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Mr. Denham : Throughout this debate we need to focus our minds on the problem that we are trying to solve; otherwise, we shall get into an abstract debate about the legislation. Despite the argument that some right hon. and hon. Members have made that there is no case for any change in the law, I think that there is broad agreement across the Committee that there is a particular problem that we are anxious to tackle, and that if current legislation is not satisfactory, we need in principle to consider new legislation. That particular problem is the role played by those who are attempting as we speak to draw young people in this country into active involvement in terrorist activity of the sort that we saw in London in July. There is a reasonable case for saying that in practice we have found existing legislation inadequate to deal with that, and that we should introduce new legislation. I hope that the Government will today recognise the extent to which the willingness to consider new legislation is accepted on both sides of the Committee, and therefore accept the strength of criticism of the way in which they have gone about trying to legislate for that change.
There are a number of real problems with the legislation. At the end of the day, the test of it will be whether the number of young people in this country brought into terrorism is reduced by at least one. The test is not one of elegance or of accord with international treaties. We have some problems, because we know relatively little about the path that is followed by a person who ends up becoming a suicide bomber. We believe that the radical extremist preachers or agitators play a role in that process, but we are not quite clear what role they play and what other processes those young people undergo before becoming suicide bombers. One thing we do know, though, from the Home Office/Foreign Office assessment of young Muslims in extremism which was leaked a few months ago is that one of the motivating factors is a belief that our laws are not even-handedthat they are biased; that they betray double standards.
If we pass the Bill in its current form, to give any active encouragement directly or indirectly to, for example, the resistance in Chechnyanot all of those involved are the murderers of Beslan; a variety of groups are involvedwould clearly be an offence. However, it would be perfectly legal in this country to stand up and say, "The problem with the Russians in Chechnya is that they haven't yet killed enough Chechens." There would be no bar on saying that or indeed on urging the Russian Government to kill more Chechens. That seems to represent a lack of symmetry in the law, which is uncomfortable.
That is not a debating point. Such an imbalance in the law is exactly what is exploited in every community. Every single one of us who has ever sat down with
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Muslims in our communities who are not terrorists has heard them say that the trouble is that there are double standards. The Government's decision to entrench those double standards further is very dangerous, as is the reliance on the Director of Public Prosecutions. We have all chucked around fantasy cases such as prosecution of the President of the United States, but the truth is that such cases will not arise. Cases will be brought only when the Director of Public Prosecutions or the Attorney-General decides politically which type of agitation we wish to prosecute.
That is very different from the role played by another controversial Bill, the Racial and Religious Hatred Bill, under which, as the right hon. and learned Member for Rushcliffe (Mr. Clarke) was saying, we are asking law officers to set a threshold of seriousness below which trivial cases will not be prosecuted. This Bill is not about a threshold of seriousness. It is about asking the DPP or the Attorney-General to make a political choice about which type of encouragement to violence we wish to prosecute and which we do not. My concern is not so much how many cases will come before the courts, because there will be very few, if any, but the way in which that will be presented in the country by those who are trying to draw our young people into terrorist activity.
A case could be made for dropping the entire exercise of clause 1 and related clauses. I am reluctant to do that. I am persuaded that there is a case for setting some standard or limit on what can be said in these areas that is clearly and demonstrably supportable, but it must be based on the problem that we are trying to tackle and solve. That problem is not animal rights extremism or the Provisional IRAwe did not have the Act when the Provisional IRA was setting off bombs, but the Home Secretary retrospectively sought to use that as a justification for these clausesbut al-Qaeda's type of terrorism and in particular its wilful use of the slaughter of civilians as a tactic.
I shall not test your patience, Mr. Forth, by going into the debate that we will have tomorrow on the test of terrorism, but we have two problems with the clauses that we need to consider together: first, the threshold for prosecution is too low; and secondly, the definition of terrorism is too broad. The Government need to indicate clearly a willingness to deal with both those matters.
The case put by the hon. Member for Beaconsfield (Mr. Grieve) about qualifying an absolute dependence on intent with the concept of reckless indifference has quite a lot to commend it. There is a serious issue with an intent-only test failing to get prosecutions in circumstances where most people would think that that would be reasonable. I hope that the Government will indicate some willingness to look seriously at that. The case has been well made that if juries are capable of judging whether someone has shown encouragement or inducement, or has negligently encouraged terrorism, they do not need the guidance of the clause on the glorification of terrorism. Juries are capable of working it out for themselves or they are not.
We need to be clear that the test is not whether people like us are offended or scared by people whom we see interviewed on "Newsnight". That is not the test or the
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purpose of this legislation; it is whether we prevent any young people from being drawn into terrorism. My fear is that, as currently drafted, the clauses are likely to make things worse rather than better.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I shall speak to amendments Nos. 97, 95 and 96, which are in my name, and wish to do so in the context of the Home Secretary's declaration on the front of the Bill that, in his view, its provisions are compatible with the European convention on human rights.
I am a member of the Joint Committee on Human Rights. We will no doubt produce a report on this issue, and I do not claim that my views are those of the Committee, but we have heard a great deal of evidence and opinion on whether the measures in the Billparticularly clause 1are compatible. I want to give the Committee some information with which I agree and which suggests that they are not compatible.
The Government claim that clause 1 seeks to implement article 5 of the European convention on the prevention of terrorism, which they signed on 16 May 2005. Indeed, paragraph 20 of the explanatory notes states:
"The offence has been introduced to implement the requirements of Article 5 of the Council of Europe Convention for the Prevention of Terrorism . . . This requires State parties to have an offence of 'public provocation to commit a terrorist offence'. This new offence supplements the existing common law offence of incitement to commit an offence."
"For the purposes of this Convention, 'public provocation to commit a terrorist offence' means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed."
It is critical that we understand the difference between the wording of the article that the Government seek to implement and the wording of clause 1. Article 5 clearly requires specific intent, which we have discussed, whereas under clause 1 it is sufficient for the perpetrator to have "reasonable grounds" for believing that
"members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences."
My amendments are distinct from other amendments in the group, because they require the intended outcome as the commission of a terrorist offence, not just its preparation or instigation. To borrow the wording of article 5, they deal with an act that
In his evidence to the Joint Committee, the Home Secretary made it clear that the clause will apply not just to so-called Islamic terrorists but to animal rights terrorists. I urge the right hon. Member for Southampton, Itchen (Mr. Denham) to bear that in mind. My constituency is plagued by animal rights terrorism, and people who defend animal rights make the point that violence begets violence, so violence against animals warrants a response. They believe that
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research laboratories are either a legitimate target for action orthis would be a lesser incitementplaces of torture and that it is therefore legitimate to damage them. I clearly do not support such statements, but the Committee should bear it in mind that, according to the Home Secretary's declaration, the Bill is intended to cover that general incitement.
In arguing that the Bill does not comply with the European convention on human rights we should remember how much store the European Court sets by its case law and jurisprudence on freedom of speech, particularly article 10.2 of the ECHR. In paragraph 2 of its ruling on the case of Ceylan v. Turkey it said:
Consequently, any proposed restrictions must be subjected to close scrutiny to determine whether the measure is both necessary and proportionate, and complies with the grounds on which the right may be limited under article 10.2.
On the questions of necessity, clarity and intention, clause 1 fails the test, as it does on the issue of using the right words for the danger of causing someone to commit a terrorist offence. It therefore falls short of our duty to comply with the ECHR. In a recent case, el-Faisal used language that, the Government would accept, should be caught. He was convicted under existing law of a number of offences, including solicitation to murder under section 4 of the Offences against the Person Act 1861, as the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said. That provision is likely to be used in a current sub judice case. The question of whether clause 1 is necessary is therefore key.
There are problems with intention, and I shall not repeat what has been said. However, the minimum requirement is that the clause should provide for intention. As for the causal link with violence, clause 1 merely requires that "members of the public" to whom a statement is published are likely to understand it as "encouragement" to undertake terrorist acts. There is no requirement to show that anyone is, in fact, encouraged by the statement, and causality is further attenuated because members of the public can include anyone in the world, depending on the way in which the statement is published. There are therefore concerns that the provision is too wide to fulfil our obligations. Paragraph 100 of the explanatory notes to the Council of Europe's convention on the prevention of terrorism states that
"the result of such an act must be to cause a danger that such an offence might be committed. When considering whether such danger is caused, the nature of the author and of the addressee of the message, as well as the context in which the offence is committed shall be taken into account in the sense established by the case-law of the European Court of Human Rights. The significance and credible nature of the danger should be considered when applying this provision in accordance with the requirements of domestic law."
No such provision appears in the Bill, so amendments Nos. 97, 95 and 96 seek to introduce one. Will the Minister for Policing, Security and Community Safety explain why she has not used the wording of the
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convention on the prevention of terrorism? Does she believe that it is equivalent to the wording of the Bill? No one who gave evidence to the Joint Committee thought that it was, and the wording of the clause is wider than the wording of the convention.
Finally, are we talking about what is know as an "apologie du terrorisme" in European case law? The language of the convention avoids such terms and phraseology, and there is no evidence that such terminology should be included. Is it right for the Government to use terms that many people deem equivalent to such language? Justice says that if clause 1 is not to breach the right to free expression under article 10.2 of the ECHR, a court would have to agree that the restrictions that it imposes on free expression are made in pursuance of a legitimate aim. I accept that the Government are pursuing a legitimate aim in the clause, but we must consider whether they strike a fair balance between the fundamental right to fair expression and a proportionate attempt to pursue their aim. My viewand I fear that this may well be happen if the clause is passed unamendedis that the European court will not find that to be the case, so I urge the Minister to clarify the thinking behind the provision.
I urge the Committee to support my amendments, as we must make sure that we protect freedom of speech. We should recognise that the Government have a legitimate aim, but it must be balanced by other rights. The amendments achieve that, but the clause does not.
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