Theresa May’s unveiling of a fresh package of measures to keep track of terror suspects clearly raises questions over whether it is designed to deflect potential headlines about MI5 and Home Office failures over the London Bridge bombers.
The package does however fill in some details in her “enough is enough” four-point plan to tackle extremism in Britain by hinting at a series of steps to more effectively keep track of and control terror suspects in Britain. Taken together they add up to an attempt to restore some of the more restrictive elements of control orders to the existing regime of terrorist prevention and investigation measures (Tpims).
The clear threat that May is willing to amend human rights laws “if they get in the way of doing these things” is a recognition that some of the revived restrictions have already been subject to successful legal challenges in the British courts. This commitment appears to contradict the Conservative manifesto pledge not to repeal or amend the Human Rights Act until after Brexit, but she may be relying on the fact that any legal challenges may well take at least two years to play out.
The new measures include:
Human rights laws
Any attempt to amend the Human Rights Act before it is repealed post-Brexit will require a derogation under the European convention on human rights. This involves declaring a technical state of emergency as was done with the Belmarsh regime of indefinite detention without charge in the aftermath of 9/11. Ministers are also said to be considering restoring a power for the police to detain a suspect without charge for 28 days instead of the current 14 days. This would return to the position in 2011.
In her speech on Tuesday night, May said: “If human rights get in the way of doing these things, we will change those laws to make sure we can do them.”
This flatly contradicts the commitment in her own manifesto not to rip up or amend the Human Rights Act before Brexit, at least two years away, or to withdraw from the European convention of human rights for at least the next five years. Derogation, which would be needed, amounts to a temporary and partial withdrawal from the convention.
“We will not repeal or replace the Human Rights Act while the process of Brexit is under way but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European convention on human rights for the duration of the next parliament,” says the manifesto.
Tougher Tpims:
May says she wants to do more to “restrict the freedom and the movements of terrorist suspects” when there is not sufficient evidence to prosecute them. It is thought this includes extended curfews, extra restrictions on movements and on who suspects can meet or associate with, and access to communications.
The overnight residence requirement on Tpims is restricted to a 10-hour curfew after the supreme court ruled that the maximum 18-hour curfew without trial or charge under the previous control orders amounted to unlawful incarceration. It is possible that the period could be increased to 14-15 hours without breaching that ruling.
May has already beefed up Tpims once, in 2015, when she restored a power to force the relocation of the suspect up to 200 miles from their home city. The former official terrorism laws reviewer, David Anderson QC, went further and recommended a more aggressive use of existing “exclusion zone” powers that could see them banned also from going to crowded public places such as arenas or city centres. Satellite tagging would be needed to enforce these conditions, which may be a problem as the Ministry of Justice has had serious problems with its contracts for the next generation of tags.
Tpims mark II also included tighter restrictions on association and communications. Tpims mark III will also see further changes including the lifting – despite legal challenges in the past – of the current requirement that suspects must be permitted access to a landline, mobile and internet connection.
Deporting terror suspects
May says she wants to make it easier to deport foreign terror suspects to their own countries. Her speech gave no further detail but she may well be referring a new campaign to secure “deportations with assurances” that would revive one of her greater achievements as home secretary, the removal of Abu Qatada from Britain. She succeeded in bringing that drawn-out saga to a close by negotiating a deal with Jordan that it would not use torture-tainted evidence in any trial once Qatada was sent back. This allowed him to be put on a plane to Jordan without breaching European human rights protections. She may be hoping to emulate that success with a serious of new deportation deals with other countries.
Longer prison sentences
Sunday’s four-point plan already includes heavier aggravated sentences for minor offences that are terrorist-related. The speech holds out the prospect of even longer sentences for those convicted of terrorist offences themselves. While a quarter of sentenced terrorists are put away for at least 10 years, about a fifth of those convicted each year are sentenced to under two years.
There are other policy measures that May could consider, although she did not refer to these. They include:
Investigatory Powers Act or “snooper’s charter”
Targeted powers The new legislation gives the security services, including GCHQ, sweeping new powers to keep track of the digital life of any named suspect, on a home secretary’s warrant backed by judicial oversight. They allow the services to hack phones, computers and even use a suspect’s camera or microphone in their smartphones to eavesdrop remotely on conversations. These warranted powers allow the security services and police to monitor the content of emails, texts, phone calls and real-time conversations.
One yet-to-be implemented set of measures in the act are technical capability orders that require internet companies to bypass or alter encryption in the case of a named targeted suspect using encrypted services such as WhatsApp to communicate. Critics argue that once a back door is created to these encrypted services anyone, friend or foe, will be able to use them.
Mass surveillance powers The snooper’s charter also contains wide-ranging powers to require web and phone companies to retain records of everyone’s web browsing histories and communications data records for phone calls and texts for two years, for access by the police and security services. A potentially powerful source of data to keep track of the online lives of jihadi terror suspects but requires intelligence-led searching and a retrieval system to avoid “losing a needle in a haystack”.
Community policing and Prevent programme
Cuts in police numbers would be reversed to ensure a community beat presence that restores the flow of local intelligence to special branch and security services. This would also enable security services to respond effectively to warnings from the community about suspect individuals, which has been identified as a factor in all three recent attacks.
The Prevent programme would be recast – as an Engage programme – to overcome its toxic reputation in some parts of the Muslim community. This could also ensure that individuals at risk of being drawn into terrorism are challenged and diverted.
Criminalisation of non-violent extremism This forms a main part of May’s four-point programme. The government would press for new international agreements to ensure internet companies deny a platform to extremist propaganda on the web. A new commission would be set up to “monitor and expose” Trojan horse-style extremism and extremists in the public sector and wider society. The problem with both proposals is that there is no legally robust definition of “extremist” that would pass its first high court freedom-of-speech challenge.
May believes that if legal human rights obstacles can be overcome then the drive against non-violent extremism could include a “counter-entryism strategy” including bans on extremist groups, disruption orders against individuals and closure orders against premises used to host extremist meetings. There would also be a campaign to promote “superior British values”.
