3. Copy of letter from Rt Hon Charles
Clarke MP, Secretary of State for the Home Department to Rt Hon
David Davis MP and Mark Oaten MP, re the definition of terrorism
applicable to the new offences in the Terrorism Bill
I have today written to John Denham regarding
the definition of terrorism that will apply to the new offences
in the Terrorism Bill since he had raised the issue with me. I
thought it worth writing to you in a similar vein.
As you will know, the new offences in the Terrorism
Bill attract the existing definition of terrorism which is contained
in the Terrorism Act 2000. For ease of reference I attach a copy
of that definition at annex A. We are making one slight change
to that definition in the Bill to ensure that threat to international
organisations, such as the United Nations, as well as to national
governments is covered.
I believe that any definition of terrorism should
be one that is well established and that we should not seek to
fashion a new one for this Bill. We have therefore looked at the
existing definitions of terrorism in international conventions.
The latest EU definition is the one used in
the Council Framework Decision of 13 June 2002. The definition
which that convention contains is in annex B. The only earlier
EU definition—the Council Common Position on Measures to
Combat Terrorism of December 2001—is substantially the same
but goes slightly wider to encompass those who direct or participate
in terrorist groups.
I don't believe that this definition is substantially
different from the UK's existing definition and it is hard to
see that it has any advantages over it. Certainly, if one were
looking to narrow the definition, there is no conduct included
in the UK's current definition of terrorism which would be excluded
if we moved to the EU definition.
There is no single UN definition of terrorism
and that is why negotiations are taking place at the moment on
a UN Comprehensive Convention against Terrorism.
UN security Council Resolution 1566, agreed
on 8 October 2004, contains a statement of the actions which it
believes should be criminalised (annex C) though not a formal
definition. This statement is fairly widely drawn but excludes
serious damage to property so, had it been in place, would have
meant that the PIRA attacks on the City of London in the 1990s
would not have constituted terrorism.
The latest draft of the UN Comprehensive Convention
also contains a definition of terrorism (annex D) though I must
stress this has not yet been agreed and negotiations are still
ongoing. Again it is hard to see what the advantage of this definition,
should it be agreed, would be over what we have already.
I understand the desire to try to find a definition
of terrorism that concentrates on attacks on civilians but so
far as we can establish no such definition currently exists. Not
only that, but I would be concerned by any definition of terrorism
which would have excluded PIRA attacks on British troops or the
property attacks mentioned above from its remit, to say nothing
of attacks on British forces in Iraq or Afghanistan. If nothing
else we need to ensure that we are able to proscribe organisations
that engage in such activities.
My view, therefore, is that we need to stick
with the definition that we have. An important safeguard is that
any prosecutions for offences in Part 1 of the Terrorism Bill
require the consent of the Director of Public Prosecutions/Attorney
General which will ensure that prosecutions which are not in the
public interest do not take place.
I am copying this letter to Lord Carlile, the
Rt Hon Paul Murphy, Rt Hon Alan Beith, and Andrew Dismore. I am
also placing a copy in the Library.
25 October 2005
Annex A
TERRORISM ACT 2000
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 this 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 seriously to 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 whether or not subsection(1)(b) is satisfied.
(4) In this section—
(a) "action" includes action outside
the United Kingdom,
(b) a reference to any person or to property
is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a
reference to the public of a country outside the United Kingdom,
and
(d) "The government" means the
government of the United Kingdom, a Part of the United Kingdom
or of a country other than the United Kingdom.[1]
(5) In this Act a reference to action taken
for the purposes of terrorism includes a reference to action taken
for the benefit of a proscribed organisation.
Annex B
EU COUNCIL FRAMEWORK
DECISION
1. Each Member State shall take the necessary
measures to ensure that the intentional acts referred to below
in points (a) to (i), as defined as offences under national law,
which, given their nature or context, may seriously damage a country
or an international organisation where committed with the aim
of:
— seriously intimidating a population,
or
— unduly compelling a Government or
international organisation to perform or abstain from performing
any acts, or
— seriously destabilising or destroying
the fundamental political, constitutional, economic or social
structures of a country or an international organisation,
shall be deemed the terrorist offences:
(a) attacks upon a person's life which may cause
death;
(b) attacks upon the physical integrity of a
person;
(c) kidnapping or hostage taking;
(d) causing extensive destruction to a Government
or public facility, a transport system, an infrastructure facility,
including an information system, a fixed platform located on the
continental shelf, a public place or private property likely to
endanger human life or result in major economic loss;
(e) seizure of aircraft, ships or other means
of public or goods transport;
(f) manufacture, possession acquisition, transport,
supply or use of weapons, explosives or of nuclear, biological
or chemical weapons as well as research into, and development
of, biological and chemical weapons;
(g) release of dangerous substances, or causing
fires, floods or explosions the effect of which is to endanger
human life;
(h) interfering with or disrupting the supply
of water, power or any other fundamental natural resource the
effect of which is to endanger human life;
(i) threatening to commit any of the acts listed
in (a) to (h).
Annex C
UN SECURITY COUNCIL
RESOLUTION 1566
Recalls that criminal acts, including against
civilians, committed with the intent to cause death or serious
bodily injury, or taking of hostages, with the purpose to provoke
a state of terror in the general public or in a group of persons
or particular persons, intimidate a population or compel a government
or an international organisation to do or to abstain from doing
any act, which constitute offences within the scope of and as
defined in the international conventions and protocols relating
to terrorism, are under no circumstances justifiable by considerations
of a political, philosophical, ideological, racial, ethnic, religious
or other similar nature, and calls upon all States to prevent
such acts and, if not prevented, to ensure that such acts are
punished by penalties consistent with their grave nature;
Annex D
UN COMPREHENSIVE
CONVENTION (DRAFT)
1. Any person commits an offence within
the meaning of this Convention if that person, by any means, unlawfully
and intentionally, causes:
(a) Death or serious or bodily injury to any
person; or
(b) Serious damage to public or private property,
including a place or public use, a State or government facility,
a public transportation system, an infrastructure facility or
the environment; or
(c) Damage to property, places, facilities or
systems referred to in paragraph 1(b) of this article, resulting
in or likely to result in major economic loss,
when the purpose of the conduct, by its
nature or context, is to intimidate a population, or to compel
a Government or international organisation to do or abstain from
doing any act.
1 This is being amended in the Terrorism Bill to
include international organisations, such as the UN. Back
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