I agree in great measure with Mr. Denham. His words encapsulated a particular concern of mine. He said that he thought that this proposed legislation is essentially marginal in the fight against terrorism, and the House should pause to consider that point. My right hon. and learned Friend Mr. Hogg pointed out the extent to which we have legislated in recent years to meet what is clearly an exigency and a massive concern to those whom we represent: the eruption of legislation that fails to deal with the dangers—if we take the Home Secretary's view on this issue—that we face. When examined, the question of necessity arises. What is so necessary about this legislation? It is difficult to put one's finger on the essential element that underpins the conclusion that it is necessary to place restrictions on our freedom of speech.
We must bear in mind the various offences of incitement already in UK law. Incitement to violence, including terrorist violence, is already a criminal offence, as is incitement to commit an act of terrorism overseas, by virtue of section 59 of the Terrorism Act 2000. Solicitation to murder is an offence under section 4 of the Offences Against the Person Act 1861 and incitement to racial hatred is a crime under the Public Order Act 1986. A wide range of criminal offences is already available. Why, then, is a new offence of encouragement of terrorism, including by its glorification, necessary?
I am not sure that I have grasped the Home Secretary's arguments at all. He told the Home Affairs Committee that the problem was that
"the current law of incitement essentially deals with a very particular event, which an individual committing an event is incited to commit, for example to commit a very particular act in a particular way . . . that means it is difficult to prosecute in the more general circumstance where an individual organisation is inciting in general but not linked to a very particular crime."
Like the right hon. Member for Southampton, Itchen, I am not lawyer, but in the Regina v. El-Faisal case of 2004, the Court of Appeal upheld the convictions of a minister of Islam—for soliciting murder under section 4 of the Offences Against the Person Act 1861 and for incitement to racial hatred under the Public Order Act 1986—for having made audio tapes urging Muslims to fight and kill, among others, Jews, Christians, Americans, Hindus and other "unbelievers". In the course of its judgment, the Court of Appeal explained the great width of the offence of soliciting to murder:
"The offence of soliciting to murder is contained in s. 4 of the 1861 Act which states:
'Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life.'"
That amounts to a more severe penalty than is envisaged by the Home Secretary.
The scope of the behaviour sufficient to constitute the offence was classically given more than 100 years ago by Lord Huddleston, who provided an interpretation:
"The largest words possible have been used, 'solicit'—that is defined to be, to importune, to entreat, to implore, to ask, to attempt to try to obtain; 'encourage', which is to intimate, to incite to anything, to give courage to, to inspirit, to embolden, to raise confidence, to make confident; 'persuade' which is to bring any particular opinion, to influence by argument or expostulation, to inculcate by argument; 'endeavour' and then, as if there might be some class of cases that would not come within those words, the remarkable words are used, 'or shall propose to', that is say, make merely a bare proposition, an offer for consideration."
I have troubled the House with a lengthy excerpt, but I am trying to demonstrate that the Home Secretary has not answered the core of our fight—a national fight, which affects our constituents—and has not demonstrated why, given the present state of the law, clauses 1 and 2 are necessary.
It is the wider implications that really worry me. Freedom of expression is perhaps the most important and basic right in a democracy. It did not come about casually, as we said last week in debating the Identity Cards Bill. It was a long march, and many of the acts that brought us to where we are—the Home Secretary has defined democracy—were products that would be caught by the legislation in any event. That is the truth of the matter. Those who burned rickshaws would be caught, as I read the provisions. Is that really our intent—to define our own democracy in those terms?
In respect of the extension to the overseas provisions, the Home Secretary said that he had attended the ceremony—in St. Paul's cathedral, no less—marking the 60th anniversary of the UN. The UN has nearly 200 members, but would we call all of them democracies, even though they all subscribe to the universal declaration of human rights? The hypocrisy is writ large, and the Home Secretary offers an extraordinary historical analysis when he claims that the movement in the world at large is towards democracy. However, that process of edging towards democracy has often been ignited by something else.
Mr. Mugabe, through his country's membership of the UN, subscribes to those universal principles. People in other benighted countries suffer under the heel of cruel and vicious Governments, but do we tell those who rise up against their privations that anything that improves their lot is passable? No: the Home Secretary says that there is an ineluctable movement towards world democracy, but that is simply neither true nor real. In the pursuit of the Home Secretary's dream, we are asked to degrade and undermine some of our basic principles of freedom and democracy.
It is the crafting of the Bill that worries so many of us. The principle behind extending detention to 90 days clearly nags at the consciences of many hon. Members. There has to be some form of compromise.
I am grateful that the Government concede that the matter is important enough to be discussed on the Floor of the House. That allows all hon. Members to examine the proposals and express their opinion about it. Would to God that we had the same right in respect of so many of the instruments that come before us. Nevertheless, I congratulate the Government on their approach today.
I think that the Bill will founder on the Government's flagship Human Rights Act 1998, that at some time it will be declared to be incompatible with that legislation, and that we will be back to where we started. There will come a time when the House has to determine whether an instrument of declaratory power is appropriate to the circumstances that we face. The Bill challenges our declaratory principles of freedom of expression and the proportionality of actions taken by the state to meet the exigencies that we face.