Index on Censorship submission on the Counter-Terrorism and Border Security Bill 2018

28 Jun 2018 | Campaigns, Campaigns -- Featured, Counter Terrorism, Statements

Laws that protect our rights to read, research, debate and argue are too easily removed.  Index is concerned that clauses of the Counter-Terrorism and Border Security bill, now being debated in the UK’s Houses of Parliament, will diminish those rights and freedoms. It submitted this paper to parliament to ask it to consider changes to the proposed bill.

Index on Censorship is a London-based campaigning organisation supporting freedom of expression internationally since 1972. Founded to publish writings banned within the Soviet Union and beyond, we publish censored writing from around the world in our quarterly internationally read magazine and monitor and map media freedom in 43 countries. We are globally recognised as a leading authority on freedom of expression. While our focus is international, we have always also covered the UK, and we have concerns about the restrictions on free expression that are implied by the Counter-terrorism and Border Control Bill.

1. We would be pleased to be able to give oral evidence, and Rachael Jolley, editor of the Index on Censorship magazine, would be available, if invited to any of the planned oral evidence sessions.
2. We shall raise concerns, in particular, about the extension of anti-terrorist legislation to the expression of opinion or belief in Clause 1 of the Bill, and the potential stifling of legitimate journalistic, academic and other research into the opinions, methods and aims of terrorist organisations contained in Clause 3.  We are also alarmed by the potential discouragement of legitimate journalistic inquiry that may result from the extension of already significant sentencing maximums in clause 6 and chapter 2 of the Bill.
3. The first priority of governments is said to be the security of their peoples.  Yet that security exists not as an end in itself but as a means to enabling peoples to live freely.  Free expression is vital to living in freedom. It creates the space for the exchange of ideas in the arts, literature, religion, academia, politics and science, and is essential for other rights like freedom of conscience. Without free expression, ideas cannot be tested. Without free expression, individuals cannot make informed decisions.  Parliament itself recognises this concept in its claim for itself, on each election, to the privilege of freedom of speech in debate without fear of arrest or hindrance, guaranteed by the Bill of Rights of 1689.
4. Free expression is also a universal human right enshrined in international law and in UK law. Article 19 of the United Nation’s Universal Declaration of Human Rights, states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
5. Article 10 of the European Convention on Human Rights, incorporated into UK law by the Human Rights Act 1998 states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The Prime Minister has spoken of her pride in the heritage of freedom of expression in this country and called it a fundamental British value.  As was noted in the conclusion to the Handyside v United Kingdom case decided by the European Court of Human Rights in 1976: “Freedom of expression…is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”.
6. It is our contention that Clause 1 of the Bill raises conflicts with those principles by introducing a new offence that outlaws a person who “expresses an opinion or belief”.  No matter how vile, offensive, disagreeable and wrong an opinion or belief may be, we have the Article 10 right “to hold opinions … without interference by public authority”. The Bill seeks to distinguish between holding an opinion (legitimate) and expressing it (illegitimate in the circumstances envisaged in the Bill).  This, we believe is a distinction without a difference, and it potentially crosses the line into the policing of thought. The former DPP Ken MacDonald wrote in Index on Censorship (vol37/3/08): “The mere fact that someone holds an opinion can never be a reason to prosecute. You can think what you like.” But without the right to express a thought or belief, freedom of expression would be meaningless. The right to express an opinion is fundamental. Clause 1 would prove him wrong by creating a reason to prosecute someone simply for expressing an opinion.
7. Ken MacDonald wrote that our response to terrorism must be to strengthen our liberal institutions, rather than degrade them, a position that Index would echo when considering the amendments to the Terrorism Act 2000 contained within this new Bill.
8. Clause 1 makes it a criminal offence to express an opinion or belief in support of a proscribed organisation and be reckless as to whether that would influence others to do so.  In the same Index on Censorship magazine on Extremism, the former Attorney-General Dominic Grieve MP wrote: “If the Irish Taoiseach made a speech about the Easter Rising as a glorious moment in Irish history, and if you have someone who happened to be a member of the Real IRA and it motivated them to go on with some unfinished business, could the Taoiseach be arrested?”  That would be absurd. Yet, for a UK citizen, it could be the effect of introducing Clause 1 of this Bill 10 years later.
9. The new Bill’s explanatory notes make it clear that Clause 1 has been drafted in response to comments by the judges in the appeal of Choudary and Rahman that the existing offences in the Terrorism Act 2000 do not prohibit the holding of an opinion.  The Government appears to have interpreted that as meaning that opinions with which it disagrees should be prohibited and criminalised. Since the Terrorism Act 2000 powers were sufficient to result in prison sentences for Choudary and Rahman without being bolstered by the new and disquieting power proposed in Clause 1, we argue that it is unnecessary as well as alarming, and we propose, in the attached suggested amendments to the Bill, that Clause 1 be left out of it. The proposed Clause (1A) is also clumsily worded – whose expression or belief does 1A(a) apply to? Moreover, how can a two-stage test of recklessness apply to firstly, encouraging another person to secondly, support a proscribed organisation? This imposes a test of prophecy not recklessness.
10. We are similarly concerned that Clause 3 extends already existing powers further than is tolerable in a free society.  The clause makes it an offence to download or stream material likely to be useful to a terrorist if done three times. Our concern is the potential restrictive and frightening effect on researchers, students, academics and journalists, among others, who are researching case studies, making arguments and carrying out interviews. The act of researching information using the internet, or any other method, should not be a criminal act.  We propose an amendment below to the Bill to provide a clear exemption from the clause’s provisions for those whose purposes in downloading or streaming material are not motivated by terrorist intent. Simply stating that a defence available is not enough. Without this addition, you are creating a climate of self-censorship for researchers and journalists who would fear that their legitimate work would put them at a risk of a significant, expensive and time consuming court case, and would therefore not carry out that work. The media’s capacity to operate should not be unduly restricted. In this regard, as stated in the United Nations’ International Covenant on Civil and Political Rights, “The media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. Journalists should not be penalized for carrying out their legitimate activities”.
11. Finally, we are concerned about the impact on legitimate research and journalistic inquiry of the extension of maximum sentences proposed for various offences in Clause 6 of the Bill, in particular those provisions relating to collection of information and publishing and communicating information (subsections (2) and (3)).   
12. We support this by noting that the Terrorism Act 2000, whose maximum sentences this Bill seeks to increase, has been used to seek to pursue journalists who have published legitimate stories or to require them to give up their sources.  For example, the 2000 Act was used to prosecute reporters such as Newsnight’s Richard Watson, and the investigative reporter and author Shiv Malik, when reporting on Islamists or violent extremism.
13. Watson and the BBC spent six months fighting proceedings to oppose what they thought were vague police orders requiring them to produce a wide range of materials. A journalist working for a smaller organisation or as a freelance would have far less support than Watson had, and therefore would have come under pressure to avoid “difficult” stories even when they had a clear public interest, because of the huge financial and personal risk.
14. Police took Malik to court using Section 38 and 19 of the Terrorism Act, for withholding information that could be relevant to a terrorist investigation. As Malik told Index on Censorship, you “have to raise thousands of pounds and you drag your family through turmoil”. To risk those takes a certain type of strength and determination that many will not have, therefore threatening that as a society will be unable to see important journalism that would be valuable.  The current law threatens 10 years in prison; the Bill would extend that to 15. We believe this may have a negative impact on legitimate inquiry in a free society.
15. Governments around the world are responding to very real threats of terrorism. Index on Censorship is fully conscious of the effects of terror: journalists have been silenced by murder in many of the countries we map and monitor. We know that the balance between security and freedom is a hard one to achieve.
16. The legislation many countries use, however, tends to have negative impacts on civil liberties and democracy. We are all too aware of how laws intended to maintain the conditions of freedom can be used, and abused, to stifle freedom of expression, opinion and belief. The UK government should not follow the example of, for one, Turkey, but should instead ensure that security serves to ensure that freedoms for all are upheld.
17. As the independent reviewer of terrorism legislation Max Hill has said: “Weakening human rights laws will not make us safer. Terrorists cannot take away our freedoms – and we must not do so ourselves.” This is something we should keep at the heart of this debate, and never forget.

Our proposed amendments to the Bill are as follows:

Clause 1, page 1, line 5, leave out Clause 1.

Member’s explanatory statement

Leaving out the Clause would prevent the criminalisation of expression of an opinion or belief.

Clause 3, page 2, line 15, at end, leave out “.”’, and add – “, provided that the act is intended to provide practical assistance to person who prepares or commits an act of terrorism.”

Member’s explanatory statement

The amendment would avoid the possibility of legitimate researchers, academics, journalists, or others being caught by the offence of downloading or streaming material likely to be useful to a person committing or preparing an act of terrorism.

Clause 6*, page 3, line 27, delete subsections (2) and (3).

Member’s explanatory statement

The amendment would keep at 10 years’ imprisonment the maximum sentence for offences involving collection of information, and eliciting, publishing or communicating certain types of information.

*An earlier version mistakenly referred to Clause 5, this was edited on 27/July/2018