The government proposes to amend the Terrorism Act 2000 so that acts made for the purposes of advancing a racial or ethnic cause are included explicitly in the definition of terrorism.
Under the Act, terrorism is currently defined as the use or threat [of action] designed to influence the government or to intimidate the public or a section of the public, and the use or threat is made for the purposes of advancing a political, religious or ideological cause.54
The definition of terrorism under the Terrorism Act forms the basis for a number of criminal offenses, including the encouragement of terrorism, and triggers wide-ranging powers, including: the designation and proscription of terrorist organizations; and police powers to stop and search without suspicion, to arrest a terrorism suspect without a warrant and, notably, to detain terrorism suspects without charge for 28 days.
The definition has been the subject of significant criticism as overly broad and lacking in legal precision.55 International human rights law requires that any law creating a criminal offense must be clear and precise enough for people to understand what conduct is prohibited and to regulate their behavior accordingly.56 Carefully crafted laws narrow the scope for overreaching judicial interpretation. The organization Justice concluded that the definition leaves broad scope for interference with fundamental rights and recommended specific amendments to clarify and narrow the acts falling within the definition.57 The Joint Committee on Human Rights expressed its concerns about the breadth of the definition in relation to a number of offenses and police powers on which it is based.58
We have already seen instances in the UK in which authorities have relied on the definition to justify the application of counterterrorism powers to non-violent protestors whose actions fall outside any common sense definition of the term terrorism. The use of stop and search and arrest powers under the Terrorism Act 2000 during the protests against Heathrow airport expansion in mid-August 2007 is a recent example.
The government-proposed change is one of two amendments recommended by Lord Carlile in order to cement into the law clarity that terrorism includes campaigns of terrorist violence motivated by racism.59
Lord Carlile conducted an assessment of the definition of terrorism during 2006 and 2007. In his report on the subject, published in March 2007, he concluded that the UK definition is consistent with international comparators and treaties, and is useful and broadly fit for purpose.60 He proposed only two amendments to the definition. In addition to including racism as a motivating cause of terrorism, Lord Carlile recommended amending the language so that only actions or the threat of action designed to intimidate the government, instead of the much broader influence, fall within the definition.
We understand that there are concerns that the use of the verb to intimidate in the definition may cause difficulties when applied to a government but we do not believe this should be an obstacle to narrowing the definition in line with Lord Carliles suggestion. Alternatives used in international treaties include to coerce, to unduly compel, and to subvert. We note that the European Union Framework Decision of 2002 and the Council of Europe Convention on the Prevention of Terrorism of 2005 use the formula to unduly compel a government to do or abstain from doing any act.
Human Rights Watch believes the definition of terrorism must be crafted narrowly and interpreted conservatively to limit the scope for arbitrary and discriminatory enforcement. The UN special rapporteur on human rights and terrorism, Martin Scheinin, having reviewed the approach of the United Nations Security Council and state practice, argues for a cumulative characterization of terrorism with reference to agreed-upon offenses in existing counterterrorism conventions when committed with the intention of causing death or serious bodily injury, or the taking of hostages; and for the purpose of provoking a state of terror, intimidating a population, or compelling a Government or international organization to do or abstain from doing any act.61 This is based on the language in Security Council Resolution 1566 (2004) calling on states to prevent and punish such acts.62
The current definition of terrorism in the UK is at odds with this formulation, because it includes actions other than those taken with intent to cause death or serious injury and hostage taking. Human Rights Watch considers that, at a minimum, the government should adopt Lord Carliles recommendation to tighten the language with respect to the purpose of a terrorist act, so as to limit its potential misapplication against peaceful protesters.
54 Terrorism Act 2000, section 1(1). Serious violence against a person, serious damage to property, endangerment of a persons life (other than that of the person committing the action), creation of a serious risk to the health or safety of the public or a section of the public, and interference or serious disruption of an electronic system are listed as actions falling within the definition.
55 See for example, Amnesty International, United Kingdom: Human rights: a broken promise, February 23, 2006, p. 10.
56 ECHR, art. 7.
57 Justice, The Definition of Terrorism in UK Law. Justices Submission to the Review by Lord Carlile of Berriew QC, March 2006, http://www.justice.org.uk/parliamentpress/parliamentarybriefings/index.html (accessed August 30, 2007). In particular, Justice recommended drawing a clearer distinction between actions involving violence against persons and attacks on property or disruption of an electronic system: In our view, actions which do not involve direct threats to physical integrity should not be considered terrorist acts unless they involve some major threat to human welfare (para. 63).
58 JCHR, Counter-terrorism Policy and Human Rights: Terrorism Bill and related matters, Third Report of Session 2005-06, December 5, 2005, http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/75/75i.pdf (accessed August 30, 2007), para. 13.
59 Lord Carlile, The Definition of Terrorism, March 2007, http://www.homeoffice.gov.uk/documents/carlile-terrorism-definition?view=Binary (accessed September 25, 2007), para. 66.
60 Ibid., para. 86(4).
61 UN Commission on Human Rights, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, E/CN.4/2006/98, December 28, 2005, http://www.icj.org/IMG/Scheininreport.pdf (accessed October 2, 2007), para. 42.
62 UN Security Council, Resolution 1566 (2004), S/RES/1566/2004, http://daccessdds.un.org/doc/UNDOC/GEN/NO4/542/82/PDF/NO545282.pdf?OpenElement (accessed October 2, 2007), para. 3.