Parliamentary Committees and Public Enquiries
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Temporary Exclusion Orders should be subject to judicial oversight

The House of Lords Constitution Committee has yesterday published its report on the Counter-Terrorism and Security Bill which recommends that the bill be amended to ensure that Temporary Exclusion Orders (TEOs) are subject to appropriate judicial oversight.

The Counter-Terrorism and Security Bill would empower the Secretary of State to impose TEOs on those with a right of abode in the UK, including British citizens, preventing them from returning to the UK if they were thought to have been involved in terrorist activity overseas. TEOs could remain in force for a period of up to two years. The report states that given the significant impact the enforcement of a TEO would have on an individual it would be:

"constitutionally inappropriate for the decision not to be subject to direct judicial oversight".

The Committee notes that:

  • The bill is being "semi-fast tracked", in that the Lords will be asked to waive the recommended minimum intervals between the stages of the bill.
  • There is a contrast between the time taken within Government to prepare the bill and the time given to Parliament to scrutinise it.
  • The Lords may wish to consider carefully whether the Government has offered sufficient justification for the fast-tracking of each element of the bill.

The Committee considers the bill’s provisions which would allow the Secretary of State to require internet service providers to retain data that would allow the authorities to identify the individual or the device using a particular IP address at any given time. This change is made as an amendment to the Data Retention and Regulatory Powers Act 2014 (“the Drip Act”).

The Committee points out that the Drip Act was also fast-tracked, and thus a semi-fast-tracked bill is being used to amend sensitive and controversial provisions contained in earlier legislation that was also fast-tracked. Moreover, the Drip Act was fast-tracked on the express basis that it did ‘not enhance data retention powers’. The Committee notes that the Lords may wish to consider whether the semi-fast-tracking of the bill allows Parliament sufficient time to scrutinise whether those enhanced powers are appropriate.

Lord Lang of Monkton, Chairman of the Committee, said:

 "Temporary Exclusion Orders represent a significant new power for the state in relation to the individual citizen. To ban a UK citizen from returning to these shores for a period of up to two years will clearly have a huge impact on that person’s life.

"While the threat of terrorism posed by UK citizens returning from war zones in Syria and Iraq is a real one, the process of imposing TEOs should be overseen by judges to ensure that individuals have recourse to appeal this exercise of executive authority. We recommend that the bill be amended to include that protection.

"We are also concerned that the Bill is being semi-fast-tracked through Parliament. It is important that where legislation will have a significant constitutional impact that there is adequate time to debate and amend that legislation."

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