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Mr. Clarke: I will in just a second. I think that the body of law that we have in this country protects us quite adequately against such extremes. I always concede that the hon. and learned Member for Medway (Mr. Marshall-Andrews) is an up-to-date, practising and very distinguished lawyer, whereas I am very out of date and long extinct, at least in legal work. I shall not repeat what he has said already, but I have no doubt that no prosecutor would have any difficulty when it came to producing an adequate charge under the general heading "incitement to violence". Such an offence is quite easily covered by the ordinary law of the land, and under the terrorist legislation that the House has passed over recent years.

It is interesting to note that, until recently, no one was prosecuted for such incitement, even though some cases have been very blatant. For example, preachers have used very extreme language that must have caused offence. Their praise for the work of "heroic" terrorists must have been calculated to incite others to repeat and emulate it. The attitudes of the Government, the police and the prosecuting authorities have undergone a remarkable change in recent times. I have no doubt that some of the more blatant cases have not been prosecuted because the police and prosecuting authorities have decided—as a matter of public policy—that, however offensive statements might be, it would do more harm than good to bring them before the courts.

I cannot agree with an approach that I consider to be unbelievably nervous and cautious. I should be very surprised if Home Office Ministers had not been involved in discussions in which it was decided that the good that might be achieved by making martyrs of some preachers by sending them to prison—and there is no doubt those drawn to self-publicity would quite enjoy that martyrdom—would be outweighed by the trouble that would be stirred up among the extreme elements of misguided youth in our cities. With hindsight, I say that that decision may not have been wise.

2.15 pm

It is extraordinary, however, that the Government's opinion has swung so far away from that position that, as a matter of public policy, we now have to add a new offence that goes far beyond what is necessary to cover incitement to violence by extreme religious and political leaders. The Bill will make unlawful quite ordinary—albeit controversial—statements that many people in this country might make in the course of exercising their undoubted right of free speech.

It is totally unnecessary to introduce the indirect offence of encouraging terrorism, especially when the Bill uses such mild words to describe what a person might do. Plainly, clause 1 has been designed to make it   extremely easy to convict people for making comparatively moderate statements.

This Committee stage is subject to a guillotine and, although I accept that the Government have been more generous than has been the case in the past, there is no point in my repeating the countless examples that have been given in the debate already of the words from
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literature, for instance, that would be caught by clause   1. As has been noted, the words of the Prime Minister's wife would also be caught.

The whole point of the clause appears to be to make a new offence of encouraging, directly or indirectly, the preparation or commission of an act of terrorism. Yet the word "encourage" is not especially strong. Warm words might be sufficient to trigger the offence of encouragement. For instance, a person might say that he or she understands why a course of action is taken, or that the shock or dismay caused might not be too great. There is no need for someone to urge another to go out and perform a terrorist act, as the use of polite and understanding language could clearly be taken as encouragement by someone already inclined to perform such an act.

What on earth is meant by the term "other inducement", in the context of someone who is starting to think about preparing an act of terrorism? Perhaps the draftsmen had in mind newspaper stories—I suspect that they are somewhat exaggerated—that suggest that a vision of heaven is held out to some misguided fanatics, who consequently believe that they will enjoy all sorts of earthly and sensual delights if they die as martyrs.

John Bercow : They are offered paradise.

Mr. Clarke: As my hon. Friend says, such people are offered paradise as an inducement to commit an act of terrorism. However, it is still a big step for the young people concerned to take, even given the visions of pleasure that are held out to them.

Another problem has to do with what will happen if someone says, "Well, I don't agree but I'm sure God will forgive a person's sins if he performs a terrorist act." Is that an inducement to go out and prepare to commit an act of terrorism? I think that it is, which proves my point that the Bill will catch words that are really quite mild.

I think that we should stick to the words used by the Prime Minister's wife, with whom I often sympathise. She is subjected to more public criticism because of her marriage than would be the case if she were a public figure in any other circumstances. In last week's debate on Second Reading, the Home Secretary merely asserted that the Bill would not catch what the Prime Minister's wife so famously said. I have not the first idea why the right hon. Gentleman asserted that. We need to hear some supporting argument, as I believe that it is clear that what she said would be caught by the Bill.

Mr. Hogg: The argument is that the Attorney-General would not allow that.

Mr. Clarke: I shall come to that in a moment, but for now I want to endorse what has been said by my hon.   Friend the Member for Beaconsfield (Mr. Grieve) and by the spokesman for the Liberal Democrats, among others. I agree that it is completely unacceptable that a person could commit the proposed offence merely through carelessness or negligence. If it is judged that there is reasonable cause to believe that a member of the public might feel a bit encouraged by something that is said to him or her, that amounts to what I suppose we are meant to regard as a serious criminal offence.
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That is completely unacceptable, and the proposal should never have been presented to the House. For me, the strongest point in the discussion about clause 1 is that the intention to incite terrorism must be the minimum requirement in an offence of indirect incitement. The role of intention is fundamental in the creation of an offence of that kind. If intention were necessary, it would explain why the provision is not otiose because it would provide an alternative form of words to those already on the statute book. I would accept that it should be an offence for someone to intend to incite someone else to act in preparation for or commission of terrorism. As it is, I think that that is already covered, but I would not object to the provision. I would regard that as a grave offence and it should carry heavy penalties, unless it is part of some absurd drunken outburst, but the provision would touch on all sorts of forms of words and mean that all kinds of literature, speeches or stray remarks could be seen as encouraging preparation for terrorism if some member of the public happened to hear them and was affected in that way. That is unacceptable.

When we have put such points to Ministers, the response has been—as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr.   Hogg) just pointed out—"Ah, but the Attorney-General would not prosecute." In many cases, this House rightly passes laws, but because we know that the law might be exploited and ridiculous litigation might result—because people with particular interests might   use it against their rivals in some political or religious dispute—we make it a condition that the Attorney-General, as a Law Officer of the Crown, is the   only person who can bring a conviction. That removes the abuse of the threat of prosecution and the Attorney-General can ensure that a prosecution would involve a serious issue of public policy before it is brought. However, I have never known that practice to be taken to the lengths to which it is taken in the Bill. The need for the Attorney-General's approval should not be used to try to rescue a uselessly drafted piece of legislation that might criminalise works of literature. The examples already given have illustrated the absurdity of the clause. It should not be an answer to say, "Well, of course, all kinds of extraordinary things might be made unlawful by the Bill, but let us just pass this catch-all legislation and rely on the wise Attorney-General to ensure that only serious criminals face prosecution." I strongly urge against such an approach to legislation.

Throughout today, we should apply the test that the Government have applied when exhorting us all not to be soft on terrorism and to pass various other aspects of this legislation. If we are all fearful of the increased risk of terrorism—I suspect that we will face it for many years to come—we should ask of the proposals whether any sensible person would feel any safer if they were passed. That is the right test, and I would advise the most nervous of my fellow citizens, who lie awake at night worrying about the threat of terrorism, that they should not be deceived into thinking that clause 1 would make the slightest difference to their predicament. It is ridiculous and absurd, and it should never have been brought before us.

The Bill has been dragged together to give the impression of a dynamic and tough Government who are taking firm action in response to the recent outrages.
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If all they can produce to demonstrate firm action is this absurd legislation, the House has a duty to throw it out. If the Government begin the four days of proceedings on the Bill by defending such a provision, I fear what they will say when it comes to other significant elements within it.

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