28 March 2012
New definition of "terrorism" can criminalise dissent and extra-parliamentary action
After years of parliamentary opposition to the renewal of the Prevention of Terrorism Act, Labour in government has produced a new anti-terrorist law which is not only permanent but also broader in its scope and application than previous "emergency" and "temporary" legislation. The Terrorism Act 2000 received royal assent on 20 July and provisions relating to Northern Ireland came into immediate effect. The remainder of the Act will be implemented in early 2001.
The process began six years ago when the then Conservative government set up an "Inquiry into Legislation Against Terrorism", chaired by Lord Lloyd of Berwick. The Inquiry was asked to consider the need for counter-terrorist powers in the wake of the emerging Irish peace process and the likely decline in activity by the armed groups. It produced a two volume report in 1996 (Command Paper Cm 3420) (see Statewatch vol 7 no 1) which concluded that the UK required permanent anti-terrorist legislation to deal with internal and international threats, irrespective of the Irish situation. The Lloyd Report came up with a new legal definition of "terrorism" and considered a range of new and existing powers to form the basis of any future legislation. Each of these was looked at with respect to existing European Convention on Human Rights' jurisprudence, such as the Brogan ruling against seven-day detention. It is because the government wished to retain the power to detain and question people for up to seven days without charge that it entered a derogation from the Convention on grounds that the "life of the nation" was under threat. This notion, that the situation in Northern Ireland constituted such a threat, was last tested in the European Court of Human Rights in 1993 - the derogation was upheld. The Human Rights Act continues the derogation.
The next step was the publication of a joint Northern Ireland Office/Home Office document - Legislation Against Terrorism. A Consultation Paper (Cm 4178) - in December 1998. The government's intention was to modernise counter-terrorist powers, to make them permanent and to "maximise the appropriateness and effectiveness of the UK's response to all forms of terrorism" including "new forms of terrorism which may develop in the future". In other words, the new provisions were to cover "international", "domestic" and "Irish" terrorism. The latter, however, would remain subject to a range of additional temporary powers incorporated into the new law.
The consultation period, as well as subsequent parliamentary debates on the Terrorism Bill, generated much discussion around the proposed legislation's compatibility with the Human Rights Act 1998 (incorporating the European Convention into UK law). Some of the argument went further, challenging both the need and desirability of legislation which would expand the type of actions and threats defined as "terrorism", thereby widening the criminalisation of expressions of support for international and internal groups. Notwithstanding government assurances that no domestic groups are likely to be proscribed under present circumstances (aside from those relating to "Irish terrorism") there is, nevertheless, widespread concern among campaigning groups that any extra-parliamentary activity may come within the scope of new legislation. It is likely, however, that the government would wish to proscribe organisations in other countries, and this is sure to have an impact on freedom of expression and open political debate, not to mention solidarity work.
Interpretation of definition crucial
Much of the legal argument surrounding the passage of the Terrorism Act focused on the definition of "terrorism". Section 1 of the Act elaborates the meaning of "terrorism" over five subsections. "Terrorism" can mean the threat of, as well as the use of, an action. Section 1(4) makes it clear that this "action" can occur anywhere within or outside the UK. Similarly, the persons, property or government affected by the threat or action itself can be anywhere in the world. The purpose of the action or threat is important for the definition of terrorism. The purpose must be to influence government "or to intimidate the public or a section of the public" for any "political, religious or ideological cause" (S1(1)b and c). The types of action are defined in Section 1 (2) and include "serious violence against a person", "serious damage to property", endangering a person's life, creating a "serious risk to the health and safety of the public", and "seriously" interfering or disrupting an electronic system. "Terrorism" is also defined by the weaponry involved, whether or not it is designed to be used to influence government or the public. Firearms and explosives deployed in any of the actions in S1(2) means that "terrorism" is involved.
This is a far cry from the old definition of terrorism in the Prevention of Terrorism Act (PTA): "the use of violence for political ends" and "any use of violence for the purpose of putting the public, or any section of the public in fear". The powers described in the PTA applied specifically to "terrorism connected with the affairs of Northern Ireland". In 1984, this was extended to cover "international terrorism". With the new extended definition, there are a number of areas for interpretation: what constitutes a "threat"? What is an "ideological cause"? What is meant by "serious" as opposed to any other variety of violence? What is a "serious risk to health" and what is meant by a threat to intimidate the public? How explicit do such intentions have to be? All this is important because all other powers elaborated in the Terrorism Act flow from Section 1.
The Terrorism Act replaces the latest versions of the PTA (1989) and the Northern Ireland (Emergency Provisions) Act (1996). Most of the powers in both pieces of legislation, as well as the Criminal Justice (Terrorism and Conspiracy) Act 1998 (passed after the Omagh bomb) find their way into the new Act, either as permanent provisions or as time limited measures applying to Northern Ireland only. The Act contains 131 sections and 16 schedules, including Schedule 2 which lists the currently proscribed organisations. Following the definition of "terrorism" the Act goes on to describe the procedures for proscription, which now include appeals and applying for de-proscription. Sections 11 to 23 describe a range of offences including membership of and support for a proscribed organisation. Under 12 (2) it is an offence to arrange a meeting at which a member of a proscribed group speaks, or which supports a proscribed organisation or furthers its activities. The wearing of uniforms or an item of clothing which indicates support for a proscribed organisation is covered by Section 13. Other offences include fund-raising, the use of property for terrorist purposes, money laundering and failure to disclose information about a terrorist offence. Sections 24 to 31 cover the "seizure of terrorist cash" where an officer has a reasonable suspicion that the cash is being used for terrorist purposes. Among the more controversial sections are those concerned with "directing terrorism", collecting information and the possession or any article, such as a coffee jar, which might be of use to terrorism.
Most of the Act is concerned with police powers such as stop and search of vehicles, arrest without warrant, searching of premises without warrant, powers concerning access to bank accounts and other financial records, the cordoning off of areas and specific powers to detain and question at ports and borders. Sections 65 to 113 relate solely to Northern Ireland and have to be renewed periodically. Seven day detention remains but is now subject to judicial rather than executive authority. Detainees can be refused access to a lawyer as before.
The main challenges to the new Act are likely to involve Human Rights Act provisions on freedom of expression, association and assembly which arguably are contradicted the defined offences covering meetings and speaking at meetings. Another area for contest are the presumptions of guilt involved in sections on the collection and possession of information and articles likely to be of use to terrorists. The onus is on the suspect to prove that items are for another purpose and this goes against the presumption of innocence written into the Convention. There are also concerns about the degree to which powers in the Act are delegated to the Secretary of State rather than subject to parliamentary oversight.
Two years ago, human rights lawyer Conor Gearty warned that the government's consultation paper was indicative of "legislative planning in the old, pre-Human Rights Act style".(1) This involved the executive taking the European Convention on Human Rights seriously "only when it throws a European Court judgement across its path, but otherwise treating human rights and civil liberties as desirable but wholly dispensable accessories". It might have been anticipated that the consultation period and subsequent parliamentary debates would have made the Act more sensitive to Convention rights, but this does not appear to be the case. The pace of litigation will depend on how quickly the government moves to proscribe international and "domestic" groups, and the continuing use of anti-terrorist powers in respect of Irish-related matters. But once this legal "bedding down" occurs, the prospects for removing permanent anti-terrorist law and associated specialist police bodies and actions becomes remote, with the inevitable consequence of the criminalising of dissent and extra-parliamentary politics.
Footnote: 1. Gearty, C (1999) "Terrorism and human rights: a case study in impending legal realities", Legal Studies, vol 19 no 3, pp 367-379.
This article first appeared in Statewatch bulletin, vol 10 no 5 (September-October 2000)
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