1Introduction
Background to the Bill
1.The Counter-Terrorism and Border Security Bill (‘the Bill’) was introduced to the Commons on 6 June and had its Second Reading debate on 11 June. The Bill follows the Government’s review of its counter-terrorism strategy (CONTEST) and legislation, which was launched in June 2017.
2.The Rt Hon Ben Wallace MP, Minister for Security and Economic Crime, set out the background and purpose of the Bill in a letter sent to the Chair of the Committee on 6 June:
“Following the terrorist attacks in London and Manchester last year, the Bill is designed to enhance the powers available to protect our communities from the ongoing heightened terrorist threat. To this end, measures in the Bill include updating a number of terrorism offences to respond to the evolving terrorist threat and to close a number of gaps in the law, allowing more effective earlier intervention with prosecutions for preparatory terrorism offences, and ensuring that the law properly covers modern online behaviour and patterns of radicalisation. The Bill will strengthen the sentencing framework to ensure that offenders are appropriately sentenced, and that the police are better able to manage individuals convicted of a terrorism offence on their release.
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In addition, the Bill also provides for a new power to stop, search, question and detain an individual at a port or border area in order to determine if they are, or have been, engaged in hostile state activity. This comes in response to the poisoning of Sergei and Yulia Skripal in Salisbury on 4 March 2018, following which the Prime Minister announced that the Government would introduce new powers to harden the United Kingdom’s defences at the border against all forms of hostile state activity.”6
Overview of the key provisions in the Bill
3.Part 1 of the Bill would:
(a) make it an offence to express an opinion or belief that is supportive of a proscribed organisation while being reckless as to whether this will encourage support for a proscribed organisation (clause 1);
(b) criminalise the publication of certain images which would arouse reasonable suspicion that the offender was a member or supporter of a proscribed organisation (clause 2);
(c) amend the existing offence of downloading terrorist material and extend it to viewing such material, where this is done on three or more occasions (clause 3);
(d) strengthen existing offences of encouragement of terrorism and dissemination of terrorist publications (clause 4);
(e) extend extra-territorial jurisdiction over certain offences (clause 5);
(f) increase maximum sentences for certain terrorist offences (clause 6);
(g) add to the list of offences for which extended sentences can be given in certain circumstances (clause 8);
(h) make changes to the notification requirements for registered terrorist offenders, and introduce a new police power to enter and search their homes (clauses 11 and 12);
(i) add certain terrorist offences to the list of offences for which a Serious Crime Prevention Order can be given (clause 13);
(j) allow charges to be made for traffic measures put in place to protect events or sites from terrorist threats (clause 14); and
(k) allow local authorities (as well as the police) to refer people who are considered vulnerable to being drawn into terrorism to the multi-agency panels which assess them and provide support (clause 18).
4.Part 2 of the Bill is a response to the poisoning of Sergei and Yulia Skripal in Salisbury on 4 March 2018. Clause 20 and Schedule 3 provide powers to stop, question, search and detain people at ports and borders to determine whether they appear to be, or have been, engaged in hostile state activity. There is no requirement for reasonable suspicion in order to exercise these powers. This includes powers to retain and copy journalistic and legally privileged information. It also includes powers that delay access to a lawyer or prevent confidential access to a legal advice.
Key human rights issues engaged by the Bill
5.On introduction of the Bill in the House of Commons, the Home Secretary (Rt Hon Sajid Javid MP) made a statement under section 19(1)(a) of the Human Rights Act 1998 that, in his view, the provisions of the Bill are compatible with the Convention rights. The Bill engages the following Convention rights:
(a)Article 8: the terrorism offences and stop and search powers may interfere with a person’s right to private and family life. The extension of the biometric data retention provisions, especially without any safeguards, also raises Article 8 concerns.
(b)Article 9: the terrorism offences and stop and search powers may interfere with a person’s rights to manifest religion or belief, in worship, teaching, practice and observance.
(c)Article 10: the terrorism offences and stop and search powers may interfere with a person’s right to receive and impart information and ideas concerning their religion or political or ideological beliefs.
(d)Article 6: access to a lawyer can be restricted in certain circumstances under the border security stop and search powers.
(e)Article 1 of Protocol 1 and Article 2: the involvement of private actors deciding on the provision of, and in paying for, counter terrorism traffic measures raises questions concerning adequate protection of the right to life and also peaceful enjoyment of property.
6.The Government considers that any interferences with ECHR rights are justified as necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime and for the protection of the rights and freedom of others.7 Our inquiry considered whether the following are clearly prescribed, necessary and proportionate as required by human rights law:
(a)the extension of existing terrorism offences;
(b)increased maximum sentences for certain terrorism offences;
(c)notification requirements for registered terrorist offenders;
(d)the extension of extraterritorial jurisdiction over certain terrorism offences;
(e)changes to the Prevent programme;
(f)extension to the period of retention of biometric data;
(g)increased involvement of private actors in decision-making on counter-terrorism measures necessary to protect the public at events and sites; and
(h)the introduction of new stop and search powers at ports and borders.
6 Letter from Rt Hon Ben Wallace MP, Minister of State for Security and Economic Crime, to Rt Hon Harriet Harman MP, Chair of the Joint Committee on Human Rights regarding the Counter-Terrorism and Border Security Bill, dated 6 June 2018
7 Home Office, Memorandum on Counter-Terrorism Border and Security Bill - European Convention on Human Rights, June 2018
Published: 10 July 2018