I beg to move amendment No. 34, in page 1, line 5, leave out subsection (1) and insert—
'(A1) This section applies to a statement that is likely to be understood by members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.
(1) A person commits an offence if—
(a) he publishes a statement to which this section applies or causes another to publish such a statement on his behalf; and
(b) at the time he does so, he intends the statement to be understood as mentioned in subsection (A1) or is reckless as to whether or not it is likely to be so understood.
(1A) For the purposes of this section the cases in which a person is to be taken as reckless as to whether a statement is likely to be understood as mentioned in subsection (A1) include any case in which he could not reasonably have failed to be aware of that likelihood.'.
With this it will be convenient to discuss the following amendments: No. 19, in page 1, line 5, leave out subsection (1) and insert—
'(A1) This section applies to a statement that is likely to be understood by members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences.
(1) A person commits an offence if—
(a) he publishes a statement to which this section applies or causes another to publish such a statement on his behalf; and
(b) at the time he does so, he intends the statement to be understood as mentioned in subsection (A1) or is reckless as to whether or not it is likely to be so understood.
No. 14, in page 1, line 6, leave out from 'statement' to end of line 7 on page 2 and insert
', which may include the glorification of the commission or preparation (whether in the past, in the future or generally) of acts of terrorism or Convention offences, or causes another to publish a statement on his behalf; and
(b) at the time he does so he—
(i) knows or believes that members of the public to whom the statement is addressed or is to be published will, or
(ii) is recklessly indifferent to the likelihood that such persons would, understand it as a direct or indirect encouragement or inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.'.
No. 2, 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.'.
No. 21, in page 1, line 9, leave out from 'believes' to end of line 10.
No. 64, in page 1, line 14, at end insert
(i) he intends that the statement will have that effect, or
(ii) he is reckless as to whether the statement will have that effect upon reasonable members of the public.'.
Government amendments Nos. 35 to 43, 49 and 50.
The amendments respond to points that were raised in Committee and seek to allay some of the concerns that were expressed then. They also, I should point out, build on some of the concepts—[Interruption.]
Order. It is only fair to the Minister that hon. Members leave the Chamber quietly.
I am only sorry that this debate is not as much of a draw as the main attraction earlier, but I will do my best to make it as interesting as possible. The amendments build on some of the concepts in the amendments tabled in Committee by David Davis and his hon. Friends.
As the House will recall, we had quite a lengthy debate in Committee on the issue of intent and, more particularly, how we ensure that the offence of encouragement to terrorism in clause 1 of the Bill is workable—which is what I said I wanted it to be—but does not cast its net unduly wide. I undertook to examine that issue further because I wanted to ensure that we did not catch people who clearly were not in any way intending to encourage others to commit acts of terrorism. We have gone back to the drawing board and come up with a formulation that we hope meets those objectives.
The key amendment in this group is amendment No. 34, which replaces clause 1(1). It provides that the offence in clause 1 can be committed in only two circumstances. Both of those circumstances were in amendments that we discussed last week, so the concepts have already been properly explored. The first set of circumstances is where a person makes or publishes a statement and intends it to be understood by its audience as an encouragement to carry out acts of terrorism. I do not think that anyone could object to that being a criminal offence, and we have put the word "intends" on the face of the Bill so there is complete clarity about the conduct that is meant.
The second set of circumstances is where a person makes or publishes a statement and is reckless as to whether or not it is likely to be understood by his or her audience as an encouragement to carry out acts of terrorism. Again, for clarity, we have put the word "reckless" on the face of the Bill, and that was a word drawn from Opposition amendments in Committee.
We have also defined "reckless" for these purposes as being a case where the person could not reasonably have failed to have been aware of the consequences of his action. Again, I am sure that no one could object to this provision. If an individual makes a statement encouraging others to commit an act of terrorism and could not reasonably have failed to realise the likely consequences of his actions, that should clearly be an offence.
I was grateful to the Home Secretary when he said that he would amend the original clause 1, because it was very badly drafted, but I have some concerns about the amendments. The definition of "reckless" is completely contrary to the definition of recklessness in the recent case of R v. G and seeks to substitute the recklessness test in Caldwell, which has been discredited by the courts. It is extraordinary that Ministers should adopt a test for recklessness that the courts have said is the wrong test.
As I continue, I hope that I will be able to convince the hon. Gentleman that the formulation that we have now covers intent and recklessness. It is important that we have an objective qualification of recklessness, but the words used raise the threshold and reverse the presumptions in the provisions. That series of tests should be sufficient to convince the hon. Gentleman that we have moved away significantly from the negligence test about which he and other hon. Members expressed concern in Committee. I hope to be able to convince him that the present formulation, which includes intent, recklessness and an objective assessment of recklessness, is sufficient to meet his concerns as well of those of the Government that we have a formulation that enables us to have some prosecutions of people who are clearly committing criminal acts.
Is not the difficulty that the right hon. Lady is trying to encompass with the same clause both a subjective and an objective test? In legal terms, that seems absurd.
No, I hope that as I develop my argument the hon. Gentleman will appreciate that the provisions deal with intent and recklessness, with an objective assessment of recklessness at a higher threshold. I am really trying to achieve a formulation that will command the support of the whole House. I was concerned about negligence, and I shared those concerns, so we want a formulation that lifts the threshold but still enables us to prosecute people who, through their statements, are encouraging others to commit terrorist acts. That should command broad support.
I want to amplify those comments. We cannot allow people who could not reasonably have failed to realise the likely consequences of their actions to get away with that simply by saying that they did not know what effect their actions might have. That would enable people who have encouraged or glorified terrorism to get away scot-free, without paying the penalty for their actions, by insisting, regardless of all the evidence, that they did not know the possible consequences of their actions. A provision that they should be caught if they could not reasonably have failed to know the consequences of their statements is the right way to avoid that situation.
I think that Mr. Grieve said that juries are capable of considering such issues in context, and the provisions deal with the context and circumstances. The court will take all that into account. If we have only a subjective test, people will be able to say that they did not realise what the effect of their actions would be. We would then find it incredibly difficult to prosecute people who genuinely were encouraging other people, indirectly, to commit terrorist acts.
Every day of the week, juries conclude that people are not telling the truth when they claim not to have foreseen a consequence of their acts; otherwise, there would be no convictions at all. Why should the Government tinker with a definition that was approved by the other place? The House of Lords said that the Government's definition of recklessness in the provision is unjust and should not continue.
We explored those issues in detail in Committee and, as I told the hon. Gentleman then, if he looks at rape and other sexual offences, he will find that there is an objective test of recklessness. In rape, an offence is committed only if the person carrying out the act does not reasonably believe that the victim consents. A person charged with rape cannot say that they believed they had consent; they have to prove the objective test that their belief was reasonable. There is thus well-established law that it is perfectly proper to have an objective test of recklessness and that we should not simply believe what a defendant says were the circumstances. The formulation of subsection (1A) moves things up a field, as the hon. Gentleman will acknowledge. We are not saying simply that there should be a reasonable belief, but that the defendant could not reasonably have failed to appreciate the effect of his words. We have genuinely tried to achieve a tight formulation that still enables us to prosecute. That is a perfectly legitimate objective for the Government and I hope that the hon. Gentleman will accept it, despite his forensic examination of the legal niceties. That is legitimate, because we are talking about criminal offences, but it is my job to try to ensure that we have law that is practical, effective, workable and takes us away from the negligence provision, which I acknowledge was a concern. I think we have a good formulation.
As a matter of some pride, I state that I am not a lawyer, but that does not preclude me from having legitimate concerns about the construction that the Government are proposing. I am unhappy—as I was on a previous occasion—about the reference to a statement and how it will appear to, or be interpreted by, "members of the public" to whom it is addressed. The provision does not specify which members of the public; it does not specify that the statement should be made to a majority of the public, nor does it have the general threshold of right-thinking people. Is there not a danger that it is too wide?
As I say, we covered a lot of this ground in Committee, and I have genuinely tried to narrow the provision's ambit while trying to ensure that it is workable. I point out amendments Nos. 35, 41 and 42 to the hon. Gentleman. Again, they make an important clarification to the Bill. They make it clear that, for an offence to be committed, the audience has to understand that what is being said is an inducement for them and no one else to commit terrorist acts. For example, no offence will be committed if a member of an audience at an academic lecture thinks, "Well, I am not encouraged to commit terrorist acts, but I can quite imagine that, if this sentiment was expressed at a gathering of young Muslim men, it could have an encouraging effect on them." I think that that is implicit in the drafting, but those amendments make it absolutely explicit that the likely effect must be on the people to whom the statement is addressed. I hope that the hon. Gentleman will appreciate that that is another attempt by the Government to try to narrow the provision's ambit and focus it on the mischief to which this part of the Bill is addressed: those who directly or indirectly incite people to commit acts of terrorism. I hope that he will give us credit for seeking to narrow the ambit of the offence in those terms.
Will the Minister address a not-so-hypothetical example that concerns a lot of people? Given the state of the middle east at the moment, if someone—for instance, myself—says, "I can well understand why decent Palestinians become terrorists", they would still fall foul of the test. In making that statement, I must be taken to know that someone may well be encouraged to act because they are mad or highly radicalised. In those circumstances, I would be reckless according to the Bill. I should very much like the Minister to address that point and, if she would be good enough later to take another intervention, to ask her about amendment No. 64, which I tabled, and what is wrong with it.
Again, we have trawled over this ground to a large extent, but the offence has two limbs: the making of a statement and the likely effect on the audience. If someone says that they could not reasonably fail to understand or appreciate the effect of a statement on the audience, that is a fair test about the circumstances in which they make that statement.
I think that I went through with my hon. and learned Friend last week the number of hurdles that we would have to overcome to bring a successful prosecution, and the provision will be even tighter now. Someone must have an intention or be reckless, and there is an objective test of recklessness. The statement must be likely to encourage others. There must be a realistic prospect of conviction. The prosecution must be in the public interest and the Director of Public Prosecution's consent is needed.
For my hon. and learned Friend simply to make a statement with which someone could empathise or sympathise without knowing or being reckless in its effect on the audience does not fit the definition and formulation that we propose. With respect, he is stretching the definition and the circumstances to an untenable extent if he examines the current formulation. I know that he does not like the whole principle of the clause, but he is stretching things beyond the bounds if he is saying that he understands why people might find themselves in that kind of mindset. That will not make him fall foul of such a criminal prosecution.
I am grateful to the Minister for that explanation. However, bearing in mind the criteria that she has laid down for a prosecution to be brought, does she agree that a prosecution could only ever be successful if the prosecutors could deliver before a jury witnesses who had been influenced by what had been said?
I am glad that the hon. Gentleman appreciates that the formulation that we propose for the clause is fairly tightly drafted and does not cast the net too wide. Clearly, the individual circumstances are important. I have been asked on many occasions to speculate on what kind of phrases might make people fall foul of the provision. The only example that I have felt comfortable giving is where someone says, "Wasn't it a fantastic thing that happened on
"is reckless as to whether the statement will have that effect"— an encouragement or an inducement—
"upon reasonable members of the public."
That measure would deal precisely with the problem, because if I said something that I thought that a reasonable member of the public might take to be an inducement, I would be guilty—I could understand that. The problem that we all have at present is that if I say something that I know that a very unreasonable member of the public might take to be an inducement, I would undoubtedly be caught.
I refer my hon. and learned Friend to amendments Nos. 35, 41 and 42, which address the effect on the audience to which a person was speaking. We have narrowed down the provision so that we are not considering mythical people who might be radicalised or mentally unstable, such as those in the examples that he gives, but the audience that is being addressed.
I do not think that that deals with the issue. I acknowledge that the Minister has worked hard to try to improve the Bill. I am happy to concede her good intent, but that does not mean that the result is satisfactory. I repeat the point that was implicit in what Mr. Marshall-Andrews said. When a statement is published, its audience is necessarily wider and larger than that for a statement that is not published. Unless a more reasonable amendment is agreed to, surely we could be considering a mad, neurotic, or frankly hypersensitive individual who could be influenced to behave in a particular way, although that individual might well have behaved in that way anyway. The provision is too broad and an amendment such as that which the hon. and learned Gentleman has in mind would narrow it substantially.
I do not propose to narrow the offence to the point at which it would become impossible to prosecute. As I have said on several occasions, there is a real problem with people making statements that they know will encourage others to undertake terrorist acts. We need legislation that is focused on such mischief and able to deal with it. The hon. Gentleman might wish to narrow the offence even further, but I think that our formulation will address people's genuine concerns. He raises the prospect of one person who might take a statement in such a completely unreasonable way. I have set out the fact that there will be seven hurdles before there is a prosecution, so the likelihood of a prosecution for a criminal offence in such circumstances would be infinitesimal. It is not the business of the House to make legislation in such terms. There is a broad and reasonable case for our formulation. I have gone this far, but I am afraid that I shall go no further, not even for the hon. Gentleman.
Does my right hon. Friend agree that the formulation of some of the Government's proposals is similar to that of race relations legislation, in which there is a consideration of intent, recklessness and the impact on an audience, which is a crucial aspect of making such legislation work properly and ensuring that its implementation is reasonable?
My hon. Friend is right. She takes an approach that I hope that the whole House will adopt. She takes a practical approach to our legislation by trying to ensure that it works, but that it does not have unintended consequences, such as those raised in Committee regarding the negligence test, which I have tried to address today.
In response to an amendment that I tabled in Committee, I think that the Minister indicated that there was a problem with specifying the qualification that there must be a danger of a terrorist offence being committed. Would not adopting such a provision, which is in the Council of Europe convention on the prevention of terrorism, deal with the problem that has been identified regarding one person who hears a statement? If there had to be such a danger, it would deal with the argument on prosecutions that she is trying to address.
I remember our discussion in Committee. I think that the response that I gave to the hon. Gentleman then still stands. If an actual danger had to be proved, it would set the threshold too high and the prosecution would find it difficult to bring a case. We are trying to get the balance right so that we can use the legislation to prosecute people who are causing a real problem in this country, yet ensure that we do not inadvertently bring people into the net who quite properly should be allowed to say the things that they want to say. That is at the heart of the Bill—we are trying to get the right balance between the correct security measures and the protection of liberty and freedom of speech. I am trying to draw that balance correctly without erring in favour of either priority. I do not want the Bill to be a piece of legislation under which people can still say those things with impunity because they are clever enough to formulate their words knowing that they will have an effect on other people but that they will escape prosecution themselves. It is not in the interests of anyone in this country to allow that situation to continue. Most of the remaining Government amendments in this group are consequential, as the meat of the argument is contained in Government amendment No. 34. We have found a formulation that works, and I hope that it will be accepted by all hon. Members.
Amendments Nos. 19, 14, 2 and 21 would all have the same effect. Instead of allowing a recklessness test that would cover individuals who could not reasonably have failed to realise the likely effect of their actions, they limit the offence to people who intend or can be shown to have known the likely effect of their actions. As I said, that recklessness test is subjective, as opposed to objective. I have received advice that the formulation in subsection (1A) of amendment No. 34 is drafted to reflect the Caldwell case. Mr. Grieve will know more about that than I do, but it is right to include such a test. If we simply used a subjective test, individuals who brazenly encourage terrorism would be able to argue, despite the fact that they could not reasonably have failed to understand the likely effect of their comments, that they did not foresee the risk that members of their audience would be encouraged to commit acts of terrorism. The difference between that subjective test and the test in the Government amendments is crucial to the success of the legislation. Without an objective test, people could simply say that they did not intend their words to have a particular effect on their audience, and that they did not have any idea what would happen. We all know of individuals who have made such statements, but we have found it impossible to prosecute them. We want to make sure, however, that we can do so in future.
We have tightened the provisions in clause 1 considerably, but we have preserved the integrity of the offence so that the measure is effective. Briefly, Government amendments Nos. 49 and 50 deal with a minor but important matter. Clause 18 provides that, if a corporate body is guilty of an offence under part 1, a senior officer of that body is also guilty. Originally, his connivance, consent or neglect was required, but hon. Members expressed concerns about an offence committed by negligence. As a result, the Government amendments tighten the provision and remove the neglect limb, so I hope that they will be welcomed by Members on both sides of the House.
As I said in my intervention on the Minister, I wanted to welcome the Home Secretary's conversion on clause 1 in the light of last week's debate. Indeed, when I saw him on Monday I was overwhelmingly grateful because during a wide-ranging discussion he accepted the argument that the drafting of clause 1 was too loose. It took us some time to tease out the implications last week, but the upshot of our debate was that the offence could be committed as a result of negligence. Mindful of the amendment that I tabled last week, the Home Secretary accepted that the offence should only be committed intentionally or recklessly. I was pleased with that result, and I thanked the Home Secretary. However, when I looked at the draft of amendment No. 34, I discovered that it reads very well only until the end of subsection (1). Subsection (1A) says:
"For the purposes of this section the cases in which a person is to be taken as reckless as to whether a statement is likely to be understood as mentioned in subsection (A1) include any case in which he could not reasonably have failed to be aware of that likelihood."
I always understood that in the normal test of recklessness, the word was to be given its ordinary English meaning. The problem has arisen because for a period of 20 years, which I suspect was an aberration, as a result of the Court of Appeal judgment in Caldwell, it became possible for a person to act recklessly even though he never foresaw the risk of something occurring. In a sense it was an objective test. The jury could say, "We accept entirely that in doing what you did, you never foresaw the risk of something occurring, but we can say that you are guilty nevertheless, because when we look at the facts, we think we would have foreseen that the risk would occur."
That decision stood until last year, when the House of Lords examined it again in a case called R v. G. As the Minister knows, before the House of Lords looked at it, the test in Caldwell had come in for massive criticism over the years from both academic and judicial authorities. In R v. G the House of Lords looked at the entirety of it, and the upshot was that the authority of Caldwell was wholly overruled.
It is worth considering the reasons why the Law Lords decided to do that. They stated, first, that while the most obvious culpable state of mind was an intention to cause an injurious result, knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such a risk would be readily accepted as culpable also. But it was not clearly blameworthy to do something involving a risk of injury to another if, for reasons other than self-induced intoxication, one genuinely did not perceive the risk.
Secondly, the Caldwell formulation was capable of leading to injustice. Thirdly, the criticism of Caldwell by academics, judges and practitioners was not to be ignored, and fourthly, it was clear that the majority's interpretation of "reckless" in Caldwell had been a misinterpretation of Parliament's intention in the Bill at that time, which was to leave the essential law unchanged. Therefore the test of recklessness should return to what it had been historically for many years before the Caldwell decision took place.
I have a slight criticism, which is that it took me a phone call to the draftsmen in the Home Secretary's office to get finally an admission that it was true that they had put in not the current test of recklessness, but the old test of recklessness. I know the Government do not like the judiciary, and perhaps the House of Lords particularly, but that is a crazy course of action to adopt.
In her comments, the Minister said, "We've done it in other cases, like rape." Yes, I acknowledge that. When we considered changing to an objective test in rape cases, there was considerable debate in Committee. The reason we chose to do it was the nature of rape as an offence, its seriousness and all the surrounding circumstances. To equate rape with words used by an individual seems a very poor comparison. The equation given in the discussion in R v. G refers to criminal damage, which is a good example of the narrow boundary between negligence and recklessness.
Where somebody is to be criminalised for something they said, on the basis that it might indirectly incite terrorism, we would be in danger of perpetrating injustice unless we said that the test that a jury has to apply is the current test, not the old test. The Minister will have to provide a compelling justification for me to be willing to accept the amendment. I questioned the draftsmen about the amended version. I do not think there is any difference between amendment No. 34 and the original draft. If there is, it is minute.
The real criticism of the earlier draft is that it was incredibly sloppy, because the Minister—I hope that she forgives me for saying this—was attempting to conceal what the Government were trying to do, which is why we ended up with the opaque language that I complained about last week.
Amendment No. 34 is not opaque. It makes it clear what the Minister intends, which is an objective recklessness test to allow a jury to conclude that although somebody had not been reckless in their own mind, they should still be criminalised. I do not want to labour the point, but that is a bad test to apply in this context.
I am not a lawyer, but I understand the differences between honest and reasonable belief and between intent and recklessness. What does the hon. Gentleman say about race relations legislation, under which somebody may not intend to discriminate, but, if the consequences of their action are discriminatory, can still be done for discrimination? The race relations legislation on what people believe, what people say and the consequences of, for example, name calling is similar to the powers in the Bill.
The hon. Lady is right: there are other examples where we have kept a test akin to recklessness, but made it objective, not subjective. That explains the recent trend of using the legal gobbledegook of "reasonable grounds for believing" and "likely"—those two concepts are currently used married together.
The Minister expressly consented to putting the word, "reckless" into legislation, but having given with one hand, she is taking away with the other, which is incoherent. In light of the decision of the House of Lords in R v. G, the drafting is also unsatisfactory. Indeed, I am almost forced to conclude that if that is really what the Minister wants to do, it would be better if the word, "reckless" did not feature.
I used to report such cases when I was a reporter in the 1980s, which is a very long time ago. That stuff is not recent, and it has not led to a spate of groundless prosecutions.
I accept that point, but the Minister seemed to hint that if we introduce a recklessness test, as defined by the House of Lords in R v. G, it would present insurmountable obstacles to prosecution and that all sorts of unsavoury people who had said things that they should not would get off. I do not accept that argument: when a defendant goes into the witness box and says, "I acted honestly when I walked out of the shop with the goods under my arm. It was all a mistake," juries have no difficulty in examining the circumstances and saying, "Actually, you were dishonest, and that is a crime of specific intent."
One can still be convicted under the subjective test. All that needs to be shown is that the defendant must have foreseen a risk in the course of carrying out a particular activity. It is even easier to convict under the subjective test, so I do not accept that it will lead to people whom the Government want to criminalise being acquitted. Consider the example of a foreign preacher who does not know much about life in Britain and who has come over on a visit. If he said, first, "I never intended to incite terrorism," and secondly, "I never foresaw that there was a risk of inciting terrorism," the jury could say, "Although we see those words as incitement, we understand that he is telling the truth." The question is this: if the person is telling the truth about it, is it right that he should be landed with a criminal conviction?
That is why I propose, unless I am persuaded otherwise, to vote with some reluctance against amendment No. 34 and invite the House to vote on my amendment, which has exactly the same wording except that it leaves out subsection (1A), which does all the mischief. However, I am conscious that other amendments would have a similar outcome, and I shall listen carefully to what Members say about them.
We discussed this matter at the meeting on Monday with the Home Secretary and his team. Members seemed broadly happy that the Government were going in the right direction. By and large, we were satisfied by the inclusion of intent and recklessness and the removal of negligence, and the subsequent amendments whereby actions had to be emulated by individuals and the content of information had to be useful to individuals. I think that I paraphrase accurately. Is the hon. Gentleman's concern merely that the wrong recklessness test is included, or does he have some deeper objection?
The amendment suggests that we have the wrong recklessness test. If Members disagree, they will support amendment No. 34. It is very odd for the Home Secretary to use the word "reckless" and then to qualify it in a way that makes nonsense of a recent court decision by the House of Lords that says that that is unfair and should not be used. To say that that is cocking a snook at the judges is a bit of an understatement.
Article 5 of the convention refers to intention. Does the hon. Gentleman agree that if the Government claim that they are fitting in with that provision by saying that the offence has to be intentional, they can do that with a subjective recklessness test but if they introduce the objective recklessness test that he described their actions would be outside its terms? Those of us who are interested in human rights believe that it is wise to stick to what it says in article 5.
I should like to speak to amendment No. 64, which stands in my name and those of several others. In doing so, I am afraid that I must criticise not only the product of the Home Secretary's labours but the amendments tabled by the official Opposition.
I can do so quickly by referring back to my intervention on the Minister, to which, with great respect, she did not respond. At the risk of wearying the House, let me repeat the now-famous Cherie Booth test regarding what she said in public and whether it would be criminalised. I can put it into my own mouth to make it even more uncomfortable. All I need say is that given the present situation in the middle east, I can understand how perfectly decent Palestinians can be turned into terrorists. When I say that, there is not the slightest doubt that I perceive the possibility that some people, when they read that statement, will be encouraged to carry out terrorist acts. I do not intend that they do, and I do not want them to, but I must encompass in my thinking the possibility that they will be out there. The balance is that my freedom to make such comments is worth risking the possibility that some people will be encouraged.
I have heard my hon. and learned Friend make much more provocative and inflammatory statements. I do not understand how that statement could be perceived as intending to encourage people to commit acts of terrorism.
I am sorry that we will not have a meeting of minds. It is a matter of semantics more than anything else but I can conceive of a Palestinian terrorist bomber who was in this country saying, when interviewed by the police, "I believe we have considerable sympathy from politicians in this country. I remember hearing Cherie Booth and Bob Marshall-Andrews saying that they had sympathy with our plight in the middle east. I was encouraged by that." If my hon. Friend Ms Keeble cannot understand that, there is no point in repeating it. It appears self-explanatory to me.
Surely there is a difference between trying to understand the causes of terrorism—we must include journalists, academics and politicians and our statements on the Floor of the House in that—and encouraging it. Surely understanding is a legitimate defence. Understanding is nothing to do with encouraging. I fail to understand how my hon. and learned Friend can make that elision.
I am sorry because my comments will be repetitive. If I am a seriously radicalised Muslim who is contemplating carrying out acts of terror, the fact that someone in a public position and a politician indicates that they have sympathy or understanding for such actions is likely to encourage me.
If one says, "I fully understand but in no way endorse and could never support such a move", it is clear that there is no encouragement. However, if someone makes the abstruse statement, "I understand" one has to make quite sure what is meant—the world is full of understanding people.
As always, I respect my hon. Friend's comments. If one couched a statement in those terms, I agree that one might be able to enjoy a defence under subsection (3), which provides for considering the totality of the comments. However, one cannot legislate on the basis that everybody will understand the precise nuances of a statement. If, through inadvertence, one stops simpliciter at, "I have some sympathy or understanding", one is undoubtedly caught under clause 1.
Is not the problem for Mary Creagh the word "encouragement"? As the hon. and learned Gentleman said, his comments could be taken as encouraging by those who wished to perceive them as such. However, if the word "incitement" were used, it would be hard to argue that saying that something "could be justified" in some theoretical way constituted incitement, even though some might consider it an encouragement. It is unfortunate that we have lost the opportunity to narrow the wording.
I entirely agree. Incitement is a concept that is well known to the criminal law and in common law. It has been with us for hundreds of years and there is absolutely no reason why it should be changed. "Encourage" is an extraordinarily weak word. To my knowledge, it is almost unknown in criminal jurisprudence because it is so weak, and because the concept of encouragement is so wide. I am not going to repeat this argument; if people do not understand it, they do not understand it. However, I vividly understand that if I expressed such a sympathy, it would be a form of encouragement for someone whose mind was already tainted.
Is the fundamental problem here not that the Bill would criminalise us because we implied something, but rather that we might be found guilty because someone else inferred something from us? Is not that the fundamental weakness of the legislation?
Yes, it is. The convoluted drafting of clause 1 is going to be nightmare for anyone who has to deal with it in the courts. On the other hand, in a spirit of good will and compromise, I have not touched that provision in my amendment. I have simply added to it two completely unobjectionable paragraphs that would deal precisely with the point that I am making. This would simply import into the Bill the provision that recklessness would apply only if what someone perceived as likely was inducement or encouragement to reasonable members of the public.
If I say something that I perceive may induce or encourage reasonable members of the public to commit terrorist offences, I ought to be prosecuted for it. I accept that immediately. But I should not be prosecuted for saying something that I genuinely believe may encourage someone whom I do not intend to encourage but who I know may be encouraged by what I say because of their state of mind—however mad, irrational or evil they may be. I would be caught under the existing provision, and we should not allow that.
I hope that amendment No. 64 commends itself to the Opposition. I am going to ask them to smile upon me—because they will be given the first bite of this particular cherry, although the cherry might be too small for two bites to be taken from it—and to allow the amendment to go through.
That may well be right. That could be the solution.
In the argument that I have just postulated, the problem with the amendment tabled by David Davis, well intentioned though it undoubtedly is, is that even leaving that recklessness—as in the case of R v. G—in the Act means that I would be caught, because I undoubtedly would foresee the possibility that someone out there would be comforted or encouraged by what I say. In those circumstances, I would be caught by recklessness, either under the old Caldwell recklessness or under R v. G, because a subjective test would be applied to me and I would own up. I would be guilty, under the Bill. I would have no choice but to say, "I'm sorry, it's a fair cop, guv. It shouldn't be, but it is."
Under the test that I am proposing in amendment No. 19, if the people who were listening were unreasonable, that would give a perfectly good defence because the speaker would argue that they had no reason to foresee the consequences of their words. It would not be reasonable to expect someone to foresee the consequences where unreasonable people were involved.
I profoundly disagree with the hon. Gentleman. I would foresee the consequences on unreasonable people. I would foresee the consequences of what I say on both reasonable and unreasonable people, and on the mad and the halt and the lame and everyone else. I would perceive it to be quite clear that they would be induced in those circumstances. It is to everyone that the statement is being made, and I must be taken to understand that it will have an effect on everyone—reasonable or unreasonable. I hope that that answers the hon. Gentleman's point.
The Government are developing a prodigious talent for snatching defeat from the jaws of victory. They undertake a listening exercise, and agree that something is wrong with their Bill and try to find a way to resolve it. They go almost all the way towards securing the support of Members in all parts of the House, then they ruin it by quite extraordinary drafting. That is very regrettable. I would have hoped that last week's debate, which was perhaps in rather more high-flown terms than we are mustering this evening, might have persuaded the Government that they had to do the job properly. The result of last week's vote might have indicated that were they not to do it properly, the Bill was highly unlikely to survive in this House or another place without further amendment. I regret that the Minister has come to the House with a rather unacceptable amendment.
I want to return to the origins of what the Government are trying to do, with which I have a number of problems. First, I do not understand why the current incitement offences on the statute book are insufficient to deal with the issue, apart from the fact that they are not prosecuted. Many of us find ourselves increasingly impatient because the police and prosecuting authorities do not use the offences already there to deal with the problem. Undoubtedly, incitement offences could have been used on occasions against prominent individuals who would be caught by the prospective legislation.
Secondly, as Mr. Marshall-Andrews pointed out, incitement is the correct term in the context of such an offence, rather than encouragement. It worries me that such a mild term is used in a way that is open to all sorts of constructions, which we have yet to learn, as the matter has not been before a court. I also worry because we have still not secured—and I do not think that we will do so this evening—an adequate definition of terrorism and terrorist offences. Potentially, therefore, an offence can be drawn from a much wider field.
I do not know whether the Minister intended—or whether she was simply wilfully reckless in the matter—to bring forward an amendment with a self-contradictory internal structure. As Mr. Grieve ably set out, it applies two conflicting tests—the objective test of recklessness and the subjective test of recklessness—in relation to the same clause. It is recklessness of a high degree to consider what the court has expressly rejected and then to introduce that in new legislation, as though nothing had happened and it had never been considered. That might be part of the Prime Minister's declared policy, as expressed at Prime Minister's questions today—that he would prefer to listen to police officers than Law Lords. I am sure that that will endear him to those who will consider this Bill later. Perhaps he believes that Law Lords simply do not understand law in the same way as police officers do. I must, however, counsel Home Officer Ministers that that is not a sensible way of approaching the issue.
Does the hon. Gentleman accept that it is appropriate to have an objective recklessness test in the sexual offences field, and in the Proceeds of Crime Act 2002 relating to money laundering? A range of issues in legislation have an objective recklessness test.
There are a number of points to make. First, we are dealing with a constraint on freedom of speech, which does not apply to those other offences. In the sexual offences legislation, we are dealing with a specific issue of an interaction between two people in which the critical issue is consent, and in which one person's word will often be used against another's, and in that instance it is absolutely appropriate for the jury to come to a view on an objective test. I really do not understand how the Minister can come to the Dispatch Box, apparently briefed by her civil servants, to proclaim proudly that what she hopes to enact is that which is within the Caldwell case, which the hon. Member for Beaconsfield has described as something that leads to injustice. The Minister parades case law that has apparently been interpreted as leading to injustice as an argument for including it in the Bill. The House deserves rather better than that.
The hon. Member for Beaconsfield made an interesting point about what a cleric newly arrived in the country might understand the clause to mean. As he said that, it occurred to me that the cleric might be quoting holy scripture. [Interruption.] Mr. Mahmood feigns incredulity, but I could quote a large amount of holy scripture that would fall within the constraints of the clause. That worries me. It also occurred to me to wonder—this too is an aside—what the position of an interpreter would be. Does an interpreter publish the words that he is asked to interpret? At what point does his understanding of what he has been asked to interpret become a potential offence under the clause?
Let us suppose that someone is called in to interpret a speech given in Arabic by a cleric to a British audience. As the translation proceeds, he realises that his action constitutes an incitement to terrorism. He will have to stop. That must be the answer, because otherwise he would commit the offence.
I agree that he would have a duty to stop, but that is asking a good deal of someone providing a simultaneous interpretation.
Someone using a religious script would be fine. The issue is the interpretation of that religious script at a meeting, and whether it might constitute an incitement to terrorism. Unless the hon. Gentleman can give a quotation from any religious book that he chooses which shows that simply reading it would constitute incitement, he should withdraw what he has said. Members of my community, certainly, would be quite offended by it.
I am sorry that the hon. Lady feels affronted or insulted. I do not know what her community is, but I can say that it is fairly easy to identify scriptures in my tradition which, if delivered to an appropriate audience, might—in terms of an objective test for recklessness rather than clear intent—[Interruption.] For instance, an eye for an eye, a tooth for a tooth. In the context of someone discussing an atrocity elsewhere, that could be interpreted as falling within this definition.
That sort of language should not be protected simply because it is in holy scripture if it constitutes indirect incitement according to a narrow intentional or subjective recklessness test. The problem lies not with the fact that it is scripture, but with the width of the law. The fact that it is scripture should not confer on it any protection or any extra liability.
I am grateful to you, Mr. Deputy Speaker. I was wondering whether I would be required to give a sedentary response.
My hon. Friend Dr. Harris is absolutely right. There are circumstances in which scripture could clearly be used as an incitement to violence, and there are times when that should be prosecutable, but there are also times when, under an objective test of recklessness—when it is not the speaker's intention to incite or encourage such an act in any way—scripture could fall foul of the clause. That is a serious matter.
The Government are keen for there to be a read-across between this part of the Bill and an equivalent part of the Racial and Religious Hatred Bill. We know that that is part of the game-playing, aimed at including an identical definition in two controversial Bills so that they can be used in conjunction with each other.
We have limited time and I do not want to speak at length to the amendment in my name, but I should point out to the hon. and learned Member for Medway that although I am always encouraged by his arguments and he made a cogent case, I have a serious concern with his amendment, which is the use of the word "reasonable" and the phrase
"whether the statement will have that effect upon reasonable members of the public."
By definition, we are dealing with unreasonable members of the public in talking about incitement to terrorism. I appreciate that his test will be whether he, as the speaker of such a statement, would have expected
"that effect upon reasonable members of the public", but I can foresee circumstances in which the effect will be on those who are distinctly unreasonable, in that they are predisposed to committing acts of terrorism. That is a flaw in his definition, but he may disabuse me of that view.
Strangely enough, I agree, but I do not entirely understand why it is a flaw. I do not see why it should be a flaw to restrict the criminal offence of doing something recklessly—in other words, perceiving the likely consequences of an action but doing it in any event—to its effect on reasonable people. The point is that if I perceive that there may be unreasonable people out there who will receive such a statement as encouragement or inducement to such behaviour, but I go ahead and make that statement, I commit the offence under the terms of the Bill. So every single such statement will be caught, because I must be taken to understand that what I say may be so received by unreasonable people.
I do understand that point, but it underlines how difficult it is to construct an offence in the terms in which the Government wish to construct it. That is the underlying problem with the lack of definition—a lack of definition that we have seen elsewhere.
For the purposes of this evening, I am more attracted, for purely practical reasons, to the prospect of voting down Government amendment No. 34 for reasons that I have already adduced. Because amendment No. 19 uses the Government's own wording—up to the point at which it goes barmy—for the purposes of this evening it is a very satisfactory amendment to the Bill. It can then be further considered in another place, where we may be able to construct a better alternative to the whole offence that will secure the Government's objectives without giving rise to the unforeseen—or perhaps all too easily foreseen—consequences that the hon. and learned Member for Medway and I fear will otherwise arise. So I intend to advise my right hon. and hon. Friends to vote against the Government's amendment and to support, if he chooses to press it, the amendment in the name of the hon. Member for Beaconsfield.
I will not detain the House for long, but it is right that I say a few words. I seek acknowledgement from Mr. Grieve that the Government have attempted to narrow this clause to intent to recklessness. Yes, we have an objective test, but it is that the person
"could not reasonably have failed to be aware".
I seek from the hon. Gentleman at this late hour some acknowledgement that that formulation constitutes a higher threshold than the previous one, and that the Government have therefore moved significantly on this issue to try to ensure that recklessness is included, but that the realistic prospect of successful prosecutions remains. The hon. Gentleman should acknowledge that this formulation is different and is not simply an objective recklessness test, because it also raises the threshold test.
I did acknowledge earlier, I hope, that there appears to be some slight difference between the test in amendment No. 34 and the test in the Bill as originally drafted. Certainly, if I may say so, this provision is much clearer, which is in itself a commendation. I would also like to put it on the record that I do not believe that either the Home Secretary or the Minister tried to deceive me; I think that there was a genuine misunderstanding between us as to what the Home Secretary was actually conceding. I also hope that the Minister will understand the reasons why, when I was talking about recklessness, I meant the common-or-garden English term as interpreted currently by the courts. It is for that reason, and because it will not do any harm to the successful prosecution of offences, that I prefer my version in amendment No. 19. With some regret, therefore, I have to vote against amendment No. 34.
I understand the hon. Gentleman's position, in that he is struggling with modern drafting. All I can say is that our formulation meets the objectives that we want to achieve—to make practical, effective and workable legislation. Who knows? In time to come, perhaps even the hon. Gentleman will be a little more comfortable with some modern attempts at the drafting. I commend the amendment to the House.
With this it will be convenient to discuss the following amendments:
No. 15, in page 2, line 14, leave out 'subsections (1) and (2)' and insert 'subsection (1)'.
No. 4, in clause 2, page 3, line 21, leave out subsection (4).
No. 6, in clause 3, page 6, line 15, leave out subsection (8).
No. 12, in clause 20, page 17, leave out lines 34 and 35.
No. 31, in page 19, line 4, leave out clause 21.
No. 30, in clause 21, page 19, line 8, leave out from 'which' to end of line 25 and insert
'a person whilst acting in the capacity of a member of that organisation commits an offence under sections 1 or 2 of the Terrorism Act 2005.'.
No. 13, in page 19, line 10, leave out from 'include' to end of line 25 and insert
'unlawfully expressing approval of the commission or preparation of acts of terrorism.
(5B) The expression of approval is unlawful for the purposes of subsection (5A) if there are persons who may become aware of it who will infer that what is subject to an expression of approval is conduct that should be emulated in existing circumstances.'.
These amendments address the important issue of the encouragement of terrorism. As the Minister will know, we have supported provisions on indirect incitement, even if we have had differences of opinion on whether it can be committed recklessly and what the definition of "recklessness" should be. The difficulty we have is with clause 1(2), which seeks to introduce into the definition of incitement statements that indirectly encourage the commission or preparation of acts, or glorify
"the commission or preparation (whether in the past, in the future or generally) of such acts or offences; and . . . is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated in existing circumstances."
The difficulty, which was highlighted in Committee, is that the concept of an offence—[Interruption.]
Order. I am sorry to interrupt the hon. Gentleman. Mr. Marshall-Andrews should not be discussing matters in sub-committee while this debate is taking place.
The concept of unlawful glorification is alien to our law. On the whole, if people wish to go out and glorify something, they are free to do so. Indeed, as the House will be aware, the origin of the provisions seems to have come from a decision by the Government at some time in the summer that they wanted to make glorification a separate offence. That attracted much adverse public comment and, as a result, the Government decided shortly before the Bill was published—a previous draft Bill contained the separate offence of glorification—to collapse glorification into the single offence of encouragement of terrorism.
The impression that was given at the time was that glorification had disappeared, but unfortunately it has not. It is present as a distinct subsection in clause 1. It is difficult to understand why it has been left there. I can easily think of examples of someone glorifying something that might amount to an incitement to commit a terrorist offence, because the words of glorification could clearly relate to incitement. But if there is indeed no incitement, to identify glorification as a form of incitement and as something that is likely to be understood by members of the public
"as indirectly encouraging the commission or preparation" of an offence seems quite wrong. It imposes a burden on anybody who wants to glorify historical events to think carefully, because they may find themselves liable to criminal prosecution and subject to a term of imprisonment of seven years. That is not a reasonable way for Parliament to proceed.
If somebody incites terrorism, even by indirect means—oblique references, nudges, winks or suggestions that terrorism is an appropriate remedy—I am happy to criminalise them and happy that they should go to prison for seven years if the offence is serious enough. But it is not right that the mere glorification of the commission of a terrorist offence, which, under the Bill, could include the past activities of Robin Hood, Wat Tyler or Guy Fawkes, should be sufficient to found the basis of a criminal offence, if the statement was one from which
"members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated".
I am sure that there was a Wat Tyler society when I was up at Oxford and, as I said on Wednesday, many student societies of a slightly anarchic kind might have dinners or meetings that glorified Wat Tyler or John Bull—names that used to have a great appeal for Labour Members, which has disappeared under new Labour.
Does the hon. Gentleman agree that the provision would apply not only to Guy Fawkes and Robin Hood but, at least in theory, to Gerry Adams? There is a difficulty for the Prime Minister and the Government, as it is unclear that the Prime Minister would not fall foul of his own law, given the fact that he has often praised, and expressed admiration for, the contribution of a man who is unquestionably a former terrorist. The courts could have a field day with the Prime Minister, who could end up behind bars as a result of the provisions.
The hon. Gentleman raises a possible unintended consequence. In fairness to the Prime Minister, I do not think that he has ever commended Mr. Adams for having committed terrorist offences. He has commended him for being a reformed terrorist, which is a slightly different concept—if indeed, Mr. Adams is reformed, a subject on which there is always a certain amount of speculation, given his membership, certainly in the past, of the IRA army council.
The scope of the definition of terrorism, which is linked to our other debate, is so wide that it encompasses all historical characters who took up arms against the state in any setting whatever.
Che Guevara was a student pin-up when I was at university; indeed, there were Che Guevara societies. There were commemorations of what people claimed was his heroic death and life, and of the fact that he was a freedom fighter or, as some would say, a terrorist, using force to combat what were regarded as capitalist and tyrannical regimes. There is no doubt that if someone were to glorify the activities of Che Guevara at a meeting where
"members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated in existing circumstances", they would commit an offence. Furthermore, in relation to the term, "emulated in existing circumstances", one has to ask: existing circumstances, where? These are issues that the Minister really must address.
I do not know whether the hon. Gentleman recalls the statement that Churchill made in the middle of the war: "set Europe ablaze." That is what he said when he gave the job of running the Special Operations Executive to Hugh Dalton, who was a previous Member for my constituency. The SOE supplied the explosives for the resistance in Europe. That is particularly close to my heart since my Danish uncle used those explosives to blow up Nazi trains to disrupt Nazi communications. Would the hon. Gentleman like to comment on that example?
The hon. Lady makes a serious point. During the war, the Germans described those who were resisting them as terrorists. Indeed, that issue was not necessarily free of difficulty. I am half French by background. General de Gaulle had concerns that the violence being used by the resistance in France should be proportionate and focused, otherwise those involved could be reasonably classified as behaving as terrorists. Indeed, he tried to moderate them by saying that they should use complete force only when the liberation was at hand and it could be shown to produce a military goal. I simply cite that as an example of the very difficult grey areas that we must consider.
We still have a realistic case in Northern Ireland. A significant section of the community no doubt will hold commemorations to glorify the actions of the men of 1916. Clearly, that has a resonance with what is going on in our streets and towns in Northern Ireland today. Equally, others will celebrate the work of Carson and his volunteers, who defied Parliament and the Government. No doubt, that will have a resonance among many people in the streets and towns of Northern Ireland as well. The only defence that the Government have is that the DPP might not take a case to court in those circumstances. That is hardly a safe way for us to proceed, is it?
The hon. Gentleman is quite right. Of course, the commemorations of the Easter rising that are due to take place next year, sanctioned by the Irish Government, are undoubtedly a glorification of the actions of people who were regarded at the time as terrorist and, indeed, treated as terrorists during the rising by a large section of the Irish population. That is a simple truth. Subsequently, partly because of the folly of the British Government, those involved were turned into heroes, but that is not how they were viewed when the rising occurred. That absolutely epitomises the nature of the problem that we face.
The Government's response has tended to be that we need not worry because the DPP or the Attorney-General will deal with this problem in his selective application of the law, but that is not good enough. Glorification as an offence has no place in our law. I do not want to take up the House's time tonight—this issue has been rehearsed before—but the simple and easy solution is for Parliament and hon. Members collectively, and in no spirit of hostility to the Government, to say that we understand the origin of the idea that they have proposed but that, in truth, we do not care for it.
If the Government are not willing—I think that they are not—voluntarily to get rid of subsection (2) and the other subsections derived from it, we must do the job. That requires a vote, which is what amendment No. 3 is all about. I hope that the House, which has shown its independence today, will simply say that, of course we support the offence of indirect incitement to terrorism, but this glorification notion is a muddle. It will not help to prosecute those who need to be prosecuted. It will cause endless bother and send out a slightly tacky signal about how Parliament and the Government view individuals who express opinions in a sense about past events. We can deal with clerics, British National party leaders and others who may wish to invoke terrorism, violence or whatever they wish to do quite easily by keeping the Bill while deleting subsection (2) and the related subsections. That is why I commend amendment No. 3 to the House.
I entirely concur with Mr. Grieve. There is no place for the offence on our statute book. I do not see the point of it, and that is not because I lack any vigour on fighting terrorism. I simply do not believe that it is a useful addition to the offences available to the police and prosecuting authorities to reduce the likelihood of terrorism.
Let us make no bones about this. The provision is clearly a vestigial remnant of an idea that must have sounded good on the day on which it was put forward by the Prime Minister, but that has been expunged elsewhere. The fragment of the Prime Minister's idea remains in the Bill, but I hope that we will clear it up today, which is why we have put our names to amendment No. 3.
The offence might have looked appropriate in 17th century legislation because it is the sort of thing that Parliament passed at that time. Parliament could afford a little imprecision in its terms in those days because it knew that it had a compliant judiciary that could be relied on to do the Executive's bidding. I can imagine some of my ancestors being prosecuted for glorification. They were transported as slaves after the rebellion in 1685. We had a wonderful judicial system in those days, as defendants were advised not to plead their innocence before the court because that would waste the court's time. We have moved on a long way since then.
The provision is drafted in such imprecise terms that it undermines the Government's rational case behind other measures in the Bill. Its chilling effect is that it has the capacity to worry a great many people who will never be prosecuted under the Bill. We have considered such an effect when we have dealt with other legislation. The fact that it might be possible to bring a perverse prosecution under the Bill could mean that people would think it better not to say what they had intended to say. However, that would lead to the serious curtailment of our free speech.
The Government have provided for other offences in the Bill. We have just debated the encouragement of terrorism. I have already said that I would prefer that activity to be termed as incitement because encouragement is a loose term. However, the concept of encouragement is a million times better than the strange offence of glorification. Labour Back Benchers made many valid contributions when we last discussed the matter and pointed out the dangers of the imprecision that was inherent in the measure.
I hope that the Government will be prepared to think again even at this late stage. I do not think that those in the other place who are well versed in law—certainly better versed than I am—will wear it for a moment. The provision will be struck out there, but as I have said on many occasions, it would be preferable for the elected House to do its job. Ministers claim to be looking for consensus on the Bill, but they know that there is a general consensus on the proper requirement to deal with people who incite terrorism in this country. They should listen to others and acknowledge that the provision will not achieve what they want.
We have heard fanciful and hyperbolic examples of what could be caught by the offence. Although they are useful for illustrative purposes, I do not think that anyone seriously assumes that the Attorney-General would prosecute anyone for the flimsy reasons that have been adduced as behaviour that could be caught by the offence. Of course, such prosecutions would not be brought. When we are legislating in the House, particularly when we introduce new offences that curtail the power of free speech, which some of us hold dear, we must be extremely careful and precise. We should know what is intended in the measures, and if we use hyperbole to illustrate our case we should do so with the intention of bringing the House to its senses so that it can understand the consequences of ill-considered legislation.
My hon. Friends and I have tabled amendments Nos. 31 and 30, which deal with the use of the word "glorification" in clause 21. I urge the Government to reconsider its inclusion, because we have terms to proscribe organisations under the Terrorism Act 2000. Only a few weeks ago, the Minister submitted to the House a further list of organisations that should be proscribed under that Act. The House agreed with her, albeit with concerns about one organisation. Generally, however, it was happy to accede to her view that those organisations should be proscribed under that legislation. If she is going to extend the terms of proscription to include the vague concept of glorification, a vast number of organisations around the world could be caught. Some of those organisations may have had a presence in this country, but that will not be the case for many of them, as we learned from the order that was laid before the House only a few weeks ago.
If we widen the scope of proscription, there will be intense diplomatic pressure on the Government to proscribe many organisations of which we know little. Another country's Government, for example, may say, "We have a problem with a certain organisation, which spends all its time saying what a wonderful thing it was that the statue of our President was blown up last week. That is entirely unacceptable. If Her Majesty's Government are serious about terrorism, when will you take the necessary steps to proscribe that organisation?" If we wish to maintain a good diplomatic relationship with that country, the pressure on the Home Secretary to accede to that request will be very strong indeed.
Is there not an important reason why this is not just a passing thing that can be ignored? The difficulty with effectively buying prosecution in this way is that we create circumstances in which political decisions appear to be made. Of course, that is not the case, but that is how it appears to other countries when they see that one organisation is subject to the law, but another is not. That is very dangerous: not only does it bring pressure to bear on the Government but it makes people feel hard done by if their organisation is dealt with in that way, while another is not.
The right hon. Gentleman is right, and the provision will prejudice British interests in future. People whom we call terrorists today may be freedom fighters tomorrow and the Government the day after. The measure therefore puts the country in the difficult position of receiving requests that we cannot possibly fulfil in the interests of justice, but with which diplomatic pressure and the immediate national interest will urge us to comply. That puts the Home Secretary in a difficult position for the sake of a definition that is not worth the candle. If terrorist and other organisations are covered by the wide definition of support for terrorist activities in the Terrorism Act 2000, it is right that we should proscribe their activities in this country. However, we do not need the flimsy excuse of glorification to extend those provisions, because the House has shown that it is prepared to act responsibly when presented with information by the Government, even when, for reasons of security and the need to protect the provenance of the information, it cannot be given the full facts. The House has been prepared to take on trust the advice of this very Minister in extending the provisions of the Terrorism Act. That trust may be strained if we accept the provision, as the grounds for proscription would then be that much weaker. That worries me because it is a serious step that the Government are taking in these instances, and we wish to protect the strength of the arguments behind it.
For those reasons, we will support the hon. Member for Beaconsfield if he chooses to press his amendment this evening, but I hope the Government will pre-empt that by saying that they will reconsider the clause and do the job that at earlier stages they implied that they might do, and look again at clause 21, which is unnecessarily widened by the provision.
If the Government were prepared to look again at the provision, that would be sensible. Clause 21 presents slightly different difficulties. There is agreement that the clause has some merit, but in its current formulation it is fundamentally flawed.
Precisely so. That is why I hope that even at this late stage the Minister will give an assurance that she will look again at the clause. I treat such assurances with a little more scepticism now than I did last week, because sometimes the assurance and even the statement in public of an intention to revise do not quite materialise in practice. Nevertheless, I am prepared to take at face value any assurances that the Minister is likely to give this evening. The House will wish the Bill to be improved in the way that has been suggested, and if the House does not demand that in the Division Lobbies this evening, I am confident that the other House will.
I support my hon. Friend Mr. Grieve on his amendment No. 3. I would support him in the Division Lobby if he pressed the argument that we should remove the subsection referring to glorification because, as he said, of its dangerous vagueness.
I spoke on the subject last week during the Committee stage, so I will not repeat the arguments that I advanced and the examples that I gave of incidents that might be caught by the Bill, such as people holding dinners in favour of one national hero or giving speeches in praise of another historic hero. I trust that the Minister will address herself to some of those when she replies.
I agree with the Liberal spokesman, Mr. Heath, that one or two of the examples that we bandied about were rather fanciful. I doubt whether Robin Hood would fall within the clear definition of a terrorist, but some of the others were quite serious. I spoke last week about the Irish examples that could be cited on both sides of the political divide that has hitherto existed in Ireland, and there are other international ones as well.
In addition to adopting the arguments that I made last week, which were not met, I seek clarification about how international the application of the clause will be. I cannot anticipate a later group of amendments that deals in general with the commission of offences overseas, but in trying to envisage the problems that the insertion of the term "glorification" might create, it is important that we get clear in our minds whether we are speaking of incidents involving glorification in this country, or whether we are still liable to find that people are being prosecuted on allegations that they have glorified various violent people in their own territory, far away from this country.
The Government have tabled, and we will discuss later, amendment No. 48, which seeks to move towards some of the arguments that we used last week about extra-territoriality. The Bill will now apply only to offences committed by foreign nationals overseas if the offence falls within clauses 1 or 6. We are debating clause 1, which, as I see it, will continue to be enforced extra-territorially in this country in respect of an offence
"so far as it is committed in relation to any statement, instruction or training in relation to which that section has effect by reason of its relevance to the commission, preparation or instigation of one or more Convention offences".
We are discussing the power being applied extra-territorially only in so far as we are discussing a breach of a UN convention or the European convention on human rights, which this country is obliged to enforce extra-territorially. I regret to say that I have not had time to look up the relevant conventions, but I suspect that the Government's choice of phrase is not a word-for-word match. I am unsure whether a foreign national would suddenly be charged with an offence because they had said or done something in their own country before coming here that would amount to an offence if it had occurred in this country.
I shall move on to one of the more tricky examples. If someone in the Caucasus were to praise the Chechen rebels and their struggle against the Russian authorities, they would arguably commit an offence, although they might not appreciate it at the time. They would have praised the commission of an act, because they would undoubtedly have praised people who had participated in terrorism in circumstances in which it might be inferred that they were encouraging other people to join. It is almost certain that they would not have the first idea that they were breaking British law or were making themselves liable to conviction in a British court when they stood up to speak in some far-away town in the Caucasus and became carried away with their own version of patriotic fervour.
Such a person might come to this country and find that the Russian Government were demanding of the British Government that they should be arrested and dealt with on an extra-territorial basis, because they had committed the act of encouraging terrorism. If that is the case, I regard it as wholly objectionable, although I do not support anybody encouraging the commission of indiscriminate acts against civilians anywhere in the world, and I do not object to the law being enforced against such people.
A Bill that seeks to define the encouragement of terrorism in such general and uncertain terms should not be allowed to create an offence of worldwide application. Furthermore, the British Attorney-General should not be put in a situation in which he or she is subject to political pressure from a foreign Government to start arresting people who come here, because, in that Government's opinion, one of their citizens has committed an offence under the Bill.
Clause 1 would be improved by the deletion of subsection (2), but the key point is that subsection (2) should not be applied to the opponents of President Chavez in Venezuela or those who lead uprisings in Chiapas in Mexico or in the Caucasus. It would be preposterous if the Government were still contemplating the possibility of using that vague wording to start arresting people, if such people were unwise enough to visit this country after making over-stirring and over-excited speeches in the country from which they came.
Would not the Government have to take for granted the information laid before them by a foreign Government? I am thinking about the wholly unjustified attempt to prosecute a Belgian priest in the war-torn areas of Rwanda. It would not be helpful if this Government were pressurised by such a Government to take action against such a person, because we would be unable to make a judgment, except on the advice of the foreign Government who were demanding action.
I agree with my right hon. Friend. That is one reason to be particularly cautious when hon. Members try to claim extra-territorial jurisdiction and give it to our courts. The problem with any offence of any kind that is committed outside the United Kingdom is that it is extremely difficult to get evidence in order to try the case properly and fairly before a British court. It is, however, likely in such cases that a Government who felt a sense of grievance would find it less difficult to start producing what they would describe as "prosecution evidence" than an unfortunate dissident citizen who was suddenly arrested and faced a charge in this country. I am sure that the Government of Russia would facilitate the attendance of whoever had overheard this stirring speech made on the occasion of some dinner in Georgia, or wherever, and would be able to provide the prosecution authorities in this country with the necessary evidence. The unfortunate man who suddenly found himself arrested—
Order. I think that the right hon. and learned Gentleman will anticipate why I have intervened at this point. I understand that when he began his speech he put it in the form of a query to the Minister. He is, as I think he knows, very much dealing with a group of amendments that comes a little later on. He should therefore be restrained in what he says.
You have been indulgent, Mr. Deputy Speaker. However, I trust that it is in order to press my question on the Minister, because a judgment of the desirability of the clause in its current vaguely drafted form is more clearly made if one knows whether it has a purely domestic application to British events or a worldwide application that might be evoked in circumstances such as those I am describing.
As I understand it, the Bill certainly has an extra-territorial application. Interestingly, although the Government have made some concessions in restricting extra-territoriality for some offences, they have not done so for the offence in clause 1. The points raised by my right hon. and learned Friend are entirely apposite—one can make a speech in the Caucasus and be prosecuted for it in Britain.
I accept your doubtless correct ruling, Mr. Deputy Speaker, that I should not press the detail of my question much further.
I heard the opinion expressed by my hon. Friend the Member for Beaconsfield. It looks to me as though clause 1 is relevant only insofar as it is relevant to the application of the convention, but that is not wholly clear, and I hope that the Minister will clarify it. As she knows, I do not like the references to glorification in any event, and the whole thing is made more undesirable, unattractive and fraught with political risk if it turns out to have universal application.
The word "glorification" is pretty unusual. Its only regular use is in the formularies of the Church of England and the Church of Rome, where it has a particular religious meaning. If one walked down a high street saying, "I'm just about to go and do a bit of glorification", it would be thought at least a bit odd.
The problem with the provision is that it is left over from a previous attempt to try to react satisfactorily to the understandable anger of people in Britain about the seeming ability of clerics from various organisations, among others, to talk in a hot-headed manner and thereby seemingly encourage people to accept actions that are manifestly dangerous and unpleasant. The Minister needs to be very careful about things that are left over and no longer of any use. The appendix, for example, is a particularly nasty part of the body in the sense that it causes a great deal of harm to no discernible good effect. That is because it is left over from a use that it once had but does not have any more. It would have been much better had the Almighty so organised the process of evolution that we got rid of it altogether. I suspect that that is precisely what we should be doing with this part of the clause. It would be much better to get rid of it altogether because the residuum is not sufficient to grant any important advantage.
I have tried hard to invent a case that could properly be prosecuted with the possibility of seven years' imprisonment and could not be prosecuted under any other subsection in the clause, let alone the rest of the Bill. So far, I have been unable to do so other than by reaching to those furthest shores that some people have visited in explaining why glorification is so dangerous to history teachers and so on. It is almost impossible to imagine circumstances in which the provision creates any additional defence of freedom or opposition to terrorism that could properly be used. It does not make sense.
Introducing into British law an offence of glorification is seriously dangerous. The word "glorification" is so loose, difficult to define and varied in people's understanding of it that it will become a dangerous precedent for the Government.
My right hon. Friend referred to ecclesiastical language at the beginning of his speech. Is not it dangerous, when those who mean us harm already try to use religion inappropriately to justify their actions, to use terminology in our legislation that would perhaps enable them to do that more, rather than less, easily?
My hon. Friend has put his finger on the reason for my unhappiness with the word. He is right that, if ever there were a subject about which our language should be clinical and avoid overtones that might have the effect that he described, we are considering it. He is right to point out why it is so dangerous.
However, it is also dangerous for another reason. If glorification were some residuum of a law that was passed in 1734 and somebody suggested that it would be a good idea to get rid of it because it was no longer useful or might be used badly, the answer would be the same as the one the Minister has given in previous debates: it is perfectly safe because nobody could use it and there is always the gate of the Director of Public Prosecutions and others. That works if it applies to a provision that has been in desuetude for a long time. However, we are proposing a new provision. It would be difficult in 2006 to say that we did not mean legislation of 2005 to apply to a case. We could not claim that it was a jeu d'esprit or a little twiddle in an otherwise dull Bill. It would be hard to argue that. The intention to include it in such a serious measure is therefore genuinely problematic for the Government. Let me define the three specific problems.
First, the Government should not underestimate the extent to which the Director of Public Prosecutions can be perceived by those who do not understand the process as a political figure. We all have experience in our lifetimes of examples when, because the Director of Public Prosecutions has or has not allowed something, it has been suggested that Ministers have leaned on him. That is a mean, unpleasant and unfair suggestion but it should nevertheless be avoided rather than encouraged.
Secondly, the provision becomes an even greater danger if extra-territoriality—I am delicate in my references because of your earlier, proper restrictions, Mr. Deputy Speaker—turns out to apply to the extent that my hon. Friend Mr. Grieve suggests. Those who may wish to put pressure on the Government are even less likely to understand the independent position of the Director of Public Prosecutions if they are from countries where such an independent position does not exist. The example given by my right hon. and learned Friend Mr. Clarke of the Russians and the Chechen rebels, or my own example of the Rwandan authorities and the Belgian priest, would in those circumstances become even more germane. The Government would be likely to have pressure brought to bear on them by people who were not going to take seriously the fact that this great independent figure, the Director of Public Prosecutions—so unknown anywhere else—was the gate that had prevented a prosecution from taking place.
Thirdly, I beg the Minister to recognise that this legislation as a whole has struck a very sharp note for many people among the ethnic minorities in this country. The Home Secretary was utterly right, in answering an earlier intervention, to point out the enormous support for law and order and the opposition to terrorism that we find among the Muslim community. Unfortunately, he was not answering the question that he had been asked. It was a very good answer to a question on that subject, but that was not the question that Mark Fisher had asked him. I am not going to stray from the subject of glorification, Mr. Deputy Speaker—
Order. I am very grateful that the right hon. Gentleman has glorification very much in his sights. I was beginning to worry that he had moved on to a Third Reading speech, and our Third Reading debate is tomorrow.
Be it far from me, Mr. Deputy Speaker.
I was trying to say that what was true in that discussion becomes germane when we think of glorification. I cannot believe that a simple explanation or understanding of the word "glorification" would be universal among the Muslim community. It might be, among some people, but that would be unusual. I do not know what its translation into the various languages involved would be, and it would be improper to refer to them in the House in any case. However, glorification is a concept that is not easy to pass around between those who have lived all their lives knowing it in its ecclesiastical context, and far more so for those who have had no such knowledge. There is a real problem that glorification could easily be misinterpreted by those in the ethnic community when they came to explain to their friends what the word meant.
This is one of the most dangerous parts of the Bill. If the word "glorification" were misinterpreted by some, it could lead to people expecting a prosecution, because of the way in which they had interpreted it, only to have that expectation dashed because this curious figure, the Director of Public Prosecutions, had said, "No, this is the sort of glorification that you can go in for. There are other sorts that you cannot go in for." The prosecution would therefore be prevented.
The whole of the Bill has been overshadowed by the misinterpretation of many of the Government's views. There is so much misinformation out there, and if we consider that alongside our discussions of other Bills—which we shall no doubt discuss again here—we see too many opportunities for misunderstanding being opened up among the minorities in this country. Clarity and sharpness in the language that we use is absolutely essential, as Mr. Heath so clearly pointed out.
I turn now to the breadth of the circumstances in which the concept of glorification could be used. Unlike some of her colleagues, the Minister is not someone who eschews history. There is a tendency on the Labour Benches to talk as though nothing that happened before last week actually counts or has any real reference to today. I am one of those who thinks that if everyone learned a bit more history, they would have a bit more humility about the excellence of today's ideas. History is important, and many of us like to be pretty biased about our history. I am pretty biased against Carson, and pretty much in favour of a number of those people whom I would see as freedom fighters in earlier years in Ireland. I have a pretty clear view of that, and history is made much more interesting if one takes sides in relation to it.
I have therefore been guilty of an offence under the Bill over many years, although I hope that the DPP will not enforce it against me. In my enthusiastic pursuit of history, I have glorified a number of people who, in fighting for freedom, behaved in a way to which we would probably object today, largely because we live in a democracy and there are alternative ways of putting one's case forward. One of the things that the Government have found so difficult throughout consideration of the Bill has been to understand that in many cases people have had to take action in a way that has meant the loss of life, because there was no other way of righting terrible wrong. In such cases, the fault lies with the system and the Government, rather than with those who took up arms to uphold such a right.
I find that particularly peculiar from a Government who have entered, in my view, an entirely illegal and immoral war, and who have explained it, with hindsight, precisely on such grounds. The Government must accept, however, that there are cases today, and there have been cases in the past, in which such action must be justified. I could not discuss the regime in Burma without giving evidence of the fact that I think that it ought to be overthrown, and if it were overthrown, and in the course of that some activities that would be terrorist in this country took place there, I think that I would condone them.
Is the right hon. Gentleman aware that 1.8 billion people in the world today live under military dictatorships or one-party states in which there is no political opposition? We are not talking about a tiny minority but a large proportion of the population of the world today.
The hon. Lady is absolutely right. What we must do—I have been accused in the past of doing it—is to put ourselves into the situation. I seem to remember an occasion on which I graphically explained why I thought a certain product was safe by doing that. I believe that that is the only thing that a politician should do. When I say that I think this or that, I must ask whether I think it in relation to me. Earlier, many of us voted against the 90 days. In doing so, I was not thinking of people a long way away but of what I would think, or of what my children would think, if they were arrested and locked up for 90 days. Many people, I am afraid, think about what other people, whom they do not really like very much, might think.
The same is true with glorification. What would I think were I living under a military regime? I think that I would be bound to take part in activities that the regime would certainly see as terrorist. I hope that I would be brave enough to do so—that would be my only problem. If I cannot glorify those who are brave enough to do so, however, I lack an important part of my freedom of expression.
My right hon. Friend mentioned Burma, and to do so in my presence is to do the equivalent of pricking me with a needle. I entirely agree with what he said about glorification. May I put it to him that if one believes as strongly as I do that the savage and bestial military junta in Burma is among the most oppressive and sadistic regimes in the world, it is not difficult to persuade oneself that the Karen National Liberation Army and others who are engaged in a sometimes violent attempt to overthrow it are engaged in activity that we should glorify and of which we can be proud? If the Government cannot see that, they do not see much.
The Government cannot turn around and say, "We are allowed to do that. This refers to something quite different." I very much dislike the idea of extending the Government's powers so that they can decide what is and is not suitable for me to glorify.
That is my first objection. My second is this. If the clause does not refer to that, how can it refer to anything that is not covered by the rest of the clause, which deals with the encouragement of terrorism? That is the distinction that seems to me so difficult. If it does mean something different, what it means seems to me to be something that should not be made illegal and punishable by seven years' imprisonment. It is part of life that we must put ourselves in the position in which others find themselves and, in doing that, we may have to glorify actions which we would not only consider entirely wrong in our own democratic society, but might well not have the guts to perform ourselves, in view of fatal flaws that might result from not having been pressurised in the same way.
There is, then, a genuine present reason for the amendment. Let me end by suggesting a reason from the past. I was lucky enough to be taught history very enthusiastically. Part of my historical bias arises from a wish to fight out again the issues that mattered at the time. The glorification clause could so easily be seen as a restriction. I am sure that that will not be the case in the classroom or the local authority, but I warn the Minister that the BBC and organisations that deal with the national press are all too likely to say, "I think this may be a bit dangerous. Let's not do it quite like that." Our experience of people allowing the public to see what an abortion is actually like—which is not glorification—shows what happens if organisations such as the BBC and ITV are allowed to control the expression of powerful feelings and emotions more than is absolutely necessary.
For obvious reasons, I am rather opposed to attempts to blow up Parliament. I also happen to think that Guy Fawkes was encouraged by the establishment of the time. It seems to me that Lord Cecil, in the good tradition of that long-standing family, was right in the middle of it, and I have no doubt that he knew what was going on and encouraged it. I am not as unhappy about Guy Fawkes as some would be, simply because I think he was a cat's paw whose activity was much closer to the Reichstag fire than people are normally allowed to believe.
Would my right hon. Friend care to pay tribute to Lord Monteagle, who came from my constituency and is still revered there? It was he who gave the warning about the gunpowder plot that saved our predecessors.
I shall not glorify any of those people, thus protecting myself from the clause.
There are circumstances in which terrorism is seen in different lights in different places. In democracies, people have a right to expect an obedience to the law that they do not have a right to expect in military dictatorships. In today's world, we have a right to expect obedience to the law in a way that would not have applied in Britain 100, 200 or 300 years ago—not necessarily mainland Britain, but certainly the island of Ireland. It ill behoves us to pass legislation that is the Prime Minister's appendix: the bit left over, an entirely different piece of the jigsaw that has unfortunately been left there and will, if we leave it still, have much the same effect as a grumbling appendix. We do not need it but we need to deal with it, and the only way to do so firmly is to cut it out.
It is a privilege to follow my right hon. Friend Mr. Gummer. My objection to this clause is largely based on the fact that it is a pointless excrescence and a wholly unnecessary appendage. It resides in the Bill solely for the reason that the Government announced over the summer that they would criminalise glorification, and so had to leave some reference to glorification in the Bill.
It is clear on examining the relevant part of the clause that, in any event, it is used only as an example of the kind of conduct that the clause proscribes in an earlier part. It is an inclusive statement that simply points the way to the all-embracing umbrella section, which makes it an offence indirectly to encourage a terrorist act. As my right hon. Friend said, it is a pernicious and pointless appendage that has no place in legislation made by this House.
The common law has always been extremely careful to ensure that the proscription of speech is precise, carefully targeted and narrowly defined. That is why the common law has always proscribed the incitement of specific acts of violence. On examining the common law offence of incitement, one sees that the ingredients require that an accused person must—must—have incited a specific act identifiable and particularised by the Crown in the indictment. But the clause and this specific section of it simply enable the glorification of a type of conduct, with no need for a specific act to have been encouraged or incited.
The dangers have been dwelt on by Members in all parts of the House, but my right hon. Friend put his finger on a particularly important point. Among the many examples that Members have used, we have heard some that are fanciful and others that are more realistic. The glorification of some heroes of the past has been dismissed by Ministers as the product of fevered fantasy, but the truth is that a more subtle and insidious danger arises from this clause remaining in the Bill.
Let us suppose that a speech was made at Hyde park corner by an English nationalist who wished to sing the praises of Hereward the Wake. That it should even be thought that the glorification of the conduct of Hereward the Wake—who led an uprising, as I recall, against the Normans—could in any respect be in danger of being criminalised or made illegal by this Bill might attract from us smiles and a degree of risibility, and we would doubtless be right. The Director of Public Prosecutions would greet with consternation and dismay any lunatic who even proposed the idea that a speaker on Hyde park corner singing the praises of Hereward the Wake might invoke the penalty under this clause.
Let us suppose that the speaker on Hyde park corner was not white. Let us suppose that he was a Muslim, and that he was glorifying and praising not Hereward the Wake, but the actions of Saladin. Let us suppose that he was holding out for emulation the actions of Saladin in the wars that he fought against Christian civilisation for two or three decades or more. Let us consider the circumstances of the time and take into account the particular factors of the speaker's audience, which might include not only ordinary Londoners going about their business, but one or two Muslims, perhaps some of the Arab race and some who were susceptible to the message of waging a crusade against Christian civilisation. The speaker might notice them coming from the local mosque; he might see them gathering around his soapbox on the corner of Hyde park. I do not know whether there is, in fact, a mosque local to Hyde park, but let us suppose that there is one and that gathering around our speaker is a crowd of turbaned Arab and Muslim people.
Still, our Hyde park speaker continues to sing the praises of Saladin and begins to discern the murmuring and sussuration—[Hon. Members: "Ooh!"]—yes, sussuration and I shall be providing a few more soon. He senses the restiveness of his audience and begins to see that, although he has perfectly innocent intentions, his praise of Saladin—a great hero of the Arab race—is beginning to excite an intemperate reaction among his audience. Perhaps, we might say, a wise speaker would button his lip. A wise man would cease to speak at that point, climb down from his soapbox and immediately go silent. However, it would be too late, for he would already have committed a crime because he would have glorified in circumstances where he could see—[Interruption.] I notice that the Minister is looking at me in consternation, but for 23 years I have practised law in the criminal courts of this country, and let me tell her and Government Members that more stupid prosecutions have been brought than that—far more.
It may interest Government Members to know that I spent most of my time defending lost causes. Perhaps that is why I am a Tory.
Here is my point, Mr. Deputy Speaker. We cannot look lightly on a clause of this type in this Bill, which could on so slender a footing lead someone into the commission of a crime, even if unwittingly and inadvertently, even if the person did not mean or intend it, or even if the circumstances gathered around him were not of his own volition and cause. It would be crazy for the House to allow such a clause to pass.
I may be wrong, but I recollect that Winston Churchill once said that if he had been a Boer, he would have fought in the field against British forces. If that is correct, how would that be viewed in relation to the clause?
He was not a bore, but I may be one. I agree with the hon. Gentleman that Churchill's comment, particularly if made among the right audience—that is what is so pernicious about the offence; it depends so much on unpredictable local and special factors—could have fallen foul of the clause. It depends not only on the factors of one's audience, but on who is doing the speaking. If I spoke praise of Saladin, it is likely to excite little impression on the minds of radicalised youth, but if I happened to be an imam and started to talk about Saladin, the code that I might be using could fall foul. That is effectively what the offence is designed to tackle—using code to incite or encourage terrorism. That is the meaning of the phrase "indirectly encouraging". It refers to encouragement by a sort of code. If I were an imam praising Saladin to my congregation, I would be committing an offence under the clause.
Does the hon. Gentleman believe that any of his examples could possibly pass the test that the Attorney-General would set before sending them on for prosecution? Also, he has told the House about his legal background. If I ever find myself in trouble, will he assure me that he will not offer his services?
Yes, the right hon. Gentleman probably could not afford them.
The point about the Attorney-General's discretion is a very serious one. As my right hon. Friend the Member for Suffolk, Coastal said, the Attorney-General will have to decide when a form of speech is an offence under the clause. Will that depend on the race of the speaker or on his religion? The answer is yes: no impression would be excited if I were to praise Saladin in such circumstances, but it would be if I were an imam. The context would be wholly different. The Attorney-General will have to decide the factors involved, and there is no place in our law for a discretion of such width.
Does my hon. Friend agree that there is a danger that our opponents, enemies and people who want to act against the state might be encouraged to make such statements and provocations? In that way they could force the Attorney-General to make a decision and thus drag the matter into the political firmament.
I entirely agree that that is one more danger.
In conclusion, the Home Secretary said earlier that the proposed offence was intended to deal with the creation of the moral climate that allowed terrorist acts to be committed. However, to legislate to prevent the creation of a moral climate, as opposed to the incitement of specific acts of violence in specific circumstances, is to go too far. I urge the Minister to think again. If the amendment is pressed to a vote, I urge the House to support it.
I fully understand the Government's inclination to respond to people's heightened emotional state in respect of terrorism and to respond to those who talk about terrorism in positive terms. We all find such talk very distasteful, but the Government appear to be falling into the trap of making something distasteful into something illegal. There is a big difference, and my right hon. Friend Mr. Gummer raised the fundamental issue about the clause when he asked what sort of action would be covered by the word "glorification" that would not be covered by "encouragement" yet still attract punishment under the criminal law.
I believe that no action meets the circumstances of that definition. If that belief is correct, the Government are creating with this clause a piece of law that can have only two possible fates—it will be misused, or it will not be used at all. If the latter is the case, the provision will simply gather dust. Prosecutors will not use it because it is inappropriate to put before a jury, but either fate is unacceptable for a facet of the criminal law.
My second concern has to do with the points raised already about the role of the Director of Public Prosecutions. I understand the Government's argument that there is no need to worry about the clause because, although it may be completely inappropriate in all sorts of circumstances, the DPP will put his foot down and prevent it from being used. That seems a profoundly unfortunate position for a Government to be in when proposing a clause to be part of the criminal law. It may be that the DPP currently in office will be able to protect us from all the different situations in which a glorification charge would be inappropriate. It may also be that the next three or four holders of the office will do so. Surely, however, we in this House must make law that will stand as good law, and not simply as law that needs to be propped up by the DPP, or, worse, law from which the DPP needs to protect us. It is fundamentally unsatisfactory to propose legislation that would have that effect.
If we are to look beyond the immediate compass of the current situation—I accept that that situation makes the Government worry about how we deal with it—it must surely be right to construct legislation today and this week that will stand the test of time and enable us to be confident that it will not be misused in future. As my right hon. Friend the Member for Suffolk, Coastal said, the concept of glorification—indeed, the term itself—does not currently form part of the criminal law. It seems to me that there is good reason for that: it is too broad, too ephemeral and too difficult to define, and if that is so, the fact that it has no place in the criminal law is frankly because it deserves no place there. It will create difficulties in the future. I ask the Government to reconsider that part of this clause.
The Minister knows that there is a good deal of support for a great part of the Bill, and even for a great part of the clause. I fully appreciate that those who encourage terrorism should be penalised. We can, however, do that without needing to criminalise a concept called glorification, and I invite the Minister to consider what it is that is glorification but is not encouragement but should still be criminal. That is the crucial point of the debate, and without an answer on it, we cannot be confident that the clause should remain.
I am grateful to those who tabled the amendments for allowing us to revisit this area. I shall endeavour to respond to the contributions made, which have ranged from Wat Tyler to Hereward the Wake through all points in between. I am grateful to hon. Members who acknowledged that some of the examples given have been—I think this was the term used—fanciful. I am grateful, too, for acknowledgements that this is a serious matter, although I must tell Mr. Cox that terrorism is a serious issue and the tone in which he made some of his contribution really did not reflect that seriousness.
I remind the House that we had a pledge in our election manifesto to outlaw the glorification of terrorism. We originally had a stand-alone offence but have come now to the formulation in clause 1. Lord Carlile, our independent reviewer of the legislation, says that
"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".
So, Lord Carlile agrees that in the revised form—not as a stand-alone offence but as something encapsulated in clause 1—the response is a proportionate one.
The Minister must explain what its purpose is. If glorification can amount to incitement without being separately spelled out, the subsection simply is not needed and produces a misleading impression and places emphasis on a particular activity, when all sorts of other activities could also constitute incitement to terrorism.
The hon. Gentleman must have a little patience and allow me to explain the point. He has made that point on innumerable occasions, and I shall deal with it. I repeat that Lord Carlile thinks that the provision is proportionate and the proper thing for us to do.
It is right to highlight "glorification" in clause 1 and I direct the hon. Gentleman's attention to clause 1(2) which says that, for the purposes of direct or indirect incitement,
"offences include every statement which . . . glorifies the commission or preparation . . . of . . . offences."
The use of the word "include" means that we do not have a stand-alone offence of glorification, but statements of glorification are included within the ambit of the direct or indirect incitement in clause 1. That is the point that Jeremy Wright made in his thoughtful contribution. It is important to include reference to glorification for the very reason that it is a new concept to our courts and, therefore, we need to provide the courts with a guide to the kind of behaviour that we are trying to ensure is covered through the direct and indirect incitement provision.
Mr. Grieve said that he found the provision "a distasteful concept". Well, most of us would find statements that glorify, praise and celebrate terrorism in a way that is likely to encourage others to emulate terrorism more than distasteful. We find them completely unacceptable. The hon. Member for Rugby and Kenilworth was generous enough to acknowledge that we do now face a new kind of threat from international terrorism, including people making the sort of statements that we have not heard in the past. Therefore, although Mr. Gummer was kind enough to say that I am not the sort of person who ignores history, I am the sort of person who wants to ensure that our law is fit to address some of the new threats that we face as well as our experience in the past. There is universal acknowledgement in this House that the threat that we face from international terrorism now is significantly different from threats that we have faced in the past.
I appreciate what the Minister says and what she is attempting do. However, given the wide definition of terrorism and the link to the very broad definition of glorification, the danger is that the Bill will catch not the people she is seeking to catch, but others. If I may give a more contemporary example, thousands of honest citizens in the UK supported the Chilean refugees who were on the run from the Pinochet regime, which deemed them to be terrorists. Is not that the problem with the Bill?
We debated that point at great length in Committee and we went through all the different examples. The glorification part of this offence also has to fulfil the other provisions of clause 1. That means that there has to be intent, or recklessness, or the objective definition of recklessness. A statement also has to be one that encourages terrorism and encourages people to emulate such behaviour. The offence contains a series of different elements that have to be completed before there is any prospect of a prosecution.
Several hon. Members have suggested that the only safeguard is the Director of Public Prosecutions. That is not the case. There is a series of seven hurdles, which I have now set out three times at the Dispatch Box, of the different component parts of the offence, all of which have to be completed before a prosecution could be brought. Someone would have to condone or glorify terrorism in such a way that the persons hearing his statement would be encouraged to commit an act of terrorism or emulate that behaviour. It is not simply glorification or condoning that form the offence, because there is the second limb of the likely effect on the audience and what it would be encouraged to do.
It is helpful to have the list that the Minister has given. However, someone might say, to a person who was here in the circumstances I described a minute ago, "What you faced was terrible. I hope that you go home, take your country back and make it democratic." That short conversation would fulfil all the obligations for the offence, except the decision by the DPP.
My hon. Friend Mrs. Dunwoody, who is no longer in the Chamber, made an important point earlier when she said that someone could preface their remarks with the statement that they do not condone or endorse acts of terrorism or encouraging people to kill others. They could express sympathy and even support for the activity, but not in a way that encourages people to commit acts of terrorism.
I am interested in the Minister's endorsement of the words of Mrs. Dunwoody, as she has just provided a let-out for every person who wants to incite terrorism. If all that is required to get around the clause is to preface one's remarks with that saving clause, why are we passing clause 1 into law? That is a classic illustration of the muddled thinking behind the Government's approach. The Government should remove glorification and stick to incitement, with proper terminology. They will then have an offence that works, that bites and, moreover, that commands widespread respect.
It will be no surprise for Members to hear that I do not agree with the hon. Gentleman. Yet again, he is stuck in the traditional analysis—we can do things only in a certain way, because that is how we have always done them. He is not prepared to look at some of the novel challenges and threats that we face in this new situation, or to try to adapt the law to ensure that we meet those threats in a proper way.
I want to press on.
Unfortunately, there are young and impressionable people in our society who can all too easily be manipulated by people preaching or advocating a message of hate. Such people can create the climate of hate in which terrorism can more easily flourish. That is what we are trying to tackle with the offence. I remind the House that the terms of the offence are clear. Simply condoning terrorism, or even glorifying it, will not be sufficient to constitute a criminal offence. The glorification must take place in such a way that the person making the statement must intend it or be reckless as to its effect. The statement must have an effect on the audience, who must be encouraged to emulate the behaviour. Because the offence includes all those components, it would address all the illustrations bandied around the House to express genuine or, in some cases, not so genuine concern.
The offence is complex. It has two limbs: what someone does and what the effect is. That combination should be sufficient to reassure people that we are trying to focus on the mischief of those who make statements to vulnerable young people that could draw them into extremism, without casting our net so wide that we catch people where it is inappropriate. I have genuinely tried to formulate the provisions so that they attack that mischief, which I hope everybody acknowledges is a real threat to us, but without drawing people in too widely.
There is a difference between expressing support for people's actions and that further step where a person makes the statements that they intend or are reckless about and that they know are likely to encourage others to engage in acts of terrorism. That is what the provision is aimed at and it is perfectly proper to bring it into effect.
Some Members have suggested that the provisions are unnecessary. If that were the case, we would not have included them. They provide the courts with a useful guide as to the type of conduct that Parliament wants to cover in the new legislation. Moreover, if they were to be removed at this stage the courts could interpret that as meaning that we did not intend such conduct to be covered. If the provisions were removed, I am concerned that courts could consider that acts of glorification, celebrating, exalting and praising terrorism were not the type of behaviour that should be covered under direct or indirect incitement. They are an important illustration to the courts of the type of behaviour that we want to cover.
The Protection from Harassment Act 1997 provides an analogy—albeit on a difference scale—that helped me to understand the clause, as the Act includes a description of the type of conduct involved in harassment. When the concept of harassment was introduced, it was new to the courts, so the Act described the type of conduct that would be covered, to assist and guide the courts in interpreting that criminal offence.
This provision is certainly similar because it would tell the courts that we are considering behaviour that glorifies, celebrates or exalts terrorism and that it should be included in direct or indirect incitement in accordance with clause 1, so it is very helpful indeed. Any suggestion that praising Robin Hood would fall into that category is very far of the mark.
I understand that the Minister is saying that the glorification provision is designed to be a guideline and an assistance to the courts—I follow that argument—but does she not accept that, as a result of what has been said in the debate, if for no other reason, problems are associated with glorification that are not associated with encouragement? I simply return to a point that has been made many times to which I have not yet heard the answer. What does glorification give us that encouragement does not?
As I have tried to explain, the glorification provision is a guide to the courts that the behaviour of celebrating and praising terrorism is the kind of conduct that would meet the direct and indirect incitement definition, so it is a useful addition because we now face the threat of people glorifying terrorism. Those people are very careful to try to ensure that they do not fall within the criminal definition, so it is important that we can tell the courts which sort of behaviour we want to outlaw.
The hon. Member for Beaconsfield said that, if someone's glorification of terrorism amounted to direct or indirect incitement, such behaviour should be criminalised. That is exactly what we seek to do in subsection (2), which says that glorification includes the behaviour set out in clause 1. He has said that he accepts that such behaviour ought to be criminalised. I can therefore see no reason why he has a problem with the glorification provision. I cannot understand his fundamental objection, other than that he finds the concept of glorification distasteful. I am afraid that we are here not to legislate on the basis of what he finds distasteful in terms of a concept of English law, but to set out what we think is important in tackling this very real mischief.
What should be criminal is the indirect incitement and the encouragement of people to commit acts of terrorism. Clearly, when we come to the other clauses—we may not have a chance to debate them—I want to deal with the points about extra-territorial jurisdiction made by Mr. Clarke and the right hon. Member for Suffolk, Coastal (Mr. Gummer). Again, with some of the amendments that we have introduced, we have tried to narrow the scope of those offences to try to reassure hon. Members that they are targeted at the specific mischief. However, if John Bercow is asking whether I can pick and choose between regimes or perhaps between a good terrorist and a bad terrorist, I repeat that it is wrong for people to encourage others to undertake terrorist acts. As I have said, it is a slippery slope—
Hang on a minute.
As I said in Committee, we are on a slippery slope if we start to try to pick and choose between different regimes.
I wholeheartedly welcome the commitment made by the Home Secretary today to refer the thorny issue of the definition of terrorism to Lord Carlile and to ask him to report to the House within a year. That issue has exercised many of us, and it is a very difficult one to get right. I cannot think of anyone better than the noble lord, given his track record, to report to us. I am extremely grateful to my right hon. Friend and to the Home Secretary for recognising that concern and for at least giving us a possible way forward.
I am grateful to my right hon. Friend for that contribution. He will know that we have put a copy of the letter from the Home Secretary to him in the Library. The letter sets out the fact that there will be consultation with those in the House who can make a relevant contribution, such as Chairs of Select Committees and no doubt other hon. Members who will want to get involved in the review process. That will be a practical way of reviewing the legislation—[Interruption.]
Does the right hon. Lady agree with me that it would be rather a good idea if the people of Zimbabwe rose up and overthrew Mugabe?
I am genuinely surprised at the hon. Gentleman. I do not think that it is a good idea in the House of Commons to get involved in making such statements. On reflection, do we want to get into the business of encouraging people to carry out violent acts against other individuals? There might be circumstances in which we can have that debate. Our legislation is focused on situations in which individuals either deliberately or recklessly encourage people—especially our young people in this country, who can be vulnerable to being drawn into extremism—to engage in terrorist acts. There is a real danger of that in this country given the new threat of international terrorism that is facing us all. It is not just a threat; I remind the House of what has happened in this country. We face a serious situation.
I was going to address the points made by the right hon. Member for Suffolk, Coastal and the right hon. and learned Member for Rushcliffe.
I do not think that the right hon. and learned Member for Rushcliffe is in the Chamber, but it was good that he popped in to see us. He will know that amendment No. 48 is an attempt to narrow the extra-territorial jurisdiction. The measures in clause 1 that we are discussing would apply only to convention offences because if we are to be able to ratify international conventions on the matter and comply with our international obligations, we have to ensure that there is extra-territorial jurisdiction. Other states will be doing exactly that, too. There are circumstances in which we refuse to extradite people to states in which offences take place, such as for human rights reasons. We thus must have the extra-territorial jurisdiction to allow us to carry out a prosecution here for an offence on which we are unwilling to extradite for good reasons. We have tabled further amendments on extra-territorial jurisdiction to narrow its reach as an attempt to address genuine concerns that were raised about the worldwide jurisdiction of the Bill.
Mr. Heath talked about pressure from other Governments and raised the question of the glorification of proscription offences in clause 21. We will make a proper and full assessment of organisations, without any preconceptions, to examine the criteria that apply to proscription. We will then reach a proper view on the basis of the evidence. Clause 21 addresses the fact that promoting or encouraging terrorism will include glorification. It is proper for us to say that if organisations glorify terrorism, they should not operate in this country and draw young people into extremism.
The final point that I wanted to make was—
It being three hours after the commencement of proceedings on amendments relating to clause 1, Madam Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].