The United Kingdom has been faced with a long and arduous battle with incidences of terrorism, with an evident spike in frequency over the last few years. Attacks on British soil have made global news, with events such as the London Bridge attack, the Manchester bombing, and the Borough Market attack making global headlines as indicators of an international uptick of violent extremism.
Britain’s relationship with domestic terrorism has understandably influenced an extensive legislative effort to place judicial control on activities that could be deemed as contrary to the interests of the British state and its people. Notable legislation includes the Regulatory and Investigatory Powers Act (RIPA) of 2000, which provided a broad mandate for public powers to carry out relevant surveillance and investigatory operations, the Terrorism Act of 2000, which provided the first judicial definition of terrorism and created an extended list of so-called proscribed terrorist organizations, and many other acts that reflected the changing nature of extremist violence in the face of the media age.
Many of the acts passed by Parliament in the proceeding two decades have been met with a considerable amount of opposition, particularly by civil liberties groups.
The most recent onslaught of legislation has been perhaps the most controversial of all. In 2018, drafts of the Counterterrorism and Border Security Act began circulating through the House of Commons and the House of Lords, before finally receiving Royal Assent on February 12, 2019.
Broadly speaking, the 2019 Counterterrorism and Border Security Act (hereafter the Act) is intended to “ensure that law enforcement and intelligence agencies have the powers they need to help keep the country safe from the threats posed by terrorism and hostile state activity.” Additionally, the Act is an attempt to introduce legislative means to adapt to and accommodate for new media sources, technologies, and evolving methods of radicalization.
Main provisions of the Act include the introduction of an offense for “reckless expressions of support for a proscribed organization,” the creation of an offense for viewing what may constitute as terrorist material on the internet, increased maximum sentences for terrorist offenses, and the extension of extra-judicial jurisdiction to include instances of foreign invitations of support by a proscribed organization.
Certain provisions of the Act have been met with a considerable amount of push-back by civil liberties and human rights groups, who state that the Act poses a serious threat to freedom of expression, academic curiosity, and right to privacy.
Parliament’s Joint Committee on Human Rights released a statement during the draft process of the legislation, stating: “This Bill strikes the wrong balance between security and liberty.” This statement was made in respect to certain provisions made in Clauses 1, 2, and 3 of the Act that the Committee felt were an overstretch of government authority and a breach of basic civil rights.
Clause 1 creates an offense for the “expression of support” for a proscribed organization in a situation in which the person “expressing support” is either reckless or ignorant as to whether the individual to whom they are expressing said support may then similarly be compelled to support the proscribed organization.
Parliament’s Joint Committee on Human Rights, as well as civil liberty organizations, such as Index on Censorship, took issue with the language of this Clause, specifically as they believe that it is dangerously close to criminalizing expression of opinion. Concerns were voiced about the impact of this Clause on academic discourse and intellectual debate. The Act raises the hypothetical of what would happen if in the course of an academic debate an individual were to argue that a proscribed organization should be removed from the list of proscribed organizations. Would such an argument count as an expression of support, and therefore fall under the umbrella of a punishable offense under the 2019 Act?
In addition to the criticisms of Clause 1, Clause 2 has received a fair amount of pushback for unspecific legal wording and vague legislative standards, as it criminalizes the publication of pictures of clothing or other objects that may prompt “reasonable suspicion” of support for a terrorist organization. The lack of specificity as to what constitutes “reasonable suspicion” throws a wide range of activities into question, once again including academic discourse, research processes, and even misjudgment or ignorance. This Clause seems to fail to reasonably accommodate for differentiation of intent-based activity.
Clause 3 creates an offense for the online viewing of information that may be in some way useful in the preparation of terroristic violence or similar activities. Concerns have been raised that this Clause, similar to Clause 2, fails to define intent-based specificity, and is flawed in the sense that it uses overly broad legal language. While it does make some vague accommodations for “carrying out work as a journalist” and “academic research” as a “reasonable excuse” to view such material, it does not necessarily take into account people who may indeed view such content for “legitimate reasons”, such as an attempt to understand facets of radicalization, or even to understand how and why a loved one may have been targeted.
While certain human rights organizations have indeed taken issue with the language of this Clause, it is worth taking a moment to examine legal precedents that safeguard freedom of expression, with the addendum of certain relevant caveats. Article 10 Section 2 of the European Convention of Human Rights guarantees a right to freedom and expression, but with the additional stipulation 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.”
Due to heightened government interest in preventing violence and loss of life on British soil, the qualifications laid out by the European Convention of Human Rights have critical bearing on the relevance of this legislation, especially considering Royal Assent prior to the January 31, 2020 date of Brexit. The Act notably came into effect when the UK was still bound to EU law, but Brexit has raised some important questions about what will now preempt British law as the country will no longer reside within European legal frameworks.
Despite the validity of reproval that has been faced by the 2019 Counterterrorism and Border Security Act, the assessment that it is “Orwellian” in nature is perhaps not entirely fair. The legislation is reflective and responsive to the UK’s direct experiences with terrorism both at home and abroad, and has attempted to accomodate for certain undertakings such as journalism and academic research that may fall prey to some of the checks on activity that it lays out. And while the Act admittedly does suffer from vague legal language and certain missed specificities, it attempts to protect and accommodate for exceptional instances, while still providing a base of judicial control in the face of the ever-changing nature of terror attacks.
However, a note must be made on the language used throughout the Act. Considering the reactions to this legislation, it is clear that lawmakers on the international stage should seek to define in even more narrow terms what constitutes as terrorism, terroristic activities, and proscription to terrorism. Broad definitions are counterproductive, as they threaten to incriminate those who are actually innocent, while letting the true threats slip through the cracks. The never-ending quest to attain balance between security and liberty is as dynamic as the evolution of terrorism itself, and as such it is exigent that international legislative attempts are focused on increased specificity of legal language, judicial provisions, and narrowing of public mandates in a way that is conducive to facilitating and maintaining this balance, at no expense to unimplicated individuals.