42 Combating terrorism
Committee's assessment
| Politically important |
Committee's decision | Cleared from scrutiny
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Document details | Commission report on the implementation of Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism
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Legal base |
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Department | Home Office
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Document number | 36325, 13040/14 + ADD 1, COM(14) 554
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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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