Definition of terrorism in UK Law
Memorandum to Lord Carlile's independent review of the definition of terrorism in UK Law
1. The Religious Society of Friends (Quakers) is a religious charity excepted from registration. Quakers have a longstanding commitment both to upholding the law, and to maintaining the rights of legitimate, peaceful protest. We welcome the independent review of the definition of terrorism and hope that Parliament will act to narrow the scope of the current legal definition.
2. The current legal definition of terrorism appears to be so broadly dawn as to include activity that would not generally be considered terrorism, in the ordinary English usage of the word.
3. We are concerned that the Terrorism Bill 2006 adopts the broad definition of the Terrorism Act 2000[1]and Anti-Terrorism Crime and Security Act 2001. By including violence against property, the definition could extend the meaning of terrorist activity to cover non-violent protest, which while amounting to criminal damage cannot be considered "terrorism" in the ordinary usage of the word.
4. While those undertaking civil disobedience, recognise that their activity may lead to imprisonable offences, a definition of terrorism that equates such activity with the type of actions involving the killing of civilians on the London Underground, both offends natural justice and undermines respect for the rule of law.
5. We are further concerned at the dangers of limiting free speech involved in ancillary offences regarding terrorism. This is particularly so where the same definition of what constitutes terrorism applies to activity in democratic states domestically, and activity in undemocratic and illegitimate states abroad. We affirm the opinion of the UN High Commissioner for Human Rights, in her letter to the UK's Permanent Representative to the UN Office, and other international organisations, that the offence of glorifying terrorism in Clause 1 of the current Bill, "fails to strike a balance between national security considerations and the fundamental right of freedom of expression."[2]
6. Implications
6.1 The damage caused by an overly wide definition of terrorism would be compounded by the vagueness and breadth of ancillary offences contained in the current Bill. The present definition is wide enough to be applied to those who refuse to countenance acts of violence but are guilty by association with proscribed organisations. It would also cover violence against property, even where there is no threat to life or intimidation of people. The acts of protesters against Genetically Modified crops could fall within this definition, as could many other forms of specifically non-violent protest - for instance the actions of anti-nuclear protesters conducting an act of worship inside the perimeter fence of a nuclear base. Including such actions within a definition of terrorism would both trivialise the heinousness of the offence of terrorism, and undermine the credibility of the law.
6.2 The legislation creates the associated offences of, encouragement of terrorism; presence at a place for terrorist training; and proscription of organisations associated with terrorism, and it maintains those already in the 2001 Act. By doing so, those who support or advocate resistance to oppressive regimes overseas, could also fall within the definition. It could be applied to those who for journalistic purposes, or inadvertently, but naively, attend places of training, or wear insignia identifying themselves with a proscribed organisation.
6.3 Such a definition could have covered the actions of the ANC against apartheid, involving the disruption of power supplies, or support for resistance to the Ba`athist regime in Iraq during the government of Saddam Hussein. On a broad interpretation of terrorism, advocacy in favour of Hamas, now the duly elected government of the Palestinian Authority, could constitute an offence.
7. Potential Conflict with Human Rights instruments
The current definition as applied to terrorism overseas could breach provisions of Article 1 of the Refugee Convention if it were used to refoule refugees falling outside a narrow interpretation of sub-clause 1 (f) (c). Prosecution of those "encouraging" terrorism against undemocratic regimes could breach a right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights[3]and Article 19 of the International Covenant on Civil and Political Rights. Proscription of organisations would provide disproportionate limitations on Freedom of Conscience, Article 9, and of Freedom of Expression and Association, Article 10.
8. UN definitions
At its meetings in September 2005 the United Nations failed to agree a common global standard on Terrorism. Nevertheless the UN Report of the High-level Panel on Threats, Challenges and Change proposed a definition that clearly distinguished terrorism from the Acts of states covered by international humanitarian law and focussed in particular on harm to civilians.
9. Suggested UK definition of Terrorism
9.1 The new global jurisdiction of the Terrorism Bill makes it important that the U.K. definition complies with global instruments. The current U.K. definition of terrorism includes "serious damage to property" as action falling within the definition of Clause 1, without specifying what constitutes serious. It goes beyond both the current EU Directive and the suggestions of the report of the high level panel. Section D of Clause 164 of the UN report contains what would seem to be the crucial elements of the offence.[4]
9.2 A definition that followed the spirit of that offered by the Secretary General in his UN report would have the merit both of international recognition, and of including violence towards people, while excluding damage to property. Including an element of reckless indifference as well as specific intention would probably be necessary to cover situations where damage to property could also endanger human life. Charges of criminal damage could be used to prosecute offences where there is no such intention or recklessness.[5]A very similar definition was offered as a backbench amendment at Second Reading of the Terror Bill, but without the safeguard of incorporating recklessness.[6]
9.3 This proposed definition would provide a more appropriate balance than the present definition. It would correspond with international instruments, while distinguishing serious from trivial activities in a way that would enhance respect for the law. By doing so terrorism would be defined so as to cover what would generally be seen as terrorism, in the ordinary use of the word. It would include the significant distinction between military and civilian targets and exclude symbolic actions of protest.
Michael Bartlet, Parliamentary Liaison Secretary, February 2006
[1] (1) In this Act "terrorism" means the use or threat of action where:
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within the subsection if it:
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed to seriously interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism is terrorism whether or not subsection (1) (b) is satisfied.
[2]28th November 2005
[3]See Joint Committee on Human Rights Third Report December 2005
[4] (a) Recognition, in the preamble, that State use of force against civilians is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;
(b) Restatement that acts under the 12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law; and restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;
(c) Reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);
(d) Description of terrorism as "any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act.
[5]A possible such definition could be action: "that is intended to cause (or is recklessly indifferent to) death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or to abstain from doing any act."
[6]Amendment proposed by John Denham MP at Report Stage Nov 9th 2005
