Our Constitution Should Not Be the Cost of Countering Terrorism
On the 26 October 2018, the House of Lords Constitution Committee scrutinised the new Counter-Terrorism and Border Security Bill for the first time. The committee raised a number of concerns with the provisions of the bill and the way in which they infringed on individual rights. The committee expressed these concerns following two important reports from the Joint Commission on Human Rights.
Officially, the bill aims to:
Amend certain terrorism offences for the digital age and to reflect contemporary patterns of radicalisation
Increase the maximum penalty for certain offences, ensuring the punishment better reflects the crime and better prevents re-offending
Harden the UK's defences at the border against hostile state activity
The bill raises a number of issues including the threat its prescriptions pose to the protections afforded to citizens by Britain’s uncodified constitution, and the increasing power being granted to agents of the state. The concerns raised - aside from Baroness Warsi’s wholesale opposition to the formulation of criminal legislation which will further ostracise British Muslims, journalists and activists, and what she calls ‘the naturally curious’ - focus on the extension of power at stake here.
The bill creates catch-all offences by broadening definitions and limits access to confidential legal advice. Chairman of the House of Lords Constitution Committee, Baroness Taylor of Bolton, states, ‘The bill fails to respect important constitutional principles. Broad definitions for offences, excessive reliance on Government assurances, and barriers to proper parliamentary scrutiny are all deeply problematic.’
Furthermore, individuals who are stopped at airports and ports can be questioned for up to six hours without being detained. The bill states that, in certain circumstances, a detainee’s right to consult a solicitor is subject to it being ‘only in the sight and hearing of a qualified officer’. Christina Blacklaws, the President of the Law Society of England and Wales, expresses, ‘the idea people could be questioned for an hour before being able to get legal advice runs against all the usual standards of justice. Even after an hour, a suspect would have to proactively request a solicitor, rather than being offered legal support.’
Additionally, there is no requirement that the officer using the powers has ‘reasonable grounds to suspect a person of involvement in hostile activity’. Moreover, individuals are not given their right to know about the law that applies to them, as individuals could be prosecuted in the UK for criminal offences that do not exist in another country.
The Lords Constitution Committee reiterates the recommendations in the report by the Joint Commission on Human Rights, calling for clearer definitions of offences and for greater transparency from the Government regarding the code of practice which details the planned use of powers, as delays around publishing have hindered scrutiny.
The Government defended its proposals by saying that the proposals are not “new or novel”, as they exist in code C of the Police and Criminal Evidence Act 1984 (revised July 2018), and Schedule 8 of the Terrorism Act 2000; legislation which has been criticised on numerous grounds and subsequently many provisions have been repealed.
At the third reading of the Bill, on the 15th January 2019, the Joint Committee on Human Rights published a Second Legislative Scrutiny Report of the Counter-terrorism and Border Security Bill, advising 29 Amendments. Only Amendments 1 to 4 were accepted by the House of Lords. An addition, to inform the detainee of their rights (Amendment 22) was one of those dismissed.
Excessive state power
The threat of anti-terror laws eroding civil liberties is not unheard of. In recent years, the Government has more frequently infringed on the rights of citizens. Liberty, a prominent human rights organisation, committed to ‘protecting civil liberties’ and ‘promoting human rights’, has compiled a useful list detailing the measures taken to counter terrorism which have threatened the nation’s democratic values and our individual rights.
In the last decade, the government has used powers afforded by the Terrorism Act 2000 to take a draconian approach to dissident voices. Schedule 7 of the Act has been used against non-violent campaigners including Eleanor Jones, who protested at the G20 summit last year; Chris Kitchen, a climate change campaigner, prevented from travelling to a UN Summit in Copenhagen in 2009; and two anarchists travelling to an international gathering in Switzerland in 2012.
Liberty comments that the powers in Schedule 7 are ripe for overuse and abuse. They are invariably used in discriminatory fashion, with stops based on a stereotype rather than genuine suspicion.
Anti-terror laws being used against non-violent protestors will no doubt subvert democracy and citizens’ right to dissent against state actions.
In 2009, a parliamentary report published by the JCHR found that powers given to police through the Terrorism Act and other legislation was being used to legitimise a heavy-handed approach to policing protests. Commenting at the time, Mike Scwartz, a partner at Bindmans, who defended protestors at the 2008 Climate Camp said: "It is being misused because the police have the power to impose a blanket area, where any police officer can search anyone without reason for suspicion on the basis that a senior police officer has thought that there might be terrorist activity or terrorists operating in the area."
Meanwhile, in March this year, activists were charged with terrorism offences for obstructing a plane that held deportees from taking off. The deportation was done in secret and was ‘legally dubious’ according to a Supreme Court ruling in 2017 on the deportation of foreigners with indefinite leave to stay before they had a chance to appeal their sentences for crimes unrelated to immigration. The activists known as “the Stansted 15” are charged with section 1 of the Aviation and Maritime Security Act 1990 which had been explicitly devised as a response to a bomb attack by the Libyan security forces on a plane en route to Detroit from Frankfurt in 1988. Application of the charge to the Stansted 15 illustrates how terror-related laws are being used to stigmatise non-violent direct action opposing highly questionable government practices as domestic terrorism.
This infringement of civil liberties by the UK state is dangerous to democracy and to community cohesion. The powers that can be exercised by police without reasonable justification, and which are often used on the basis of stereotyping, will inevitably foster mistrust between the state and its citizens - particularly if a portion feel their community is being criminalised. Furthermore, the provisions of the Bill undermine basic freedoms that have existed to protect the citizen from the potential corruption of centralised power.