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Mr. Richard Shepherd (Aldridge-Brownhills) (Con):
I agree in great measure with the right hon. Member for Southampton, Itchen (Mr. Denham). His words encapsulated a particular concern of mine. He said that
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he thought that this proposed legislation is essentially marginal in the fight against terrorism, and the House should pause to consider that point. My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) pointed out the extent to which we have legislated in recent years to meet what is clearly an exigency and a massive concern to those whom we represent: the eruption of legislation that fails to deal with the dangersif we take the Home Secretary's view on this issuethat we face. When examined, the question of necessity arises. What is so necessary about this legislation? It is difficult to put one's finger on the essential element that underpins the conclusion that it is necessary to place restrictions on our freedom of speech.
We must bear in mind the various offences of incitement already in UK law. Incitement to violence, including terrorist violence, is already a criminal offence, as is incitement to commit an act of terrorism overseas, by virtue of section 59 of the Terrorism Act 2000. Solicitation to murder is an offence under section 4 of the Offences Against the Person Act 1861 and incitement to racial hatred is a crime under the Public Order Act 1986. A wide range of criminal offences is already available. Why, then, is a new offence of encouragement of terrorism, including by its glorification, necessary?
"the current law of incitement essentially deals with a very particular event, which an individual committing an event is incited to commit, for example to commit a very particular act in a particular way . . . that means it is difficult to prosecute in the more general circumstance where an individual organisation is inciting in general but not linked to a very particular crime."
Like the right hon. Member for Southampton, Itchen, I am not lawyer, but in the Regina v. El-Faisal case of 2004, the Court of Appeal upheld the convictions of a minister of Islamfor soliciting murder under section 4 of the Offences Against the Person Act 1861 and for incitement to racial hatred under the Public Order Act 1986for having made audio tapes urging Muslims to fight and kill, among others, Jews, Christians, Americans, Hindus and other "unbelievers". In the course of its judgment, the Court of Appeal explained the great width of the offence of soliciting to murder:
'Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life.'"
"The largest words possible have been used, 'solicit'that is defined to be, to importune, to entreat, to implore, to ask, to attempt to try to obtain; 'encourage', which is to intimate, to incite to anything, to give courage to, to inspirit, to embolden, to raise confidence, to make confident; 'persuade' which is to bring any particular opinion, to influence by argument or expostulation, to inculcate by argument; 'endeavour' and then, as if there might be
I have troubled the House with a lengthy excerpt, but I am trying to demonstrate that the Home Secretary has not answered the core of our fighta national fight, which affects our constituentsand has not demonstrated why, given the present state of the law, clauses 1 and 2 are necessary.
It is the wider implications that really worry me. Freedom of expression is perhaps the most important and basic right in a democracy. It did not come about casually, as we said last week in debating the Identity Cards Bill. It was a long march, and many of the acts that brought us to where we arethe Home Secretary has defined democracywere products that would be caught by the legislation in any event. That is the truth of the matter. Those who burned rickshaws would be caught, as I read the provisions. Is that really our intentto define our own democracy in those terms?
In respect of the extension to the overseas provisions, the Home Secretary said that he had attended the ceremonyin St. Paul's cathedral, no lessmarking the 60th anniversary of the UN. The UN has nearly 200 members, but would we call all of them democracies, even though they all subscribe to the universal declaration of human rights? The hypocrisy is writ large, and the Home Secretary offers an extraordinary historical analysis when he claims that the movement in the world at large is towards democracy. However, that process of edging towards democracy has often been ignited by something else.
Mr. Mugabe, through his country's membership of the UN, subscribes to those universal principles. People in other benighted countries suffer under the heel of cruel and vicious Governments, but do we tell those who rise up against their privations that anything that improves their lot is passable? No: the Home Secretary says that there is an ineluctable movement towards world democracy, but that is simply neither true nor real. In the pursuit of the Home Secretary's dream, we are asked to degrade and undermine some of our basic principles of freedom and democracy.
It is the crafting of the Bill that worries so many of us. The principle behind extending detention to 90 days clearly nags at the consciences of many hon. Members. There has to be some form of compromise.
I am grateful that the Government concede that the matter is important enough to be discussed on the Floor of the House. That allows all hon. Members to examine the proposals and express their opinion about it. Would to God that we had the same right in respect of so many of the instruments that come before us. Nevertheless, I congratulate the Government on their approach today.
I think that the Bill will founder on the Government's flagship Human Rights Act 1998, that at some time it will be declared to be incompatible with that legislation, and that we will be back to where we started. There will come a time when the House has to determine whether an instrument of declaratory power is appropriate to the circumstances that we face. The Bill challenges our declaratory principles of freedom of expression and the proportionality of actions taken by the state to meet the exigencies that we face.
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As expected, the Home Secretary offered a very robust defence of the Bill. No one doubts that it was the Government's duty, and his in particular, to take all appropriate steps to protect the population against terrorism, especially in the light of 7 July, but any Bill designed to achieve that purpose must be tested against several criteria.
Firstand this question was rightly posed by the hon. Gentleman for Aldridge-Brownhillsis the Bill a necessary addition to the existing corpus of law to prevent acts of terrorism in the UK? Last year, the Director of Public Prosecutions told the Joint Committee on Human Rights that there was
Indeed, the common law of incitement and the Terrorism Act 2000 already provide very considerable scope for prosecution. For example, the Bill's new offence of encouragement of terrorism has been justified on the grounds that it is intended to criminalise incitement to murder, yet acts of incitement to murder or terrorism are already punishable by life imprisonment. In fact, I suspect that any difficulty in bringing prosecutions at the present time is much more likely to arise from the self-imposed ban on admissibility of intercept evidence, which in my view should be lifted, than from the absence of a prosecutable offence. Therefore, it is not clear that the Bill passes the first test.
The second test is whether the Bill is drafted tightly enough to catch those against whom it is allegedly directed and not those who may unintentionally be trapped by loose drafting? It is certainly to be welcomed that, after considerable concern has been expressed, the original proposal about glorification of terrorism has been dropped. But encouragement of terrorism is still drawn extremely broadly. In particular, as others have said, it allows acts to be criminalised without the need for intention by the person committing the offence. That is wrong and we must return to that next week.
Moreoveralmost everyone has mentioned thisthe definition of terrorism under clause 1 is so wide that, contrary to what I think the Home Secretary was saying, it would criminalise calls to overthrow oppressive regimes where democratic means do not exist. In my reading of the definition, it would have caught those supporting the African National Congress and its methods in the fight against the apartheid regime. It would also have caught those calling for action involving, for example, violence against property, even if not violence against the person, against such regimes as North Korea, or Burmathat has been mentionedor Ceausescu's regime in Romania, and would have criminalised those who called for action against the Nazi regime in Germany.
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