The United Kingdom Parliament should scrap provisions in a new counterterrorism bill that excessively restrict freedom of expression, freedom of movement, and privacy, Human Rights Watch said. The draft law punishes a single click on terrorist content online with up to 15 years in prison.
The sweeping Counter-Terrorism and Border Security Bill would criminalize travel to areas the government designates terrorist risk zones, which could obstruct family visits, news reporting, and aid work. It would also erode rights to consult a lawyer during stops at ports, airports, and borders.
“The new UK counterterrorism bill veers dangerously toward the logic of guilty until proven innocent,” said Letta Tayler, senior terrorism and counterterrorism researcher at Human Rights Watch. “Parliament should strip this bill of provisions that risk harming legitimate activities in the name of security.”
Government officials contend the bill contains ample safeguards and is a necessary response to deadly Islamic State (also known as ISIS)-inspired attacks in London and Manchester in 2017, as well as poisonings in Salisbury in March 2018 for which the UK blames Russia. The House of Lords, the upper chamber of Parliament, sent the bill to a review committee following an impassioned debate on October 9. The House of Commons approved the draft law in September and a final vote is expected in late 2018 or early 2019.
In an attempt to clamp down on internet-inspired attacks, the draft law would criminalize even one click on, or view of, online content that the authorities deem useful to preparing or committing a terrorist act. The European Convention on Human Rights (ECHR) upholds the freedom to receive and express opinions and information even if they offend, shock, or disturb. Viewing or clicking on offensive content should not be criminalized absent a clear link to inciting, preparing, or carrying out an unlawful act, Human Rights Watch said.
The provision allows the accused to argue that they have a “reasonable excuse” to view the content. However, the only excuse it specifies is not knowing or having no reason to believe that the content was terrorism-related. That could leave researchers, journalists, and those who click through “ill-judged curiosity” but no criminal intent unprotected, the UK human rights group Liberty wrote.
The bill also criminalizes “reckless” expressions of support for a banned organization, regardless of whether the person succeeds – intentionally or unintentionally – in encouraging its audience to support the group. The provision does not specify what constitutes expressions of support.
As the UK Parliament’s Joint Committee on Human Rights noted in a report seeking 29 changes to the bill, the “reckless” offense is disproportionate, ambiguous, and “could have a chilling effect” on academic debates. While the concept of “recklessness” exists for certain criminal acts, such as causing physical harm, it should never be applied to speech, which must contain an element of intent to be criminal, Human Rights Watch said. UK law already criminalizes “glorification” and “encouragement” of terrorism, as well as “inviting support for a proscribed organization,” making this one of several clauses in the bill that are unnecessary as well as overreaching.
The bill would also criminalize the online publication of an image depicting a flag or other item that would prompt “reasonable suspicion” that the person posting the image is a member or supporter of a proscribed organization. This could lead to unjust prosecutions for publishing historical, satirical, or journalistic material, Human Rights Watch said.
A recent amendment would punish traveling to or remaining in areas abroad that the UK Secretary of State designates terrorist risk zones with prison terms of up to 10 years. The proposal, which mirrors an overbroad 2015 Australian law, aims to deter UK nationals from joining armed groups abroad and returning to commit attacks at home.
While concern about the potential security risk posed by some returning fighters is warranted, the measure could target travel to visit family, attend funerals, report on conflicts, or provide life-saving food and medical care, Human Rights Watch said. The proposal allows such travel if the person provides a “reasonable excuse,” but unjustly places the burden of proof on the traveler.
The International Covenant on Civil and Political Rights (ICCPR) upholds everyone’s right to leave any country and the right to enter their own country. The UN independent human rights expert on countering terrorism has expressed concern about overbroad foreign fighter travel bans.
In response to the Salisbury poisonings, the bill also would empower customs and immigration officials to stop, question, search, and copy or seize personal belongings of anyone at ports, airports or border crossings to determine whether they may be involved in “hostile activity” on behalf of a foreign government. Detention could last up to six hours. No grounds for suspicion would be required and hostile activity is vaguely defined. Failure to provide information or belongings would be punishable by up to 51 weeks in prison.
Border officials could question the person for up to an hour without a lawyer. In addition, a senior police official could require that legal consultation take place within eyeshot and earshot of the authorities in certain cases – for example, if the authorities express concern that a lawyer might engage in evidence tampering. The right of detainees to see a lawyer is enshrined in the ECHR and the ICCPR, and the UN Human Rights Committee has interpreted that right to include legal consultation in private. The Law Council of England and Wales called the proposal’s potential to damage lawyer-client privilege “severe.”
The proposed powers are similar to those already in force in the UK for counterterrorism stops-and-searches, which have disproportionately affected members of ethnic minorities. In one positive step, the measure would clarify that answers given during such questioning are not generally admissible as evidence.
Another clause would decrease independent oversight of police retention of fingerprints and DNA samples of people arrested for serious terrorism offenses. In certain cases, the provision would increase the retention period from two to five years with no review by the country’s biometrics commissioner. Extensive retention of personal data for suspects not even charged with a crime violates the right to privacy enshrined in both the ECHR and the ICCPR.
The bill also would amend the UK’s Prevent program, aimed at preventing people from being drawn into terrorism, allowing local authorities to refer people they consider vulnerable to special risk-assessment panels. Currently, only police officers can make such referrals. The program has been criticized by two UN human rights experts. Before making such a change, the government should commission an independent review to assess the program’s effectiveness and its impact on individuals and communities, Human Rights Watch said.
The UN human rights expert on counterterrorism and the UK’s outgoing independent reviewer of terrorism legislation have also criticized portions of the bill as disproportionately broad or invasive.
“At home, the new UK counterterrorism bill risks subverting the very freedoms and democratic principles that it purports to protect,” Tayler said. “Abroad, it gives countries with fewer checks and balances a dangerous excuse to follow suit.”