Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
I beg to move amendment No. 79, in page 1, line 8, leave out paragraph (b) and insert—
'(b) at the time he does so, he intends or is recklessly indifferent to the fact that the publication will be understood as a direct or indirect encouragement or inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.
(c) it is not necessary that the prosecution prove that he intended to cause, encourage or induce the commission, preparation or instigation of a specific terrorist act'.
With this it will be convenient to discuss the following amendments:
No. 18, in page 1, line 9, leave out from beginning to 'a' in line 12 and insert—
'(i) he intends it to be, and
(ii) it is likely to be'.
No. 62, in page 1, line 9, leave out from beginning to end of line 10 and insert 'he intends'.
No. 97, in page 1, line 9, leave out from beginning to end of line 14 and insert—
'he intends to incite or induce any other person to commit or prepare to commit an act of terrorism or a Convention offence; and
(c) he thereby causes a danger that one or more such offences may be committed.'.
No. 1, in page 1, line 9, leave out from 'believes' to end of line 10.
No. 2, in page 1, line 10, leave out
'has reasonable grounds for believing' and insert
'is reckless to the consequence'.
No. 3, in page 1, line 12, leave out 'are likely to' and insert 'would'.
No. 63, in page 1, line 12, leave out 'are likely to' and insert 'will'.
No. 37, in page 1, line 12, leave out 'a direct or indirect' and insert 'an'.
No. 21, in page 1, line 13, leave out 'encouragement or other inducement' and insert 'incitement'.
No. 22, in page 1, line 14, at end insert
'and intends that his statement shall have that effect'.
No. 4, in page 1, line 15, leave out subsection (2).
No. 99, in page 1, line 16, leave out 'encouraging' and insert 'inciting'.
No. 95, in page 2, line 5, at end insert
(c) thereby causes a danger that one or more acts of terrorism or Convention offences may be committed.'.
No. 85, in page 2, line 6, leave out subsection (3).
No. 6, in page 2, line 6, leave out from second 'the' to 'must' in line 8 and insert
'question of what constitutes recklessness as regards the consequential effect of a statement on members of the public'.
No. 7, in page 2, line 12, leave out 'subsections (1) and (2)' and insert 'subsection (1)'.
No. 54, in clause 2, page 3, line 5, leave out 'a view' and insert 'intent'.
No. 23, in clause 2, page 3, line 6, at end insert
'and intends at the time that his conduct shall incite acts of terrorism by some or all of the persons to whom matter contained in paragraphs (a) to (f) of subsection (1) is or is likely to be available in consequence of that conduct.'.
No. 20, in clause 2, page 3, line 12, at end insert—
'where the conduct was intended to be a direct or indirect encouragement or inducement to the commission, preparation or instigation of an act or acts of terrorism or if in all the circumstances it should have been apparent to the accused that it was likely to be so.'.
No. 24, in clause 2, page 3, line 14, leave out
'direct or indirect encouragement or other inducement' and insert 'incitement'.
No. 78, in clause 2, page 3, line 16, leave out
'likely to be understood as such' and insert 'intended to be'.
No. 25, in clause 2, page 3, line 16, leave out 'encouragement or other inducement' and insert 'incitement'.
No. 26, in clause 2, page 3, line 19, leave out subsection (4).
No. 96, in clause 2, page 3, line 26, at end insert—
'(c) thereby causes a danger that one or more acts of terrorism or Convention offences may be committed.'.
No. 51, in clause 3, page 6, line 12, leave out subsection (8).
No. 52, in clause 20, page 17, leave out lines 38 and 39.
New clause 2—Protection for Media—
'Nothing in Part 1 of this Act will be an offence if it is demonstrated by an accused person that his conduct was in the course of reporting of news through a news medium.'.
Our consideration begins with clause 1, which provides the offence of the encouragement of terrorism. Specifically, it seeks to widen the scope of incitement by moving from direct incitement to commit a criminal offence to indirect incitement. Conservative Members believe that a change in the law can properly take place to allow indirect incitement to become a criminal offence, and that proposition may attract universal support.
The issue that we must consider this afternoon is how the Government have chosen to draft clause 1. There are two areas of concern: first, the intent that is required for an offence to be committed; and secondly, whether the glorification of terrorism should form a separate and discrete part of an incitement charge.
I find clause 1 almost impossible to read and understand. I do not know where the Government found their draftsman, but if ever there were an unintelligible document, it is clause 1, which is extremely convoluted. It moves from an offence based on a person's knowledge or belief to an offence based on "reasonable grounds for believing". The offence is committed if
"members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences."
The Minister must clarify what the Government are trying to achieve—the explanatory notes are no help whatever. Do the Government want the offence to be committed by specific intent, which is common ground, and can it be committed by recklessness? By my reading of clause 1, it can also be committed negligently. If my reading of the provision is incorrect, I should be grateful if the Minister would indicate as much at the earliest possible opportunity. My reading of the provision is that it is much wider than an ordinary recklessness test, because it combines the fact of a person's committing the offence only on the basis of having "reasonable grounds for believing" with the fact that members of the public need merely be "likely" to understand that incitement was the intended consequence. That combination, which I could describe as the double whammy of clause 1, goes much further than I would consider suitable and proper.
Part of the problem in this breathtakingly badly drafted clause is that the Government do not specify to which members of the public it refers; it is a catch-all. Is not it readily imaginable that people who might take offence are people who are obviously uninitiated, peculiarly excitable, or in some other way lacking a level head? That is a very low threshold on which to bring about the instigation of criminal proceedings.
My hon. Friend makes a good point. The clause is indeed unclear as regards members of the public. We must bear it in mind that the Government are saying that the individual who is making his comment of encouragement of terrorism should be mindful of every possible range of public opinion. I do not necessarily disagree with that, but it then reverses the onus back to saying that we have to be jolly careful not to criminalise what may merely be a negligent statement. Heaven knows we have enough examples of Ministers standing up in this House and accidentally saying things that they subsequently have cause to regret.
As a relatively new reader of the details of the Bill, it seems to me that the distinction is between intent and effect. My hon. Friend may wish to consider a situation in which one person has a highly malicious intent to incite people and to celebrate terrorism but whose style of doing so is so objectionable to the ordinary person that it is counterproductive because it revolts them, as against another person who makes ill-judged comments about the political situation in the middle east that might be construed as encouraging people to have recourse to terrorism. Which of those two, if either, is covered by the Bill, and is it principled to draw a distinction between them?
My hon. Friend, very properly, muddies the waters even further by illustrating the complexity of the situation. On the face of it, a jury considering this offence will be asked not to decide whether members of the public were influenced but whether it was "likely" that people who heard the speech would have concluded that it was
"a direct or indirect encouragement or other inducement" to commit a terrorist offence. In regard to that, they will, as the clause says further on, have to consider all the surrounding circumstances.—[Interruption.] The Minister for Policing, Security and Community Safety says something from a sedentary position, but I did not quite hear it.
I do not find myself in disagreement with that approach, but it brings me back to the point that I made to my hon. Friend John Bercow—if a jury is to be given such a test, which is not subjective but objective, it becomes very important that we criminalise those who intend to commit the offence, not those who end up doing it by accident. That is the root of my anxiety.
As John Bercow suggested, this might happen inadvertently in less than thoughtful circumstances. Is the hon. Gentleman aware that Universities UK fears that it might happen in extremely thoughtful circumstances, namely in the process of the publication of research and the encouragement of academic debate? It states that the Bill
"opens the question as to whether an individual student who may disagree with a lecturer's personal political view could be reported and then prosecuted for glorifying terrorism . . . It seems highly likely that students undertaking courses like International Relations, History and Politics may be exposed to or research on texts that could fall foul of Clauses 1, 2 and 6 of this Bill."
The hon. Gentleman is absolutely right and anticipates one of the things that I was about to say. The academic world has indeed expressed serious concerns especially, in the context of our debate, about clause 2, to which I hope we may have time to move. It is also right that that anxiety relates to clause 1, because the possibility plainly exists that during robust academic discussion in a tutorial or public seminar views may be expressed that would then be criminalised. We all remember that Sir Thomas More was eventually convicted of treason because when he was incarcerated in the Tower of London he was visited by the then Attorney or Solicitor-General—I cannot remember which—
I am grateful to my right hon. and learned Friend.
Sir Thomas was visited by the then Attorney-General for Wales who engaged in what was then called making case, which was an academic dialogue about royal supremacy. In the course of that, Sir Thomas, responding to what he thought was an invitation to academic discussion, succeeded in incriminating himself, having studiously avoided doing so previously. That may appear to be a long time ago.
It was a long time ago but the powers of the state have if anything increased since then, and not diminished. It is not for the House to pass legislation that has unintended consequences. One of our problems, which applies to the whole Bill as well as to clause 1, is that we shall, I fear, be given yet again the classic response from the Government that we need not worry too much because the Director of Public Prosecutions will make jolly sure that only the right cases are prosecuted.
The hon. Gentleman is making a very good speech. Does he understand why the phraseology in subsection (3) of clause 1 is that the public "will understand a statement" whereas in paragraph (b) of subsection (1) it is that the public "are likely" to understand a statement? As the hon. Gentleman made a lot of money from such distinctions in a previous life, does he have any idea why the Bill is not even internally consistent?
No, I have not. Furthermore, if the hon. Gentleman were to consult the explanatory notes, he would be none the wiser.
The issue is serious, and I will return in a moment to how we might be able to improve this part of the measure. Before I move on to glorification, I must make this point to the Minister: the Government must explain fully who they intend to be caught by these provisions and in what circumstances, so that the Committee can make a judgment, first, about whether we want the offence to be one of specific intent only—for which there are some powerful arguments, despite the wording of the amendment. Failing that, there may be arguments for providing a recklessness test. Having prosecuted in the past, I am mindful that people may properly escape justice by resorting to fanciful arguments about their motivation, even though it was pretty clear, so I accept that it is a legitimate point of discussion.
I have to tell the Minister, however, that there is a big difference between recklessness and negligence. My reading of the provisions is that they provide for the closest thing to an offence being committed by negligence that I have ever seen, even though the Minister may argue that that is not the intention of the Bill, but as she is not shaking her head vigorously at me in a negative, I have a fearful suspicion that that may be exactly what the Government were intending.
I agree entirely with the hon. Gentleman's line of thought, and I remind the Committee that if the recklessness test were included, there is a body of law to explain precisely where we stand on recklessness, thereby making the clause quite simple to operate. Why are the Government including such a nebulous clause, whereby the offence could border on negligence, when the recklessness test could be imposed, as it is for many other offences on the statute book?
I agree with the hon. Gentleman and knowing of his background in practising the law, I can see exactly where he is coming from. I always found the test of recklessness to be readily comprehensible. It is right to say, however, that for reasons that I do not fully understand there has been a tendency, on several occasions before the introduction of the Bill, to drop the use of the word and replace it with the gobbledegook before us. In that respect, the Bill is not a complete novelty, but I am bound to say that I do not like it; the blurring of the edge between recklessness and negligence is something that successive Governments have attempted in several different fields where it suits them, because they have come to the conclusion that it will facilitate convictions. In some cases, they have done it deliberately, for example, in the offences of reckless driving and dangerous driving—a change that Parliament could assess—but in this context the Government have not explained what they are about.
Is not my hon. Friend being a bit too generous to the Government on this point? My understanding of clause 1 is that a person who writes in laudatory terms about historical terrorism is caught by the clause. It does not matter whether they are negligent, reckless or acting with intent. If they were simply describing in laudatory terms what happened in Cyprus when the EOKA terrorists prevailed, they could be caught by the measure.
I am grateful to my hon. Friend for generously giving way again.
Surely, the nub of the problem is that there is a difference between asking a jury to discern intent, which is not an unreasonable request, on the one hand, and expecting it accurately to assess likely consequences on the other. That is an extremely dangerous challenge for the jury—in essence, a political challenge—and in fact people are usually much more resistant to propaganda than they are given credit for being.
My hon. Friend makes a good point. Equally, it is right to point out that we quite frequently have to ask juries to make an objective assessment of a set of facts, and it is my experience that, precisely because juries are robust, if they have any concerns about the matter they will acquit and throw out the charges. Indeed I suspect that if the Bill were to get on to the statute book in its present form, because, mercifully and thankfully, we have a jury system a large number of cases would be slung out. That is not what the Government intend; they intend something completely to the contrary, but the jury system exists precisely as that safeguard.
I have a question about paragraph (c) of the amendment:
"it is not necessary that the prosecution prove that he intended to cause, encourage or induce the commission, preparation or instigation of a specific terrorist act".
Can my hon. Friend give some explanation of that, as I thought that the whole purpose of the amendment was to produce an intent rationale?
I understand my hon. Friend's point, but the amendment covers "a specific terrorist act". If the Bill provided for a requirement to show that the person making the speech wished for the blowing up of the Houses of Parliament on the evening of
I wonder whether I may tease the hon. Gentleman a little further along that line. I believe he accepts that those who said a couple of weeks ago that the clause contained no intent element were wrong. The question is, should someone be allowed to advance as a defence the claim that there was no intent and that they did not believe that their words would lead to an incident?
I understand the hon. Gentleman's point—I have been trying to deal with it for the past 20 minutes. It is clear that part of the offence is specific intent, for which clause 1(b)(i) provides. Under it, people can know or believe that they are trying to incite terrorism and they can be convicted for it. However, as the hon. Gentleman says, the Government wish to widen its scope. To what point is it being widened? I believe that it is being widened well beyond the recklessness test—the old test that was often put into statutes to ensure that someone could not wriggle off the hook by saying, "Oh well, I may have said people should blow themselves up in Kensington high street, but I didn't really mean it." There is a difference between that and negligence, which may constitute a negligent comment of the kind that many a Minister or Member of Parliament has made on the Floor of the House and regretted afterwards. The Minister must deal with that distinction this afternoon.
Glorification is a completely separate issue. We know the origin of the glorification provisions. The Bill started out with a completely separate offence of glorifying terrorism and received massive public criticism. Consequently, the Government conducted a classic piece of new Labour dissimulation. On the one hand, they announced that they were backing down in the face of the criticism, but, on the other, they tried somehow to save the Prime Minister's face by ensuring that glorification survived. I strongly suspect that there were long and disputatious moments in No. 10 Downing street between the Home Secretary and the Prime Minister.
Indeed. I simply do not understand what the Government are trying to achieve. If an act of glorification amounts to incitement, direct or indirect, a jury will find no difficulty in considering that as part of the total case. There is, therefore, no need for a separate subsection, which specifically draws attention to glorification as a way in which the offence might be committed.
Many people have glorified acts of terrorism. Hon. Members glorified—or at least expressed approval of—the actions of members of the ANC fighting apartheid in South Africa, even though those actions involved the use of violence.
Expressing views about the ANC is far removed from the clause—[Hon. Members: "No, it is not."] It is. The nature of the state is different. The Bill covers people saying, "Acts of terror are great and you should copy them." The clause is not only about glorification; it provides for emulation. There are two tests. The clause is completely different from what the hon. Gentleman claims.
If, for example, I had said in a public speech to a community of Bosnians in this country at the time of the first Yugoslav war that the acts of those in Bosnia who resisted the Serb forces of the Yugoslav Government were worthy, and that they were conducting themselves honourably and laudably in protecting their community from state aggression, and the speech was a clear encouragement to people to go out and join them—or people inferred that from the words—should that be criminalised? As the clause stands, it is likely to cover the glorification of Robin Hood.
I understand the hon. Lady's point, but it is adequately covered by clause 1(1), which we have just discussed. We have had a disagreement about whether we should include an offence of specific intent, negligence or recklessness—we must consider that this afternoon—but clause 1(1) covers glorification adequately. Introducing the separate glorification subsection adds nothing except to suggest that laudatory talk—no more—about the activities of individuals in foreign countries, where the acts would be likely to take place, should become a criminal offence. That is undoubtedly a major infringement of free speech because no specific offence is being incited. It may be in breach of article 10.2 of the European convention on human rights on freedom of expression. It adds nothing to the Bill. The Minister made a sedentary comment about "in existing circumstances", but invoking Robin Hood may apply to existing circumstances.
"The campaign to destroy government property by the ANC fighting against the Apartheid Regime is an example of justifiable violence against oppressive and tyrannical government."
That covers emulation.
The hon. and learned Gentleman has given a perfect example. The statement would be caught by clause 1 as it stands. Ms Keeble shakes her head. I assure her that it is not some cussedness on our part that suggests that it is the case; I genuinely believe it. Many Labour Members' assessment is identical to ours.
I am at a great disadvantage here because I am not a lawyer, but a comparable example might be when someone says, "Look at so-and-so, who blew up a radio mast. Why don't you go out and do the same thing?" That would encourage people directly. It would involve glorification and emulation, which, in simple terms, means copying.
I understand the hon. Lady's point, but that is not, to my mind, what glorification is about. Indeed, the more I listen to her, the more I believe that she is making a powerful case for taking glorification out of the Bill altogether.
That is exactly the point. The hon. Lady seems to be oblivious to the fact that if she had made the statement that she has just made anywhere other than in the Chamber, she would already be guilty of the crime of incitement. Therefore, why on earth are we discussing this measure? It clearly broadens the interpretation beyond what anyone would consider reasonable in terms of the right to free speech.
The hon. Gentleman is right. It is impossible to understand what the Government are trying to do, except for broadening that interpretation. I regret having to say so, but this is all the more sinister for being so opaque.
Is not the problem that, in the example given by my hon. and learned Friend Mr. Marshall-Andrews, if one deleted the words "destruction of power lines"—or whatever—and inserted the words "killing of civilians" and "oppressive regime", the Government certainly intend to catch that under clause 1? The only thing that would prevent someone from being prosecuted for using such language in the South African context, or in the context of suicide bombers, would be the decision of the Attorney-General. In effect, a political judgment would be made about whether someone was to be prosecuted? Is there a way round that?
The right hon. Gentleman is quite right. One difficulty is that the discussion on the definition of terrorism—to which he has paid a great deal of attention—has been deferred until tomorrow's debate. I tabled an amendment, which I deliberately tried to introduce into clause 1, so that we might have that discussion at the same time as our deliberations on the clause, although I do not criticise the Clerk for having moved the amendment away.
The right hon. Gentleman highlights the fact that it is possible to look at this issue from another angle, which involves the definition of terrorism. At the moment, however, we have to proceed on the basis that the Government's definition of terrorism is extremely wide. Moreover, they are seeking for the first time to create a worldwide jurisdiction with the capacity to criminalise anyone in the world for making a comment that falls within the UK definition of terrorism, which is intended for conditions in this country. I have to say to the Minister that that is a bold thing to try to do.
Indeed, and pregnant with disaster, if the Government get it wrong. It will not be adequate to fall back, as the Government will, on the argument that that will not matter because the Director of Public Prosecutions or the Attorney-General will be able properly to interpret the will of Parliament. We cannot do that.
Does this exchange not reinforce the hon. Gentleman's earlier point that the second part of clause 1 is really designed to get the Prime Minister off the hook of having too glibly come up with a new crime, without considering the consequences? Is the hon. Gentleman not also right to point out that giving people the protection of the Attorney-General is completely unfair, because they will have to judge the mind of the Attorney-General in deciding whether they might face prosecution?
Yes, the hon. Gentleman is right. There are often accusations that the application or interpretation of the law by law enforcement authorities can be selective. The truth is that, as in all human affairs, that probably does happen. The Bill creates the grounds for a wholly selective legal application, and I remain profoundly unconvinced about the desirability of the glorification clause. Everything that we have discussed today, including the matter raised by Mr. Denham, could be dealt with if the glorification clause were removed.
The hon. Gentleman said something earlier with which I wholly agree, namely that many Members on both sides of the Committee are more concerned about the issue of glorification than they are about many of the other provisions in the Bill, not least because many of us have taken part in the fight—not necessary the physical fight, but the ideological one—against oppressive regimes around the world.
I want to tease another response from the hon. Gentleman. He says that glorification is a stand-alone issue, but in fact the clause is worded to contain three lock-ins that have to go together. First, there has to be
"direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism".
Then there has to be glorification, as well as the emulation element. The three things go together. Glorification is not a separate offence in itself.
If it is not a separate offence, why is it there? What is the point of having clause 1(2) unless the intention behind it is to highlight a particular area and to give a steer to the judge and jury. I see the Minister nodding: that is obviously exactly what is intended. I do not agree with that. The jury should decide what incitement is. In some cases, jurors might conclude that a form of exhortation or glorification amounted to incitement; in other cases they might decide that it did not. That should be a jury matter, not a matter on which the Government impose their view, especially as that would have the capacity to distort the entire concept of the legislation.
Can the hon. Gentleman think of many circumstances in which an act could be interpreted as glorification without it being possible to infer that people were being encouraged to emulate it?
I can envisage circumstances in which people might wish to glorify past events. We are talking about existing circumstances, but that is rather loose terminology. It might be possible to have an ongoing conflict in which violence was not occurring. Any glorification of the recent events in that conflict would therefore be seen as having relevance to existing circumstances. That is an example. I agree with the hon. Gentleman that it is likely that the glorification of a specific activity will be caught by the legislation anyway. That is all the more reason why it should not be highlighted. We have no business doing that.
It might be argued that an academic treatise was precisely the kind of example in which glorification would not imply any desire to emulate an activity. Chris Bryant wrongly takes comfort from the notion of an interlinkage—in a sense, a mutual dependence—between the three separate concepts that he mentioned. May I suggest that it is not a good idea for there to be three such concepts in any one clause—let alone a subsection—and certainly not when there is no requirement to prove intent?
I agree. On academic treatises, it is quite common, particularly in philosophy departments, to ask university undergraduates to produce essays on the question of whether violence is ever justified. I seem to remember writing one myself. It is not difficult to put together a coherent academic argument, based on recent examples, that good might have come from the use of violence. Such writing would be caught by the operation of the Bill. An academic treatise might reach the conclusion that political violence, including acts of terrorism, was justified in some circumstances. Irrespective of whether the context was a foul regime, or of whether in practice the violence involved attacking the security forces while respecting civilians, such a treatise would be caught by the Bill as it stands—
The Minister shakes her head in disapproval, but that is what the Bill currently says and there is no escape from that. The Minister might have all sorts of other explanations to advance as to why we should vote for the measure, but that is not one of them. What the Bill says at present precisely catches such examples.
I want to move on briefly to cover the amendments that have been tabled and then give other hon. Members the opportunity to participate. As I said, amendment No. 79 would replace the existing tests to make it quite clear that there were two tests—one of specific intent and one of recklessness. I am always conscious, particularly late at night in my room at the House of Commons, that drafting could be wrong, but that is the intention behind the amendment. It would therefore make a concession, which I am mindful the Committee might not wish to accept, that recklessness could be an ingredient of this offence, rather than it involving merely a specific intent. I hope the Minister specifically tackles that matter when she responds to the debate.
Amendment No. 1 would remove everything except specific intention. Therefore, there would have to be a specific intention to carry out the offence. Indeed, I rather thought that this would be the lead amendment for the purposes of this afternoon's proceedings, which is why I tabled it first. Although that has not happened, I might want to commend such a possibility to the Committee. I want to listen to what the Minister has to say in respect of that. Amendment No. 2 deals with another example of recklessness and would remove the likelihood altogether.
Amendment No. 4 relates to glorification. This is, for me, a key amendment because it would remove the glorification provision in its entirety. I simply say to the Minister that, at this stage, I will need a lot of persuading not to put that to the vote when the time comes—with the leave of the Chairman of Ways and Means—because I believe the amendment is critical. I shall be interested to hear Members' views.
Amendment No. 6 tries to define recklessness according to its impact on members of the public, so it can be linked to the previous amendment. As will be seen, it involves the consequential effect of the statement on members of the public. In a way, that provides an alternative approach to that of the Government. My concern, as I said, is that I find the Government's wording extremely woolly, and I much prefer the old clarity, which seemed to exist in earlier legislation and which we seem to be abandoning so quickly. Amendments Nos. 54 and 78 also deal with the issue of specific intent. Finally, amendment No. 26 has been tabled by Government Back Benchers.
Those are the amendments that I am putting to the Committee, and the view I take at the moment is that we must restructure the way in which clause 1 is worded. We must ensure that it is clear. We must decide whether it should involve an offence of specific intent only or whether we want to add anything to that. I have an open mind on whether we should do so. Above all, I take the view that the glorification provision ought to be deleted.
I want to speak to the amendments that stand in my name and the names of others. I can deal with them compendiously. They relate to the question of specific intent. They do not descend to deal with recklessness, which in my view would be wrong in a criminal statute of this kind. They would both remove the words "encouragement or other inducement" and replace them with the old and well-known rubric in the criminal law—namely, "incitement"—and remove the odious provision relating to glorification.
If I may, I shall being by speaking to my first amendment. When we pass a criminal statute, it is always as well to look at the acts that will be criminalised by that statute—not the acts that the Government intend to be criminalised by the statute, because the courts do not look at the Government's intention. Indeed, they are proscribed from doing so. We should consider a small litany of the statements that will, without a shadow of doubt, be caught by clause 1. The first—it might be recognised by many—fell from the lips of an important person not so long ago, who said, "In view of the illegal occupation of Palestinian land I can well understand how decent Palestinians become terrorists." That statement was made by Cherie Booth, Queen's Counsel and the wife of the Prime Minister. When she made it, I agreed with the sentiments she expressed and leapt to her defence, because she was criticised throughout the press, and indeed in the House, for making it.
Indeed, I went on the radio and, in a trenchant debate with Miss Widdecombe, pointed out that it is possible in this world to hate the sin and love the sinner. I can say in passing that that is the only occasion that I can remember when I have ever been on the media and supported somebody who inhabits No. 10 Downing street. But I did my best to do so. This morning, on the "Today" programme, the Home Secretary said, in his inimitable way, "This will not be caught by the Act." Well, I would like to debate that with the Home Secretary—he is not here, of course—and with the Minister so as to find a single part of the clause that offers any comfort to anyone delivering that public statement.
Such people must consider, reasonably, that there will be someone out there, listening to them, who, having heard them express that, will be encouraged to commit an act of terrorism. "Encouragement" is, of course, the word involved here. One takes a harmless analogy: I can imagine people saying, "There is legislation that the Government try to pass that is so awful that it can be understood that even loyal and decent Back-Bench Labour MPs oppose it." I have sympathy with that. It undoubtedly encourages me, on occasion, and I have a number of letters not markedly different from that in my postbag in respect of the Bill. That statement is undoubtedly caught, and there is no defence. There is no proviso in the Bill that would enable Cherie Booth, QC, if the director chose to prosecute her, to defend herself.
Taking the proviso of the director, while that prevents a prosecution from being started, it does not make the initial statement lawful, with the consequence that fear of prosecution stands as the real curtailment on freedom of speech.
The right hon. and learned Gentleman has, as always, anticipated a great deal of what I am going to say. In fact, I hardly need say it. However, in due course I shall come to correspondence that I have had with the British Library on precisely that point.
A public statement—one we have touched on already—that "The campaign to destroy government property by the ANC fighting against the Apartheid Regime is an example of justifiable violence against oppressive and tyrannical government," has all the necessary elements of this offence. In so far as one can even begin to interpret "glorify", it certainly glorifies what the ANC did, and contained within it there is also the statement that others should emulate it if they find themselves in that particular position. It would lend to them encouragement.
I can remember—I wish to plead guilty to this now—during the ANC struggle in South Africa meeting ANC members who came to this country who were going back to South Africa to continue that campaign. I make no bones about it: I offered them not only encouragement, but succour, victuals and my humble hospitality. I did so with a clear conscience, and I always will. Under the provisions of the Bill, I could be arrested tomorrow.
I have much sympathy with what the hon. and learned Gentleman is saying. Can he clarify for the benefit of us lay people that any such act of condoning or supporting terrorism would not have to be specific to any particular act that that person might commit, or that another person might commit, but that it would be a kind of fishing expedition for the future? Unless we all signed up today to say that we would never under any circumstances condone any use of violence or acts of terrorism—although I hasten to say that none is anticipated on my part or that of most contributors to the debate—that would by itself constitute or run the risk of constituting some endorsement or glorification of terrorism for the future.
The hon. Gentleman is right. That is the horrendously, deliberately and expressly wide nature of this part of the Bill.
Another example would be that of a proposer of a university debate—I think that I have also done this myself—speaking to the motion, "This House would become a suicide bomber," and delivering, one hopes, a particularly cogent speech, not believing it for one minute or intending that it should happen, but knowing that there is a student audience out there that includes near-radicalised or semi-radicalised people who might listen to the words and be encouraged to commit terrorist acts as a result. That would be caught under the Act, without a shadow of a doubt. One would have to rely on the Director of Public Prosecutions to exercise his imprimatur to avoid it.
A teacher or tutor distributing terrorist propaganda to a class studying history in the middle east would be caught under the Act without a shadow of a doubt.
My hon. and learned Friend might be coming on to deal with great works of literature. I am thinking, for example, of Sartre's magnificent trilogy that tries to work out existential philosophy through a description of 1930s history. In that, he delivers a paean to the revolutionary fighting spirit of those in Barcelona fighting tyranny. He ends the book with a great nihilistic act of self-destruction, in which the hero takes a machine gun and mows down Germans in front of him from a church tower, and is eventually killed himself. Has he considered the implications for such great works of literature, which seem to incite violent acts in precisely the terms of the clause that he describes?
I have done so, and I am grateful to my hon. Friend. Undoubtedly, the dissemination of those works would be caught under the Act, and I am pleased that he chose that particular great author because of the existential nature of what we are debating.
Does the hon. and learned Gentleman accept that the glorification of the Catholic martyrs, which is intimately connected with their persecution during the 16th century, and the beatification and enhancement to sainthood of people such as Edmund Campion, would also fall into that category, specifically because they were convicted of treason?
I am grateful for the cornucopia of examples with which I am being showered, all of which are absolutely sound. With no doubt, that is what the Government will criminalise.
Any newspaper that puts a Hamas propaganda leaflet on its front page, either to debate it or attack it, will also almost certainly be guilty under the Act. Yesterday, I received the careful letters that the British Library has sent to the Home Secretary expressing fear and apprehension that by sending works of art and historical or modern works to other libraries or those who demand them it will fall foul of clause 2. When I spoke on the phone to the author of that letter, I could offer him no comfort whatever that he would not be prosecuted under the provisions of the Act.
When the hon. and learned Gentleman began, he said that the old-fashioned offence of incitement would cover what it is necessary to cover in this field. He might have heard me mention earlier that 700 new criminal offences have been introduced by this Government. That surely must stop. I agree in every way with what he is saying. He is a learned man who knows how these things work. The provision is an absolute nonsense. In responding, can he tell me what view he has on the enforceability of such law extraterrestrially?
The extraterrestrial aspect had not occurred to me. With great respect, I have a wide-ranging view of this legislation, but it stops somewhere around the Olympian height. In any event, I am enormously grateful, as always, for the hon. Gentleman's support on the broad aspects of the debate. As to the general enforceability of the provision, we all know, as the Home Secretary says in his inimitable way, that it will not be enforced—that is what he means. We cannot pass legislation like that. He has a charming way of dealing in public debate with those who point out to him that such an activity will be criminalised under the Act—he says, "No, it won't." That is it—he makes an ex cathedra statement, says that we are wrong, and passes on to the next prosecution.
The hon. and learned Gentleman and my hon. Friend Mr. Grieve have made a forceful argument. Over the past few years, however, some seriously inflammatory statements have been made by Omar Bakri Muhammad and others. I have complained about that, and Mr. Dismore has been complaining for years about it. Every time that I have raised the issue, including with the Foreign Secretary when he was Home Secretary, and asked why no action is being taken against such people, we are always told that there is insufficient evidence or insufficient laws on the statute book to deal with it. Can the hon. and learned Gentleman, as a lawyer, assist the Committee to understand how, with the plethora of laws to which he has referred, the Government have been singularly incapable of dealing with such people, and yet another piece of legislation is proposed for us, which we know is also unlikely to be enforceable?
If I can employ a well-known legal term, the answer that the hon. Gentleman has been getting is absolute rot. There is an abundance of weapons in the prosecutor's quiver to deal with that. Why Bakri in particular has not been prosecuted, and why those acts have not been prosecuted under the incitement provisions, is a matter of complete bemusement to me. Yet we are told that we have to wait because we need a new law.
The amendments tabled by me and others would go a considerable way to redressing the matter, as they introduce into the Bill an element of intention. Intention is well known in the law—juries deal with it all the time. As to how one proves it or gets inside a man's head, it is simple—one listens to what he says and the context in which he says it. One then says that, in those contexts, he manifestly intended to ferment terrorism or terrorist acts. That is not difficult, and I cannot understand for a moment why the Home Secretary will not accept it, particularly as it is already enshrined within European jurisprudence.
In the circumstances, the next of our amendments is less important. Why should we not replace "encouragement or other inducement" with "incitement"? I would like the Minister to answer, on the basis of heads, pins and angels, what is the difference between encouragement or other inducement and incitement? The Government tell us that the purpose of the Bill is to create indirect incitement as an offence, so why not use the words "indirect incitement" instead of indulging in encouragement and inducement?
While we are on semantics, the next amendment is to remove completely the odious glorification provision. At least we no longer have "exaltation" as well—no doubt that is a favourite word of the Prime Minister's, but it has disappeared. Such semantics and verbiage might be appropriate to Frederick Handel or William Blake, but they have no place whatever in the sterile world of criminal jurisprudence. We might glorify God, but we do not glorify what men do, and nor do we exalt it. Those words have no place in criminal jurisprudence, and should be expunged from it immediately.
This is, in truth, the worst part of the Bill. Most of the media interest has centred on the three-month period, which is itself an affront, but this is the worst part. The three-month period can be changed at the drop of a hat, but once this provision is on the statute book we will let loose into criminal law something that all of us, in the course of our lives, will have cause profoundly to regret. I urge the Committee to join my colleagues and me in pressing amendment No. 79 to a Division in due course.
Let me first offer a few words of reassurance to Mr. Marshall-Andrews. I detected a real note of concern in his voice when he told us that, in rushing to the defence of Cherie Booth, QC, he had blotted his copybook by defending someone residing at No. 10 Downing street. My understanding is that, while Cherie Booth's husband's place of work may well be No. 10 Downing street, she actually resides at No. 11. Whether he acted intentionally, recklessly or negligently, I think that the hon. and learned Gentleman has maintained his proud record.
The kindest thing that can be said about clause 1 is that parts of it are opaque. Other parts border on the impenetrable. In my view and that of my colleagues, it fails a basic test. One of the fundamental principles of natural justice is that law should be clear enough for citizens to be able to regulate their conduct according to it. Subsection (1) uses the words
"members of the public to whom the statement is or is to be published are likely to understand it as".
That means that someone could find himself negligently contravening clause 1, which is why we cannot support it in its current form—notwithstanding the consensus referred to by Mr. Grieve, in which I would wish to join him.
The Minister will say that it will be all right on the night, because the Solicitor-General or the Attorney-General will determine which prosecutions can proceed, and of course Law Officers and Governments always act sensibly in such cases. Like John Bercow, I do not find that particularly reassuring. It is not for the House of Commons to pass legislation under which the citizen must second-guess the judgment of a Law Officer before deciding whether his conduct will bring him before the courts.
One might ask whether this really matters. We have heard, and will no doubt hear again, all the Government assurances, but where the law is opaque and difficult to understand, it is also difficult to secure convictions following prosecutions. If members of a jury cannot see the sense in what is being done by the prosecutor, they will acquit. In framing clause 1 as they have, the Government seek to defeat their own purposes. At the very least, the clause ought to contain a substantial element of intent which is not there now. That is the purpose of our amendment No. 18, amendment No. 79—tabled by the hon. Member for Beaconsfield and his colleagues—and various other amendments.
It cannot be acceptable that an offence attracting such a substantial penalty can be committed negligently. The next question to consider is whether recklessness can be imported. Here I tend to agree more with the hon. Member for Beaconsfield than with the hon. and learned Member for Medway, but I do not consider the issue to be one of great substance. The important point is the presence of a substantial element of intent. Whether an objective or a subjective test is applied to establish that intent—which is where recklessness comes in—can be considered another day. Viewing the matter from my perspective as a former prosecutor, I think that if the offence is ever to be made workable, the recklessness option ought to be available to the prosecuting authorities.
The Government have moved substantially since the early days when glorification was first mooted as an offence in its own right, and the Liberal Democrats welcome that. Nevertheless, if the Committee supports amendment No. 4 and removes the glorification provision, we shall be doing the Government a favour. The provision seems to me to have no purpose, other than to save the Government's face to some extent, given that the Prime Minister started this hare and set it running. Of course glorification will be there as an adminicle of evidence that can be considered by the jury, but including it in the Bill adds nothing and, indeed, widens the scope to an unacceptable degree. When we see it in a context of a Bill that does not, in my opinion, give a proper definition of terrorism, we find ourselves in an exceptionally difficult position.
This morning, the Home Secretary got into some difficulty on the "Today" programme when the interviewer referred to Mr. Adams, who was considered by many to have glorified terrorism on a number of occasions in the past. Indeed, I think that, even if the clause were amended comprehensively, much of what the hon. Member for Belfast, West did in the past would still be caught. It must also be said, however, that the hon. Member played a significant role in the ending of terrorism in Northern Ireland. Perhaps we should pause for thought before considering the full import of what will be achieved by the creation of offences such as this.
The question for the Committee is this: does subsection (2) add or subtract anything? I do not think that it adds anything, but it contributes massively to the lack of clarity in clause 1, and I therefore believe that it should be removed.
The hon. Gentleman says that the subsection does not add anything. What he means, surely, is that it extends the range of activities that will be caught by clause 1.
That is true. When I said that the subsection did not add anything, I meant that it did not add anything positive. It adds a great deal that is negative. As I may have already said, it contributes substantially to the lack of clarity in the Bill, but it does not add anything that we want.
The lack of a proper definition of terrorism, along with the wide jurisdiction envisaged in the Bill, raises serious concern in my mind about the possible implications for free speech. The defences in subsection (5) are very tightly drawn. I defy anyone to explain to me why paragraph (a) is there or what it means: it is one of the more impenetrable provisions. Paragraph (b) makes it a defence for a person to show that the statement in question did not have his endorsement, while paragraph (c) makes it an offence for him to show that
"in all the circumstances . . . it did not express his views and . . . did not have his endorsement."
That leaves a big gap that remains to be filled in relation to terrorists or freedom fighters who are the subject of a report such as a documentary. One thinks of the many despotic regimes around the world now and throughout history. One thinks of John Pilger's documentaries about Vietnam and of the current situation in Uzbekistan. It is right that people should know what happened in Andijan on
Is it not clear that the Minister let the cat out of the bag in winding up last week's Second Reading debate when she accused those of us who referred to the international scenarios that the hon. Gentleman has just depicted as seeking to distinguish between a "good" terrorist and a "bad" terrorist? I hope that the hon. Gentleman agrees that the precise point that we were seeking to make is that there is a distinction between not a good terrorist and a bad terrorist, but a terrorist and a freedom fighter. The Minister's mistake is to take a Euro-centric view of the world.
That is but one of the many mistakes that we might identify in that speech. My recollection is that the Minister went further, saying that only those who sought to resist by non-violent means could be given support. That is palpable nonsense. The difficulty is that the distinction that the hon. Gentleman seeks to draw between terrorists and freedom fighters, for example, is not always apparent at the time. It is an awful lot easier to judge that distinction with the benefit of hindsight and the clarity of history, but the clause makes no allowance for that point. In the case of Uzbekistan—my working example for the moment—we are relying extensively on the Uzbek Government for information on what happened in Andijan. That makes such judgments all the more difficult.
The hon. Gentleman is right: the benefit of hindsight is very great indeed. But even if one does not work on the assumption that history tends to be written by the winners—I do not offer myself that protection—we can safely say, for example, that Burma is an illegitimate state. In such circumstances, to criminalise someone who supports the attempts of the Karen National Liberation Army to overthrow that illegitimate state is wrong.
Indeed, and my own views on Burma are on the record, as are the hon. Gentleman's. The real difficulty that all who value democracy face if we pass this clause is how one resists an illegitimate Government once they have taken control of the mechanisms of the state. So far as I can see, the Government have so far provided no answer to that question. They have introduced a very wide-ranging Bill that would cover such situations, because it seeks to achieve a worldwide jurisdiction, regardless of the locus of the incident complained of. The hon. Gentleman is doing the Committee a great service in bringing this fundamental flaw to its attention.
The opening paragraph begins in a fairly straightforward way:
"In the Lenin Barracks in Barcelona, the day before I joined the militia, I saw an Italian militiaman standing in front of the officers' table."
It goes on to offer both encouragement of, and glorification of, what was to follow:
"Something in his face deeply moved me. It was the face of a man who would commit murder and throw away his life for a friend—the kind of face you would expect in an Anarchist, though as likely as not he was a Communist."
The encouragement and glorification is found at the end of the paragraph:
"Obviously he could not make head or tail of the map; obviously he regarded map-reading as a stupendous intellectual feat. I hardly know why, but I have seldom seen anyone—any man, I mean—to whom I have taken such an immediate liking."
That is the opening of an illustrious and well-known book written by Mr. Blair—Eric Blair. Those who find it easier to recognise him as George Orwell will also recognise that it is the start of "Homage to Catalonia", a book that unambiguously sought to praise those participants in the civil war in Spain who attempted to create a republic. Blair himself was open about, and proud of, his own involvement in that process as a "brigadista".
I am not sure that the family tradition of such political alliances still continues, but throughout the recent history of this country—and certainly within the Labour and internationalist movements, and in the history of our literature—"Homage to Catalonia" has been regarded not as a revolutionary tract, but as an honourable, distinguished and legitimate book. However, it falls foul of the Bill's definitions of acts of incitement of, and encouragement of, terrorism.
"Homage to Catalonia" was on the book list when I was doing my A-levels at Llanrwst school. It is a great book, but perhaps we should remind ourselves that the same author wrote "Nineteen Eighty-Four".
Had I read out a passage from "Homage to Catalonia", I would have chosen precisely the one that my hon. Friend chose. Is it not a fact that the Independent Labour party, which was part of the Labour party, glorified what was happening in Barcelona during the Spanish civil war—such as the violence committed against Franco—and that sections and individual members of the Labour party actually raised money to arm those in Barcelona who were resisting fascism, and sent over International Brigade troops? Did not distinguished Labour party and trade union members fight in Spain in a manner that would now be described as terrorism? If that happened now, the Labour party would doubtless be prosecuted under this Bill.
What the hon. Gentleman says about literature is entirely right, but does he not agree that precisely the same point applies to any historian writing in laudatory terms, and in an historical sense, about struggles in any part of the world?
I completely accept that point, which was also made by my hon. and learned Friend Mr. Marshall-Andrews. He said that the British Library cautioned the Government about the draconian consequences that would follow, were this House daft enough to pass legislation that included such terminology.
My hon. and learned Friend the Member for Medway also drew our attention to the question of fund-raising for such causes. I do not doubt the generosity of his hospitality toward those Members who were involved in the anti-apartheid struggle and supported the African National Congress. I suspect that he, like many of us, contributed cash to that process—cash that supported the ANC's work. To do so would now be seen as actively encouraging the actions that were then taken.
The huge danger is that the Government are treading into such areas without thinking through the consequences. The question has been raised of the position of Members of this House and members of the wider public who take issue with the actions and very existence of non-legitimate regimes throughout the world.
It is true that that case can be made about Burma, which has a wretched regime. Do we wish to make it a terrorist offence actively to speak about events in that country, and to encourage the resistance movement in such countries to pursue regime change? It is crazy to land ourselves in the position of gagging society and not allowing people to pledge their support or call for international support for those in domestic troubles who seek to free themselves from tyrannical regimes.
Does the hon. Gentleman agree that there is a curious paradox here, in that on the one hand, it appears that it is proper for Governments to wage war to procure regime change in Iraq, whereas on the other, if we recommended that the citizens of Iraq should have risen up to destroy Saddam Hussein, we could be prosecuted in this country for doing that?
Indeed, that is a paradox. We seem to have drifted into the dreadful position whereby over the past few years, the international perspective has drifted away from a presumption that all countries should be held accountable to the international courts and the Geneva conventions. Instead we are allowing ourselves to drift into a world where the rules are written by the rich and powerful. If someone is in a position to conduct an illegal war and pursue regime change on that basis, they subsequently rewrite international law to justify that. But to invite, encourage or support people within tyrannical regimes to do precisely the same thing becomes a terrorist act. That is nonsense.
Does my hon. Friend recall the first President Bush, at the end of the first Gulf war, urging the Iraqi people to rise up and overthrow Saddam Hussein? Has he considered the possibility that had this Bill been in place at that time, the President would have been guilty of an offence under British law, and subject to seven years' imprisonment?
Indeed, there are considerations that might make me think again about the unexpected virtues to be found in such a Bill—but I doubt whether that is the sort of person who would be hauled before the British courts.
The President would have been fighting a legal war—unlike the one that his son pursued—but, given the international scope of the Bill, he would simultaneously have found himself on the wrong side of the domestic law of the United Kingdom. Even somebody pursuing an internationally legal action could find that action illegal under this ridiculous Bill.
That highlights the paradoxes and absurdities in the Bill.
A couple of weeks ago, Parliament added to the list of proscribed organisations an Uzbek organisation calling for the removal of the Karimov regime and free democratic elections. Apparently we did so on the advice of the intelligence services that the group in question was responsible for acts of terrorism within its own country. Two days later, in The Guardian, the then British ambassador to Uzbekistan took issue with that and, as someone who had visited the sites where it was claimed that acts of terrorism had taken place, said that they all bore the hallmarks of Government killings, with an attempt to set up the notion that they had been committed by terrorists, although there was no evidence to support that claim.
We know that Uzbekistan is a regime with a wretched record of persecuting its own citizens, torturing them and boiling them in oil. It is a horrible regime by any standards, and we ought to be able to call on the international community and the domestic communities to remove it—but under the definition in the Bill, we would not be allowed to do so.
The far-reaching consequences of the Bill in its current form are so draconian as to provide legislation that could virtually have been drafted for us by al-Qaeda. If we want to see acts that destroy the framework of liberties, confidence in democracy, accountability to the judiciary and rights of representation, they are to be found enshrined in much of the panic legislation that has been pushed through this House as an extension of the war in Iraq in the form of a war on our own liberties. We are doing what al-Qaeda sought to do by other means, and society will not thank us for it.
Those who say that there are lock-in provisions in the preconditions about encouragement, glorification and emulation need to look at clause 1(4), which points out that it is
"irrelevant . . . whether any person is in fact encouraged or induced by the statement to commit, prepare or instigate any such . . . offence."
So it does not matter what people do; it is the act of saying or writing that constitutes the criminal offence—indeed, the terrorist offence—under the Bill.
I know that my hon. and learned Friend the Member for Medway ducked the question about extraterrestrial activities—I assume that that should have been "extra-territorial"—but I want to draw the attention of the House to the fact that an in-house consequence would follow from the Bill, under the current definition of terrorism. I know that we will come to that at a later stage, but people such as myself who have pledged to be part of the Green Gloves campaign against the growing of genetically modified crops, were they to be allowed in the UK—those of us who will doubtless go out and seek to remove those crops and replace them with organic non-contaminating crops—would be in breach of the Terrorism Bill; and also if we made the intellectual and political case for doing that.
There are many people outside the House who are extremely happy to see the definition of terrorism widened in a way that will allow global corporate interests to define civilian and domestic opposition to the policies that they are trying to push through, not as acts of resistance by consumers but as acts of environmental terrorism—a phrase that they are already beginning to use. They will use exactly the same terms as appear in clause 1, and say that people are guilty of acts of encouragement, glorification and encouraging others to emulate what they have done—and thus are committing terrorist offences.
The dangers of criminalising the whole framework of social protest and resistance within our own society is a dreadful draconian step. I would love it if the Bill would allow us to prosecute the President of the United States, but he will not be brought before the courts. Neither will the Baptist minister in the United States who, interviewed on Channel 4 News last week, openly said, with regard to the 7/7 bombings in London, that the only shame about it was that 1 million people were not killed. He said that England deserved to be bombed in that way. Will he be branded as a terrorist? Will he be brought to trial before the UK courts? No.
The Rev. Pat Robertson, the head of the Christian Coalition in the United States, will not be brought to trial here either, although he has openly, on television, called for the assassination of the elected President Hugo Chavez of Venezuela. No one like that will be brought before the courts, but Muslim lads in this country making similar claims or criticisms about events in the middle east are precisely the ones who will be picked up. They will be defined as being in breach of the terms of the Bill, because it is not directed at crazy mullahs who are notionally on "our" side, but only at the crazies on other people's sides.
The real danger is that the Bill is a first step down the path that leads us away from judging people on what they do. In the end, we will all be judged—by our own courts or by international courts—on the acts that we commit. However, we are starting to move away from that premise and to judge people, in broad and speculative terms, on what they say.
The next step will be to judge people on what they think. For me, that is the hallmark of a society that is beginning to retreat from the founding and fundamental principles of an open and democratic society, and to take its Parliament, institutions and citizens into dark days of tyranny. That is why I urge the House to support amendments that will change this absurd clause.
I strongly disapprove of some of the shocking statements made by extremist preachers in recent years that have been reported in the newspapers. Offence is caused to the public when the events of 9/11 are referred to in a way that seems to heap praise on the perpetrators. In addition, great grief is caused to the victims of events such as the bombings on the London underground when they read that preachers are allowed to say things that appear to extol the virtues of the people who carried out those acts.
In most circumstances, moreover, inciting people to violence in the cause of some political purpose, however worthy, is something of which the law and Parliament ought to disapprove. Certainly, I strongly disapprove of inciting people to indiscriminate violence against members of the public in any part of the world. Many hon. Members feel sympathy for the various causes of struggling or oppressed peoples around the world, but I trust that none would give encouragement to those wanting to blow up school buses, for instance, in the territory of some odious regime.
I will in just a second. I think that the body of law that we have in this country protects us quite adequately against such extremes. I always concede that Mr. Marshall-Andrews is an up-to-date, practising and very distinguished lawyer, whereas I am very out of date and long extinct, at least in legal work. I shall not repeat what he has said already, but I have no doubt that no prosecutor would have any difficulty when it came to producing an adequate charge under the general heading "incitement to violence". Such an offence is quite easily covered by the ordinary law of the land, and under the terrorist legislation that the House has passed over recent years.
It is interesting to note that, until recently, no one was prosecuted for such incitement, even though some cases have been very blatant. For example, preachers have used very extreme language that must have caused offence. Their praise for the work of "heroic" terrorists must have been calculated to incite others to repeat and emulate it. The attitudes of the Government, the police and the prosecuting authorities have undergone a remarkable change in recent times. I have no doubt that some of the more blatant cases have not been prosecuted because the police and prosecuting authorities have decided—as a matter of public policy—that, however offensive statements might be, it would do more harm than good to bring them before the courts.
I cannot agree with an approach that I consider to be unbelievably nervous and cautious. I should be very surprised if Home Office Ministers had not been involved in discussions in which it was decided that the good that might be achieved by making martyrs of some preachers by sending them to prison—and there is no doubt those drawn to self-publicity would quite enjoy that martyrdom—would be outweighed by the trouble that would be stirred up among the extreme elements of misguided youth in our cities. With hindsight, I say that that decision may not have been wise.
It is extraordinary, however, that the Government's opinion has swung so far away from that position that, as a matter of public policy, we now have to add a new offence that goes far beyond what is necessary to cover incitement to violence by extreme religious and political leaders. The Bill will make unlawful quite ordinary—albeit controversial—statements that many people in this country might make in the course of exercising their undoubted right of free speech.
It is totally unnecessary to introduce the indirect offence of encouraging terrorism, especially when the Bill uses such mild words to describe what a person might do. Plainly, clause 1 has been designed to make it extremely easy to convict people for making comparatively moderate statements.
This Committee stage is subject to a guillotine and, although I accept that the Government have been more generous than has been the case in the past, there is no point in my repeating the countless examples that have been given in the debate already of the words from literature, for instance, that would be caught by clause 1. As has been noted, the words of the Prime Minister's wife would also be caught.
The whole point of the clause appears to be to make a new offence of encouraging, directly or indirectly, the preparation or commission of an act of terrorism. Yet the word "encourage" is not especially strong. Warm words might be sufficient to trigger the offence of encouragement. For instance, a person might say that he or she understands why a course of action is taken, or that the shock or dismay caused might not be too great. There is no need for someone to urge another to go out and perform a terrorist act, as the use of polite and understanding language could clearly be taken as encouragement by someone already inclined to perform such an act.
What on earth is meant by the term "other inducement", in the context of someone who is starting to think about preparing an act of terrorism? Perhaps the draftsmen had in mind newspaper stories—I suspect that they are somewhat exaggerated—that suggest that a vision of heaven is held out to some misguided fanatics, who consequently believe that they will enjoy all sorts of earthly and sensual delights if they die as martyrs.
As my hon. Friend says, such people are offered paradise as an inducement to commit an act of terrorism. However, it is still a big step for the young people concerned to take, even given the visions of pleasure that are held out to them.
Another problem has to do with what will happen if someone says, "Well, I don't agree but I'm sure God will forgive a person's sins if he performs a terrorist act." Is that an inducement to go out and prepare to commit an act of terrorism? I think that it is, which proves my point that the Bill will catch words that are really quite mild.
I think that we should stick to the words used by the Prime Minister's wife, with whom I often sympathise. She is subjected to more public criticism because of her marriage than would be the case if she were a public figure in any other circumstances. In last week's debate on Second Reading, the Home Secretary merely asserted that the Bill would not catch what the Prime Minister's wife so famously said. I have not the first idea why the right hon. Gentleman asserted that. We need to hear some supporting argument, as I believe that it is clear that what she said would be caught by the Bill.
I shall come to that in a moment, but for now I want to endorse what has been said by my hon. Friend Mr. Grieve and by the spokesman for the Liberal Democrats, among others. I agree that it is completely unacceptable that a person could commit the proposed offence merely through carelessness or negligence. If it is judged that there is reasonable cause to believe that a member of the public might feel a bit encouraged by something that is said to him or her, that amounts to what I suppose we are meant to regard as a serious criminal offence.
That is completely unacceptable, and the proposal should never have been presented to the House. For me, the strongest point in the discussion about clause 1 is that the intention to incite terrorism must be the minimum requirement in an offence of indirect incitement. The role of intention is fundamental in the creation of an offence of that kind. If intention were necessary, it would explain why the provision is not otiose because it would provide an alternative form of words to those already on the statute book. I would accept that it should be an offence for someone to intend to incite someone else to act in preparation for or commission of terrorism. As it is, I think that that is already covered, but I would not object to the provision. I would regard that as a grave offence and it should carry heavy penalties, unless it is part of some absurd drunken outburst, but the provision would touch on all sorts of forms of words and mean that all kinds of literature, speeches or stray remarks could be seen as encouraging preparation for terrorism if some member of the public happened to hear them and was affected in that way. That is unacceptable.
When we have put such points to Ministers, the response has been—as my right hon. and learned Friend Mr. Hogg just pointed out—"Ah, but the Attorney-General would not prosecute." In many cases, this House rightly passes laws, but because we know that the law might be exploited and ridiculous litigation might result—because people with particular interests might use it against their rivals in some political or religious dispute—we make it a condition that the Attorney-General, as a Law Officer of the Crown, is the only person who can bring a conviction. That removes the abuse of the threat of prosecution and the Attorney-General can ensure that a prosecution would involve a serious issue of public policy before it is brought. However, I have never known that practice to be taken to the lengths to which it is taken in the Bill. The need for the Attorney-General's approval should not be used to try to rescue a uselessly drafted piece of legislation that might criminalise works of literature. The examples already given have illustrated the absurdity of the clause. It should not be an answer to say, "Well, of course, all kinds of extraordinary things might be made unlawful by the Bill, but let us just pass this catch-all legislation and rely on the wise Attorney-General to ensure that only serious criminals face prosecution." I strongly urge against such an approach to legislation.
Throughout today, we should apply the test that the Government have applied when exhorting us all not to be soft on terrorism and to pass various other aspects of this legislation. If we are all fearful of the increased risk of terrorism—I suspect that we will face it for many years to come—we should ask of the proposals whether any sensible person would feel any safer if they were passed. That is the right test, and I would advise the most nervous of my fellow citizens, who lie awake at night worrying about the threat of terrorism, that they should not be deceived into thinking that clause 1 would make the slightest difference to their predicament. It is ridiculous and absurd, and it should never have been brought before us.
The Bill has been dragged together to give the impression of a dynamic and tough Government who are taking firm action in response to the recent outrages. If all they can produce to demonstrate firm action is this absurd legislation, the House has a duty to throw it out. If the Government begin the four days of proceedings on the Bill by defending such a provision, I fear what they will say when it comes to other significant elements within it.
I am grateful to be called to speak in this highly important debate on proposals that, if they were accepted without change, would threaten the very civil liberties that every Briton expects. I shall begin by making it clear that I believe that there is no excuse for terrorism. Terrorism is evil. Terrorists take the lives of innocent men, women and children. Terrorists maim and injure innocent men, women and children. There must never be any excuse for them and, when caught, they must face the severest punishment. There must be a war on terrorism so that we can continue to live in a free society without fear. We must be tough on terrorism. We must punish those who threaten the order of democracy and freedom in this country by undertaking terrorist activities. And if I thought for one minute that these clauses would reduce terrorism, I would vote for them—but I do not.
The question is whether the provisions would reduce terrorism or encourage it. In my opinion, an offence of encouragement and glorification of terrorism would encourage terrorism rather than reduce it. The provisions add nothing to the existing law that is in place to deal with terrorist suspects. These additions to the current terrorism legislation would do little or nothing that cannot be achieved by existing laws.
The proposed offence of encouragement and glorification of terrorism would restrict the freedom of speech that we have in this country. Moreover, this offence would further disillusion those people who are targets for terrorist propaganda—those groups in our communities who feel that they have been denied the opportunity of free speech on this issue. That could encourage them to support, rather than prevent them from supporting or even committing acts of terrorism.
If someone glorifies terrorism in any way, they could be charged under the current offence of incitement to commit an existing terrorist offence or—perhaps better—their comments could be exposed and dealt with freely in our society, which allows for argument and debate. What we as a country need to do is expose those people who glorify terrorism, and then present our arguments to them through the television, radio, newspapers, the internet and even in the local pub. Line by line, we should expose why their views on terrorism are wrong, flawed and evil. It is free speech, argument and leadership that win people over. It is regimes such as Stalin's, Hitler's and Saddam Hussein's that think that people can be won over by denying free speech. If Governments restrict people over what they can say, they tread a dangerous path indeed.
We have been here before. Mr. Adams, who appeared to be a spokesman for the IRA—undoubtedly terrorists—had his free speech restricted. We all remember the ridiculous occasions when he appeared on television with his voice dubbed by an actor because of the restrictions imposed by a previous Government. When we finally heard the real voice of the hon. Gentleman, it was less eloquent than that of the actor. But those restrictions succeeded only in giving credence to the IRA. Had we instead argued the case against his views, we would have exposed the IRA and not acted as a recruiting sergeant. Why have we not learnt from that episode? Trying to silence people in such circumstances does not work. It allows extreme minority arguments to grow out of proportion, and it plays into the hands of terrorists.
I would have preferred it if some practical solutions to the problems of countering terrorism had been included in the Bill. We have heard much talk about counter-terrorism methods through the law, but what exactly has been done in practice to improve security on the tube since
I was just trying to say that there are better ways to approach the issue than to attack the freedom of every person in this country to say what they feel. I do not understand how banning the glorification of terrorism will prevent terrorism. It plays into the hands of the people who want to do such things. That is an Alice-in-Wonderland approach—completely the wrong way round.
The provisions should be rejected for three reasons. First, they are unnecessary; there are laws already in place, so why create new ones? Secondly, they restrict the individual's freedom of speech. The third reason—to my mind, the main one—is the great danger that the provisions will encourage rather than reduce terrorism.
Order. Before I call the next speaker, it might help the Committee if I say that the winding-up speeches are likely to start at around five minutes past 3. Several hon. Members are seeking to catch my eye; they should bear the time constraints in mind when they speak. I call Mr. Llwyd.
I am obliged to you, Mr. Forth.
I rise to speak to amendments Nos. 62 and 63, both of which stand in my name and the names of my colleagues in Plaid Cymru and the Scottish National party. Picking up the remark made by Mr. Bone that we do not need new legislation, I shall go through the existing legislation.
By virtue of section 4 of the Offences against the Person Act 1861, it is already an offence to
"encourage, persuade, or endeavour to persuade . . . any person, to murder any other person".
Under section 8 of the Accessories and Abettors Act 1861, it is already an offence to counsel or procure any other person to commit any indictable offence. Under the common law it is an offence to solicit or incite another person to commit any indictable offence. Under section 59 of the Terrorism Act 2000, it is an offence to incite
"another person to commit an act of terrorism wholly or partly outside the United Kingdom".
Under section 1A of the Criminal Law Act 1977, it is an offence to conspire with others to commit offences outside the United Kingdom. Under section 12 of the Terrorism Act 2000, it is an offence to invite support for a proscribed terrorist organisation.
Taking into account that raft of existing legislation, my firm belief is that we do not need new legislation. It would be far better to enforce the current law properly. The knee-jerk reaction of the present Government is always to create a new offence.
I believe that, under existing legislation, inviting support for a proscribed terrorist organisation is an offence, as is conspiring with others to commit offences outside the United Kingdom and inciting another person to commit an act of terrorism wholly or partly outside the UK.
This an important point. A host of speakers have suggested that the Bill will create a new problem by widening the remit, but the hon. Gentleman is arguing that the powers already exist. Is the hon. Gentleman countering the point made by those other speakers?
The problem with the Bill is that it widens the remit and lowers the threshold of proof. "Conspire", "incite", "solicit" and "invite" are legally definable words, with specific intent attached. In clause 1, however, we have a mish-mash whereby someone could find him or herself in prison for seven years for negligently having supported some form of terrorism in the past. The National Library of Wales is extremely concerned about scholars there writing about acts of alleged terrorism in days gone by, because those treatises and scholarly works may well be caught up in this ridiculous, uncalled for Bill.
Does the hon. Gentleman agree that Labour Members fail to understand the Opposition parties' view that the clauses are dangerous, and is not his point that they are also unnecessary?
They are unnecessary, but if we are to have them, for heaven's sake, let us have a proper legal basis for the offence. We should adopt the traditional route of mens rea—a guilty mind. At the very least, there should be the intent to commit an offence, rather than stumbling into it. On that point, I pray in aid of my amendments, which would introduce a requirement of intent and replace "are likely to" with "will", a letter of support from the Law Society of Scotland, which came to me via my good friend Angus Robertson. Mr. Salmond asked why there is a difference between clause 1, which refers to what members of the public "will" understand, and other clauses, which refer to what they are "likely to" understand. I have not heard his question answered by a Government Member.
All the amendments in the group row in the same direction. My hon. Friends and I do not intend to press our amendments, because their purport is covered by other amendments, not least the ones tabled by Mr. Marshall-Andrews.
We have been drawn into the Bill—I shall not say dishonestly, because that would be unparliamentary, but let me say that we have been drawn into it slowly but surely by the Home Secretary. On
"indirect incitement, when it is done with the intention of inciting others to commit acts of terrorism—that is an important qualification—will become a criminal offence."—[Hansard, 20 July 2005; Vol. 436, c. 1254.]
That is, more or less, where the argument has focused today. On
"the offender must have also intended to incite further acts of terror".
The requirement that a person can be guilty of encouraging terrorism only when they intend to encourage further acts of terror is also found in article 5 of the Council of Europe convention on the prevention of terrorism, which requires signatories to criminalise
"the distribution, or otherwise making available of a message to the public, with the intent to incite the commission of a terrorist offence."
The explanatory notes state that clause 1
"has been introduced to implement the requirements of Article 5 of the Council of Europe Convention for the Prevention of Terrorism", but as drafted, the clause contains no such requirement on the prosecution to prove that the accused intended to incite or encourage further acts of terrorism. Under the clause, it is sufficient that a defendant merely had "reasonable grounds" to believe that another member of the public, however unreasonable that hypothetical person may be, might understand his or her words as a direct or indirect encouragement to prepare, commit or even instigate an act of terrorism.
I am saddened by the fact that we are debating the Bill today. Such a Bill does nothing for Parliament. Only a few months ago, Parliament sought to criminalise Brian Haw, the protester who sits outside Parliament—and a right dog's breakfast Parliament made of that. Given the curtailing of every debate in this place, it is no wonder that we have been making rotten law. Rotten law is one thing, but a law that might criminalise and imprison a person for seven years for saying, without thinking about committing or intending to commit an offence, something that might be offensive is more than rotten: it is undesirable and insidious, as well. I am embarrassed by the whole process and I do not think that we would have slipped into this sort of debate 10 years ago.
The Government want to act tough. Every time, they react by creating a new offence. Earlier today in Prime Minister's questions, I referred to 700 criminal offences that have been introduced—seven per month, or almost two a week. That is ridiculous, and of all the new offences, the ones set out in the first clauses of this Bill will be the worst. If the hon. and learned Member for Medway presses his amendment, I hope that many hon. Members on both sides of the Committee will vote in favour of it, because he is absolutely right. We should appreciate the fact that he speaks from experience and vote accordingly.
Throughout this debate we need to focus our minds on the problem that we are trying to solve; otherwise, we shall get into an abstract debate about the legislation. Despite the argument that some right hon. and hon. Members have made that there is no case for any change in the law, I think that there is broad agreement across the Committee that there is a particular problem that we are anxious to tackle, and that if current legislation is not satisfactory, we need in principle to consider new legislation. That particular problem is the role played by those who are attempting as we speak to draw young people in this country into active involvement in terrorist activity of the sort that we saw in London in July. There is a reasonable case for saying that in practice we have found existing legislation inadequate to deal with that, and that we should introduce new legislation. I hope that the Government will today recognise the extent to which the willingness to consider new legislation is accepted on both sides of the Committee, and therefore accept the strength of criticism of the way in which they have gone about trying to legislate for that change.
There are a number of real problems with the legislation. At the end of the day, the test of it will be whether the number of young people in this country brought into terrorism is reduced by at least one. The test is not one of elegance or of accord with international treaties. We have some problems, because we know relatively little about the path that is followed by a person who ends up becoming a suicide bomber. We believe that the radical extremist preachers or agitators play a role in that process, but we are not quite clear what role they play and what other processes those young people undergo before becoming suicide bombers. One thing we do know, though, from the Home Office/Foreign Office assessment of young Muslims in extremism which was leaked a few months ago is that one of the motivating factors is a belief that our laws are not even-handed—that they are biased; that they betray double standards.
If we pass the Bill in its current form, to give any active encouragement directly or indirectly to, for example, the resistance in Chechnya—not all of those involved are the murderers of Beslan; a variety of groups are involved—would clearly be an offence. However, it would be perfectly legal in this country to stand up and say, "The problem with the Russians in Chechnya is that they haven't yet killed enough Chechens." There would be no bar on saying that or indeed on urging the Russian Government to kill more Chechens. That seems to represent a lack of symmetry in the law, which is uncomfortable.
That is not a debating point. Such an imbalance in the law is exactly what is exploited in every community. Every single one of us who has ever sat down with Muslims in our communities who are not terrorists has heard them say that the trouble is that there are double standards. The Government's decision to entrench those double standards further is very dangerous, as is the reliance on the Director of Public Prosecutions. We have all chucked around fantasy cases such as prosecution of the President of the United States, but the truth is that such cases will not arise. Cases will be brought only when the Director of Public Prosecutions or the Attorney-General decides politically which type of agitation we wish to prosecute.
That is very different from the role played by another controversial Bill, the Racial and Religious Hatred Bill, under which, as Mr. Clarke was saying, we are asking law officers to set a threshold of seriousness below which trivial cases will not be prosecuted. This Bill is not about a threshold of seriousness. It is about asking the DPP or the Attorney-General to make a political choice about which type of encouragement to violence we wish to prosecute and which we do not. My concern is not so much how many cases will come before the courts, because there will be very few, if any, but the way in which that will be presented in the country by those who are trying to draw our young people into terrorist activity.
A case could be made for dropping the entire exercise of clause 1 and related clauses. I am reluctant to do that. I am persuaded that there is a case for setting some standard or limit on what can be said in these areas that is clearly and demonstrably supportable, but it must be based on the problem that we are trying to tackle and solve. That problem is not animal rights extremism or the Provisional IRA—we did not have the Act when the Provisional IRA was setting off bombs, but the Home Secretary retrospectively sought to use that as a justification for these clauses—but al-Qaeda's type of terrorism and in particular its wilful use of the slaughter of civilians as a tactic.
I shall not test your patience, Mr. Forth, by going into the debate that we will have tomorrow on the test of terrorism, but we have two problems with the clauses that we need to consider together: first, the threshold for prosecution is too low; and secondly, the definition of terrorism is too broad. The Government need to indicate clearly a willingness to deal with both those matters.
The case put by Mr. Grieve about qualifying an absolute dependence on intent with the concept of reckless indifference has quite a lot to commend it. There is a serious issue with an intent-only test failing to get prosecutions in circumstances where most people would think that that would be reasonable. I hope that the Government will indicate some willingness to look seriously at that. The case has been well made that if juries are capable of judging whether someone has shown encouragement or inducement, or has negligently encouraged terrorism, they do not need the guidance of the clause on the glorification of terrorism. Juries are capable of working it out for themselves or they are not.
We need to be clear that the test is not whether people like us are offended or scared by people whom we see interviewed on "Newsnight". That is not the test or the purpose of this legislation; it is whether we prevent any young people from being drawn into terrorism. My fear is that, as currently drafted, the clauses are likely to make things worse rather than better.
I shall speak to amendments Nos. 97, 95 and 96, which are in my name, and wish to do so in the context of the Home Secretary's declaration on the front of the Bill that, in his view, its provisions are compatible with the European convention on human rights.
I am a member of the Joint Committee on Human Rights. We will no doubt produce a report on this issue, and I do not claim that my views are those of the Committee, but we have heard a great deal of evidence and opinion on whether the measures in the Bill—particularly clause 1—are compatible. I want to give the Committee some information with which I agree and which suggests that they are not compatible.
The Government claim that clause 1 seeks to implement article 5 of the European convention on the prevention of terrorism, which they signed on
"The offence has been introduced to implement the requirements of Article 5 of the Council of Europe Convention for the Prevention of Terrorism . . . This requires State parties to have an offence of 'public provocation to commit a terrorist offence'. This new offence supplements the existing common law offence of incitement to commit an offence."
In fact, article 5 does not end at that point. It is headed "Article 5—Public provocation to commit a terrorist offence" and continues:
"For the purposes of this Convention, 'public provocation to commit a terrorist offence' means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed."
It is critical that we understand the difference between the wording of the article that the Government seek to implement and the wording of clause 1. Article 5 clearly requires specific intent, which we have discussed, whereas under clause 1 it is sufficient for the perpetrator to have "reasonable grounds" for believing that
"members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences."
My amendments are distinct from other amendments in the group, because they require the intended outcome as the commission of a terrorist offence, not just its preparation or instigation. To borrow the wording of article 5, they deal with an act that
"causes a danger that one or more such offences may be committed".
In his evidence to the Joint Committee, the Home Secretary made it clear that the clause will apply not just to so-called Islamic terrorists but to animal rights terrorists. I urge Mr. Denham to bear that in mind. My constituency is plagued by animal rights terrorism, and people who defend animal rights make the point that violence begets violence, so violence against animals warrants a response. They believe that research laboratories are either a legitimate target for action or—this would be a lesser incitement—places of torture and that it is therefore legitimate to damage them. I clearly do not support such statements, but the Committee should bear it in mind that, according to the Home Secretary's declaration, the Bill is intended to cover that general incitement.
In arguing that the Bill does not comply with the European convention on human rights we should remember how much store the European Court sets by its case law and jurisprudence on freedom of speech, particularly article 10.2 of the ECHR. In paragraph 2 of its ruling on the case of Ceylan v. Turkey it said:
"Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment."
Consequently, any proposed restrictions must be subjected to close scrutiny to determine whether the measure is both necessary and proportionate, and complies with the grounds on which the right may be limited under article 10.2.
On the questions of necessity, clarity and intention, clause 1 fails the test, as it does on the issue of using the right words for the danger of causing someone to commit a terrorist offence. It therefore falls short of our duty to comply with the ECHR. In a recent case, el-Faisal used language that, the Government would accept, should be caught. He was convicted under existing law of a number of offences, including solicitation to murder under section 4 of the Offences against the Person Act 1861, as Mr. Llwyd said. That provision is likely to be used in a current sub judice case. The question of whether clause 1 is necessary is therefore key.
There are problems with intention, and I shall not repeat what has been said. However, the minimum requirement is that the clause should provide for intention. As for the causal link with violence, clause 1 merely requires that "members of the public" to whom a statement is published are likely to understand it as "encouragement" to undertake terrorist acts. There is no requirement to show that anyone is, in fact, encouraged by the statement, and causality is further attenuated because members of the public can include anyone in the world, depending on the way in which the statement is published. There are therefore concerns that the provision is too wide to fulfil our obligations. Paragraph 100 of the explanatory notes to the Council of Europe's convention on the prevention of terrorism states that
"the result of such an act must be to cause a danger that such an offence might be committed. When considering whether such danger is caused, the nature of the author and of the addressee of the message, as well as the context in which the offence is committed shall be taken into account in the sense established by the case-law of the European Court of Human Rights. The significance and credible nature of the danger should be considered when applying this provision in accordance with the requirements of domestic law."
No such provision appears in the Bill, so amendments Nos. 97, 95 and 96 seek to introduce one. Will the Minister for Policing, Security and Community Safety explain why she has not used the wording of the convention on the prevention of terrorism? Does she believe that it is equivalent to the wording of the Bill? No one who gave evidence to the Joint Committee thought that it was, and the wording of the clause is wider than the wording of the convention.
Finally, are we talking about what is know as an "apologie du terrorisme" in European case law? The language of the convention avoids such terms and phraseology, and there is no evidence that such terminology should be included. Is it right for the Government to use terms that many people deem equivalent to such language? Justice says that if clause 1 is not to breach the right to free expression under article 10.2 of the ECHR, a court would have to agree that the restrictions that it imposes on free expression are made in pursuance of a legitimate aim. I accept that the Government are pursuing a legitimate aim in the clause, but we must consider whether they strike a fair balance between the fundamental right to fair expression and a proportionate attempt to pursue their aim. My view—and I fear that this may well be happen if the clause is passed unamended—is that the European court will not find that to be the case, so I urge the Minister to clarify the thinking behind the provision.
I urge the Committee to support my amendments, as we must make sure that we protect freedom of speech. We should recognise that the Government have a legitimate aim, but it must be balanced by other rights. The amendments achieve that, but the clause does not.
I speak as the Member for Holborn and St. Pancras, where two of the four outrages on
For me, as for everyone in the Chamber, it is not a question of whether we try to counter terrorism but of how best we try to do so. It is worth remembering that no mature democracy has ever been overthrown by terrorism—not a single one. The misguided individuals directly involved in terrorism may believe that they can achieve that, but the people behind them, who want to cause us to bring our institutions into disrepute, do not. One of our great claims is that, broadly speaking, we have an open society in which people can say what they think. Rightly, we have constraints on that, and incitement to violence by word of mouth or by written material is already an offence. There is therefore no need to introduce an additional clause. It is unnecessary, but if it were introduced it would be exploited by the people behind the terrorists, to illustrate that we are a set of canting hypocrites whose laws are not even-handed and involve double standards in their application.
We must remember that if we want to make sure that we minimise the possible sympathisers with terrorists currently in our country, we must convince those people that they are full-blown British citizens with the same rights as everyone else, and that they are not likely to be discriminated against by the police, through the laws or in any other way. If we pass the clause as drafted, we will be doing just that and doing what the enemies of our decent standards want us to do.
As a member of the anti-apartheid movement all my adult life, I contributed money, organised meetings and went on marches. I am proud to say that when I was in South Africa a few years ago and somebody attempted to introduce me to a member of President Mandela's first Cabinet, they responded, "It's all right—I know Frank. I slept on his floor when I was in exile." I would have been caught by the new law. If I were caught by the law for supporting the anti-apartheid movement in South Africa, it would be a very bad law.
The case has been made from all parts of the Committee that the glorification provision should be eliminated from the Bill. Little more needs to be said, save that what was left in the Bill if it were taken out would provide a reasonable basis on which prosecutions could take place. By keeping glorification in the Bill, we merely make the provisions of clause 1 indefensible.
There is another issue, which I touched on in relation to the Catholic martyrs of the 16th century. In the context of Islamic fundamentalism, there is the question of glorification, its relationship to martyrdom and the connection between Islam and politics. As Gandhi once said, those who do not understand the connection between religion and politics do not understand what religion is all about. In relation to the criminal law of terrorism, it is extremely dangerous for us to get into the difficulties inherent in mixing up the glorification of acts that are themselves connected with a religious view of life.
I refer to one or two cases in which the argument for removing the glorification provision is well made. In the trial of Tom Paine for publication of "Rights of Man" in 1792 and ever since then, English law has never penalised those who praised conduct that would be described as deplorable. Instead, we have convicted those whose language, by intention or foreseeable effect, leads to the commission of violence or disorder.
That principle was applied in the case of Rex v. Caunt in 1947 in a decision by Mr. Justice Birkett. In that case, the editor of a local Morecambe newspaper was prosecuted for seditious libel, alleged to have been committed when he published an anti-Semitic article after the public hanging in Palestine of two young British sergeants. In many respects the article was no less provocative than some of the broadcasts that we have heard recently on the BBC and other channels, but Mr. Justice Birkett advised the jury that they could not return a verdict of guilty on the ground that the editor's intention was to provoke merely hostility or ill-will between Jews and non-Jews—more was required. Mr. Justice Birkett said that
"sedition has always had implicit in the word public disorder, tumult, insurrections or matters of that kind".
The gentleman in question was acquitted when the jury returned a verdict of not guilty.
The principle that Mr. Justice Birkett applied was sound. If we include the glorification provision, we will create a new crime of uncertain definition, which will be thoroughly counter-productive.
I know you want me to be brief, Mr. Forth, and I will be. In any event, I had the good fortune to speak in the Second Reading debate.
I find myself in total agreement with Frank Dobson. His criticisms of the Bill, and especially of the clause, are shared widely among hon. Members. I suspect that the Government will be alarmed by the fact that in this afternoon's debate not one voice has been raised in favour of the Government's position.
Mr. Denham posed the right questions for the Committee to address: first, is the threshold of the Bill too low; secondly, is the definition of terrorism too broad; and, thirdly, will it prevent anybody from being drawn into terrorism? When we consider the amendments, we should address precisely those questions. I share the right hon. Gentleman's view, so I support the amendments tabled by Mr. Marshall-Andrews and by my hon. Friend Mr. Grieve.
As for whether the threshold is too low, I say it is manifestly so. There ought to be the specific intent referred to by the hon. and learned Member for Medway. The glorification clause set out in subsection (2) should be struck out because it goes far, far too wide and would penalise many statements made by hon. Members over many years in many different circumstances.
I am well aware that we will address the second question—the broadness of the definition—in some detail tomorrow. Suffice it to say that I find it extraordinary that we are not making allowance for acts that many people would characterise as those of freedom fighters. It is bizarre, as I observed to Alan Simpson, that it is legitimate for the Government to go to war against Iraq to procure regime change, yet if we had urged the citizens of Iraq—as we did, incidentally, in the first Gulf war—to rise up against the regime of Saddam Hussein, we would have been committing an offence under the Bill.
My final point addresses the last point made by the right hon. Member for Southampton, Itchen: will the Bill prevent anybody from being drawn into terrorism? I believe not, because I think it will create martyrs. However, we must consider the proportionality of the response. If a catch-all provision of the kind contemplated in clause 1 and in particular in subsection (2) also renders unlawful many acts that in all conscience should never be treated as unlawful, even if it did prevent one person from being drawn into terrorism, it would be wrong.
Even if it is true, as I acknowledge, that the filter of the Director of Public Prosecutions and the Attorney-General is available in appropriate cases—which will prevent prosecutions in the majority of cases, as I said before—nevertheless, the fear of prosecution will be a real check on free speech. Societies that undermine free speech are beginning to destroy the process by which they remain democratic. We go down that road at our peril.
I have listened carefully to all the contributions to this afternoon's debate, which has been fascinating, although we strayed into existential philosophy at one point. I will do my best to answer the serious points about the threshold, the requirements for offences and the safeguards to protect people from inappropriate prosecutions.
I want to discuss the framing of clause 1. In framing the Bill, we have been very conscious of our obligation to our partners in the Council of Europe. In order to ratify the Council of Europe convention on the prevention of terrorism, we must create an offence of incitement to terrorism, whether direct or indirect. Several hon. Members, including Mr. Llwyd and Mr. Clarke, have said that existing laws are sufficient because we have sufficient powers on the statute book to achieve our objective. There is an offence of directly inciting people to murder, but there is no offence of directly inciting people to terrorist acts. In other words, there is an offence of direct incitement to get someone to do a specific thing, but we do not have an indirect incitement offence, and in order to ratify the Council of Europe convention, we must introduce one.
I am pleased that Mr. Grieve has said that he supports indirect incitement becoming a criminal offence. Opposition Members are clearly divided on the matter, as are hon. Members on both sides of the Committee. Some hon. Members genuinely think that we should have on the statute book an offence of indirect incitement in accordance with our convention obligations and our international obligations—in those terms, it would be an offence of public provocation, and in terms of the UN Security Council resolution, it would be an offence of glorification. To those hon. Members who do not believe that we need an offence of indirect incitement, I say that the Government believe that such an offence is necessary. We will discuss glorification, but we must have an offence of indirect incitement.
I shall deal with that issue in detail and hope to convince hon. Members that it is a matter not of ignoring the convention, but trying to get a practical law that actually works. I am interested in the matter, despite our forays into existential philosophy.
I will give way to the hon. Gentleman, but I am disappointed that he has not been in Committee for the whole debate. Today, we have had a really good argument, which I have followed from the beginning. It is important to develop arguments in Committee, so I will be disappointed if he does not make a serious point.
The Minister is most unfair, because I have sat through 95 per cent. of this afternoon's proceedings. I may have been inconspicuous. If what Cherie Blair said would not be criminalised under clause 1, will the Minister provide a single, concrete example of indirect incitement to terrorism that would be criminalised and that would not be caught by existing statute?
The hon. Gentleman is a very conspicuous character, so if he had been in Committee for 95 per cent. of the debate, I would have noticed. I will come to the comments that have been made about various people's statements—for example, my hon. and learned Friend Mr. Marshall-Andrews raised that very issue. It is invidious for Ministers to stand at the Dispatch Box and say what is criminal and what is not, because those are matters for the courts to decide.
There are very serious concerns whether people can say, "Wasn't it fantastic what happened on
It is already an offence directly to incite a person to commit a specific act of terrorism. What is not an offence is to incite people to engage in terrorist activities generally or to incite them obliquely by creating a climate in which they may come to believe that terrorist acts are acceptable, and we are trying to close that gap. I take the point made by my right hon. Friend Mr. Denham that we must get our legislation into such a shape that we can target particular kinds of mischief. I shall address some of his serious points about intention and the threshold, because I am interested in introducing practical, effective and workable legislation that protects the citizens of this country, and I know that he shares my aim.
John Bercow raised the question of the difference between freedom fighters and terrorists several times on Second Reading, and I know that he feels strongly about the matter. I am genuinely surprised that he has not tabled an amendment seeking to define "freedom fighter", although he may find it difficult to construct such a formulation. It is too late for him to table an amendment, but no doubt he will participate in tomorrow's debate on the definition of terrorism.
It is difficult to draw the line on what people may or may not do. Nothing in the Bill will prevent people from holding, expressing or disseminating the view that using violence for political ends is legitimate in certain regimes. I have some difficulty with that argument, because I think it wrong to encourage people to kill and murder others in such circumstances. The Bill will not affect the ability to say that people who are fighting oppression should be supported. It will prevent people saying such things, when they know, believe or have reasonable grounds for believing that the people to whom they are speaking are likely to see such remarks as an inducement or encouragement to emulate that behaviour. The legislation is precise, and it is targeted at people who know that when they say such things, they might not incite people to a specific terrorist act, but they are creating a climate in which resorting to terrorism is seen as a valid response. The definition in clause 1 is tight.
We have heard some examples today where it was implied that somebody expressing sympathy and understanding for how somebody becomes a terrorist would be caught in the same way as somebody who glorifies and extols terrorism and who incites people to become terrorists. There is a substantive difference between those two approaches. Does the Minister think that the Bill encapsulates that difference?
We have heard some fanciful suggestions this afternoon—historians writing about the 19th-century struggle in Ireland, those who celebrate the Easter rising and African scholars who write about the Mau Mau in Kenya. I say to the hon. Members who have raised those issues that the Bill does not cover such areas. We are discussing people who make statements knowing or believing that the people to whom they are speaking want to emulate terrorist acts.
I will not give way to the hon. Gentleman, who will have the opportunity to wind up the debate.
If my right hon. Friend thinks that there is an easy distinction to be drawn in the manner suggested by my hon. Friend Mr. Bailey, will she take her mind back to what was referred to on Second Reading as the Jenny Tonge test, which she said would not be caught by this Bill? I took the liberty of looking at the BBC website reports around the time that that was said, and it had 12 pages of people suggesting that that was an encouragement to terrorism. There was also a Member of this House—I will not name the person—
I will not name the Member because she is not here. She said:
"It recognises that her statement was irresponsible and gave the green light to terrorism."
Does not that show that there is no easy distinction to be drawn, which is why the clause is so dangerous?
I do not accept what my hon. Friend says.
Let me turn the safeguards in the Bill.
I will not give way to the hon. Gentleman.
I want to deal with the points made by my hon. and learned Friend the Member for Medway.
On a point of order, Mr. Forth. I believe that the Minister, whether intentionally or not, has misled the Committee.
In everything that I have said so far I have referred to "knows or believes" or "has reasonable grounds for believing." If I did not do so at that particular point, it is not because I was seeking to ignore that provision.
My hon. and learned Friend the Member for Medway asked whether the statement by Cherie Blair would fall into that category. There are six tests: first, whether somebody knew or believed, or had reasonable grounds for believing; secondly, the likely effect; thirdly, the context under subsection (3); fourthly, whether there is a reasonable prospect of conviction; fifthly, whether it is in the public interest; and sixthly, whether the director of public prosecutions gives his consent. Those are six safeguards, or hurdles, to try to ensure that we are absolutely targeted at the mischief that we are dealing with. Several hon. Members said that I seek to rely only on the consent of the DPP, but clearly I do not. A range of safeguards and requirements need to be fulfilled in order for the offence to be completed.
The atmosphere must have somehow spoiled the right hon. Lady's judgment. Although I do not take it too personally, she upbraids me for failing to table an amendment on the distinction between a freedom fighter and a terrorist. First, I am content with the very well crafted amendment No. 69 to clause 20, tabled in the name of Mr. Denham, the Chairman of the Home Affairs Committee and, secondly, I identify myself with the sentiments expressed in amendment No. 75 to clause 33. Why does the Minister think that there is something wrong about approving of, or providing succour to, those who favour violent action against an illegitimate state rather than against civilians?
I do not accept that the matter is as clear-cut as the hon. Gentleman would like to portray it. He will know that if people seek to attack the apparatus of the state, they could well injure innocent civilians in the neighbourhood. If someone attacked a state railway, an innocent person could be involved. From day one, he has sought to portray this as black and white, with very clear distinctions. This is complex legislation in which we are trying to ensure that we deal with complex situations. I respect the hon. Gentleman, who holds these views very strongly, but he will understand that complexity. Simply to say, "Freedom fighter or terrorist?" is an over-simplification of the complex international issues that we find ourselves having to deal with in this modern world, with the modern version of terrorism that we are seeking to combat.
The Minister is as close we have got so far to an explanation of why the Cherie Blair remark would not be caught by the Bill. I should make it clear that I am not singling out the Prime Minister's wife. I do not agree with her sentiments, but I would strongly defend her freedom to utter them. The Minister rattled through, perfectly accurately, the six tests that have to be satisfied. Can she indicate which of those would be failed for the purposes of prosecuting the Prime Minister's wife? The Cherie Blair remark seems to satisfy the tests that she trotted off.
Not at all. I do not propose to repeat myself; I have enough points to make already. I am surprised that the right hon. and learned Gentleman is at variance with his own Front Benchers, in that he does not support the offence of indirect incitement that they have said would be a useful addition to our law to catch people who make such statements.
No, because I want to talk about intent.
Clause 1 provides in essence that encouragement is committed if a person makes a statement to people who are likely to understand it as an inducement to carry out terrorist acts. A person does that, first, if he knows or believes that the effects of his remarks on his audience are likely to be that they will understand them in that way. I do not think that anybody could object to that; indeed, I do not think that Opposition Front Benchers object to it. I would say to the hon. Member for Beaconsfield that the phraseology, "knows or believes", embraces the concept of recklessness that features in amendments Nos. 79, 2 and 6. That is absolutely right, because the law on recklessness was reviewed in the case of R v. G last year. There is now a subjective test of whether the defendant knew of the risk and, if he did, nonetheless unreasonably took it. The point about recklessness is covered in the legislation.
The second set of circumstances in which a person can commit the offence—this is subject to more debate—is where he has reasonable grounds for believing that the effect of his remarks on his audience is likely to be that they will understand them as an encouragement to commit acts of terrorism. That imports an objective test of his belief. From what Members have said, one could think that this is a completely novel formulation in this Bill, but it is not. In fact, a change was recently introduced in the offence of rape whereby there is an objective assessment of somebody's belief. The person is no longer able to say, "I believed there was consent"; the test is whether he had reasonable grounds for believing in that consent. That is an objective test. There is also precedent in relation to money laundering offences in the Proceeds of Crime Act 2002. Such tests have been introduced in various areas.
I point out to my right hon. Friend the Member for Southampton, Itchen and other Members that I know that there is concern about including intent in the convention offences, and recklessness—it is right to include that and it has support—as well as whether we move further, to the possibility of negligence and whether the offence could be carelessly committed. Some of those points have legitimacy and I want to look at them carefully, but I want an offence where we can prosecute people who create a climate within which people feel that terrorist action is a valid response to their concerns.
I want to look carefully at those points but I am absolutely determined that we ensure that we have an offence on which we can prosecute. For too long, we have not had such provisions on our statute book, which has meant that people can get away with saying the kind of things that we have all heard, and which concern our constituents, without our being able to prosecute.
It took a moment to follow the Minister's argument but, if I understand her, she is conceding that, as drafted, the offence goes beyond recklessness and could be committed negligently. I should be grateful if she would confirm that, as it heightens and crystallises my anxieties about the measure.
I am not prepared to say that I think that it goes as far as negligently. It includes recklessness, and clearly includes intent. The provision also includes the objective assessment of "reasonable grounds" for belief, which has precedents in our sexual offences law and other laws, so the formulation is not novel in those terms. I shall not say that it goes as far as negligently but I am prepared to say, especially to my right hon. Friend the Member for Southampton, Itchen, that there are legitimate concerns and I shall continue to discuss the issue with him and people who share those concerns.
My right hon. Friend is possibly aware that I had been contemplating voting against the Government for only the second time in 13 years, so I am grateful for the indication that she is, if I understand her, willing to look again at the wording of the clause. That is welcome, but I must tell her in all seriousness that if Members who follow her lead on that today find that we are confronted with exactly the same wording on Report it would be a somewhat unsatisfactory outcome, given what she has just said.
I entirely take my right hon. Friend's point. That is not my intention. My intention is to engage constructively and in a proper fashion on those issues.
I have very little time and I want to turn to the amendments proposed by Dr. Harris and his suggestion that there should be an extra requirement that something that caused a danger that a terrorist act or a convention offence would be committed should be an offence. That would place an impossible burden on the prosecution, as it would have to show that a real danger that a terrorist act would be carried out had been caused. That relates to the audience; we should be aiming our legislation at the person making the statements, not at the audience. I ask him to think carefully about that as the amendment would impose a burden.
No, I want to make my final point.
"In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context."
The provision is neither absurd nor ridiculous; it is a genuine attempt to deal with a real mischief in our communities.
The debate has indeed been fascinating, but the Minister seemed to illustrate the muddled thinking from which the Government are suffering when it crystallised around what a freedom fighter and a terrorist might be. The description that she provided for the Committee was that if an Iraqi had stood up at a public meeting in the middle of the 1990s, or indeed in 1998, and said that conditions in Iraq were such that the violent overthrow of Saddam Hussein was necessary and that people should take active steps towards it—a policy that at the time was at least tacitly supported by the Labour Government of the late 1990s, when some military action was being taken against the Iraqis by the use of air strikes—that person would now be committing a criminal offence. That may be a new Blairite doctrine. I do not know, because the Prime Minister has said on several occasions that the rules of the game have changed. However, if that is the case, we need a proper debate about it, because the Government are introducing that offence by the back door.
I appreciate that we shall have an opportunity tomorrow to consider definitions of terrorism, but at present terrorism is undefined, except by our domestic circumstance, and the Government, by passing the Bill and clause 1, will without the slightest doubt criminalise those who even negligently call for action to be taken in such circumstances. We can see that from the debate. For the Minister to come to the Committee and ask us to approve that is breathtaking.
We said at the outset that we want to work constructively with the Government, but we are in Committee and, apart from Report, this is our last opportunity to do something about clause 1.
I am glad that the Minister said that she will consider the problem of the wording of clause 1 and whether the negligence extension is justified. However, she has known about Members' anxieties for some time, yet no concrete proposals have been presented to us this afternoon to solve or remedy the problem. That makes my life—and that of any hon. Member who wants to provide some broad support for the Government's aims but is anxious about the detail—difficult. Those points were well made in the debate by my right hon. and learned Friend Mr. Clarke and my hon. Friend Mr. Bone. As Mr. Denham said, if we get it wrong, we will make things worse.
I listened carefully to the comments of the right hon. Member for Southampton, Itchen in a debate on terrorism and community cohesion in Westminster Hall last week. From my experience of contact with the Muslim community in Britain, I agreed with almost everything he said. It is worrying that, at this stage of our proceedings, the problem remains and the clause is so poorly drafted.
If the Minister intends to make a concession, why cannot she accept amendment No. 79? It takes the first necessary step. Two more steps are needed—one relates to terrorism and the other to glorification—to make the Bill workable and fair. We need a tight recklessness test on specific intent, not the existing loose, opaque and wide-ranging catch-all provision. I regret that it has taken a long debate to extract from the Government just how wide-ranging the clause is intended to be. Any hon. Member who is considering what to do this afternoon should bear it in mind that clause 1 criminalises negligence. On the whole, we are reluctant to do that in this country.
I am sorry to tell the Minister that I shall seek to press amendment No. 79 to a vote. I invite all hon. Members who are worried about the wording to join me in trying to get it improved. No one can claim that amendment No. 79 would wreck the Bill—it would do no such thing. It leaves clause 1 in a perfectly workable condition but makes it clear that the offence of encouragement cannot be committed by negligence.
The other matters that we have considered include the provisions relating to glorification. The Minister has not provided a single justification for keeping those provisions in the Bill. As was rightly said in the debate, the concept of glorification is alien to our legal system. Why retain it when it will cause the endless problems that the right hon. Member for Southampton, Itchen highlighted? It could easily be removed, leaving a perfectly workable clause. Again, nobody can claim that we would wreck the clause. I therefore hope that, after we have voted on amendment No. 79, we will have the opportunity to vote on amendment No. 4, which would ensure the removal of the subsection relating to glorification.
I am conscious that the hon. and learned Member for Medway (Mr. Marshall-Andrews) has also tabled well-reasoned amendments, which he presented with his usual cogency, that seek to restrict the operation and scope of the Bill. On that basis, if we are unsuccessful on amendment No. 79, I shall have no hesitation in supporting the hon. and learned Gentleman if he chooses to move amendments Nos. 21 or 22, although I suspect that he will not be allowed to move both of them. Their purpose is to restrict the offence to one of specific intent only. I would much prefer to see the Bill in that shape at the end of this afternoon than in the incoherent and, frankly, frightening shape in which the Government have left it.
The Minister and I agree that the basic intention behind the Bill is to ensure that terrorism is curbed, and that those who might be encouraged to engage in it should be discouraged from doing so. However, as the Minister knows from other debates that we have had on these issues, the best way of doing that is to persuade the communities from which terrorists are drawn that they should not succumb to their blandishments, and that it is better to achieve that by voluntary means than by coercion. Clause 1 has a coercive quality, particularly in relation to glorification, that goes well beyond the point to which it should go. For those reasons, I urge the Government to think again on this matter. If they do not, they will find themselves being increasingly obstructed as the Bill progresses. If they would only listen, we could make some progress.
Question accordingly negatived.
The Chairman then proceeded to put the Questions necessary to dispose of the business to be concluded at that hour.
Amendment proposed: No. 22, page 1, line 14, at end insert
'and intends that his statement shall have that effect'.— [Mr. Marshall-Andrews.]
Question put, That the amendment be made:—
The Committee divided: Ayes 299, Noes 300.