The UK’s tough and controversial new counter-terrorism legislation is slated to be reviewed by the House of Lords on Monday before being given Royal Assent in an expedited fashion.
The Counter-Terrorism and Security Bill (HC 127) is intended to address a number of pressing terrorism and security issues facing the UK, in particular: (a) home-grown Islamic State (“ISIS”) sympathizers in the UK wishing to defect to join ISIS; (b) an increasing number of defector terrorists who joined ISIS returning to the UK; and (c) continued terrorist financing and security concerns for terrorism in the UK.
Terrorist threat in UK is “severe”
The Bill is controversial because it goes further than counter-terrorism legislation in other Western states.
Since September, the UK has determined that the threat of a terrorist attack is “severe” and of the over 500 defectors who left the UK to join ISIS, over 50% have returned. Since 2005, 40 terrorist plots have been disrupted in the UK and in the last four years, 800 people have been arrested for terrorism in the UK.
On January 7, 2015 in Parliament, Home Secretary Teresa May said that the UK government believes that ISIS is “solidifying its hold” on much of the region in Syria and Iraq.
As a result of the foregoing, there is pressure to implement the Bill quickly.
The four key parts of the Bill are as follows:
1. Forced relocation of people
The Terrorist Prevention and Investigation Measures (“TPIM”) will be amended to allow the forced relocation of a person on the balance of probabilities standard, from his or her home, family, community and job, to another part of the country if that person is suspected to have been or is involved in terrorism-related activities. TPIMs are imposed on a person who is a suspect but for whatever reason is not charged.
Terrorism-related activities include preparing or instigating acts of terrorism, or facilitating or encouraging them, including by giving support or assistance to persons who are preparing or instigating acts of terrorism.
A person who refuses to comply with a forced relocation order to leave their home, employment (and family) and reside elsewhere commits a criminal offense which carries a term of imprisonment of up to ten years and is subject to narrow grounds of review in court.
The TPIMs were introduced in 2012 but by February 2014, there were no suspects under the program despite the increased threat. Initially, there were measures in place to forcibly relocate suspected terrorists but that provision was removed. The Bill re-introduces it in the law.
2. Preventative foreign travel and return home after terrorism – ensuring that defectors who want to return to UK come back “on our terms” not theirs
The Bill also allows law enforcement and border officers to temporarily seize passports of persons who are suspected of wishing to leave the UK to participate in terrrorism-related activities.
Correspondingly, it also permits the government to issue temporary exclusion orders (“TEO”) prohibiting a UK national from returning home if there are reasonable grounds to suspect he or she was involved in terrorist-related activities abroad.
The temporary exclusion order is for two years, and is renewable indefinitely. There is no cap on the number of exclusion orders that may be made in respect of a person. The Bill is silent on the person’s right to appeal the temporary exclusion order but it does permit the person to apply for a permit to re-enter the UK. No doubt when and if a defector is permitted to return, they will be subject to a TPIM.
The Home Secretary said in Parliament that this provision is intended to make it clear that terrorists who wish to return to the UK will only be permitted to do so “on our terms.”
There was some effort to call the TEOs a “managed” re-entry to the UK, except that the TEOs are actually orders of exclusion (not of re-entry) with a right to re-enter only on approval of a permit. Thus, to the extent it may be characterized as a managed re-entry, that is only in cases where the person is permitted to enter in the first instance.
3. Greater Internet, cell phone surveillance and data retention
The Bill also amends the Data Retention and Investigatory Powers Act 2014 to require ISPs and cellular carriers to keep data on customers that lets security forces determine at any time who is using a particular IP address. During the Parliamentary debates, it was suggested that this provision would apply outside of the UK as well, although it was unclear to what extent and whether it would apply just in respect of UK residents abroad.
In the past year, the UK government has ordered the removal of 46,000 “items” from the Internet related to terrorism.
Two members of Parliament noted that this provision in the Bill will be used for tracking Internet child abuse and pornography, as well as for terrorism.
4. Measures to stop people becoming terrorists
The Bill will also introduce measures aimed at stopping people from becoming terrorists and requiring educational and other institutions to formalize their anti-terrorism efforts and report suspected terrorists to the government. The government will publish guidance to assist institutions with their obligations on anti-terrorism efforts to stop radicalization.
5. Illegality of insurance payments to terrorists
The Bill also amends the Terrorism Act 2000 to clarify that it is an offense for an insurance company to make a payment for ransom involving terrorism since such a payment is terrorist financing.
This provision renders directors, managers, secretaries and officers of an insurance company guilty of the offence of terrorist financing if the insurance company is convicted of making a ransom payment for terrorism in cases where the executives or directors acted with neglect, or consented or connived in respect of the payment to the terrorist or terrorist organization.
Officers and directors who are convicted are liable to a term of imprisonment of up to 14 years, to a fine, or both. If an executive is convicted, the amount paid to the terrorist organization or terrorist by the insurance company is subject to forfeiture by the executive personally.
This provision does not amnesty or protect insurance companies, or their directors and officers who made ransom payments previously from liability – they remain liable under existing counter-terrorism laws for terrorist financing for payments made to terrorist organizations unless they obtained a permit in advance to make the payment. Even in that situation, they are still exposed in private law to claims from injured parties for acts of terrorism.
“Not a perfect world”; not a perfect law
Some of the severe elements of the Bill were not lost on Parliamentarians. The Honourable Heath during the debates in Parliament noted that while it is regrettable that in the UK, they must legislate in such a way, he also noted that it must be acknowledged that we do not live in a perfect world and must accept that the events in Paris at Charlie Hebdo happen not only in the EU but throughout the globe, meaning that the Bill may not be perfect but is necessary at this time in history in the UK in order to preserve democracy.