seeking views on potential reforms that will modernise and rationalise electoral law. Their consultation looks at the management and oversight of elections, notice of elections and the polling process, as well as registration of electors, management of postal voting applications, and how and when an election can be challenged. All the Commissions’ provisional proposals for reform are founded on two principles:

 

  • the laws governing elections should be rationalised into a single, consistent legislative framework governing all elections, and
  • electoral laws should be consistent across all types of election.

 

Nicholas Paines QC, Law Commissioner for public law, who is leading the project for the Law Commission of England and Wales, said: “Elections are fundamental to democracy. They are the mechanism by which citizens exercise their democratic rights. The price we pay as a democracy when the electoral process loses credibility is high and potentially catastrophic.

“It is clear that electoral law is in need of reform. Inconsistencies and ambiguities risk undermining the credibility of our electoral process. The law must be simplified, modernised and rationalised so that it can be more easily understood and used by administrators and candidates, and public confidence in electoral administration can be strengthened.”

Lord Pentland, Chairman of the Scottish Law Commission, said: “The Scottish Law Commission entirely agrees that it has become essential for electoral law throughout the UK to be streamlined and put into a modern, accessible and user-friendly format, which is fit for the 21st century. We have, therefore, been delighted to participate fully in this important law reform project. We look forward greatly to receiving a wide range of responses to the consultation exercise.”

Dr Venkat Iyer, the Law Commissioner leading on the project for Northern Ireland, said: “UK Parliamentary and European Parliamentary elections, as well as UK-wide referendums, are subject to rules across jurisdictional borders. We are very pleased to be conducting this timely review in partnership with our colleagues in the Law Commission for England and Wales and the Scottish Law Commission.”

The consultation is open until 31 March 2015.

 

Notes for editors

  1. The Law Commission and the Scottish Law Commission are non-political independent bodies, set up by Parliament in 1965 to keep all the law of England and Wales and of Scotland under review, and to recommend reform where it is needed.
  2. The Northern Ireland Law Commission exists to review areas of the law and to make recommendations for reform. It was established under the Justice (Northern Ireland) Act 2002 (as amended by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010), and was set up in 2007 following the recommendations of the Criminal Justice Review Group.
  3. For more details on this project, visit:

http://lawcommission.justice.gov.uk/areas/electoral-law.htm

http://www.scotlawcom.gov.uk/law-reform-projects/joint-projects/electoral-law/

http://www.nilawcommission.gov.uk/index/current-projects/electoral_law_reform.htm

  1. For all press queries please contact:

Phil Hodgson, Head of External Relations, Law Commission of England and Wales:  020 3334 3305

Jackie Samuel:  020 3334 3648

Email:  communications@lawcommission.gsi.gov.uk

 

Editor’s Note:

The reform will be discussed at the following event:

Reforming Electoral Law

Nicholas Paines QC & Henni Ouahes, Law Commission

Date: 1pm, 28 January 2015

Venue: Council Room, 29-30 Tavistock Square

 

See: www.ucl.ac.uk/constitution-unit/events

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CONSTITUTIONAL LAW DISCUSSION GROUP (CLDG), EDINBURGH LAW SCHOOL: CALL FOR PRESENTERS

Old_College_of_Edinburgh_UniversityABOUT THE CLDG
The Constitutional Law Discussion Group (CLDG) at Edinburgh Law School aims to provide a structured forum for the discussion of topics relevant to constitutional law and theory. We hold fortnightly meetings, attended by doctoral students and staff, mainly from the law school, but also political science and other departments. The CLDG operates in association with, and with the support of, the Edinburgh Centre for Constitutional Law (ECCL).

Meetings of the CLDG typically last for one hour to 90 minutes, with the usual format a presentation of 30-45 minutes, followed by Q&A with the audience, and an informal reception. However, we are open to different formats, and have experimented with ‘dialogues’, open discussion, a one-day symposium, and ‘virtual’ meetings (e.g. Google+ hangouts).

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APPLICATIONS TO PRESENT NEXT SEMESTER (JANUARY-JUNE 2015)
We wish to invite PhD researchers and postdoctoral scholars conducting research on constitutional law and constitutional theory to present at the CLDG next semester (January-May 2015).  The open dates (always a Tuesday, at 3pm) are:

20 January   |   3 February   |   17 February  |   3 March   |   24 March   |   21 April   |   12 May

Applications to present next semester should be sent no later than Friday 8 January, but earlier applications (ideally before Christmas) are encouraged.

Please note that the CLDG selects speakers on a competitive basis and cannot commit a slot to all applicants. Presenters are not required to circulate a paper in advance, but may do so. Please note that we ordinarily cannot cover travel or accommodation expenses for speakers.

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PAST PRESENTERS
Past presenters have included a mix of doctoral students, early career researchers and established academics, including scholars from Edinburgh and the UK, and other universities in Europe, Canada, the United States, Israel, Argentina and Brazil. Topics vary widely, and in the past year have included constitutional reform in the age of Arab revolutions, the accommodation of national pluralism in Sri Lanka, judicial review and judicial empowerment in the US and UK, constitutional courts, social rights, federalism and referendums on independence.

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MORE INFORMATION & CONTACT DETAILS
If you would like to present, to informally discuss a possible presentation, or to be added to our mailing list, please contact us at cldg@ed.ac.uk.
For more information on the CLDG, visit our website:  http://www.cldg.law.ed.ac.uk/
For a list of past speakers and topics, see: http://www.cldg.law.ed.ac.uk/list-of-past-speakers/
For speaker guidelines, see: http://www.cldg.law.ed.ac.uk/guidelines-for-speakers/
For a list of forthcoming events, see: http://www.cldg.law.ed.ac.uk/forthcoming-events/

Yours sincerely,

TOM GERALD DALY
Convenor
Constitutional Law Discussion Group (CLDG)
Edinburgh Law School
cldg@ed.ac.uk
http://www.cldg.law.ed.ac.uk

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Conference Announcement: Thirty Years of Judicial Review in Scotland

strathGlasg Sponsored by the Clark Foundation for Legal Education and the UK Constitutional Law Association

Thirty Years of Judicial Review in Scotland

 

26 January 2015

10 am to 4.30 pm

University of Strathclyde, Court/Senate Suite, Collins Building, 22 Richmond St, Glasgow

This one day conference is being held jointly by Glasgow and Strathclyde University Law Schools to mark the thirtieth anniversary of the introduction of the specialised judicial review procedure in Scotland. It is an opportunity for practitioners, academics and law students to reflect on developments since 1985, how judicial review is working today, and how it might develop in future. It is particularly timely given the important reforms to the judicial review procedure about to be introduced by the Courts Reform (Scotland) Bill 2014. The programme features contributions by leading public law academics and practitioners, and a keynote address by the Right Hon Lord Reed, justice of the Supreme Court.

To register for this event please visit the Strathclyde University Online Shop. Registration fee £25. N.b., there are a small number of free places for undergraduate and postgraduate students. To book a free place please contact carol.hutton@strath.ac.uk.

Attendance at this event will qualify for 5 hours CPD.

 

Programme

9.30 – 10.00:               Registration

 10.00 – 10.55:                         Welcome and Keynote Address

Chair:                          James Wolffe, QC, Dean of the Faculty of Advocates

Speaker:                      The Right Hon Lord Reed, Justice of the Supreme Court: ‘The Development of Judicial Review in Scotland’

10.55 – 11.15:                         Coffee

11.15 – 13.00               What is Judicial Review For?

Chair:                         Professor Aileen McHarg, University of Strathclyde

Speakers:                    Brian Thompson, University of Liverpool: ‘The Place of Judicial Review in the Administrative Justice Landscape’

Professor Tom Mullen, University of Glasgow, ‘Public Interest Litigation’

Lynda Towers, Solicitor to the Scottish Parliament, ‘The Public Authority Perspective’

13.00 -14.00:              Lunch

14.00- 15.15:              Patterns of Judicial Review Litigation

Chair:                         Fiona Killen, Anderson Strathearn

Speakers                     Professor Alan Page, University of Dundee, ‘The Judicial Review Caseload’

Tony Kelly, Taylor & Kelly, Visiting Professor, University of Strathclyde, ‘The Potential Impact of the Courts Reform (Scotland) Act’

15.15 – 16.30:             The Development of Scots Judicial Review Doctrine

Chair:                         Sheriff Lorna Drummond, QC

Professor Chris Himsworth, University of Edinburgh, ‘The Concept of “Jurisdiction” in the Scottish Courts’

Denis Edwards, Terra Firma Chambers, ‘European Influences’

1630 – 1800                Reception

 

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Conference Announcement: New Zealand Administrative Law Conference

NZ_flag_PhotoI write with some news from the far ends of the empire – calling all readers with an interest in New Zealand and administrative law.  NZ law in this area still tends to be closer to the English than that of most other commonwealth jurisdictions – but obviously there are significant local variations, for a variety of reasons (eg the increasingly different constitutional, political and social setting, and dare I say also the different judicial personalities).  We also have some fine administrative law scholars, but their attention often gets captured by developments in other jurisdictions.

In an attempt to help redress the dearth of academic commentary on NZ case law and other developments in this area, the Legal Research Foundation is hosting a conference specifically devoted to NZ Administrative Law on 30 January 2015 in Auckland.  The programme for the day is as follows, involving speakers from most NZ universities and two who are currently based in Australia:

 

“What is new about neo-liberalism? Reframing the debate about the use of contractual techniques of governance”

Professor Janet McLean, University of Auckland

 

“The unlamented victim – Administrative Law in times of crisis”

Dr John Hopkins, University of Canterbury

 

“The convergence of the Court’s roles in appeal and judicial review”

Marcelo B Rodriguez Ferrere, University of Otago

 

“Non-justiciability in New Zealand: Does it, and should it, have a continuing role?”

Dr Rayner Thwaites, University of Sydney

 

“The Ireland Principle for Multiple Purpose Cases: An Exploration and Defence”

Hanna Wilberg, University of Auckland

 

“Grounds, Intensity and Instinct in New Zealand Administrative Law”

Dean R Knight, Victoria University of Wellington

 

“Human Rights Law as Administrative Law: The Evolution of the Baigent Remedy”

Dr Jason Varuhas, University of New South Wales

 

“The ‘State of the Nation’ in New Zealand Administrative Law”

Professor Philip Joseph, University of Canterbury

 

The conference brochure can be downloaded from http://www.legalresearch.org.nz/events, and online registration is also available there.  For further information, please contact myself (h.wilberg@auckland.ac.nz) or the Legal Research Foundation’s Secretary Barbara Relph (barbara@legalresearch.org.nz).

Hanna Wilberg

 

Hanna Wilberg is a Senior Lecturer at the University of Auckland

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Seminar Announcement: Political vs. Legal Constitutionalism: fin de siècle?

School of Law, SOAS, University of London

Cordially invites you to

The Comparative Constitutional Law Series

Political vs. Legal Constitutionalism: fin de siècle?

Wednesday 29 October 2014

Room 4426, Main Building, SOAS, Thornhaugh Street, Russell Square

 

 

This workshop examines the state of the debate on political and legal constitutionalism in the UK and provides a comparative perspective on similar debates in the US, China, and India. Why does the debate persist despite scholarly efforts to address it? Why is it significant at all? What are the consequences of accepting one approach or another? Should we move beyond the debate because it is no longer interesting or relevant?

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First Session: 17:00-18:15

The State of The Debate in The UK

Graham Gee (Birmingham University): Is there More to the Political Constitution than Meets the Eye?

Jack Caird (Sussex University): Enhancing Politics through Law? Constitutional Politics in the Political Constitution

Discussant: Nick Barber (Oxford University): The Debate as a Red Herring

Moderator: Mazen Masri (City University)

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Second Session: 18:30-19:45

The Debate Elsewhere

Ernest Caldwell (SOAS): the Chinese debates

Alexander Fischer (SOAS): the Indian debates

Nimer Sultany (SOAS): the US debates

Discussant: Paul O’Connell (SOAS)

Moderator:  Ioannis Kalpouzos (City University)

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Open and free for the public

 

For more info contact: Nimer Sultany, ns30@soas.ac.uk

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Tom Hickman: ISIS, passports and Magna Carta: New national security powers raise complex issues

tomOn 1 September the Prime Minister made a statement to Parliament in which he indicated that the Government was considering introducing the following new national security measures:

  • Powers to enable the police to confiscate passports at borders if they suspect an individual is seeking to travel to support terrorism, for a period allowing them to investigate the individual concerned. This will include “safeguards and … oversight”.
  • A power to exclude British nationals from the UK.
  • Placing no-fly list arrangements on a statutory footing.
  • Requiring persons subject to TPIMs to engage with the Prevent programme.
  • Ratcheting-up the statutory restrictions that can be imposed on individuals under the TPIM Act 2011 to include “stronger locational constraints” either through use of exclusion zones or relocation powers.

The announcement followed atrocious acts committed by ISIS in beheading Western hostages and, in particular, the fact that British citizens were implicated. In her Conservative Party Conference speech, the Home Secretary said that a new counter-terrorism bill would be introduced by the end of November.

Although the Prime Minister made a welcome reference to the need to avoid a “knee-jerk” reaction to ISIS, these proposals have a back-of the envelope feel. In addition to clarifying precisely what is proposed, it needs to be understood why these powers are—given those already in existence—required to meet the needs of the police and security services.

Several discussions in the media since the Prime Minister made his statement have demonstrated a lack of understanding of what is proposed and what powers are already available. A survey of how the proposals fit within the suite of national security powers already available is therefore worthwhile.

Removal of passports

Reference is often made by the general public to a person being granted a passport in terms which are intended to mean a grant of citizenship. Correspondingly, people often refer to a person being stripped of a passport when they mean stripped of citizenship. It is often not appreciated, even by lawyers, that as a matter of UK law the grant of a passport is quite separate from the grant of citizenship and that under UK law a national has no right to a passport.

A British citizen benefits from many rights and privileges, including a right of abode in the United Kingdom protected by s.2, Immigration Act 1971. But British citizenship does not entitle a person to a British passport. Under the peculiarities of the British constitution, the Secretary of State retains a power to refuse or cancel a passport under the royal prerogative.

The conferral of a passport is essentially a diplomatic act, which both confirms the identity of the bearer and confirms their status as a British national under the diplomatic protection of the British Crown. British passports include a request on behalf of the British Crown to “all those whom it may concern” to “allow the bearer to pass freely without let of hindrance, and afford the bearer such assistance and protection as may be necessary.” Each passport states that it “remains the property of Her Majesty’s Government …and may be withdrawn at any time.” If a person refuses to return a passport upon request they are presumably guilty of theft.

The power to revoke and refuse passports has long been regulated by a published policy, a policy that was updated as recently as 25 April 2013. The policy states amongst other things that the power may be invoked to stop “British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity”.

The removal of a passport does not therefore affect a person’s right of abode in the UK, which is statutory, nor – rather importantly – does it actually remove a citizen’s right to travel abroad or come and go from the United Kingdom. This is a common law right or freedom that is also embodied in Article 12(4) of the ICCPR, which states: “Everyone shall be free to leave any country, including his own”. The effect of withdrawal of a passport is to frustrate the exercise of that right by denying an individual a universally accepted from of identification and by withdrawing the request of the Crown that he or she be given free passage. But a person who travels abroad having had their passport withdrawn, has done nothing wrong.

The Prime Minister’s proposals relate to the extension of the Home Secretary’s power relating to passports to the police, allowing them to withdraw and confiscate passports for a short period pending an investigation. However, given that the power does not actually preclude a person from travelling abroad—it simply makes it more difficult for them to do so—it doubtful whether an extension of this power is really the right way to approach the issue. A more appropriate power might be a temporary travel ban. But as we shall see Parliament has already made provision for travel bans under the Terrorism Investigation and Prevention Act 2011 (“TPIM Act”) and therefore any such new power needs to be considered alongside those already available under the TPIM Act.

Before turning to the TPIM Act, however, we should consider the power to deprive people of British citizenship under section 40 of the British Nationality Act 1981. This power has historically been used to strip dual citizens of their nationality, allowing them to be either deported or excluded (by a legally separate but often contemporaneous order) from the UK. The Bureau of Investigative Journalism reported in December 2013 that the use of the deprivation power had “dramatically escalated” to prevent jihadists returning to the UK.

A controversial amendment to this power made by section 66 of the Immigration Act 2014, which came into effect in July this year, allows the Secretary of State to deprive people of British citizenship even where this would make them stateless where the individual has committed acts that are prejudicial to the vital interests of the country.

But despite its breadth, the power of deprivation of citizenship has important limitations. The power to render a person stateless does not apply to non-naturalised citizens. It must also be doubtful whether the deprivation power could be used against persons seeking to travel to the Middle East for the first time, as opposed to returning jihadists, since such persons would not have yet done any acts prejudicial to the interests of the UK. Furthermore, it would not be appropriate for this power to be used for the purpose of investigating a suspect, since its effect is permanent.

Of more significance therefore is a power under the TPIM Act to impose a “Travel Measure” on an individual reasonably believed to be involved in terrorism related activity. Schedule 1 paragraph 2 of the TPIM Act establishes a power with the explicit purpose of prohibiting a person from leaving the United Kingdom (or alternatively requiring prior notice before leaving the UK). It also includes a power to surrender a UK passport and to hand-over and not to possess any other passports and travel documents. The TPIM Act also enables the power to be exercised on an urgent basis where required.

TPIMs are usually associated with curfews, tags and limits on association. It is often overlooked that the TPIM Act can be used in a more limited fashion and that a Travel Measure can be imposed whether or not other TPIM Measures are imposed. From the perspective of the authorities, it has some obvious advantages over the passport deprivation power, in particular that it imposes a prohibition on leaving the country and that the prohibition is backed by criminal penalties.

The TPIM Act also has various safeguards for individual liberty, such a requirement for judicial approval of any Measures imposed, special advocate procedure to test the justification for the Measures, requirements to renew and keep the necessity for such measures under review, and oversight of the Independent Reviewer of Terrorism Legislation (“the IR”). Not only does the prerogative not carry with it such protections, the exercise of the prerogative power can be indefinite, whereas any TPIM Measure has a maximum lifespan of two years in the absence of renewed engagement in terrorism related activity.

Therefore if the police have reasonable grounds to believe a person is seeking to leave the UK to engage in jihad abroad they could seek an urgent Travel Measure from the Secretary of State under the TPIM Act. This may require a new administrative process for border police seeking urgent TPIMs, but given that Parliament has established this power – with important safeguards – there would need to be a compelling reason why the police should be conferred an analogous, and less effective, power. There is also considerable value in maintaining centralised decision-making both for consistency of decision-making and as a disincentive against over-use of the power by police. It would also ensure that the safeguards imposed by Parliament were engaged.

It follows that if the Government seeks new powers outside the TPIM Act, it will have to explain why those under the TPIM Act – designed in part for precisely these circumstances – are inadequate. One response may be that persons leaving the UK would not yet have engaged in terrorism related activity, which is the precondition for a TPIM Measure. However, given the extremely broad way that the concept of terrorism related activity is statutorily defined, and the related concept of terrorism, it seems unlikely that the Government would contend that it is not capable of applying to persons who seek to leave the UK to engage in jihad. The Government might say that the power should be exercised on the basis of suspicion rather than reasonable belief (another condition for imposing a TPIM Measure), but Parliament would no doubt take considerable persuading that such a power should be exercised by police on the basis of suspicion alone, not least as Parliament decided when it enacted the TPIM Act that TPIM Measures should only be imposed on the basis of reasonable belief.

Nonetheless, whilst we are entitled to be sceptical given the lack of explanation currently available, there is at least potentially a gap in the Government’s armoury which the new power could fill.

This discussion may have prompted the thought amongst some readers whether it remains lawful for the Secretary of State to exercise prerogative powers intended to prevent a person believed to be involved in terrorism related activity from leaving the United Kingdom, given that Parliament has legislated powers on precisely this issue subject to numerous safeguards. It is a central principle of constitutional law that the prerogative cannot be exercised where Parliament has legislated on a subject. And here resorting to the prerogative rather than seeking a Travel Measure under the TPIM Act denies individuals a right of appeal and many associated protections (including a 2 year limit) that accompany a Travel Measure. Using the royal prerogative to deprive a person of their passport can therefore be used as a means of bypassing the protections in the TPIM Act.

This is perhaps most obvious when persons are deprived of passports after a Travel Measure comes to the end of its 2 year maximum term: the removal of a passport to continue, in effect, the travel restriction based on same factual case is difficult to reconcile with Parliament’s stipulation that Travel Measures will not endure for longer than 2 years in the absence of re-engagement in terrorism related activity.

The Prime Minister referred to litigation seeking to test this point (including one case in which the author acknowledges a role acting for a Claimant) and the Prime Minister stated to Parliament that the Government is preparing legislation in case such challenges succeed.

However, irrespective of such challenges, it is time that the prerogative power to withdraw passports is put on a statutory footing in its entirety. As long ago as 1980 Sir William Wade described the power in his Hamlyn Lectures, as, “a murky administrative area where there is a crying need for clarification and legal right”: Constitutional Fundamentals, Stevens & Sons, p.52. Legislating for the withdrawal of passports would not only give the power a proper democratic basis suitable for the modern era, it would enable proper protections to be put in place for individuals. The incentive for Governments is that it would enable the power to be made more effective by pairing it with actual prohibition on travel and removing the legally problematic overlap of the prerogative and the TPIM Act regime.

Returning to the current proposal, if the police are to be given new powers to temporarily deprive persons of their passports this should be a self-contained statutory power or an extension of the TPIM Act and not an opportunity to provide statutory endorsement by a side-wind for a prerogative power which is out-dated and in need of reform.

Preventing British citizens returning to the UK

The idea that British citizens should be prevented from returning to the UK raises myriad issues, legal, moral and practical. The most immediate legal issue is section 2 of the Immigration Act, which identifies the right of abode as a core incident of citizenship.

But there is also a deeper constitutional principle in play here. Blackstone in the Commentaries wrote in 1765 that, “every Englishman may claim a right to abide in his own country for as long as he pleases; and not to be driven from it unless by the sentence of the law. … For exile, or transportation, is a punishment unknown to the common law…” (Vol i. p.133).

Indeed, it is a mark of how deeply rooted this principle is that any legislation in this field would need to amend or depart from Magna Carta itself, the famous chapter 29 of which (which is still on the statute book) states, “No Freeman shall be …outlawed, or exiled, or any other wise destroyed…” save by lawful judgment of his peers. The Prime Minister appears to have forgotten about Magna Carta. But its sentiments were echoed by Dominic Grieve, the former Attorney-General, who stated in Parliament, “I share the concern that has been expressed about the suggestion that British nationals, however, horribly they may be alleged to have behaved, should be prevented from returning from this country.” (HC Debs 1 Sept 2014 c.32.)

From a more practical perspective, the idea of refusing to allow citizens to return to the UK reflects a sense in which the UK Government would like to think of such individuals as ‘somebody else’s problem’. But such an attitude is unlikely to win favour amongst other States left with the problem of un-returnable British jihadists in their midst, and they may well simply not accept the position of the UK Government and seek to return the individual to the UK.

If individuals return to the UK having acted in a manner inconsistent with their duty of loyalty to this country and to British law then the proper response is for them to face due process of British justice and be prosecuted for one of the wide array of terrorism offences, or for treason.

No fly lists

Just as it is appropriate for the prerogative passport power to be placed on a statutory basis, so should the arrangements for no-fly lists. And for the same reasons: (1) their legal origin and legal effect are obscure; (2) they represent an interference with individual freedom of movement and to come and go from the UK unimpeded; and (3) they lack adequate legal safeguards. The Government’s suggestion that these should be put on a statutory basis is therefore to be welcomed.

TPIMs and Prevent

In principle there is sense in the suggestion that there should be engagement with TPIM subjects other than through the police and MI5, such as through the Prevent programme or possibly the probation service, particularly if combined with a relaxation of their obligations as they near the end of a TPIM and their return to ordinary life. But there are real complexities here particularly if it is sought to compel engagement by imposing it as a TPIM Measure backed by criminal sanctions.

These difficulties arise from three features of the regime: (1) TPIM subjects usually maintain their innocence of the allegations against them and often, although not invariably, of extremist views; (2) they are subject to TPIMs on the basis of secret evidence; and (3) nothing has been proved against them and—a point that is often overlooked—do benefit from a presumption of innocence, which cannot be simply abandoned in this context. In the light of these three factors, it is difficult to see how many TPIM subjects could constructively engage with programmes insofar as those programmes are premised on their guilt, or could reasonably be compelled to do so. Furthermore, such individuals will understandably be fearful that anything they say or do might be deployed against them either in open court or, possibly, in secret.

There is also an important difference in principle between the essentially negative duties imposed by a TPIM, even those which may be enforced by limited positive duties (such as reporting to a police station to prevent overseas travel), and a positive requirement to attend meetings and engage with a prevention-orientated programme.

Therefore whilst there is undoubtedly room for new thinking and new initiatives in this context, the difficulties should not be underestimated and the proposals will require very careful scrutiny.

Relocation powers

The suggestion that the Government might re-introduce the power of relocation that previously existed under the control order regime is a suggestion which will raise concern across the political spectrum (I leave aside the idea of exclusion zones).

In 2011 Parliament accepted that relocation could not be justified given its serious detrimental impact on individuals by cutting them off from family, friends and their local community. It operated as a form of internal exile, justified by reference to secret evidence. It was one of the most resented aspects of the control order regime by affected persons and local communities. Parliament accepted that the financial saving from the surveillance budget that such a power allowed could not justify the encroachment on civil liberties that it entailed.

The Government appears to have drawn the idea (or at least support for the idea) of backtracking from the TPIM Act in respect of relocation from the recent report of the IR. In his report published in March 2014, amongst a number of recommendations for increasing safeguards under the TPIM Act, such as narrowing the definition of terrorism related activity and adopting a balance of probabilities threshold, the IR stated the “the time has now come to revisit the issue” of relocation arguing that, “Locational restraints have the ability to reduce the abscond risk, to rebuild confidence in TPIMs, to disrupt terrorist networks and to reduce the surveillance budget. Relocation was repeatedly described by the courts as proportionate …” (Terrorism Prevention and Investigation Measures in 2013, March 2014, 6.23.)

The IR suggested that the reintroduction of relocation might be accompanied by much greater freedom for a person to travel around the country (albeit not back to his place of residence).

Many people will take the view that a relocation power simply cannot be justified, especially when accompanied by other intrusive obligations, given the low standard of proof (reasonable belief) and the fact that TPIM Measures are supported by secret evidence.

But on the premise that such powers can in principle be justified, they must, at a bare minimum, be supported by clear and compelling justification. We cannot fully analyse the arguments for and against here, but the following remarks can be made.

The first point to note is that the IR has made a range of recommendations and there is a danger in cherry-picking those that one agrees with or which suit the political climate without accepting others that would proved a counter-balance—the IR’s recommended adoption of the balance of probabilities threshold is perhaps particularly important in this respect.

The nub of the justification for relocation is really the potential for reducing the risk of absconding from TPIMs and the associated reduction of the surveillance budget (the IR has stated that relocation saved the Government tens of millions in surveillance costs.)

In terms of the surveillance budget, it needs to be borne in mind that the IR’s proposal of a form of ‘relocation lite’ which would not confine relocated TPIM subjects to a small geographical area may not generate the same savings to the surveillance budget as were facilitated by the control order regime where relocated persons were so confined. We cannot know, but it seems likely that the relocation lite proposal would still require substantial amounts of surveillance (the suggestion of exclusion zones is a fortiori).

Absconding is a problem. But it seems to be associated in the media with TPIMs when in fact 7 of the 9 absconds were under the control order regime and the two absconds under that TPIM regime (Ibrahim Magag in December 2012 and Mohamed Mohamed in November 2013) were the first absconds since 2007. There is also a major difference between TPIMs and control orders relevant to the risk of abscond, which is that TPIMs come to a natural end after two years, thus providing a much greater incentive for individuals not to abscond than existed under the control order regime under which restrictions were imposed indefinitely.

The IR points to the fact that absconding did not occur under the control order regime after relocation was introduced as evidence of its efficacy at reducing the risk of absconding. Of course, relocation will, logically, reduce the risk of absconding to some extent by cutting people off from friends and associates. But its impact under the control order regime was known to Parliament when it prohibited relocation in 2011. Furthermore, the fact that most TPIM subjects have not absconded—and, as explained above, have a greater incentive not to do so than under the control order regime—should not be lost sight of. If looking at the bald statistics alone the question they pose is, could the relocation of all 10 persons who have been subject to TPIMs have been justified to attempt to prevent two absconds? Or to put this another way, can reallocation be justified to reduce a 1 in 5 chance of absconding further? This is not, however, an argument that can be carried by reference to the statistics—apart form anything else the numbers are just too small.

It is also worth emphasising the fairly obvious point that the fact that a measure is more effective does not mean it is justified. Detention in Belmarsh would, for instance, undoubtedly prevent people absconding (as well as resulting in a massive saving to the surveillance budget) but thankfully nobody suggests that detention should be reintroduced.

In a report published in January 2014, the Joint Committee of Human Rights was clear in its view that relocation could not be justified, whilst accepting its contribution to reducing the risk of absconding. It stated: We remain of the view that a power to relocate an individual away from their community and their family by way of a civil order, entirely outside the criminal justice system, is too intrusive and potentially damaging to family life to be justifiable…” (10th Report 2013-14, Post Legislative Scrutiny: TPIM Act para. 55.

Finally, the issue of providing justification also should not, I suggest, be avoided by pointing to the approach of the courts in upholding a number of relocations under the control order regime. The courts are working within a legal regime in which their role and function is restricted. In rejecting appeals from relocation orders, they should not be thought to be endorsing such powers as they are not considering whether a regime including relocation is preferable to a regime of increased surveillance. The regime is taken as a given and the courts ask whether the measure is proportionate within that regime. If, for example, preventing a person from travelling abroad is endorsed as a legitimate aim, and there is evidence that relocation will make it more difficult for the person to travel, the courts are generally reluctant to say that the obligation goes too far, given that Parliament has endorsed the power as available for use for such purposes.

Connected to this is fact that the role of the courts in judging whether a measure is disproportionate remains secondary: they do not say whether a measure should be imposed but whether it is disproportionate to the objective. In AR, for example, Mitting J stated that he favoured a reduction in the individual’s curfew, but the refusal of a reduction could not be said to be disproportionate: “the decision”, he said “is not mine” [2009] EWCH 1376 at 4. The decision that Parliament will be asked to make if the suggestion of reintroducing relocation is carried-through, however, very much its decision and it should not avoid it by pointing to the approach of the courts.

Conclusion

The Government’s announcement of more powers to combat the national security threat posed by ISIS touches upon some fundamental constitutional issues. And it is a mixed bag. On the one hand, it includes suggestions such as preventing British citizens entering the UK and reintroducing relocation powers, which are very troubling; on the other hand it provides an opportunity put other powers, in principle justifiable, such as the withdrawal of passports and no-fly lists, on a more appropriate legal basis.

 

Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

Suggested citation:  T. Hickman, ‘ISIS, passports and Magna Carta: New national security powers raise complex issues’ U.K. Const. L. Blog (9th October 2014) (available at http://ukconstitutionallaw.org/).

 

 

 

 

 

 

 

 

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Announcement: UKCLA Public Law PhD Group

In response to the clear demand for such a group that was remarked upon multiple times at the Conference on the Teaching of Public Law earlier this year, we are establishing the UKCLA Public Law PhD Group. The basic idea is to draw public law PhD students together from across different universities.

We intend to start this endeavour by formulating a public list (which will be available on the UKCLA’s website) of PhD students researching public law, along with their research areas and contact details. We hope that the list will enable PhD students researching public law to talk to each other. From there we hope to develop events aimed at public law PhD students.

If you want to be part of the UKCLA Public Law PhD Group list then please email publiclawphdgroup@gmail.com with the following information:

  • Your full name;
  • The institution where your PhD is being undertaken;
  • The research title of your PhD;
  • The e-mail address you want listing on the UKCLA site; and
  • Any further information that you think may be relevant/helpful.

If you would like to include a short synopsis of your PhD (max. 150 words) then please do so. All of this information will be available publically on the UKCLA website.

Please direct any questions you may have to the above address and we will be happy to answer them.

We look forward to hearing from you.

Thanks,

Joe Tomlinson & Jack Simson-Caird

(Manchester)      (Sussex)

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