Select Committee on European Scrutiny Tenth Report




Draft Council Framework Decision on combating terrorism.
Legal base: Articles 24(2)(b), 29 and 31(e) EU; consultation; unanimity
Department: Home Office
Basis of consideration: Minister's letter of 5 December 2001
Previous Committee Report: HC 152-ix (2001-02), paragraph 11 (5 December 2001)
Discussed in Council: 6-7 December 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared (decision reported on 5 December 2001)


  4.1  We considered on 5 December the latest draft of this proposal as it had emerged from the Justice and Home Affairs Council on 16 November, when the question of defining a terrorist aim, the question of penalties and rules of jurisdiction were the subject of particular attention. Having regard to the imminence of the Justice and Home Affairs Council on 6 and 7 December, we considered the document as a matter of urgency, taking into account the Minister's letter of 12 November and the Explanatory Memorandum of 29 November.

  4.2  We had concerns with the open texture of the drafting of Article 5 (dealing with 'aggravating circumstances' for the purposes of sentencing of offenders), but decided to clear the documents.

  4.3  Shortly thereafter, we received the Minister's letter of 5 December giving further explanations of the latest draft.

The Minister's letter

  4.4  In his letter of 5 December, the Parliamentary Under- Secretary at the Home Office (Mr Bob Ainsworth) answers the questions we raised on 7 November. Our first such question was whether the adoption of the Framework Decision would prevent the adoption of wider rules of jurisdiction over terrorist offences, such as those in sections 62 and 63 Terrorism Act 2000. On this point the Minister replies as follows:

      "The adoption of the jurisdiction Article in the Framework Decision on combating terrorism would not prevent the UK from considering wider rules of extraterritorial jurisdiction such as those set out at sections 62 and 63 of the Terrorism Act 2000. If adopted in its present form, Article 9 of the Framework Decision may require some extension of extraterritorial jurisdiction. Any such impact on UK law will be covered by the JHA enabling clause."

  4.5  Secondly, we criticised the open texture of the drafting of Article 5, particularly its use of such subjective concepts as offences "of a particularly cruel nature" for the purpose of making provision for increased sentences. The Minister replies that the present version of Article 4 has been simplified so as to provide for a minimum maximum penalty of 15 years for directing a terrorist group and 8 years for participating offences, including financing. The penalties for direct offences (such as murder) are to be based on national law, but the national law must provide that the penalty is more severe, or should be the maximum under the national system, when the offence is committed by a terrorist. In relation to Article 5 the Minister comments as follows:

      "The purpose of Article 5 was to distinguish between aggravated and non-aggravated terrorist offences. The Government's position in relation to Article 5 had been that the length of sentences imposed on those convicted of offences of a terrorist nature should be a matter for judicial discretion. This view is shared by the majority of Member States and following further discussion of this Article on 26 November the Presidency suggested, with broad agreement, that this Article be deleted from the Framework Decision. The Government supports this proposal."

  4.6  Finally, we asked the Minister to explain why the provisions of Article 14 of the former draft appeared to apply the provisions of Article 4 of the Framework Decision on the standing of victims of crime only where this was "necessary and appropriate" . The Minister replies as follows:

"Discussions on the content of Article 14, which is now Article 10, have identified the importance of ensuring both victims and their families were afforded protection and ensuring that the Article interfaced properly with the Framework Decision on the standing of victims in criminal proceedings. It has therefore now been agreed that the wording of the second paragraph of Article 10 should be revised along the lines of — 'In addition to measures for victims under the Framework Decision on the standing of victims, each Member State should — where necessary — take all measures possible to ensure appropriate assistance for their families'".


  4.7  We are grateful to the Minister for his letter. We have already cleared the document, but this further information addresses those remaining concerns we had expressed on the drafting of the provisions relating to the increase of penalties and the treatment of victims.

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Prepared 17 December 2001