The Counter-Terrorism and Border Security Bill: Bordering on legislative terror?

Updated: Aug 14, 2020

By Jake Carrick

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[1]. 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.

[1]Home Office 2019 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/740951/4_Designated_Area_Offence.pdf

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