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Mr. Marshall-Andrews: The extraterrestrial aspect had not occurred to me. With great respect, I have a wide-ranging view of this legislation, but it stops somewhere around the Olympian height. In any event, I am enormously grateful, as always, for the hon. Gentleman's support on the broad aspects of the debate. As to the general enforceability of the provision, we all know, as the Home Secretary says in his inimitable way, that it will not be enforced—that is what he means. We cannot pass legislation like that. He has a charming way of dealing in public debate with those who point out to him that such an activity will be criminalised under the Act—he says, "No, it won't." That is it—he makes an ex cathedra statement, says that we are wrong, and passes on to the next prosecution.
Mr. Gerald Howarth (Aldershot) (Con): The hon. and learned Gentleman and my hon. Friend the Member for Beaconsfield (Mr. Grieve) have made a forceful argument. Over the past few years, however, some seriously inflammatory statements have been made by Omar Bakri Muhammad and others. I have complained about that, and the hon. Member for Hendon (Mr. Dismore) has been complaining for years about it. Every time that I have raised the issue, including with the Foreign Secretary when he was Home Secretary, and asked why no action is being taken against such people, we are always told that there is insufficient evidence or insufficient laws on the statute book to deal with it. Can the hon. and learned Gentleman, as a lawyer, assist the Committee to understand how, with the plethora of laws to which he has referred, the Government have been singularly incapable of dealing with such people, and yet another piece of legislation is proposed for us, which we know is also unlikely to be enforceable?
Mr. Marshall-Andrews:
If I can employ a well-known legal term, the answer that the hon. Gentleman has been getting is absolute rot. There is an abundance of weapons in the prosecutor's quiver to deal with that. Why Bakri in particular has not been prosecuted, and why those acts have not been prosecuted under the incitement provisions, is a matter of complete bemusement to me. Yet we are told that we have to wait because we need a new law.
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The amendments tabled by me and others would go a considerable way to redressing the matter, as they introduce into the Bill an element of intention. Intention is well known in the law—juries deal with it all the time. As to how one proves it or gets inside a man's head, it is simple—one listens to what he says and the context in which he says it. One then says that, in those contexts, he manifestly intended to ferment terrorism or terrorist acts. That is not difficult, and I cannot understand for a moment why the Home Secretary will not accept it, particularly as it is already enshrined within European jurisprudence.
In the circumstances, the next of our amendments is less important. Why should we not replace "encouragement or other inducement" with "incitement"? I would like the Minister to answer, on the basis of heads, pins and angels, what is the difference between encouragement or other inducement and incitement? The Government tell us that the purpose of the Bill is to create indirect incitement as an offence, so why not use the words "indirect incitement" instead of indulging in encouragement and inducement?
While we are on semantics, the next amendment is to remove completely the odious glorification provision. At least we no longer have "exaltation" as well—no doubt that is a favourite word of the Prime Minister's, but it has disappeared. Such semantics and verbiage might be appropriate to Frederick Handel or William Blake, but they have no place whatever in the sterile world of criminal jurisprudence. We might glorify God, but we do not glorify what men do, and nor do we exalt it. Those words have no place in criminal jurisprudence, and should be expunged from it immediately.
This is, in truth, the worst part of the Bill. Most of the media interest has centred on the three-month period, which is itself an affront, but this is the worst part. The three-month period can be changed at the drop of a hat, but once this provision is on the statute book we will let loose into criminal law something that all of us, in the course of our lives, will have cause profoundly to regret. I urge the Committee to join my colleagues and me in pressing amendment No. 79 to a Division in due course.
Mr. Carmichael: Let me first offer a few words of reassurance to the hon. and learned Member for Medway (Mr. Marshall-Andrews). I detected a real note of concern in his voice when he told us that, in rushing to the defence of Cherie Booth, QC, he had blotted his copybook by defending someone residing at No. 10 Downing street. My understanding is that, while Cherie Booth's husband's place of work may well be No. 10 Downing street, she actually resides at No. 11. Whether he acted intentionally, recklessly or negligently, I think that the hon. and learned Gentleman has maintained his proud record.
The kindest thing that can be said about clause 1 is that parts of it are opaque. Other parts border on the impenetrable. In my view and that of my colleagues, it fails a basic test. One of the fundamental principles of natural justice is that law should be clear enough for citizens to be able to regulate their conduct according to it. Subsection (1) uses the words
"members of the public to whom the statement is or is to be published are likely to understand it as".
That means that someone could find himself negligently contravening clause 1, which is why we cannot support it in its current form—notwithstanding the consensus referred to by the hon. Member for Beaconsfield (Mr. Grieve), in which I would wish to join him.
The Minister will say that it will be all right on the night, because the Solicitor-General or the Attorney-General will determine which prosecutions can proceed, and of course Law Officers and Governments always act sensibly in such cases. Like the hon. Member for Buckingham (John Bercow), I do not find that particularly reassuring. It is not for the House of Commons to pass legislation under which the citizen must second-guess the judgment of a Law Officer before deciding whether his conduct will bring him before the courts.
One might ask whether this really matters. We have heard, and will no doubt hear again, all the Government assurances, but where the law is opaque and difficult to understand, it is also difficult to secure convictions following prosecutions. If members of a jury cannot see the sense in what is being done by the prosecutor, they will acquit. In framing clause 1 as they have, the Government seek to defeat their own purposes. At the very least, the clause ought to contain a substantial element of intent which is not there now. That is the purpose of our amendment No. 18, amendment No. 79—tabled by the hon. Member for Beaconsfield and his colleagues—and various other amendments.
1.45 pm
It cannot be acceptable that an offence attracting such a substantial penalty can be committed negligently. The next question to consider is whether recklessness can be imported. Here I tend to agree more with the hon. Member for Beaconsfield than with the hon. and learned Member for Medway, but I do not consider the issue to be one of great substance. The important point is the presence of a substantial element of intent. Whether an objective or a subjective test is applied to establish that intent—which is where recklessness comes in—can be considered another day. Viewing the matter from my perspective as a former prosecutor, I think that if the offence is ever to be made workable, the recklessness option ought to be available to the prosecuting authorities.
The Government have moved substantially since the early days when glorification was first mooted as an offence in its own right, and the Liberal Democrats welcome that. Nevertheless, if the Committee supports amendment No. 4 and removes the glorification provision, we shall be doing the Government a favour. The provision seems to me to have no purpose, other than to save the Government's face to some extent, given that the Prime Minister started this hare and set it running. Of course glorification will be there as an adminicle of evidence that can be considered by the jury, but including it in the Bill adds nothing and, indeed, widens the scope to an unacceptable degree. When we see it in a context of a Bill that does not, in my opinion, give a proper definition of terrorism, we find ourselves in an exceptionally difficult position.
This morning, the Home Secretary got into some difficulty on the "Today" programme when the interviewer referred to the hon. Member for Belfast, West
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(Mr. Adams), who was considered by many to have glorified terrorism on a number of occasions in the past. Indeed, I think that, even if the clause were amended comprehensively, much of what the hon. Member for Belfast, West did in the past would still be caught. It must also be said, however, that the hon. Member played a significant role in the ending of terrorism in Northern Ireland. Perhaps we should pause for thought before considering the full import of what will be achieved by the creation of offences such as this.
The question for the Committee is this: does subsection (2) add or subtract anything? I do not think that it adds anything, but it contributes massively to the lack of clarity in clause 1, and I therefore believe that it should be removed.
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