Over-egging the Pudding – the Home Affairs Policy Letter on the Terrorism Law

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Whilst no longer part of the States of Deliberation, I could not help but take a look at the Home Affairs Policy Letter submitted for debate by the new Assembly tomorrow, 4th November. How could I not when my interest in the AML/CFT framework remains as great as ever?

The Policy Letter was finalised as long ago as the 10th July 2020 by the previous Committee but not submitted until October. It is entitled “Amendments to the Terrorism and Crime (Bailiwick of Guernsey) Law, 2002” so not really giving any clues away and neither do the Propositions for approval by the States. The Policy Letter at paragraph 3.1, however, contains the detail of the extension proposed to the Bailiwick’s Law Enforcement powers exercised at our border in relation to terrorism. Something which is particularly pertinent this week with the awful crimes committed in France and Austria.

Some of the recommendations are straightforward as they include the extension of the existing right to inspect documents to include checking those specifically used for travel and create new ones such as the issuance of Codes of Practice. I say straightforward but it is interesting to note that our Law Enforcement feels that, if these powers had been in place, they could have assisted them in satisfactorily determining the purpose of visits to the Bailiwick of the occasional suspicious national from a hostile state. Whilst these incidents may be rare, it does bring home that we are a backdoor to the UK and we need to be able to conduct lawful searches or interviews when the need arises to protect us and our friends on the mainland.

Of wider interest because of their ambiguity, the proposals also include extending powers in relation to the commission of “hostile acts” that do not fall within the definition of terrorism. These “hostile acts” are both described vaguely and expansively and include threatening either national security or the economic well-being of the British Islands and also acts of serious crime.

The introduction of these powers are no doubt sensible and I am sure the draft Ordinance containing them will be scrutinised by States’ Members when it is considered by the Assembly. However, what strikes me about the Policy Letter is not the proposals that it recommends but the very clear message of our inability to keep up with the ever changing legislative environment around anti-money laundering, countering the financing of terrorism and weapons proliferation.

At this point, I would normally lurch into a political rant over the lack of sufficient resourcing of the Law Officers’ Chambers to enable them to recruit lawyers to draft legislation and so enable Guernsey to keep up with the production of legislation more generally. I won’t because I feel that is best left to the current politicians who take an interest in this deficiency in Guernsey.

What I will say though is that we, as practitioners, need to continue to scrutinise such legislation both through consultations but also as and when the drafts are lodged on Gov.gg for approval by States’ Members. Whilst the States’ Legislation Review Panel reviews such legislation for compliance with the resolutions previously passed by our government, these resolutions are often vague as they are in this case. We, therefore, need to be alive to the need to inform States’ Members of any changes we feel are appropriate and ask/persuade them to lay amendments for consideration by the States if appropriate.

With the MoneyVal visit due in 2023 and the professed view of some States Members against regulation no matter how proportionate and appropriate, we as practitioners need to keep our finger on the pulse. We need to ensure the Bailiwick has regulation that maintains our status in the international community whilst not over-egging the pudding.

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