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These notes refer to the Terrorism Bill as introduced in the House of Commons on 12th October 2005 [Bill 55] TERRORISM BILL
EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Terrorism Bill as introduced in the House of Commons on 12th October 2005. They have been prepared by the Home Office to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require an explanation or comment, none is given. SUMMARY 3. The purpose of this Bill is to reform and extend previous counter-terrorist legislation to ensure that the UK law enforcement agencies have the necessary powers to counter the threat to the UK posed by terrorism. A number of these changes are also required to implement different international Conventions, which the UK is a party to. The Bill also amends previous legislation relating to investigatory powers and the intelligence services. 4. The measures in the Bill include both those that were already envisaged prior to the terrorist incidents in London on 7 July 2005 and 21 July 2005 and those that have been included following those incidents. 5. Previous counter-terrorism legislation provided a range of measures designed to prevent terrorism and support the investigation of terrorist crime. These were placed on a permanent footing in the Terrorism Act 2000 (c.11) ("the TACT"). These include a power for the Secretary of State to proscribe terrorist organisations, backed up by a series of offences connected with such organisations; other specific offences connected with terrorism; and a range of police powers. Further additions to counter-terrorism legislation were made in the Anti-Terrorism, Crime and Security Act 2001 (c.24) ("the ATCSA") and the Prevention of Terrorism Act 2005 (c.2) ("The PTA"). [Bill 55-EN] 54/1 6. The Bill creates a number of new offences. These new offences include the offence of encouragement of terrorism, an offence relating to bookshops and other disseminators of terrorist publications, an offence of the preparation of terrorist acts, and further terrorist training offences. The Bill also creates a number of offences relating to radioactive material or devices, and nuclear facilities, and amends the penalty for certain offences relating to nuclear material. 7. The Bill alters the existing legislative framework by amending the TACT in a number of ways. Firstly, the Bill makes some changes to terrorist offences (for example raising the penalty for the offence of possession for terrorist purposes). Secondly, it extends powers currently available to the Secretary of State relating to proscription, to allow for the proscription of groups which glorify terrorism or the activities of which associate it with acts that glorify terrorism, and to deal with proscribed organisations that change their names. The Bill also extends police and investigatory powers in relation to terrorism (such as allowing the extension of detention of terrorist suspects with judicial approval for up to three months, and enabling all premises search warrants to be issued). 8. With reference to the powers of the security and intelligence services, the Bill also amends the Intelligence Services Act 1994 ("the ISA") (c.13) with respect to warrants to carry out acts both overseas and in the UK. It also amends the Regulation of Investigatory Powers Act 2000 ("the RIPA") (c.23) in a number of ways. Firstly, it increases the penalties for refusal to obey a notice to provide an encryption key, as set out in Part 3 of that Act. Secondly, it amends investigatory powers, extending the period that warrants for intercept (and related authorisations) under that Act are issued for, and further delegating the authority to modify warrant schedules. 9. Finally, the Bill amends the definition of terrorism as contained in the TACT. OVERVIEW 10. The Bill's Parts and Schedules are as follows. 11. Part 1 (Offences) provides for new offences, amendments to existing offences, and makes incidental provisions about terrorism offences. Part 1 creates offences relating to the encouragement of acts of terrorism, and to the dissemination of terrorist publications. Part 1 makes specific provision about how these two new offences are to apply to those providing and using the internet and other electronic services. It also creates offences relating to the preparation of terrorist acts and terrorist training; the making, possession or use of radioactive devices and materials; the making of terrorist threats relating to radioactive devices, materials, or nuclear facilities; and trespass on nuclear sites. The Bill increases penalties for possession for terrorist purposes; offences relating to nuclear material; and offences relating to the contravention of a notice relating to encrypted information. Part 1 also sets out new procedures to be followed in the preparation of terrorist cases for trial. Schedule 1 sets out a list of "Convention offences" that are referred to in Part 1. These represent the parallel offences in UK law to those offences mentioned in the Council of Europe Convention on the Prevention of Terrorism. 12. Part 2 (Miscellaneous provisions) includes an amendment to the grounds on which the Secretary of State is empowered to proscribe organisations, a process through which a proscribed organisation may be identified by another name, and amendments to police and investigatory powers. These changes affect:
13. Schedule 2 sets out the method by which forfeiture proceedings should be carried out, following a seizure of terrorist publications. 14. Part 3 (Supplemental provisions) provides for the oversight of the operation of Part 1 of the Bill and the TACT through an independent annual review to Parliament. It also includes a number of consequential amendments and repeals. TERRITORIAL EXTENT 15. The Bill extends to the whole of the UK except the provisions in clause 17 relating to the use of explosives in a manner that does not relate to terrorism. These provisions do not extend to Scotland (since offences relating to the use of explosives other than in relation to terrorism is a devolved matter). COMMENTARY Definitions 16. The Bill relies on a number of definitions that appear in the TACT. The definition of terrorism appears in section 1 of the TACT. The definition covers the use or threat of action that meets the three elements set out in section 1(1). The first of the elements is that the action must fall into section 1(2). An action falls in section 1(2) if it involves serious violence against a person or serious damage to property; it endangers a person's life (but this does not include the life of the person committing the action); it creates a serious risk to the health and safety of the public or a section of the public; or it is designed to seriously interfere with or seriously to disrupt an electronic system. The second element is that the use or threat is either designed to influence the government or is designed to intimidate the public or a section of the public. Clause 33 of the Bill amends this element to include cases where the use or threat is designed to influence an international governmental organisation. The second element does not have to be satisfied if the use or threat falling into subsection (2) involves the use of firearms or explosives (section 1(3)). Explosives and firearms are defined in section 121 of the TACT. The third element is that the threat is made for the purpose of advancing a political, religious or ideological cause. 17. Section 1(4) makes it clear that the definition of terrorism is not limited to things taking place in the UK or related to things in the UK. Action is defined in section 1(4)(a) as including actions outside the UK. Section 1(4)(b) provides that a reference in the definition to a person or property means a person or property wherever he or it is situated. Section 1(4)(c) makes it clear that the public can be the public of a country other than the UK. Section 1(4)(d) provides that the reference to government is not limited to the central government of the UK but can also mean a government of part of the UK (such as of Scotland) and a foreign government. 18. Property is defined in section 121 of the TACT as including property wherever situated and whether real or personal, heritable or moveable, and things in action and other intangible or incorporeal property. 19. The Bill also makes use of the term acts (or act) of terrorism. Act and action are both defined in section 121 of the TACT as including an omission. Section 1(5) makes it clear that, as well as including an act that falls under the definition in section 1, an act is also for the purposes of terrorism if it is taken for the benefit of a proscribed organisation. Clause 20(2) of the Bill makes it clear that acts (or act) of terrorism as used in the Bill includes an act taken for the purposes of terrorism and so includes an act taken for the benefit of a proscribed organisation. Clause 1 - Encouragement of terrorism 20. Clause 1 creates an offence of encouragement of acts of terrorism or Convention offences. The offence has been introduced to implement the requirements of Article 5 of the Council of Europe Convention for the Prevention of Terrorism ("the Convention"). This requires State parties to have an offence of 'public provocation to commit a terrorist offence'. This new offence supplements the existing common law offence of incitement to commit an offence. Subsection (1) 21. Subsection (1) creates the offence of encouragement of acts of terrorism or Convention offences. Article 5 of the Convention requires parties to have an offence of public provocation to commit a terrorist offence. Terrorist offence is defined in Article 1 of the Convention as any offence within the scope of, or defined in, one of the treaties listed in the Appendix to the Convention. The Appendix lists a number of treaties the offences from which have been translated into UK law through legislation, as a consequence the concept of terrorist offence in Article 5 (and Article 1) of the Convention becomes the concept of Convention offence in the Bill. Convention offences are set out in Schedule 1 to the Bill which consists of a list of the UK provisions implementing the treaties listed in the Appendix to the Convention. 22. The offence is committed if the person publishing a statement or causing a statement to be published either knows or believes, or has reasonable grounds for believing at the time of publication or causing to publish, that members of the public seeing or hearing the statement are likely to understand it to be an encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences. The encouragement can be either direct or indirect. A number of definitions relating to this offence including the definition of act of terrorism, publish, statement and public are set out in clause 20 of the Bill. The effect of those definitions is set in paragraphs 16-19 and 92 and 93 of these notes. Subsection (2) 23. Subsection (2) provides that indirect encouragement of terrorism includes a statement that glorifies the commission or preparation of acts of terrorism or Convention offences but only if a member of the public could reasonably be expected to infer that what is being glorified in the statement is being glorified as conduct that should be emulated. Glorify is defined in clause 20(2) as including praise or celebrate. Clause 20(7) clarifies that references to conduct that should be emulated in existing circumstances includes references to a description of conduct. For example, if it was reasonable to expect members of the public to infer from a statement glorifying the bomb attacks on the London Underground on 7th July 2005 that what should be emulated is action causing severe disruption to London's transport network, this will be caught. Subsection (3) 24. Subsection (3) specifically provides that when the question of what it would be reasonable for members of the public to understand a statement as meaning, and the question of whether they could reasonably infer from a statement that certain conduct should be emulated, are determined, regard should be had to both the contents of the statement as a whole, and the circumstances and manner in which it is published. Subsection (4) 25. Subsection (4) sets out that the encouragement given need not relate to a specific act of terrorism or Convention offence. It also sets out that an offence is committed whether or not such encouragement leads to an act of terrorism or Convention offence taking place, being prepared or being instigated. Subsection (5) 26. Subsection (5) sets out a defence to the offence created in subsection (1). The defence relates to those that provide or use an electronic service such as the internet. For example, the defence is intended to cover internet service providers and those that administer and moderate websites. It is a defence for the person accused of the offence to show that the statement was published in the course of provision by him of a service electronically, or the use by him of an electronic service, that the statement neither expressed his views, nor had his endorsement and that it was clear in all the circumstances that it was not his view or did not have his endorsement. However, a person will not be able to take advantage of this defence if he is deemed to endorse a statement because he has failed to comply with a notice issued under clause 3 (see paragraphs 38 to 44 of these notes). Subsection (7) 27. Subsection (7) provides a transitional provision in respect of the period before the commencement of section 154(1) of the Criminal Justice Act 2003 (c.44). At the moment a Magistrates' Court can only give a penalty of up to six months' imprisonment. Once section 154(1) is in force this will increase to 12 months' imprisonment. The clause is drafted as if section 154 is in force but as it is not in force a provision is needed to make it clear that, until such time as it is in force, the Magistrates' Court only has its existing powers to give a penalty of imprisonment.
Clause 2 - Dissemination of terrorist publications 28. Clause 2 creates offences relating to the sale and other dissemination of books and other publications, including material on the internet, that encourage people to engage in terrorism, or provide information that could be useful to terrorists. Subsection (1) 29. Subsection (1) creates offences of: distributing or circulating a terrorist publication; giving, selling, or lending a terrorist publication; offering a terrorist publication for sale or loan; providing a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of gift, sale, or loan; transmitting the contents of a terrorist publication electronically; and possessing a terrorist publication with a view to making it available in any of the ways listed. This means that the offence will cover not only bookshops but also those that sell books and publications over the internet whether the publication is in hard copy or electronic. It will also cover libraries and the distribution of leaflets and flyers. Subsection (2) 30. Subsection (2) sets out the definition of terrorist publication. A publication will be considered a terrorist publication if the matter contained in it constitutes a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism, or if it contains any information which may be of assistance to the commission or preparation of such acts. The first reason for a book or other publication being a terrorist publication relates to the new offence under clause 1. Subsections (3) to (5) 31. These three subsections provide the circumstances in which a publication can be considered to meet the test for being a terrorist publication set out in subsection (2). Subsection (3) provides that a publication will only be considered to contain matter constituting a direct or indirect encouragement to terrorism, if it is likely to be understood as such an encouragement or inducement by some or all of the persons to whom it is likely to be made available. Subsection (4) sets out that, as in clause 1, indirect encouragement of terrorism includes glorification of terrorism, so long as the person who understands the statement to be indirect encouragement could reasonably be expected to infer that the conduct that is glorified is glorified as conduct that should be emulated. Subsection (5) provides that a publication will only be considered to contain matter which may be of assistance in the commission or preparation of acts of terrorism, if the information is capable of being useful in this way, and it is likely to be understood by those persons to whom it is likely to be made available that the matter contained in the publication is wholly or mainly for the purpose of being useful for the commission or preparation of acts of terrorism. Subsection (6) 32. Subsection (6) provides that the question as to whether a publication is a terrorist publication must be determined as at the time of the possible offence and that the contents of the publication as a whole, and the circumstances in which the conduct occurs must be taken into account. This means that account can be taken of the nature of the bookseller or other disseminator of the publication. Taken together with the definition of terrorist publication in subsection (2), it also means that only a small part of a publication needs to satisfy the test for the publication to be a terrorist publication. As the whole publication will be a terrorist publication if a small part of it satisfies the test this means that a whole publication can be seized under the powers set out in clause 27 and Schedule 2 (which provide for search, seizure and forfeiture of terrorist publications). However, in relation to the defence in subsection (8) of clause 2, in order to establish part (c) of the defence, the defendant need only show that the part of a publication which satisfies the test did not have his endorsement. This is also true in relation to the defence in subsection (9). Subsection (7) 33. Subsection (7) sets out that a terrorist publication need not encourage, or be useful for, the commission, preparation, or instigation of a specific act of terrorism, but may also provide encouragement for, or be useful for, acts of terrorism in general. Subsections (8) and (9) 34. Subsections (8) and (9) provide defences to the offence in clause 3. Subsection (8) stops a person being liable for a publication if he does not know what it contains because he has not read or otherwise examined it unless there are other circumstances that mean he should have known it was a terrorist publication without examining it. Subsection (9) provides a defence for those providing electronic services such as internet service providers and webmasters. Subsection (8) provides that it is a defence for the person accused of an offence under this clause to show that he had not examined the publication in respect of which he has been charged, that he had no reasonable grounds for believing that it was a terrorist publication and it did not have his endorsement. 35. The way the defence in Subsection (9) applies differs depending on the reason why the publication is considered to be a terrorist publication. If the reason that it is a terrorist publication is because it contains material that encourages terrorism then the defendant can take advantage of the defence if he can show that he was providing or using an electronic service, and the material that encourages terrorism did not express his views or have his endorsement and it was clear in all the circumstances that it did not express his views or have his endorsement. If the reason that the publication is a terrorist publication is because it contains information that may be useful in the commission of acts of terrorism then the defendant must show that he was providing or using an electronic service and that he did not intend to provide or make available assistance to any person for the commission or preparation of acts of terrorism. A defendant will not be able to rely on the defences in subsections (8) and (9) if he is deemed to have endorsed the terrorist material in a publication because he has failed to comply with a notice issued under clause 3 (see paragraphs 38 to 44 of these notes). Subsection (11) 36. Subsection (11) provides a transitional provision in respect of the period before the commencement of section 154(1) of the Criminal Justice Act 2003. At the moment a Magistrates' Court can only give a penalty of up to six months' imprisonment. Once section 154(1) is in force this will increase to 12 months' imprisonment. The clause is drafted as if section 154 is in force but as it is not in force a provision is needed to make it clear that, until such time as it is in force, the Magistrates' Court only has its existing powers to give a penalty of imprisonment. Subsection (12) 37. Subsection (12) defines publication for the purposes of clause 2 as an article or record of any description which contains matter to be read, matter to be listened to, or matter to be looked at or watched. This means that as well as covering books the clause will also cover, amongst other things, films and videos (with or without sound), cassette tapes, electronic books, material contained on CD-ROMs and photographs. This definition of publication is different from that provided for in clause 20 of the Bill. Article and record are defined in clause 20(2) and (8). Article includes anything for storing data such as a CD-ROM. Record means anything that is not an article, including a temporary electronic record that only exists for the purpose of, and during the transmission of, its contents. Under clause 20(8) if there is a reference to what is contained in an article or record this includes anything embodied or stored on or in it and anything that may be reproduced from it. Clause 3 - Application of sections 1 and 2 to internet activity etc. 38. Under clauses 1 and 2 a person who is providing an electronic service has a defence to the offences in those clauses if he can show amongst other things that a statement or publication did not express his views and did not have his endorsement (see clauses 1(5) and 2(9)). It is also an element of the defence in clause 2(8) (which applies whether or not a person is providing or using an electronic service) that the matter in the publication did not have the defendant's endorsement. The effect of clause 3 is to deem a person providing an electronic service to have endorsed a statement if he has received a notice under clause 3 and he has failed to comply with it. If the person is accused of an offence under clause 1 or 2 then the effect of clause 3 is that he cannot take advantage of the defence in clauses 1(5), 2(8) and (9) respectively. 39. Clause 3 contains a number of references to "publishing", "records", "article" and "statement", the definitions of which are contained in clause 20 (Interpretation of Part 1). Subsection (1) 40. Subsection (1) applies the clause to services provided electronically. Subsection (1)(a) relates to statements that are published under clause 1. Subsection (1)(b) relates to conduct that amounts to an offence under clause 2. In both cases the publishing or conduct that amounts to the offence must occur in the provision or use of an electronic service. Subsection (2) 41. Subsection (2) provides that any statement or conduct in question is regarded as having the endorsement of a person if he has been given a notice under subsection (3), two days or more have elapsed since the notice was given, and the relevant person has failed without a reasonable excuse to comply with the notice. The final part of this test specifically provides that if a person has a good reason for not complying with the notice he will not be caught by clause 3. Subsection (3) 42. Subsection (3) relates to notices. A notice can only be given by a constable and that constable must have formed the opinion that the statement, article or record concerned is unlawfully terrorism related. Those things are unlawfully terrorism related if they are capable of being understood as a direct or indirect encouragement or other inducement to acts of terrorism, or Convention offences; or the article or record contains information that is capable of being useful in the commission or preparation of acts of terrorism, and is in a form or context as may be understood as being wholly or mainly for such a purpose (subsection (7)). As in clauses 1 and 2 subsection (8) provides that indirect encouragement of terrorism includes glorification of terrorism, but only if it can be understood as a suggestion that what is being glorified is glorified as conduct to be emulated. 43. A notice issued under this clause must declare that the statement, article, or record in question is unlawfully terrorism-related in the opinion of the constable. This notice requires the relevant person (for example, a webmaster) to ensure that the statement, article or record is removed from public view or amended to ensure that it is no longer unlawfully terrorism-related. The notice must warn the person that he has two days to comply with the notice, and that failure to do so will lead to that person being regarded as having endorsed the statement, article or record. Such a notice will also explain how the relevant person may be liable if the statement, article or record becomes available to the public again, following compliance with the notice. This final element relates to repeat statements which are covered in subsections (4) to (6). |
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| © Parliamentary copyright 2005 | Prepared: 12 October 2005 |