Interdiction and Indoctrination: The Counter‐Terrorism and Security Act 2015
| Author | Clive Walker,Jessie Blackbourn |
| DOI | http://doi.org/10.1111/1468-2230.12217 |
| Published date | 01 September 2016 |
| Date | 01 September 2016 |
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LEGISLATION
Interdiction and Indoctrination: The
Counter-Terrorism and Security Act 2015
Jessie Blackbourn∗and Clive Walker∗∗
Lying behind the recent Counter-Terrorism and Security Act 2015 is the phenomenon of
foreign terrorist fighters which has sparked international and national attention. The 2015
Act deals with many facets of counter terrorism legislation, but its two principal measures are
singled out for analysis and critique in this paper. Thus, Part I of the Act seeks to interdict
foreign terrorist fighters by preventing suspects from travelling and dealing decisively with those
already in the UK who pose a risk. Part V of the Act implements the second, broader aspect,
of legislative policy, reflecting the UN emphasis on ‘Countering Violent Extremism’, through
the statutory elaboration and enforcement of the ‘Prevent’ element of the long-established
Countering International Terrorism strategy, which aims to stop people becoming terrorists or
supporting violent extremism. These measures are explained in their policy contexts and set
against criteria of effectiveness, personal freedom, and accountability.
INTRODUCTION AND OUTLINE
On 1 September 2014, Prime Minister David Cameron announced that new
counter-terrorism legislation would be introduced to address the threat to the
United Kingdom (UK) from foreign terrorist fighters (FTFs).1The onward
march through Iraq and Syria in its summer 2014 campaign by Islamic State
of Iraq and the Levant (also known as Islamic State of Iraq and al-Sham,
or in Arabic form, Dawat al Islamiyafi Iraq wa al Sham – DAISh, or, in
its self-proclaimed, grandiloquent Caliphate format, Islamic State - Dawlat al
Islamiya)2had caused utmost national and international alarm.
Consequently, the UN Security Council passed two resolutions under
Chapter VII of the UN Charter. UNSCR 2170 of 15 August 2014 condemns
the gross abuse of human rights by Islamic State, applies travel restrictions,
asset freezes and other measures targeted at Al-Qa’ida affiliates under UNSCR
1989 of 17 June 2011,3and enjoins Member States to take national measures.
∗Centre for Socio-Legal Studies, University of Oxford.
∗∗School of Law, University of Leeds. The author thanks the School of Law, de Montfort University
for the opportunity to present an earlier version in February 2015.
1 HC Deb vol 585 cols 23-27 1 September 2014.
2 These groups are proscribed by the Terrorism Act 2000 (Proscribed Organisations) (Amendment)
(No 2) Order 2014, SI 2014/1624, and the Proscribed Organisations (Name Changes) (No 2)
Order 2014, SI 2014/2210.
3 Al-Qa’ida has since disavowed Islamic State (A. Y. Zelin, The War between ISIS and al-Qaeda
for Supremacy of the Global Jihadist Movement Research Notes 20 (Washington DC: Washington
Institute for Near East Policy, 2014)).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited. (2016) 79(5) MLR 840–870
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Jessie Blackbourn and Clive Walker
A further call to action followed in UNSCR 2178 of 24 September 2014,
which requires states to prevent suspected FTFs from entering or transiting
their territor ies and to enact legislation to prosecute FTFs (articles 1–10).
There is also mention of ‘Countering Violent Extremism in Order to Prevent
Terrorism’ which includes ‘preventing radicalization, recruitment, and mo-
bilization of individuals into terrorist groups and becoming foreign terrorist
fighters’ (articles 15 and 16). While UNSCR 2178 reaffirms the need to ob-
serve all obligations under international human rights law, international refugee
law, and international humanitarian law,4it omits any definition of ‘terrorism’
and so is vulnerable to abuse by self-serving national regimes. Nevertheless,
the international demand for action has also been answered by the Council
of Europe’s Additional Protocol to the Council of Europe Convention on the
Prevention of Terrorism 2015, which demands the criminalisation of partici-
pating in an association or group for the purpose of terrorism (creating for the
first time an international power of proscription or even of association de malfai-
teurs as in article 450–1 French Penal Code), receiving training for terrorism,
and travelling abroad for the purpose of terrorism. The European Union has
also signed up.5
The UN Resolutions were ignored in the subsequent parliamentary debates
on the UK’s implementation and barely registered in supporting documenta-
tion.6This reticence may have contributed to some initial bewilderment as to
the overall purpose of the legislation. The Bill was dubbed ‘An announcement
waiting for a policy’ by the Independent Reviewer of Terrorism Legislation
(IRTL).7However, the two abiding concerns of UNSCR 2178, FTF activities
and Countering Violent Extremism (CVE) responses, became the principal
pillars of the Counter-Terrorism and Security Act 2015 (CTS Act 2015).8
Thus, Part I of the Act seeks to interdict FTFs by ‘preventing suspects from
travelling; and dealing decisively with those already here who pose a risk’. The
CVE policy is implemented through the statutory elaboration and enforce-
ment in Part V of the ‘Prevent’ element of the long-established Countering
International Terrorism (CONTEST) strategy.9
This dual emphasis on preventive measures seems to contrast with the em-
phasis in other recent counter-terrorism legislation, namely that ‘prosecution
is — first, second, and third — the government’s preferred approach when
4 Recital, para 7.
5 COM (2015) 292 final. See further EU Counterter rorism Coordinator, Foreign Fighters and
Returnees 15715/14 (Brussels: European Council, 2014); European Council, Foreign Fighters and
Returnees 16002/14 (Brussels: European Council, 2014); Council Decision (EU) 2015/1914 of
18 September 2015 (OJ L 280, 24.10.2015, p. 24–25).
6 See Home Office, Counter Terrorism and Security Bill: European Convention on Human Rights:
Memorandum by the Home Office Bills (14-15) 059, para 4; Home Office, CONTEST Cm 8848
(2014) para.1.6.
7 Joint Committee on Human Rights, Counter-Terrorism and Human Rights HC 836 (2014) [Q8].
8 HC Deb vol 585 cols 25-26 1 September 2014.
9 Home Office, Countering International Terrorism Cm 6888 (2006), as revised byCm 7547 (2009);
Cm 7833 (2010); Cm 8123 (2011); Cm 8583 (2013); Cm 8848 (2014); Cm 9048 (2015); Cm
9310 (2016).
C2016 The Authors. The Modern Law Review C2016 The Moder n LawReview Limited.
(2016) 79(5) MLR 840–870 841
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