This afternoon at 4.30 MPs in the House of Commons will vote on the Terrorism Bill. The media coverage of this Bill has focussed largely on the clause allowing police to hold terror suspects for up to 90 days without trial. I’d like to bring up a couple of points that have not been widely covered.
The first relates to the Bill’s compatibility with the European Convention on Human Rights. Article 5, Paragraph 3 of the ECHR states that
Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time …
The key phase here, of course, is ’shall be entitled to a trial within a reasonable time’. What ‘reasonable’ means precisely is a question open to debate. However, it seems clear enough to me that if the Terrorism Bill is passed as it stands then it will certainly be challenged in the courts. If the Bill were found to be incompatible the ECHR then it would certainly be embarrassing for the Government and for the PM personally.
The second point is that the Government seems to have a very serious problem with how it defines terrorism. I think that should the Bill pass this problem will be made a great deal worse because of some of its clauses. The Terrorism Act 2000 defines ‘terrorism’ as follows
(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 other than the United Kingdom, and
(d) “the government” means the government of the United Kingdom, of
a Part of the United Kingdom or of a country other than the
United Kingdom.
As it stands that definition would label many types of activities as ‘terrorism’ which I am quite certain the Government would not regard as such. For example the American Civil War would fall under this definition, as would the British Government’s current military activities in Iraq. The definition is clearly lacking in credibility.
The reason that this is going to be a specific problem for the new Terrorism Bill is that in addition to extending the period of internment detention without trial to 90 days it introduces some new offences. The Bill makes illegal ‘glorifying’ terrorism, giving or receiving terror training and indirectly inciting terrorism. Since all these new offences are based on the rather shaky foundation of the definition of terrorism given above it seems reasonable to ask what precisely these offences will make illegal. This problem of vagueness is further compounded by other ill-defined terms such as ‘glorification’ and ‘indirect incitement’.
Vagueness in criminal legislation such as this is not just a technical matter only of interest to lawyers and judges but should be of concern to everybody. Granting the Government such power without also setting and understanding the limits of that power may be the first step on the road to tyranny.
Further Reading
ECHR Full Text
Terror Bill Full Text