The legal definition of terrorism risks criminalising legitimate freedom of expression, according to the UK’s terror watchdog. David Anderson QC, the independent reviewer of terrorism legislation, has recommended narrowing the definition in the Terrorism Act 2000. In his annual report, Anderson said the breadth of the UK terrorism definition was graphically illustrated in the David Miranda case , partner of the former Guardian journalist Glenn Greenwald.
Last August, Miranda was detained at Heathrow airport for nearly nine hours while he was bringing Greenwald computer files of intelligence documents. In February, the high court concluded that Miranda’s detention, under schedule 7 of the act, had been lawful because disclosure of the material he was carrying came within the definition of terrorism — a definition that was always intended to be “very wide”, as the UK supreme court had said in a recent case. Miranda’s appeal against the high court ruling is likely to be heard next year.
But what the high court judgment reveals is terrorist “action” is not confined to guns and bombs. Terrorism may include the publication, or merely the threatened publication, of words.
As Anderson explained: “It seems that the writing of a book, an article or a blog, may therefore amount to terrorism if publication is for the purpose of advancing a political, religious, racial or ideological cause, designed to influence the government and liable to endanger life, or create a serious risk to health or safety.”
That would criminalise a newspaper columnist who argued, on ideological grounds, that the government should stop vaccinating children against certain infectious diseases. Preparatory acts prior to publication — such as research – could be punished with life imprisonment. The editor who commissioned the piece could get seven years. The newspaper itself could be banned, making it an offence to buy copies. And newsagents who sold it could have their movements restricted by so-called terrorism prevention and investigation measures.
Anderson acknowledged that no prosecutor would bring a case in such circumstances. But the independent reviewer thought it undesirable to give ministers, prosecutors and the police such broad discretion. “It leaves citizens in the dark and risks undermining the rule of law.”
As he explained, the weak point in the definition of terrorism was the inclusion of actions that were designed to “influence” the government or an international governmental organisation. Other countries, and international definitions, set the bar higher. Anderson therefore recommended that the word “influence”, in section 1 (1) (b) of the Terrorism Act 2000, should be replaced with “compel, coerce or undermine”.
He also recommended the repeal of section 1(3), which says that if firearms or explosives are used, there is no need even to prove that terrorist actions were designed to influence the government or intimidate the public.
The provision was intended to cover terrorist assassinations. But Anderson said the justification for it was weak — killing an individual is already a crime — although it does not apply to assassination by stabbing or by running someone down with a car. “It makes a terrorist of the boy who threatens to shoot his teacher on a fascist website, and of the racist who throws a pipe bomb at his neighbour’s wall, in each case intending only to harm (or alarm) their immediate victims. The criminality of such people is obvious, and serious; but the terrorist label is inappropriate.”
Anderson’s recommendations are clearly sensible — and all the more necessary now that the Crown Prosecution Service is no longer supervised by an attorney general with a track record of independence. The government has already shown itself willing to tighten schedule 7, and most of these amendments have recently come into force. But, with an election looming, the home secretary may be reluctant to reduce the breadth of terrorism itself, however string a case the reviewer makes. She might argue that we should wait for the outcome of the Miranda appeal.
Alternatively, Theresa May could do what the prime minister did when faced with unpalatable advice from Dominic Grieve and sack the messenger. On 10 July, she announced, with cross-party support, that Anderson would be leading the first stage of a detailed review of interception and data collection powers, reporting before the general election. It’s only the first stage, though May wants to replace Anderson with a so-called privacy and civil liberties board, modelled on a similarly named body in the US.
Whether Anderson will wish to be part of that is far from clear. He said in his report that the sort of lawyer who serves as independent reviewer is “most unlikely to leave their profession for a full-time appointment of several years’ duration” on a quango. He has warned ministers that, unless all board members are given the extraordinary level of access to secret material that he and his predecessors have always enjoyed, replacing the independent reviewer with a board “risks promoting the appearance of effective scrutiny while diminishing its reality”. The proposal requires “the most careful scrutiny”, Anderson added in his annual report.
Only a cynic would suspect that a body with privacy and civil liberties in its title might be intended to curtail these rights rather than enhance them. But no government these days would set up a system under which unfettered access to the country’s greatest secrets is given to independent amateurs, ranging from Lord Shackleton and Earl Jellicoe in the 1970 and 80s to Lord Carlile and Anderson himself in the years since 2001 — especially when reviewers recommend something as unpalatable as a redefinition of terrorism.
May seems determined to bring the present system to an end: “terms of reference” published by the government last week said “legislation to put the independent privacy and civil liberties board into place will be brought forward in this session” of parliament. If she succeeds, we shall all be the poorer.