Second Legislative Scrutiny Report: Counter-Terrorism and Border Security Bill Contents

1Expressions of support for a proscribed organisation

Clause 1

1.Clause 1 of the Bill amends section 12 of the Terrorism Act 2000 to create an offence of expressing an opinion or belief in support of a proscribed organisation (actus reus) with recklessness as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation (mens rea).

2.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. We continue to be concerned that there is a clear risk that this provision would catch speech that it is neither necessary nor proportionate to criminalise, such as valid debates about proscription and de-proscription of organisations.1

3.In its response to our report, the Government stated that “section 4 of the 2000 Act provides a clear route for any person to apply to the Home Secretary for the de-proscription of any organisation, and section 10 provides clear and unambiguous immunity from prosecution under proscription offences for anything done in relation to such an application, including any statements made in support of the organisation.”2 However, this defence only protects statements of support that are related to a deproscription application under section 4 of the Terrorism Act 2000–it does not provide a defence for those engaged in legitimate debate outside such proceedings. This is a limitation on Article 10 rights to hold opinions and receive and impart information and ideas without interference. Article 10 may, of course, be subject to such restrictions “as are prescribed by law and are necessary in a democratic society” for a range of reasons, including in the interests of national security and for the prevention of crime. We consider each House should carefully consider whether this restriction is wider than is necessary for those purposes.

4.The Government did not agree that clause 1 is insufficiently clear as to the lawful boundaries of such a debate, stating that: “it would be extremely difficult to define a valid debate and to distinguish this from a debate that is not valid. Such determinations will always be highly dependent on the facts and circumstances of particular cases, and can only be properly made by a court considering all of those matters in each case.”3

5.We agree that is it difficult to define ‘valid debate’ and for that reason, we consider that this lack of clarity, exacerbated by a low threshold of recklessness, risks a chilling effect on free speech and importantly, risks constituting a disproportionate interference with the right to free speech in our society.

6.We suggest the following amendments:

Amendment 1

To leave out Clause 1 of the Bill

Comment: by deleting this clause, the offence would remain one of ‘invitation to support’ a proscribed organisation rather than ‘expression of support’ for a proscribed organisation, and the defendant would be required to invite support for a proscribed organisation knowingly as opposed to recklessly.

Amendment 2

Page 1, line 10, leave out paragraph (b) and insert–

“(b) in doing so intends to encourage support for a proscribed organisation.”

Comment: this amendment would retain the new criminal offence of expressing support for a proscribed organisation, but it would amend the mens rea of the offence by raising the threshold from recklessness to intention.

Amendment 3

Page 1, line 12, at end insert–

“It is not an offence under subsection (1A) to express an opinion that a proscribed organisation should cease to be proscribed”.

Comment: this amendment would retain the new criminal offence but would specifically exclude statements that a proscribed organisation should be deproscribed.

1 Joint Committee on Human Rights, Ninth Report of Session 2017–19, Legislative Scrutiny: Counter Terrorism and Border Security Bill, HC 1208, HL Paper 167 (hereafter “HC/HL (2017–19) 1208 / 167”), para 18

2 Joint Committee on Human Rights, Third Special Report of Session 207–19, Legislative Scrutiny: Counter-Terrorism and Border Security Bill: Government Response to the Committee’s Ninth Report of Session 207–19, HC 1578 (hereafter “HC (2017–19) 1578”), clause 1

3 HC (2017–19) 1578, clause 1

Published: 12 October 2018