58.On 6 September 2018, the Government tabled a number of amendments at Report stage in the Commons. New Clause 2, now clause 4 of the Bill, which criminalises entering or remaining in a designated area outside the UK, is of particular concern. It is regrettable that this was tabled at such a late stage in the passage of the Bill, as it has not been subject to scrutiny by the Public Bill Committee or our Committee.
59.Clause 4 introduces into the Terrorism Act 2000 a new offence of entering or remaining in a designated area outside the UK. The offence can only be committed by a person who is a UK national or resident at the time of entering the area or at any time during which the person remains there. In making regulations to designate an area, the Secretary of State would need to be satisfied that it is necessary to restrict UK nationals and residents from entering or remaining in the area for the purpose of protecting the public from a risk of terrorism.
60.A defence is available for those prosecuted under this new offence if the person can show that they had a reasonable excuse for entering, or remaining in, the designated area. If a defence is raised, the jury is entitled to assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
61.A person does not commit the offence if the person is already travelling to, or is already in, the area on the day on which it becomes a designated area and the person leaves the area before the end of the period of one month beginning with that day. A person found guilty of the offence is liable on conviction on indictment to imprisonment for a term not exceeding 10 years, or to a fine, or to both.
62.Clause 4 could engage:
a)Article 8 ECHR - the right to private and family life - by preventing a person from travelling to visit their family without risk of prosecution and by potentially restricting a person from visiting family in designated areas;
b)Article 9 ECHR - the right to manifest his religion or belief, in worship, teaching, practice and observance, where the exercise of that right involves entry into, or remaining in, a designated area;
c)Article 10 ECHR - the right to receive and impart information and ideas concerning religion, political or ideological beliefs if the exercise of that right involves entry into, or remaining in, a designated area;
d)Article 14 ECHR (in conjunction with the above rights) - the prohibition on discrimination - the designation of an area in a particular country may disproportionately restrict nationals from that country, or people with family members or friends in the designated area;
e)Article 12 of the International Covenant on Civil and Political Rights–this provides that everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Further, everyone shall be free to leave any country, including his own.
63.The Government justifies the interference with these rights on the basis that:
a)This offence is 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;
b)The objective is to dissuade UK nationals and residents from entering, or remaining in, areas outside the UK where they may engage in terrorism or other conduct which makes them become a more significant source of risk to the public, and to ensure that those who do so may be prosecuted and, if convicted, sentenced; and
c)The criminalisation of conduct will deter those tempted to travel and ensure that prosecution will follow if they do so without reasonable excuse.
64.We note that is not necessary for a person to enter or remain in a designated area for the purposes of committing any terrorist act or hostile activity. On the contrary, criminal liability is established once the individual has entered a designated area, regardless of their intent in doing so, unless the individual can establish they entered the area with a reasonable excuse, the boundaries of which are unclear. The clause therefore criminalises conduct that is not in itself wrongful or inherently criminal in nature, yet it attracts a very high penalty of up to 10 years.
65.We are also concerned that the boundaries of territory under the control of terrorist organisations may constantly shift, such that it may be difficult to designate areas with sufficient clarity so that citizens may regulate their conduct accordingly.
66.Whilst it is likely to be impossible to formulate in advance a comprehensive list of reasonable excuses for travel to a designated area, reliance on the reasonable excuse defence will render persons who do not intend to undertake any inherently wrongful conduct potentially liable to prosecution. Although it may be claimed that this outcome may be avoided by the Attorney-General or Director of Public Prosecutions withholding consent to the prosecution, this discretion is arguably not a satisfactory protection against interferences with human rights. The outcome may be a chilling effect on the enjoyment of the rights to freedom of movement and association.
67.We consider that this new offence requires further scrutiny to test its necessity and proportionality. We suggest the following amendment:
Leave out Clause 4.
68.We propose the consideration of an amendment to provide for the Secretary of State to pre-authorise travel to designated areas in certain circumstances.
Page 3, line 17, at end insert–
(c) the person has been granted authorisation by the Secretary of State to enter or remain in a designated area.
Page 3, line 18, insert–
“(4) The Secretary of State shall set out in regulations provisions regarding authorisation under section (3)(c) including:
(a) The grounds for applying for an authorisation;
(b) The procedure for applying for an authorisation both by an individual and by an organisation on behalf of individuals;
(c) The timescales for determining an authorisation; and
(d) The rights of appeal against a decision.
38 House of Commons, Notices of Amendments, Thursday 6 September,
39 Terrorism Act 2000, , as amended
40 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office,
41 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office,
42 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office,
43 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office,
44 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Supplementary Memorandum by the Home Office,
Published: 12 October 2018