Protection vs rights: the never ending battle.


The primary role of any government is to protect the nation's citizens as well as the rights and liberties of those citizens and in this modern age one of the greatest threats to that is the threat of foreign and domestic terrorism.


Successive governments have come under criticism for the ways in which they have tried to detect and prevent terrorism. One notable example is 2010 coalition governments Prevent strategy, with Dr Waqas Tufail lecturer in race, crime and social exclusion saying following her authorship of a report on prevent "Our independent report has engaged with grassroots perspectives and has highlighted the many harms of Prevent, particularly those impacting on Muslim minorities."


The Government is currently pushing the "Counter Terrorism and Border Security Bill" through the House of Commons, so this raises the question, does this Bill infringe on our rights as a citizenry and will it actually be effective in its goals?


Home secretary Sajid Javid seems to think so, under clause 1A of the 1998 Human Rights Act " (1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before second reading of the Bill - (A) make a statement to the effect that in his view that the provisions of the Bill are compatible with the Convention [European Convention on Human Rights] rights". The Home Secretary's statement numbered 19 words, he quite simply said: "In my view the provisions of the Counter-Terrorism and Border Security Bill are compatible with the Convention rights."


There are a total of 4 chapters to this bill. Here I intend to go through them one by one and analyze if and how they adhere to the Convention on Human Rights if passed. The first chapter of the Bill is entitled "Terrorist Offences" and it makes a series of amendments to both the 2000 and 2006 Terrorism Acts deciding what a proscribed terrorist offence is under UK law. The new bill has a series of 5 sections that if passed would make changes to the way actions such as "Expressions of support for a proscribed organisation" through to "Encouragement of terrorism and dissemination of terrorist publications" would be defined and viewed under UK laws. The most obvious claim of a human rights violation in this part of the legislation that I can see would be one made under article 10 of the European Convention of Human Rights that details our right to "Freedom of Expression". It's one that most would be quick to make in regard to changes proposed in the first section of this bill entitled "Expressions of support for a proscribed organisation". The changes proposed would amend section 12 of the 2000 Terrorism Act and would make it so "A person commits an offence if the person - (a) expresses an opinion or belief that is supportive of a proscribed organisation and, (b) in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation.".


However, any possible freedom of speech argument posed is moot as in the European Convention section 10 part 2 that as mentioned earlier governs freedom of expression it is stated that "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity  or public safety, for the prevention of disorder or crime", therefore the government is well within its rights to institute these changes without infringing on anyone's freedom to expression. 


Chapter 2 of the bill deals with "Punishment and management of terrorist offenders" and mainly deals with the sentencing of offenders and notification requirements.  For the most part, this chapter of the bill mainly brings additional parts of the UK into the legislation and adds extra provisions other orders into the anti-terror legislation regarding chemical weapons and firearms. The only area in this section of the bill where law regarding sentencing is changed in any meaningful way would be in section 7 where there is an "Increase in maximum sentences".  These increases only affect the Terrorism Acts of 2000 and 2006. Should the bill pass, the possible sentences will be increased to a maximum of  15 years rather than 10 years for "Collection of information" and "Eliciting, publishing or communicating information about members of armed forces etc" and from 7 years up to 15 years for "Encouragement of terrorism" and "Dissemination of terrorist publications". This is a section of the bill that I again see no problem with currently however under article 7 of the European Convention on Human Rights our right to "No punishment without law" and if the new bill where to be passed its possible but highly unlikely that there may some level of problem here, as in the European convention  it is stated in part 1 of article 7 that a person found guilty of an offence cannot have "a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.".


However, this is once again a point I consider to be one that simply doesn't hold up. This is a situation that has been faced by governments of all colours since the Human Rights Convention was ratified and officially came into force in 1953 and ,therefore, due to this I find it highly unlikely that governments haven't planned for these situations and have a solution to prevent them from arising. Even so, this argument is one that can't really be made now with any credibility as its more a question of the implementation of the new legislation by the judiciary rather than a question of the text of the bill presented by the executive.


Now we move on to the third and final major chapter that is significant to the bill "Counter-terrorism powers".  This is the point at which the bill includes one of its 2 clauses that deal with borders, however, it does also deal with the hospital treatment of suspects and "Retention of biometric data" amongst other issues and this again, I see no major problems with this area of the bill, it clearly and concisely amends existing legislation and gives clarification about timeframes regarding evidence gathering and questioning whilst a suspect is in hospital. This if anything shows that the government in all occasions is attempting to ensure that policing bodies abide by article 6 of the convention on human rights the "right to a fair trial".


However, in many ways, my analysis of this bill is irrelevant because politically I'm a nobody. Those members of parliament on committees, specialist advisers appointed to aid committees and those from whom they take evidence are not anybody. They are individuals who are tasked with scrutinising policy who have access to call upon experts from across the nation to ensure the legislation  abides by our laws and will work in the systems of the United Kingdom; so when the Joint Select Committee published a report stating it has “serious concerns” with the proposed bill it should concern us all and force us all to re-evaluate our stances on this bill.


In there report the Select Committee raise a number of concerns regarding vast areas of the bill including clauses 1 to 17 as well as the prevent strategy and schedule 3 on border security. Unsurprisingly to me, in regard to clause 1 “Expressions of support for a proscribed organisation” the committee raises the concern that “There is a careful balance to be struck to ensure that valid freedom of expression is not unintentionally caught by new offences. In that regard it is important to recall that even speech that offends, shocks or disturbs, is still protected. The clause as currently drafted potentially catches a vast spectrum of conduct. 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.” and goes on to say “here is a very clear risk that this provision would catch speech that is neither necessary nor proportionate to criminalise - such as valid debates about proscription and de-proscription of organisations. For these reasons, we consider that this clause violates Article 10 of the ECHR. We therefore recommend that clause 1, at a minimum, is amended to clarify what expressions of support would or would not be caught by this offence and to ensure that the offence does not risk criminalising unintended debates that it would not be proportionate or necessary to curtail.’’


Whilst I said earlier that any freedom of expression argument posed in regard to clause 1 could be countered using section 10 part 2 of the convention on human rights it remains an argument that shouldn’t be ignored. It’s important that this argument it not only speaks to the heart of what it means to live in a democracy but it also sets the tone for how the nation intends to combat terrorism but also radicalisation. Are we going to confront these ideas and criticise them in conversation or debate or are we going to restrict the ability of individuals terrorist or radical beliefs?


Other concerns of note raised by the committee would be those related to clause 3 of the “Counter-Terrorism and Border Security Bill” that deals with the viewing of material online. The committee claims that “This clause may capture academic and journalistic research as well as those with inquisitive or even foolish minds. The viewing of material without any associated intentional or reckless harm is, in our view, an unjustified interference with the right to receive information protected by Article 10. We think that, unless amended, this implementation of this clause would clearly risk breaching Article 10 of the ECHR and unjustly criminalising the conduct of those with no links to terrorism”.They further go on to explain that the committee recommends that the offence is narrowed so that “it only captures those viewing this material with terrorist intent and that the defence of reasonable excuse is clarified as to what constitutes legitimate activity and that this is set out on the face of the Bill.”.


This small sample of two concerns leveled at the bill by the committee is representative of style of criticism they continue to level throughout there report, they raise risks about the bill potentially leading to the violation of the rights of individuals who have neither been  charged or convicted and powers that are defined to widely in their view. It is for theses reasons that I will be highly surprised should this bill pass through the house without significant amendment.  


Article by Jamie Fisher. Jamie is student at The University of Salford.