Documents considered by the Committee on 15 October 2014 - European Scrutiny Committee Contents


42 Combating terrorism

Committee's assessment Politically important
Committee's decisionCleared from scrutiny

Document detailsCommission report on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism
Legal base
DepartmentHome Office
Document number36325, 13040/14 + ADD 1, COM(14) 554

Summary and Committee's conclusions

42.1 This Commission report reviews Member States' implementation of EU criminal law measures to combat terrorism. The measures — two Framework Decisions adopted in 2002 and 2008 — establish a legal framework for the approximation of national laws relating to terrorist offences, criminal penalties, and rules on jurisdiction. Both Framework Decisions were adopted before the Lisbon Treaty took effect, on 1 December 2009, and are subject to the UK's block opt-out of pre-Lisbon EU police and criminal justice measures. The Government does not propose to rejoin the Framework Decisions.[202]

42.2 The Commission report is timely. From 1 December 2014, the Commission will have new powers to bring Member States before the Court of Justice if it considers that their implementation of EU police and criminal justice measures is deficient. The risk of such infringement proceedings in relation to the UK would appear to be small, given that the UK is already broadly compliant with the Framework Decisions. The Government's decision to opt out of these measures with effect from 1 December 2014, without seeking to rejoin them, eliminates the risk of an adverse Court ruling.

42.3 Despite deciding not to rejoin the Framework Decisions, the Government says it is "fully supportive of EU work to create better counter-terrorism legislation and practices across Member States". The Commission report reveals a mixed picture, highlighting considerable diversity in the way in which Member States have transposed the measures into their national criminal laws and exposing concerns about the ability of Member States to address indirect provocation to commit a terrorist offence and the recruitment of "lone actors". Implementation of the Framework Decisions across the EU may have a significant bearing on how Member States deal domestically with the terrorist threat emanating from Iraq and Syria and the phenomenon of foreign fighters. We therefore draw the report to the attention of the House but are content to clear it from scrutiny.

Full details of the documents: Commission report to the European Parliament and the Council on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism, and accompanying Commission Staff Working Document: (36325), 13040/14 + ADD 1, COM(14) 554.

Background

42.4 The Commission report concerns two Framework Decisions. The first, adopted in June 2002, requires Member States to ensure that certain specified intentional acts are defined as criminal offences under their national laws.[203] It also requires Member States to introduce "effective, proportionate and dissuasive criminal penalties", prescribes minimum maximum sentences[204] for offences relating to a terrorist group, and establishes rules on jurisdiction (including extra-territorial jurisdiction) for the prosecution of terrorist offences.

42.5 The second Framework Decision, adopted in 2008, establishes a range of additional criminal offences linked to terrorist activities which Member States are required to give effect to in their domestic laws.[205] They include public provocation to commit a terrorist offence, recruitment for terrorism and training for terrorism. The inclusion of these offences is intended to contribute to wider counter-terrorism policy by reducing the dissemination of information or materials which may incite individuals to commit terrorist acts. The Framework Decision seeks to give effect, within the EU, to similar provisions contained within the Council of Europe Convention on the Prevention of Terrorism 2005.[206]

The Commission report

42.6 The Commission report focuses on the 2008 Framework Decision and is accompanied by a Commission Staff Working Document providing more detailed information on implementation in each Member State. It notes that the creation of new offences linked to terrorism was necessary to adapt the legislative framework to changes in the modus operandi of terrorist activists and supporters, adding:

    "These include in particular the replacement of structured and hierarchical groups by semi-autonomous cells or lone actors and the increased use of the internet to inspire, mobilise, instruct and train local terrorist networks and individuals."[207]

42.7 The Commission makes clear that action based on the 2008 Framework Decision is not intended to undermine freedom of expression, including the dissemination of material for scientific, academic or reporting purposes, as well as the expression of polemical or controversial views. Moreover, the introduction of criminal offences and penalties in Member States' domestic laws must be achieved in compliance with the principles of proportionality and non-discrimination.

42.8 The report provides an assessment of Member States' transposition of the 2008 Framework Decision into their national laws but notes a high level of interdependence with the 2002 Framework Decision, adding that successful prosecution of the later offences on provocation, recruitment and training will depend on correct implementation of the earlier terrorist offences.

42.9 Overall, the report reveals a mixed picture of implementation across the EU. Whilst the Commission concludes that most Member States have adopted national measures to criminalise public provocation, recruitment and training, two (Greece and Ireland) have yet to do so, nearly four years after the deadline for implementation. The Commission considers that national implementing measures are "broadly in compliance" with the 2008 Framework Decision but suggests that there are a number of potential concerns. These include possible shortcomings in the transposition of the provisions on public provocation, which may exclude indirect provocation, and on recruitment to terrorism. The Commission notes that some national criminal laws may be inadequate to capture the recruitment of lone actors as opposed to recruitment to a terrorist organisation. It urges Member States to "monitor and evaluate the application of criminal provisions on terrorism in practice" and, in doing so, to have regard both to "the protection of fundamental rights as well as the broader policy approach of tackling radicalisation and recruitment to terrorism".[208]

42.10 The Commission indicates that it will continue to monitor the effectiveness and impact of the Framework Decisions, and notes that it will have the power to bring infraction proceedings against Member States from 1 December 2014.

42.11 The accompanying Commission Staff Working Document (ADD 1) notes that, in some respects, UK domestic legislation goes further than the requirements of the 2008 Framework Decision by, for example, providing that public provocation to commit a terrorist offence extends to reckless behaviour and to acts which are preparatory to the commission of a terrorist offence.[209] Although there is no specific criminal offence concerning recruitment for terrorism, the Commission recognises that it may be covered under domestic terrorism laws (for example, on membership of proscribed terrorist groups) or other general criminal law provisions on incitement. It suggests, however, that the lack of a specific offence may create a loophole for the recruitment of lone actors.

The Minister's Explanatory Memorandum of 26 September 2014

42.12 The Immigration and Security Minister (James Brokenshire) notes that the requirements set out in the 2008 Framework Decision are not prescriptive, but seek to ensure that Member States have the necessary laws in place to prosecute terrorist offences and offences linked to terrorist activities. He says that the UK is "substantially compliant" with the Framework Decision as a result of criminal law measures contained in the Terrorism Acts of 2000 and 2006. The Minister adds that, once the UK's block opt-out takes effect on 1 December 2014, the UK will no longer be under a legal obligation to remain compliant with the 2002 and 2008 Framework Decisions. The Commission report therefore has no direct policy implications for the UK.

42.13 Whilst the Government does not intend to seek to rejoin the Framework Decisions, the Minister explains that the UK is:

    "fully supportive of EU work to create better counter-terrorism legislation and practices across Member States to increase investigative capability and the capacity to prosecute terrorist activity."[210]

42.14 The Minister continues:

    "The UK continues to regularly review and improve our legislation to ensure sufficient powers are available to law enforcement agencies to combat terrorism. In some respects, UK domestic legislation goes further than the Framework Decision requires. As such, EU legislation in this regard is not necessary in order to improve the UK's domestic position."[211]

42.15 Turning to the specific requirements contained in the 2008 Framework Decision, the Minister explains:

    "The Framework Decision requires a Member State to take jurisdiction over offences set out in the Framework Decision where they are committed wholly or partially within its territory, and also where an offence has been committed elsewhere but extradition is not possible. The UK takes extra-territorial jurisdiction (ETJ) for many offences, including encouragement and training by virtue of section 17 of the Terrorism Act 2006. However, the 2006 Act limits ETJ in relation to the encouragement and training offences to where the encouragement and training takes place in respect of one of the "Convention Offences" (offences in the Council of Europe Convention on the Prevention of Terrorism) listed in Schedule 1 to the 2006 Act. The Framework Decision, however, requires us to take ETJ for encouragement ("public provocation") of, or training for, terrorism in general rather than just the Convention offences in Schedule 1 to the 2006 Act.

    "The UK is currently legislating through the Serious Crime Bill to extend UK extra-territorial jurisdiction over section 5 (preparation of terrorist acts) and section 6 (training for terrorism) of the Terrorism Act 2006, which will enable prosecution of UK-linked individuals and those who seek to harm UK interests, who prepare or train for terrorism overseas as if their actions had taken place in the UK. These measures are being introduced as part of the UK's response to deal with the threat posed by foreign fighters travelling to countries, including Syria and Iraq, for the purpose of engaging in terrorist activity."[212]

42.16 The Minister notes that the Commission report raises general concerns (not directed to any particular Member State) about the effectiveness of national criminal laws to deal with indirect provocation to terrorism and the recruitment of lone actors. He continues:

    "A range of offences contained in the Terrorism Act 2000 and the Terrorism Act 2006, in our view, sufficiently deal with these matters. In addition, UK law addresses the activities of those promoting violent extremism, also termed as glorification, by making it an offence as mentioned above to encourage, either directly or indirectly, or to otherwise induce another individual to act in the commission, preparation or instigation of acts of terrorism or Convention offences (section 1 of the Terrorism Act 2006)."[213]

42.17 Finally, the Minister makes clear that the UK is "taking steps to strengthen our capabilities to tackle and disrupt terrorism at all stages in new legislation".[214]

Previous Committee Reports

None.





202   For further details on the UK's 2014 block opt-out decision, see our Twenty-first Report of Session 2013-14, HC 683, The UK's block opt-out of pre-Lisbon criminal law and policing measures. Back

203   Council Framework Decision 2002/475/JHA, OJ No. L 164, 22.06.02. Back

204   So-called "minimum maximum" sentences prescribe the minimum threshold required when setting a maximum tariff for a criminal sentence. Back

205   Council Framework Decision 2008/919/JHA, OJ No. L 330, 09.12.08. Back

206   See http://conventions.coe.int/Treaty/en/Treaties/Html/196.htm. Back

207   See p.4 of the Commission report. Back

208   See p.11 of the Commission report. Back

209   See p.8 of ADD 1. Back

210   See para 12 of the Minister's Explanatory Memorandum. Back

211   See para 13 of the Minister's Explanatroy Memorandum. Back

212   See paras 14-15 of the Minister's Explanatroy Memorandum. Back

213   See para 16 of the Minister's Explanatory Memorandum. Back

214   See para 17 of the Minister's Explanatroy Memorandum. Back


 
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