The Counter-Terrorism and Border Security Bill
Jetting off somewhere exotic?
Where are you going for your next holiday? Hopefully not Syria or Iraq. Not only is it rather dangerous, it now seems likely that it will be illegal to go there without a reasonable excuse. Clause 4 of the Counter-Terrorism and Border Security Bill will make it a criminal offence for a UK national or resident to enter or remain in a ‘designated area’. The Secretary of State decides what this constitutes; the designation must be considered necessary to prevent people from visiting an area because of a risk of terrorism. This offence will carry a maximum punishment of 10 years and a fine. This means that if you happen, without reasonable excuse, to be passing through or taking in the sights of such an area, you are liable to be imprisoned for 10 years.
Most concerning is that far from being a distant possibility, this Bill has just passed the Final Reading stage and is awaiting Royal Assent.
The Bill was introduced to combat the recent phenomenon of UK nationals who go to places such as Syria and become involved with ISIS, such as James Matthews (who faced terror charges in the UK). The Home Office have said that more than 900 people of security concern have travelled to Syria from the UK to engage in the conflict. This clause, the government argues, allows the security services to respond quickly and dynamically to such events and more easily prosecute persons who engage in terrorist activity abroad.
Yet, beyond this thin veil of justification, it is clear that this offence is intended to circumvent the need for sufficient evidence. The government has long found it hard to prosecute people who go abroad and allegedly engage in terrorist activities. The problem here is that the government has inadequate evidence. The solution cannot be to invent a new offence where the only evidence required is the only thing that the government actually knows: that a person went there in the first place.
Thankfully, the Bill has been amended heavily. A prescribed statutory list of legitimate purposes has been added, if you are working as a journalist, for the UN or on a humanitarian venture, you are excluded from prosecution. Neither will you be prosecuted if you are caring for a sick relative or attending a relative’s funeral. Another amendment was a sunset clause providing that any designated area shall expire after 3 years (following the Australian model). Yet a period as long as three years is surely too long to prevent someone from going somewhere, especially when they may only want to visit a close friend. Moreover, this legitimate purpose must explain the entirety of your visit to a designated area, leaving the prospect of a jovial wander quite precarious, as you may find yourself walking into a 10-year prison sentence. The prospect of having to explain every minute of your family holiday to a court is oppressive.
The fact that this offence has been so heavily qualified surely speaks of the danger it poses. Beyond Parliamentary approval, there are no limits or accountability whatsoever on what may be deemed a designated area. Neither is any guidance provided on what is considered to be a reasonable excuse, making this defence seemingly hard to raise. Nor does this bill envisage a pre-authorisation or appeals process, which might allow a person to safely plan a holiday.
Acting under the guise of national security, this offence will significantly inhibit the right of freedom of movement under Article 12 of the International Covenant on Civil and Political Rights. Nor is freedom of movement the only right this could infringe upon:
- Article 8 of the European Convention on Human Right (ECHR) (the right to private and family life) as a person would not be able to visit their family, except in the case of serious illness or death
- Article 9 (of the ECHR (the right to manifest one’s religion or belief) where exercising this would involve entry into such a zone, this would also infringe upon one’s freedom of expression (Article 10 of the ECHR).
- Article 14 of the ECHR (rights against discrimination) where, with the above rights, certain nationals of a country would be disproportionately affected.
The Joint Committee on Human Rights, who noted such concerns, suggested removing this clause altogether. This suggestion was not adopted.
Furthermore, Liberty UK heavily opposed such a clause, arguing the clause would have the effect of criminalising travel. The reasons for travelling are complex and if they do not fall into such prescribed categories, this does not mean the reasons are malevolent and the individuals are terrorists. Additionally, for those residing in a designated area, they only have 1 month to leave: 1 month to pack up, sell their house, and raise enough funds to move and buy another house. Indeed, being able to do even that is, of course, premised on the proviso that the person concerned even knows about such a designation.
Indeed, Lord Anderson, a previous Independent Reviewer of Terrorist Legislation, called such a power, “unprecedented” during Parliamentary debate. Indeed, the cloud of Brexit will inevitably hide this intrusion, thus it will pass with little external evaluation. It is noted that this is an unfortunate time to have no Independent Reviewer of Terrorism Legislation (Max Hill QC having been appointed as Director of Public Prosecutions). With travel to some areas ready to be criminalised, one wonders what further intrusions will be made in our increasingly monitored lives. This power is draconian and disproportionate, and leaves innocent UK citizens, quite literally, on the border of terrorist convictions.
When representatives of the Yemeni government and the Houthi rebels agreed to a UN-brokered ceasefire for the port city of Hodeidah on 13 December, UN Secretary-General Antonio Guterres lauded the efforts as ‘real progress towards future talks to end the conflict.’
The residents of the embattled city on the Red Sea, however, like the majority of 28 million Yemenis, are unlikely to share Guterres’ optimism. Since the outbreak of the civil war in early 2015, tens of thousands of civilians are estimated to have died as a direct result of fighting, while 17 million Yemenis – more than half of the population – are on the brink of starvation.
Yemen is the poorest country in the Middle East. Sharing a 1,100-mile land border with Saudi Arabia, the country has often been at the centre stage of regional power politics. From 1962 to 1970, at the height of the Cold War, Gamal Abdel Nasser’s Egypt and the Saudi monarchy supported opposing sides in a bloody civil war over control of the northwestern part of the country, then the independent Yemen Arab Republic.
With the Houthi takeover of the capital Sana’a in March 2015, Yemen has once again returned to the forefront of a proxy war between regional powers. This time, the conflict is not fought in the name of a fictitious confrontation of ideologies – Saudi Arabia’s absolute monarchy and Nasser’s pan-Arab socialism; rather, the Saudis allege that the Houthi rebels, a Shia-majority militia hailing from Yemen’s tribal north, receive financial and military support from Iran, Riyadh’s Shia-majority arch rival, and its Lebanese proxy, Hezbollah. In order to avoid a perceived extension of Iran’s sphere of influence – the ‘Shiite crescent’ – to its immediate geographic south, Saudi Arabia and its allies from the Gulf Cooperation Council, backed by many Western countries including the United States and the United Kingdom, have launched a devastating campaign of airstrikes to defeat the Houthi insurgency.
Violations of international human rights and humanitarian law are widespread on both sides.The Houthis are accused of using unguided rockets and land mines, resulting in a disproportionate number of civilian casualties, as well as detaining and torturing pro-government supporters, abducting journalists and human rights workers, and targeting places of worship – all clear infringements of widely accepted international norms. What makes the Saudi intervention particularly vicious, however, is its campaign of economic warfare. Not only have coalition airstrikes in Yemen killed thousands of civilians – in August, an attack on a school bus in the Houthi-controlled town of Saada claimed the lives of dozens of children.In addition, according to Alexis de Waal of the World Peace Foundation, the Saudi campaign has destroyed large parts of Yemen’s economic infrastructure.Coupled with a land, sea and aerial blockade of the country, this has led to rampant unemployment and a dramatic increase in prices – in short, economic collapse. Even though food supplies are available in the country, civilians can no longer afford to buy them.
Despite the catastrophic impact of Yemen’s humanitarian crisis on the civilian population, which one UN official said could develop into the worst famine seen worldwide in decades, the Saudi campaign falls into a ‘gray area’ of international law.Article 54 of the 1977 First Additional Protocol to the Geneva Conventions, to which both Yemen and Saudi Arabia are party, prohibits ‘starvation of civilians as a method of warfare’ as well as the destruction of ‘objects indispensable to the survival of the civilian population,’ such as foodstuffs and agricultural areas. Article 54 undisputedly covers the Assad regime’s deliberate starvation of Syrian civilians during the siege of Aleppo, for example. However, it is much more difficult to establish intent in law where famine is only indirectly (though certainly no less deliberately) caused by military intervention. Hence, Saudi authorities will be quick to defend themselves by pointing out that mass starvation was merely the unintended ‘by-product’ of a limited aerial campaign.
Such lukewarm justifications should not be allowed to pass. Deliberate starvation of civilians is used as a weapon of war in Yemen. Res ipsa loquitur. It is time to hold those responsible to account before famine by design becomes the future of war.
Bel Trew, “Glimmer of Hope for Yemen as Ceasefire Agreed for Embattled City of Hodeidah,” The Independent, December 14, 2018, accessed December 29, 2018, https://www.independent.co.uk/news/world/middle-east/yemen-peace-talks-ceasefire-hodeidah-sweden-antonio-guterres-civil-war-famine-a8681541.html.
“War Crimes Tracker,” The Yemen Peace Project, accessed December 31, 2018, https://www.yemenpeaceproject.org/warcrimes/.
Shuaib Almosawa and Ben Hubbard, “Saudi Coalition Airstrike Hits School Bus in Yemen, Killing Dozens,” The New York Times, August 09, 2018, accessed December 31, 2018, https://www.nytimes.com/2018/08/09/world/middleeast/yemen-airstrike-school-bus-children.html.
Jane Ferguson, “Is Intentional Starvation the Future of War?” The New Yorker, July 11, 2018, accessed December 31, 2018, https://www.newyorker.com/news/news-desk/is-yemen-intentional-starvation-the-future-of-war.
After the International Human Rights Day, it seems an appropriate time to pen a response to a piece titled “Human Rights Do Not Exist!” by the Conservative English journalist Peter Hitchens, published in The YLJ.
Hitchens makes the argument that the concept of human rights in modern Western societies is artificial, and abused by courts to “intervene in an Unchristian way in the politics of formerly Christian societies”. He prefers the “hard protections” conferred by age-old human rights documents like the English Bill of Rights 1689, and disparages the employment of human rights arguments to “provide a nonsensical justification for … abort[ing] millions of babies”; he also disparages the development of human rights jurisprudence as simply following the current liberal zeitgeist.
Hitchens joins a long line of politicians who have been continuously engaged in attacking the human rights regime in the UK – not always cogently. He longs for some idealised Protestant society, where Christian values – particularly the sanctity of life in the context of abortion – are regarded as non-negotiable. While most of his article focuses on the overextension of reproductive freedom to permit abortion in all cases, Hitchens never actually presents a countervailing argument to show why the right to abortion is unjustified. The closest he gets is when he cites the right to life, codified in Article 1 of the European Convention of Human Rights as well as the United States Declaration of Independence. It is submitted that Hitchens’ argument requires more logical rigour than what he has offered us.
The reality is that in all questions of law, courts are always trying to balance rights of various stakeholders – an issue Hitchens says that Human Rights is unable to resolve by itself. However, in our domestic framework, ‘Human Rights’ is not merely a conceptbut an effective legal mechanism under the Human Rights Act 1998, with constitutional safeguards to prevent an abuse of power by the judiciary. The Act, operating within essential limiting tenets of the British constitution that any first-year student of English Law would be well familiar with such as separation of powers and legislative supremacy, ensure that legal protection of human rights are not premised on judicial decisions made based on some vague impression of what the “ethical fashions” of the hour are.
As for Strasbourg jurisprudence, Hitchens raises the case of A, B and C v Ireland(2010) to show how “the courts follow” the assumption that the law must follow liberalism of the times. On closer scrutiny, it is evident that Hitchens is engaged in what Professor Mark Elliot calls “legally illiterate criticism”, since the court did not grant, as Hitchens seems to think, a right to unrestricted abortion. What the case actually decided was that Ireland was in breach of its positive obligations under Article 8 (right to respect for private life) by not providing an effective procedure by which the applicant could verify if she qualified for a lawful abortion. This is not a strained interpretation of the Article 8 right at all – it is only reasonable for private individuals to know what the applicable law is to his/her life, so that he/she can properly plan it. Hitchens also seems to have ignored the cases in which Strasbourg has refused to accept human rights arguments that applicants have made. In the case of A, B and C itself, the Court rejected the argument under Art 8 that was made by the first and second applicants who had abortions for personal reasons since the option to travel abroad for the abortion was still available to them. Already there is a threshold within the existing legal framework that must be met for courts to protect a right that an individual is claiming. That the foetus’ Art 1 right to life trumps all cannot simply be assumed, especially since individuals are also entitled to protection of their Art 3 right on the prohibition of ill-treatment, particularly in the case of victims of rape, incest and fatal foetal abnormality.
Hitchens ends his article with the forecast that the “astonishing precedents for broad, imaginative interpretation” of human rights documents will be to the detriment of liberals, as global political sentiments shift towards populism, xenophobia and conservatism. Again, this argument is something a student of UK Constitutional Law would be able to respond to: legal protections for human rights have developed within the Common Law since the enactment of the Human Rights Act 1998 (which brought the ECHR into force) such that it would be difficult for a draconian government to entirely deprive its citizens of such rights, even if it withdraws the UK from the European Convention of Human Rights. While not nearly as advanced and clearly outlined as Convention rights, there is clear precedent to protect fundamental common law rights, which cannot easily be ignored or deviated from.
Hitchens seems to think that “the concept of Human Rights” is a hazy notion as indefinable as the air. Nothing could be further from the reality of Human Rights law. In a rapidly changing constitutional landscape and contemporary challenges to human rights such as the ever-increasing ambit of executive government, modern-day slavery and human trafficking, immigration and the response to terrorism, human rights protections are more important than ever. Courts must constantly engage in the enterprise of translating age-old rights recognised in documents like the Magna Carta to our increasingly complex, globalised context so that the protections afforded to individuals.
Jing Min Tan
The work of the International Criminal Tribunal for the former Yugoslavia (ICTY) invaluably advanced global justice, but also continues to remind us of the complexities of prosecuting atrocities
Twenty-four years after the ICTY was established by the UN Security Council, the Tribunal concluded its final trial, upholding the sentence of former Bosnian Croat commander Slobodan Praljak to 20 years imprisonment for war crimes. The events which followed will unfortunately be unavoidably engrained into the Tribunal’s history, with the war criminal swallowing a vial of cyanide and killing himself.
At the time of writing, authorities are investigating the security lapses which allowed Praljak to evade retribution. Reactions to the incident do however, raise a wider question. Many from Praljak’s Bosnian hometown of Čapljina regard him a ‘hero’ and mourned his death. But how can someone who ‘facilitated the murder of Muslims who did not belong to any armed force’ in a campaign of ethnic cleansing still be held in such high esteem?
This difficulty highlights the distance which is often felt between international institutions and ordinary people. The ICTY’s founding resolution was passed in a Security Council chamber in New York, and the Tribunal itself was based in The Hague – two settings very much detached from the suffering and anger felt by those who lived through the horrors of the Yugoslav wars. It also illustrates that work still needs to be done to convey the message of international criminal justice’s moral simplicity.
Nevertheless, while we must take care to not to allow cliché and platitudes cloud attempts to appreciate the undoubtedly complex roots of grave conflicts worldwide, we also must not lose sight why human rights deserve the protection provided by institutions like the ICTY. The modern human rights position came about from the world witnessing atrocities, and feeling that these abuses were simply wrong. There is rightly a need to have logical and legal grounds to back this intuition. But at a basic level, nobody should be treated with the cruelty the world has, and continues to see.
Jefferi Hamzah Sendut
Although it is all too easy to believe that slavery ended with the success of the abolitionist movement up to 200 years ago, a flurry of news stories in recent weeks has brought the issue of modern day slavery to our attention. Significant coverage stemmed from the high-profile Rooney case, where a UK family was convicted of numerous counts of modern slavery offences. This was swiftly followed by the first review of the UK legislation in a Backbench Business Committee debate secured by Vernon Coaker MP in October 2017. This coincided with the high-profile efforts of Avon and Somerset Police to raise awareness of the issue of modern slavery and their support for the charity Unseen’s ‘Let’s Nail It Campaign’. While one hopes that #antislaveryday will continue to garner support and visibility, the underlying legal framework for dealing with modern slavery both in the UK and Europe must be critically examined to determine how far it goes to protect victims of modern slavery.
The European Level
Article 4 of the European Convention on Human Rights provides that:
- No one shall be held in slavery or servitude.
- No one shall be required to perform forced or compulsory labour.
The ECtHR’s seminal examination of Article 4 in Rantsev v Cyprus was welcomed by many. The Court took an expansive approach to the Article. It was recognised that human trafficking was also prohibited, though not mentioned in the text of Article 4. What’s more, the Court held that ‘increasingly high standards’ are necessary in the area due to the clandestine and exploitative nature of activities of modern slavers and human traffickers. The Court committed to the ‘3 Ps of Protection, Prevention, and Prosecution’, advocated for in other international instruments, such as the Palermo Protocol, which promote the long term protection of victims of modern slavery and human trafficking.
What about the UK?
The Modern Slavery Act 2015
The MSA 2015 was a huge leap forward in consolidating the criminal offences associated with modern slavery and establishing prevention mechanisms. The Act also made some steps in terms of protecting victims. However, the focus of the act appears to be on prosecution rather than protection. For example, the offences of modern slavery appear in the first two sections of the act, indicating a legislative desire to take a hard-line approach to the issue of modern slavery in the UK.
Slavery and Immigration
As academics have highlighted, one of the most troubling aspects of the MSA is the inherent tension between protection and immigration. In 2012, the Immigration Rules (now in statutory form) were amended so as to minimise the rights of Overseas Domestic Workers (ODW). These migrants enter the UK with an employer already secured. The ODW must come to the UK with that secured employer, as a condition of their entry. Under the Rules, an ODW is unable to change employers once they are in the UK, placing them in an extremely vulnerable position. This is exacerbated by the cuts to legal aid, precluding most ODWs from challenging decisions made against them. The Government’s response to this vulnerability was that ‘it is not the government’s policy to facilitate low skilled migration to the UK.’
A general lack of protection?
This failure to fulfil the protectionist aspect of the fight against modern slavery is found in other areas. For example, when a potential victim is identified, they undergo a 45-day recovery and reflection period. Jess Phillis MP noted that these victims, who are still extremely vulnerable, are ‘lost from services’ after this 45-day period. Where the victims go after this is unclear. Research thus far has only determined that ‘nobody knows for certain’.
While the recent upsurge in awareness of the issue of modern slavery in the UK is to be welcomed, the current system needs more than emotional outrage. Further action is needed to combat the negative effects of both immigration policies, and the lack of support and protection for victims once they have been identified.
Final Year Law Undergraduate
When the ECHR was being formulated, shortly after the second world war, the UK was one of the key drafters of the convention. The White Paper that instigated the (partial) incorporation of the ECHR into UK law, almost 50 years later, was entitled: Bringing Rights Home. The introduction of the Human Rights Act 1998 (HRA) was much needed and has led to legislation being more human rights focused, by virtue of provisions such as section 19 (statement of compatibility). Lord Irvine (one of the key figures behind the introduction of the HRA), in his 2003 article “The Impact of the Human Rights Act”, contented that the act ensures that parliament, the government and the judiciary all work together to ensure a culture of human rights is embedded across the whole of our society. A culture of human rights is certainly a laudable goal that we all should strive for. However the notion of “Bringing Rights Home” which was championed by Lord Irvine and his colleagues, when bring the HRA into force, is certainly less laudable. The phrase, arguably, suggests that since the UK played a pivotal role in the creation of the ECHR, that the state of the UK is one of the creators of human rights. This would be an utterly farcical contention as human rights are not something that one can create. They are entitlements that are ascribed to a human simply because of their human status. Laws are malleable: they differ between places and over time. Human rights do not share this characteristic with law, they are universal to human beings in all areas and all times. Perhaps the suggestion that the UK is one of the ‘creators’ of human rights is one of the reasons behind calls for a British Bill of rights, in favour of the ECHR. This would be a major step back in human rights law. Therefore, we can thank Lord Irvine and Co for the HRA, but not for the phrase “Bringing Rights Home”.
Barefoot Lawyer is a remarkable memoir by Chen Guangcheng, a blind civil rights activist from Dongshigu in Northeast China. Having lost his eyesight even before the age of one, Guangcheng battled discrimination against the handicapped, finding himself opportunities for education after being refused from the local village school. Whilst at a school for the blind in Linyi, further experiences of discrimination, such as a bus driver refusing to adhere to a law allowing the blind to use public transportation for free, sparked his dedication to social activism, ultimately leading him to become a self-taught lawyer.
Being a “barefoot lawyer” is illegal on grounds of practicing without a license, but Chen represents all clients who cannot afford legal services, or whose cases could risk angering the government because they involve infringement of human rights – cases that many qualified lawyers stay away from. Attracting the government’s attention through a class action lawsuit against illegal taxing of disabled people in 2002, and then through a lawsuit against a local government’s violent and illegal enforcement of the one child policy in 2005, Chen is thrown in jail on a fictitious charge for four years. Once released, his entire family is placed under house arrest in Dongshigu, with any visitors (including Christian Bale) banned from entering the village.
After breaking a foot coming down a wall, dragging himself through the village in the night, and racing against Chinese officials to the American embassy, Chen manages to leave the country with his family to the US with the help of Hillary Clinton, Secretary of State at the time.
This book is essential reading to gain a better understanding of the current human rights situation or the discrimination towards the poor and disabled in China. From his inability to access education to “black jails” and kidnappings, Chen recounts his experiences in full detail and leaves no stone unturned. Furthermore, the book also sheds light on the role of the US in upholding human rights around the world, as Chen discusses his disillusionment with the country during Clinton’s negotiations with the Chinese government. Rather than pushing for what Chen wanted, they instead kept trying to pressure him to accept the Chinese government’s demands, making Chen worry for his and his family’s safety.
The passion that Chen expresses for his work and beliefs is contagious, and anyone reading this book will find themselves with a strong interest for human rights and the law’s role in upholding it around the world. Providing a real world perspective on the difficulties in maintaining human rights through a legal system where not all legislation is properly enforced, The Barefoot Lawyer is sure to make you question if law alone can achieve adequate human rights protection
On the 7th December the Council of Europe accepted the UK government’s proposal to end the blanket ban on UK prisoners’ right to vote. This proposal is a response to the European Court of Human Rights’ ruling in Hirst v UK (No 2) . In this case the Court held that the UK’s blanket ban on prisoner votes is against Article 3 of Protocol No. 1 of the ECHR (the “Right to free elections”). This article outlines a couple of key questions that the “prisoner votes saga” raises. Firstly, should we accept the Court’s ruling in Hirst (No 2) and secondly, is the UK’s accepted solution satisfactory?
The blanket ban: a human rights breach?
There are strong arguments in favour of the UK following rulings such as Hirst (No 2). Such arguments may highlight the importance of prisoners being able to keep their sense of dignity or the benefits of prisoner votes from a rehabilitation point of view, this right encouraging prisoners to maintain a level of engagement with society. However, is there any room for someone who champions human rights to support a blanket ban? The “right to free elections” is not an absolute right, thus the Court ruled that the blanket ban was a disproportionate restriction on the right to vote. It said that although the ban had a legitimate aim (to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance civic responsibility and respect for the rule of law) the blanket nature was excessive and not necessary in a democratic society. However it seems, at least to me, plausible to argue that a blanket ban is not in fact excessive because it only applies to those who have been convicted of crimes serious enough to warrant a custodial sentence. This is the argument that was made (unsuccessfully) by the UK government, although it is worth noting that the Hirst (No 2) verdict was not a majority decision. The ECtHR’s verdict in Hirst (No 2) is thus not uncontroversial.
The proposed solution
The UK’s solution, aiming to bring the UK in line with its international commitments, would give the vote to prisoners on temporary release and at home under curfew. Given that estimates suggest that this will affect under 100 prisoners, some will argue that this proposal does not go far enough and will question whether such a small material difference really changes the situation regarding prisoner votes from disproportionate to proportionate. Nevertheless, the proposal should not be dismissed as insignificant. Firstly, it is important that the UK is seen to abide by ECtHR rulings because if the UK doesn’t comply with the ECtHR it gives other countries an excuse to similarly ignore the Court. Moreover, from at least a political constitutionalist point of view, it is important that the UK government is given a margin of discretion to work out what is and isn’t “proportionate” for both competency and democratic reasons.
This latter point leads me to conclude that those against the ECHR would do well to remember that many of the Convention rights are drafted in non-absolute terms and, in contrary to the notion that the ECtHR strives to take away all sovereignty from the British courts, in reality the Court has long followed the margin of appreciation doctrine. This doctrine affords national governments a degree of freedom in regards to the fulfilling of their ECHR obligations. The fact that the Council of Europe was prepared to accept a proposal that would only allow a small minority of prisoners the vote weakens the claim that the ECHR has taken away too much power from UK electives and exposes the often oversimplified narrative of those who take this stance.