With Brexit naturally dominating the parliamentary agenda and media coverage in the U.K., the Counter-Terrorism and Border Security Act 2019 passed into law last month with barely a peep in the press. The development is alarming.
The new Act introduces a raft of Orwellian counter-terrorism measures and a broad border security regime. While strong debate rages in the U.S. over the Trump administration’s proposed border wall, the British Home Office has quietly gone about making it easier to detain and interrogate travelers at its borders, with little public notice.
The British government’s legislation, introduced in June 2018, was intended to update counter-terrorism measures in response to a series of terrorist attacks in recent years; tragically, 36 people died in five attacks in 2017 alone. The law also introduces new authorities to stop, search, and detain people at U.K. borders, in an effort to address the risks exposed by the involvement of Russia in the poisoning of Sergei and Yulia Skripal in the English town of Salisbury in March 2018.
Two key elements of the border security sections of the new Act are most concerning: new authority to stop and search based on vaguely defined “hostile activity,” and the absence of a “reasonable suspicion” standard for taking those steps.
The government’s response to the specter of state-directed attacks on British soil, such as in the Skripal poisoning, is found in Schedule 3 of the new Act (given effect by Section 22). This creates a new regime of “stop and search” powers at ports and borders to determine whether an individual is or has been involved in “hostile activity.” For the purposes of the Schedule, a person is engaged in “hostile activity” if they are – or have been – involved in the commission, preparation or instigation of a “hostile act,” carried out for, on behalf of, or “otherwise in the interests” of a foreign state.
The definition of what constitutes a “hostile act” itself is extremely broad. A “hostile act” is one that: (a) threatens national security, (b) threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security, or (c) is a serious crime.
This is an advance on the definition as originally drafted. “Economic well-being” originally featured without a link to national security, prompting one lawmaker to comment, “Anyone supporting Brexit could have been detained at the border!”
Even the tightened definition of “hostile act,” however, allows border officers strikingly wide discretion to stop, search, and detain travelers.
Absence of “Reasonable Suspicion”
The wide definition of “hostile act” becomes much more problematic due to the absence of any requirement for a border officer to have “reasonable suspicion,” a standard that applies to the bulk of search powers under U.K. law. Indeed, under Schedule 3, paragraph 1(4) “an examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity.” This follows the example set by Section 7 of the Terrorism Act 2000, a provision that remains controversial for the absence of a suspicion standard – and that many have argued is discriminatory in its application.
Freed from the constraints of “reasonable suspicion,” officers can detain individuals under the new regime for up to six hours, access sensitive information on their devices, and demand provision of biometric material such as fingerprint data and D.N.A. samples.
This, too, is slightly improved from the legislation as originally drafted, which stipulated that a detained traveler could consult with a lawyer “within sight and hearing” of an officer. The provision was a stark undermining of the right to private consultation with a lawyer, and was dropped only after sustained criticism from lawmakers and NGOs.
Nonetheless, the introduction of a new “suspicion-less” border check regime remains alarming. No doubt the Skripal poisoning was a seriously troubling act by a foreign nation – evidence has clearly linked the attack to Russia – and the incident underscores the need for an intelligence-led response to state-directed attacks. The new Act, however, fails to meet that policy aim.
A briefing on the original legislation by the law reform and human rights organization JUSTICE noted:
[A]n officer hoping to prevent the type of (foreign state-directed) “hostile act” envisaged would surely stop an individual on the basis of requisite intelligence, i.e. with reasonable suspicion. Without such requisite intelligence – stopping, detaining and searching any given traveler would be wholly disproportionate, and risk impeding the rights of foreign citizens.
To head off this kind of criticism, U.K. Security Minister Ben Wallace had argued that authorities must have leeway to act even without reasonable suspicion, because they too often have “incomplete intelligence.” Border stops, he argued, might be “based on a method, on a threat on a date, or on a plane, rather than on a person.”
“The government’s reading of the law is that, if we had to have reasonable grounds, it would be too narrow for us to be able to respond to some of that intelligence,” Wallace said on July 5, 2018, during a House of Commons Committee Stage debate on the Bill.
His argument doesn’t hold up. “Reasonable suspicion” is defined elsewhere as necessitating merely an “objective basis.” Any of the minister’s given examples (method/date/threat/plane) might suffice as an “objective basis” for stopping an individual at the border, regardless of whether the intelligence on which it is based would be considered “incomplete.”
The same applies to an arrest premised on traveler routes or patterns, or on intelligence suggesting the traveler is merely connected to another individual involved in a hostile activity. “Reasonable suspicion” does not create loopholes for any of these envisaged scenarios, as the government seemed to fear in pressing for passage of this legislation.
The new Act, however, arguably allows for a plane to be stopped on the basis of no intelligence whatsoever. Without requiring reasonable suspicion, there seems to be nothing stopping the Act from being applied in a way that infringes on the rights of all travelers or disproportionately targets certain groups.
Where To From Here?
A coalition of civil society organizations pushed hard for reconsideration of the Act. But the British Home Office pressed on, continuing a concerted pattern of whittling away at human rights protections.
Passage followed Home Secretary Sajid Javid’s unprecedented decision last July not to seek assurances from the U.S. that it would not impose the death penalty against two former British citizens who were part of an ISIS cell known as “the Beatles.” It closely preceded Javid’s recent revocation of citizenship from Shamima Begum, who had hoped to return to Britain with her child having been groomed to join ISIS in Syria as a teenager. All told, the new Act represents yet another failure by the U.K. to find a proportionate response to the threat of terrorism.
None of the above is intended to minimize the context from which the Act arose. Repeated terrorist attacks and the Skripal poisonings, not to mention the 2006 poisoning of Russian dissident Alexander Litvinenko in the U.K. (also suspected to have been ordered by the Kremlin) demonstrate the need for robust counter-terrorism statutes. But the U.K. Parliament’s Joint Committee on Human Rights was right to warn early on that this legislation “strikes the wrong balance between security and liberty.”