Summary
On 4 June 2018, the Home Secretary re-launched the Government’s counter-terrorism strategy, CONTEST,1 after a year-long Home Office review. Two days later, he introduced the Counter-Terrorism and Border Security Bill (‘the Bill’). The purpose of the Bill is to “make provision in relation to terrorism; to make provision enabling persons at ports and borders to be questioned for national security and other related purposes”.2
Our Committee recognises the need for the Government to have strong powers to defend our national security, prevent individuals from being drawn into terrorism and to punish those who prepare, commit or instigate acts of terrorism, or encourage or connive with others to do so. However, when these powers interfere with human rights, they must be clearly prescribed in law, necessary in the pursuit of a legitimate aim, and proportionate to that aim.
The Government has a vital role in protecting public safety and is required to take positive action to protect the right to life under Article 2 of the European Convention on Human Rights 1950 (ECHR), but there is always a difficult balance to be struck between security and liberty.
We welcome the fact that this Bill does not introduce a host of new offences in response to the successive terrorist attacks in 2017. We are also pleased that the Bill gives effect to the two recommendations made by the former Independent Reviewer of Terrorism Legislation, David Anderson QC. Firstly, there is a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of the Terrorism Act 2000. Secondly, there is a pause to the detention clock for those arrested under the powers in the Terrorism Act 2000 when they are in hospital undergoing treatment.3
The Bill seeks to update some of the existing offences and close loopholes in the law. We are concerned that some of these ‘updates’ extend the reach of the criminal law into private spaces, and may criminalise curious minds and expressions of belief which do not carry any consequent harm or intent to cause harm. In doing so, some of these offences risk a disproportionate interference with the right to privacy, the right to freedom of thought and belief, and the right to freedom of expression.
Clause 1 criminalises ‘expressions of support’ for proscribed organisations where the person expressing support is reckless as to whether the person to whom the expression is directed will be encouraged to support the proscribed organisation. It is not clear what types of speech would constitute an ‘expression of support’. This could have a chilling effect, for instance, on academic debate during which participants speak in favour of the de-proscription of proscribed organisations. There is a clear risk that this clause would catch speech that is neither necessary nor proportionate to criminalise. In our view, it violates Article 10 of the European Convention on Human Rights. Clause 2 criminalises the online publication of images in such a way as to arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. To criminalise the publication of articles worn or displayed in private places risks catching a vast amount of activity which would be disproportionate.
Clause 3 criminalises viewing material online of a kind likely to be useful to a person committing or preparing an act of terrorism, where material is viewed three or more times and the person knows or has reason to believe that the material is or is likely to be terrorist material. The defence of reasonable excuse is available but it is not clear what constitutes legitimate activity for the purpose of this defence. This clause may capture academic and journalistic research as well as those with inquisitive or foolish minds. Viewing material without any associated intentional or reckless harm is an unjustified interference with the right to receive information. The substantial increases in maximum sentences for certain terrorist offences also appear to be unjustified and disproportionate. The extension of extraterritorial jurisdiction to certain offences such as support for a proscribed organisation may be problematic in situations where there is not an equivalent offence in the country concerned.
The Bill introduces an enhanced notification regime for persons convicted of certain terrorism offences. Some of these reporting requirements last for 30 years, without the possibility of a review. In light of the case law, the increased level of intrusion into private life and the lengthy period of time for which notification requirements are imposed in some cases, there must be stronger safeguards. The Bill also provides the power to enter and search a registered terrorist offender’s home, which is an intrusion with the right to private life. This power should be subject to a threshold test and any exercise of this power must be done only when there is no less intrusive option available and with due regard for the private life of any other persons affected by the intrusion.
We are concerned that biometric data of individuals who have neither been charged nor convicted may be retained for three years without any independent oversight. We recommend that the Home Office justifies the removal of the Biometric Commissioner’s oversight and the extension of the retention period from two to five years without clear notification and review options.
The Bill also provides that organisers of events may be charged for necessary traffic measures put in place in light of a terrorist threat. The public authorities involved must continue to act as they normally would with regard to security and counter-terrorism matters so there is that no blurring of private and public roles, which could risk undermining the State’s positive obligations to safeguard life under Article 2 ECHR.
Any additional responsibility placed on local authorities to make Prevent referrals must be accompanied by adequate training and resources to ensure that the authorities are equipped to identify individuals vulnerable to being drawn into terrorism. We reiterate our recommendation that the Prevent programme should be independently reviewed.
Schedule 3 provides for stop and search powers at ports and borders to determine whether an individual is or has been involved in hostile activity. The exercise of these powers constitutes an interference with Article 8, Article 10 and Article 1 Protocol 1 rights, yet the powers it gives are broad. The definition of “hostile act” is extremely broad (including threats to national security and the economic well-being of the UK) and there is no threshold test required before a person is detained and examined - individual officers could simply act on a “hunch”. Guidance will be crucial and we consider it necessary for this guidance to be published immediately so that Parliament can consider it alongside its scrutiny of the Bill. We are also concerned that the vital safeguard of access to a lawyer is compromised. In our view, the Schedule 3 powers do not comply with the requirement that the law must be sufficiently foreseeable and must contain sufficient safeguards to ensure that the power will not be exercised arbitrarily.
Max Hill QC, Independent Reviewer of Terrorism Legislation, suggested that we are legislating close to the line on rights compliance by taking the criminal law into the private realm.4 Corey Stoughton, Advocacy Director at Liberty, stated that the Bill is not compatible with Convention rights.5 This Bill strikes the wrong balance between security and liberty. We doubt whether, as currently drafted, the Bill is compliant with the Convention. The issues we raise need to be explored in the course of the Bill’s progress through Parliament and changes made as necessary.
1 The Government states that the aim of CONTEST is to reduce the risk to the UK and its citizens and interests overseas from terrorism, so that people can go about their lives freely and with confidence.
2 Counter-Terrorism and Border Security Bill, [Bill 219 (2017–19)]
3 Counter-Terrorism and Border Security Bill, Clauses 15 and 16
Published: 10 July 2018