Call for Evidence

The Joint Committee on Human Rights is calling for evidence on the National Security Bill.

This Bill received its first reading in the House of Commons on 11 May. The Bill introduces new criminal offences in relation to actions prejudicial to the “safety or interests of the United Kingdom”, enhances security and law enforcement powers and measures in relation to people suspected of foreign power threat activity, and introduces changes to the availability of legal aid and damages to those convicted of terrorist offences. 

The Bill engages a significant number of human rights.  The Committee is scrutinising how the new offences relating to foreign power threat activity and the safety or interests of the UK might impact on the right to freedom of expression, the right to freedom of assembly, and the right to engage in peaceful protest (guaranteed by Articles 10 and 11 of the ECHR). The Committee is particularly interested in the potential impact of these offences on political speech, journalism and peaceful protest.

The Committee will also look at how the new prevention and investigation measures in respect of people suspected of foreign state threat activity, not least given that similar Terrorism prevention and Investigation Measures (TPIMS) can impose intolerable pressure on individuals and families without a person being found guilty of any offence.

The Committee is particularly interested in whether the Bill’s proposals in respect of legal aid and damages may result in unjustified interference with the right to a fair trial (guaranteed by Article 6 of the European Convention on Human Rights (ECHR) as well as under the common law). 

Terms of reference

In this call for evidence, the Joint Committee on Human Rights is interested in submissions that address the following:

• Are the interferences with the right to freedom of expression, the right to freedom of assembly and the right to engage in peaceful protest adequately protected by the new offences and powers created by the Bill? Do these offences risk impacting on political speech, journalism or peaceful protest? We are in particular grateful for views in relation to:
  • The new offence of obtaining or disclosing protected information (clause 1)?
  • The offences and powers related to prohibited places (clauses 4-11)?
  • The offence of sabotage (clause 12)? We are also grateful for views on the Home Office’s analysis in respect of this offence in paragraph 16 of their ECHR Memorandum in relation to whether a person can damage their own property and Article 1 of Protocol 1.
  • The new foreign interference offence (clauses 13-14)? We are particular interested in views as to whether this offence may impact on political speech of journalism.
• Many of the new offences require a “foreign powers threat activity” element, where the individual knew or ought to know that activity is carried out for or on behalf of a foreign power or intended to benefit a foreign power. Are there risks that this could unduly affect individuals who have bona fide working relationships with foreign States?  How might this impact on those undertaking work on behalf of foreign States, or working in joint bodies or international bodies?
• Are the search powers in clause 20 and Schedule 2 of the Bill proportionate and do they contain adequate safeguards, in particular as concerns the likely impact on Article 8 ECHR (the right to private and family life) and on Article10 ECHR (freedom of expression) in relation to journalistic material?
• Are the powers of arrest without warrant in clause 21 and Schedule 3 of the Bill, justified and proportionate? Do they contain sufficient safeguards?  In particular:

• Are the powers of arrest and detention in clause 21 and Schedule 3 of the Bill, which are longer than powers under PACE, justified and proportionate?  Do they contain sufficient safeguards? 
• Is the potential interference with fair trial rights (protected under Article 6 ECHR and the common law), such as limiting access to legal advice and potential closed proceedings, justified and does it contain sufficient safeguards? 
• Are the powers to obtain and retain biometric data justified and do they contain sufficient safeguards?

• Is the new Prevention and Investigation Measures (TPIMS) regime in clauses 32-56 and Schedule 4 a justified and proportionate interference with rights? Are the safeguards adequate and if not, what further safeguards might be appropriate?   In particular:

• Does the TPMIS regime risk interfering unduly with the right to liberty (Article 5 ECHR)? 
• Are interferences with the right to private and family life (Article 8 ECHR), justified and are there sufficient safeguards?  We are particular interested in relation to restrictions on movement, communications, association, requirements for polygraph tests, reporting requirements, the taking and retention of biometric data and search and seizure powers.
• Are there adequate safeguards, including to adequately challenge the imposition of individual measures?  Does the used of closed proceedings in such challenges adequately protect human rights (article 6 ECHR)?
• Are interferences with other human rights potentially engaged by TPIMS measures, including freedom of expression (Article 10 ECHR), freedom of association (Article 11 ECHR) and peaceful enjoyment of possessions (Article 1 of Protocol 1 ECHR), capable of being justified and proportionate and are there sufficient safeguards? 
• Do anonymity orders contemplated by the TPMIS regime adequately reflect the correct balance between freedom of journalistic expression (Article 10 ECHR), the right to private life (Article 8 ECHR) and the interests of the safety and security of the individual (Articles 2 and 3 ECHR).
• Do the damages provisions (clauses 57-60) that potentially restrict damages awarded to a person to reflect misconduct of a terrorist nature, respect the right to a fair trial (Article 6 ECHR) and the right to an effective remedy for a breach of Convention rights (Article 13 ECHR) and the right to peaceful enjoyment of possessions (Article 1 of Protocol 1)? 
• In particular, does the fact that Article 13 ECHR is not included in the Schedule to the Human Rights Act 1998 mean that judges may not have adequate regard to the right to an effective remedy in applying these provisions, risking a breach of Article 13 ECHR?
• Clause 61 and Schedule 10 introduce provisions to freeze and to forfeit damages at risk of being used for the purposes of terrorism.  Is the forfeiture of damages (as opposed to merely the freezing of damages) a proportionate interference with the peaceful enjoyment of possessions (Article 1 or Protocol 1 ECHR)?  Does this provision contain adequate safeguards to protect the right to peaceful enjoyment of possessions (Article 1 of Protocol 1 ECHR) and the right to an effective remedy (Article 13 ECHR)?  Is a period of four years sufficiently long before resorting to forfeiture?
• In particular, does the fact that Article 13 ECHR is not included in the Schedule to the Human Rights Act 1998 mean that judges may not have adequate regard to the right to an effective remedy in applying these provisions, risking a breach of Article 13 ECHR?
• Are the legal aid provisions in the Bill adequate (clauses 55 and 62-64)?  Do they ensure adequate access to justice, enforcement of human rights and respect for the right to a fair trial (Article 6 ECHR)? 
• Are the restrictions on civil legal aid for those convicted of terrorism offences (clause 62) justified and fair?
• Do those provisions comply with the right of access to justice, the right to a fair trial (Article 6 ECHR), the right to an effective remedy (Article 13 ECHR), the right to family and private life (Article 8 ECHR, especially as concerns immigration matters), the right to peaceful enjoyment of possessions (Article 1 of Protocol 1 ECHR) and freedom of discrimination in the enjoyment of those rights (Article 14 ECHR)?
• In particular, given the well-known difficulties in accessing Exceptional Case Funding, is this reliance on such funding sufficient to ensure adequate access to justice?
• Does clause 62 (which applies to those previously convicted of terrorism offences) comply with Article 7 ECHR which prohibits a penalty being imposed on an individual retrospectively?
• The Government’s justifications for human rights compatibility in their ECHR Memorandum rely in part on the current operation of the Human Rights Act 1998 (e.g. paragraph 38).  However, in the Queen’s Speech, the Government announced that it plans to amend the Human Rights Act in a Bill of Rights during this session.  Does this alter the likely compatibility of the measures in this Bill with human rights standards?
• Does the Bill give rise to any other human rights concerns?

Please send submissions of no more than 1,500 words through the online portal by Friday 17 June.

Important information about making a submission

The Committee cannot publish submissions which refer to ongoing legal cases. Please contact us if you are not sure what this means for you.

Written evidence must address the terms of reference as set out above, but please note that submissions do not have to address every point. Guidance on giving evidence to a select committee of the House of Commons is available here.

In line with the general practice of select committees, the Justice Committee is not able to take up individual cases. If you would like political support or advice you may wish to contact your local Member of Parliament.

The Committee will decide whether to accept each submission. If your submission is accepted by the Committee, it will usually be published online. It will then be available permanently for anyone to view. It can’t be changed or removed. If you have included your name or any personal information in your submission, that will normally be published too. Please consider how much personal information you want or need to share. If you include personal information about other people in your submission, the Committee may decide not to publish it. Your contact details will never be published.

Decisions about publishing evidence anonymously, or about accepting but not publishing evidence, are made by the Committee. If you would like to ask the Committee to accept your submission anonymously (meaning it will be published but without your name), or confidentially (meaning it won't be published at all), you can make this request when you upload your submission.

The Committee has discretion over which submissions it accepts as evidence, and which of those it then publishes on its website. We may anonymise or redact some of your submission if it is published. The Committee may decide to accept evidence on a confidential basis. Confidential submissions remain available to the Committee but are not published or referred to in public. All written evidence will be considered by the Committee, whether or not it is published.

If your evidence raises any safeguarding concerns about you, or other people, then the Committee has a duty to raise these with the appropriate safeguarding authority.