Legislative Scrutiny: Counter-Terrorism and Border Security Bill Contents

Conclusions and recommendations

Clause 1: Expressions of support for a proscribed organisation

1. There is a careful balance to be struck to ensure that valid freedom of expression is not unintentionally caught by new offences. In that regard it is important to recall that even speech that offends, shocks or disturbs, is still protected. The clause as currently drafted potentially catches a vast spectrum of conduct. An offence must be clearly defined in law and formulated with sufficient precision to enable a citizen to foresee the consequences which a given course of conduct may entail. It is unclear as to what type of expression would or would not be caught by this offence, thus falling foul of the requirements of natural justice requiring clarity in the law and also throwing into question whether this interference with freedom of expression can be said to be “prescribed by law” with sufficient clarity. Moreover, there is a very clear risk that this provision would catch speech that is neither necessary nor proportionate to criminalise - such as valid debates about proscription and de-proscription of organisations. For these reasons, we consider that this clause violates Article 10 of the ECHR. We therefore recommend that clause 1, at a minimum, is amended to clarify what expressions of support would or would not be caught by this offence and to ensure that the offence does not risk criminalising unintended debates that it would not be proportionate or necessary to curtail. (Paragraph 18)

Clause 2: Publication of images

2. In our view, to criminalise the publication of an article which may be worn or displayed in a private place risks catching a vast amount of activity and risks being disproportionate, particularly given the lack of incitement to criminality in the mens rea of this offence. It risks a huge swathe of publications being caught, including historical images and journalistic articles, which should clearly not be the object of this clause. In our view, given the lack of clarity as to what would be caught by this offence and the potentially very wide reach of clause 2, it risks a disproportionate interference with Article 10. We recommend that clause 2 be removed from the Bill or, at a minimum, amended to safeguard legitimate publications and to give greater clarity as to what acts are, and are not, criminalised. (Paragraph 26)

Clause 3: Obtaining or viewing material over the internet

3.We recommend that those scrutinising the Bill give Clause 3 particular consideration. This clause may capture academic and journalistic research as well as those with inquisitive or even foolish minds. The viewing of material without any associated intentional or reckless harm is, in our view, an unjustified interference with the right to receive information protected by Article 10. We think that, unless amended, this implementation of this clause would clearly risk breaching Article 10 of the ECHR and unjustly criminalising the conduct of those with no links to terrorism. We recommend that, at the very least, consideration is given to narrowing the offence to ensure that it only captures those viewing this material with terrorist intent and that the defence of reasonable excuse is clarified as to what constitutes legitimate activity and that this is set out on the face of the Bill. (Paragraph 33)

Clause 5: Extra-territorial jurisdiction

4.We make no comment as to whether extraterritorial jurisdiction should apply to offences where the action would also be an offence in the country where the action (or the majority of the actions) took place. However, we are concerned that the extension of extraterritorial jurisdiction to offences, such as support for a proscribed organisation, is problematic in situations where there is not an equivalent offence in the country concerned. This would offend the principles of natural justice and sufficient foreseeability of the effect of one’s actions. It would mean a foreign national, with few links to the UK, could be prosecuted in the UK if he/she attended a protest or waved a flag overseas, in support of an organisation that is lawful within that overseas jurisdiction, if that individual then travels to the UK. We recommend that further consideration is given as to whether it is justified to bring domestic prosecutions against those who have no (or very few) links to the UK at the relevant time for conduct overseas that was perfectly lawful in the jurisdiction where it occurred. (Paragraph 39)

Clauses 6–10: Sentencing provisions

5.In our view, the increase in sentences does not appear to be supported by evidence to suggest why it is justified or proportionate. We recommend that the Home Office provide further evidence (if they have such evidence) as to why they consider the current maximum sentences to be insufficient and how this increase is necessary and proportionate. We are particularly concerned that a sentence of 15 years could be imposed for a precursor offence of viewing terrorist material online three times or more. This would put viewing material online (without intent to cause harm) on the same level of culpability as possession of an article (e.g. materials for bomb-making) for terrorist purposes. As such, we recommend that clause 6(2) be deleted. (Paragraph 45)

Clause 11: Additional notification requirements

6.Some of the notification and registration requirements last for 30 years, without the possibility of a review, unlike the sex offenders’ register which has a review at the 15-year mark. Given the case law of the European Court of Human Rights, as well as domestic UK case law, we are concerned that the revisions to the current system are likely to be considered a disproportionate and unjustified interference with Article 8 rights due to the lack of any possibility of review for those on the register for exceptionally lengthy periods of time.   In light of the increased level of intrusion into private life and the lengthy period of time for which notification requirements are imposed in some cases, we recommend the introduction of stronger safeguards. In particular, we consider that there should be the possibility of review of the necessity of the notification and registration requirements and that each individual subject to these requirements should have the right to make representations at that review. (Paragraph 49)

Clause 12: Power to enter and search home

7.The power to enter and search a person’s home is a severe intrusion with the right to private life. We do not consider this should be exercised simply for the purpose of a risk assessment. We recommend that this power be subject to a threshold test which requires a reasonable belief that the individual is in breach of his/her notification requirements and that the purpose of the entry and search is to establish that belief. 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. (Paragraph 51)

Clause 14: Anti-Terrorism Traffic Regulation Orders

8.We recommend that in giving effect to the proposed traffic measures and in the associated decision-making involved, the public authorities involved continue to act in line with their obligations with regard to security and counter-terrorism matters and that there is not any unhelpful blurring of private and public roles in this regard, such that could risk undermining the State’s positive obligations under Article 2 ECHR. (Paragraph 54)

Clause 17: Retention of biometric data for counter-terrorism purposes etc

9.We recognise the logic in harmonising retention periods for biometric data so that cases are treated in the same way irrespective of whether the individual is arrested under PACE or the TA 2000. However, we consider that oversight of the Biometric Commissioner gives the public greater comfort that such powers, and interferences with an individual’s right to private life, are being used reasonably and proportionately. Moreover, we have seen no arguments suggesting that the oversight by the Biometric Commissioner in any way impedes the ability of the police to undertake vital counter-terrorism work. We would therefore have thought it sensible to harmonise the two powers such as to retain necessary oversight of the Biometric Commissioner in a manner that enables the police to undertake their work. We are concerned that the proposed amendment in the Bill allows for the retention of biometric data of individuals who have neither been charged nor convicted, for three years without any independent oversight. We recommend that the Home Office provide a compelling justification for the removal of the Biometric Commissioner’s oversight. Failing that, we recommend an amendment such that the two powers are harmonised so as to provide oversight by the Biometric Commissioner whatever power of arrest is used. (Paragraph 59)

10.The retention of data for the purpose of national security is a legitimate aim. However, in our view, the justifications given for extending the retention period from two to five years without clear notification and review options are not sufficient. We suggest further scrutiny is required as to whether the extended retention period, without the possibility of review, is necessary to “support terrorism investigations and assist in identifying persons of threat” and, if so, whether five years is a proportionate period of time to retain the biometric data of persons who have never been convicted of a crime, particularly in the absence of any possibility of review. Alternatively, we recommend including a notification and review clause which we consider would remedy proportionality concerns with this extended power. (Paragraph 63)

Prevent programme

11.We are concerned that the Prevent programme is being developed without first conducting an independent review of how the programme is currently operating. We are also concerned that any additional responsibility placed on local authorities 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 must be subject to independent review. (Paragraph 69)

Schedule 3: Border security

12.Schedule 3 provides for severe interferences with Article 8, Article 10 and Article 1 Protocol 1 rights yet the powers it gives are dangerously broad. The definition of “hostile act” is extremely wide and there is no threshold test required before a person is detained and examined. Individual officers could simply act on a “hunch”. This is not in itself inadequate, but it is nevertheless troubling given the breadth of the power. The 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. (Paragraph 80)

13.The vital safeguard of access to a lawyer is not adequately protected. In particular, it is not clear that individuals will be informed of their right to request access to a lawyer and yet access to a lawyer is apparently only available on request. Importantly, it would seem that access to a lawyer is not available when a person is initially questioned. There appears to be no justification for this from the Home Office. Access to a lawyer can be delayed by officers; we consider that there are more proportionate measures to mitigate risk than delaying access to a lawyer. We are also concerned at the lack of confidential access to a lawyer. Schedule 3 powers unjustifiably interfere with the right to timely and confidential legal advice, and therefore ultimately interfere with the right to a fair trial (if prosecutions are eventually brought). These provisions do not comply with the requirement that the law must contain sufficient safeguards to ensure that powers will not be exercised arbitrarily. (Paragraph 81)

14.We recommend that serious consideration is given to circumscribing these powers by (1) clearly defining “hostile activity”; (2) requiring a threshold test of reasonable suspicion; (3) explicitly providing that the power must only be exercised where necessary and proportionate. Specifically, we recommend that the safeguards are strengthened, providing the right to access a lawyer immediately and in private. (Paragraph 82)

Published: 10 July 2018