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Stewart Hosie : 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
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accurately. Is the hon. Gentleman's concern merely that the wrong recklessness test is included, or does he have some deeper objection?

Mr. Grieve: 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.

Dr. Evan Harris : 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.

Mr. Grieve: I see no necessity to adopt amendment No. 34 in order to comply with the convention test.

I do not want to take up any more of the House's time, as there are many other amendments that we want to consider.

Mr. Marshall-Andrews : 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.

Ms Keeble : 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.

Mr. Marshall-Andrews: 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
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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 the Member for Northampton, North (Ms Keeble) cannot understand that, there is no point in repeating it. It appears self-explanatory to me.

Mary Creagh (Wakefield) (Lab): 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.

Mr. Marshall-Andrews: 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.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): 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.

Mr. Marshall-Andrews: 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.

Dr. Evan Harris: Is not the problem for the hon. Member for Wakefield (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.

6 pm

Mr. Marshall-Andrews: 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
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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.

Stewart Hosie : 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?

Mr. Marshall-Andrews: 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.

Mr. Grieve: Because of the procedure involved, the first bite of the cherry will involve getting rid of Government amendment No. 34, without which nothing more can be done. If we do not succeed in doing that, we shall not be going anywhere anyway.

Mr. Marshall-Andrews: 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 the right hon. Member for Haltemprice and Howden (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."

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