Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 80-99)


11 OCTOBER 2005

  Q80  Chairman: So that is the view of Law Society and Liberty. JUSTICE, what is your perspective?

  Dr Metcalfe: In our view, there is no gap in the existing law. I am aware of the Home Secretary's comments this morning, that he feels that the CPS has advised him that incitement can only relate to a specific act. I have to respectfully disagree if that is the advice that he has received. I am not sure that it is correct. In particular, I am concerned about the idea of indirect incitement that has been floating around since the Home Secretary's letter in late July. The current law, to be clear, covers incitement. There is no distinction in the current law between direct and indirect incitement: it covers both. If you say, "Let's blow up the number 49 bus tomorrow", that is arguably incitement to a terrorist act. If you were to say, "It is good to blow up a bus", that is more general words, but it nonetheless is capable of being prosecuted under the existing law. In both cases the obligation is on the prosecution to prove that that person intended to incite a terrorist act. Now, there are in fact a number of different offences with which a person can be charged. We simply see no gap in the existing law in relation to someone inciting violence. If you have the intention to incite violence or a terrorist act or any serious crime, then the existing criminal law of this country provides a range of offences with which we are able to prosecute people. Now, the central difficulty that I think the Home Secretary would be referring to is the difficulty of evidence. If someone says something in indirect terms, that is to say, if they use more general or more vague language, then it becomes harder to convince a jury beyond a reasonable doubt that that person had the intention, but nonetheless it remains possible to prosecute and it is indeed possible to satisfy juries that, despite the words used, the person nonetheless manifested by all their actions and words an intention to incite terrorist violence. If the Home Secretary is unhappy with the idea of intention, then in essence he is unhappy with the existing safeguards offered by the criminal law to require proof beyond a reasonable doubt. These are fundamental principles and I think you cannot tinker with those without weakening the fabric of the criminal law in this country.

  Q81  Chairman: But whilst you say it is possible to prosecute, it has actually proved under this Government and previous governments extraordinarily difficult even to get to the stage of bringing a prosecution. Is not the reality of what you are saying that we are effectively unable to take legal action against the sort of people that I think we have agreed are out there, influencing young people and drawing at least some of them to terrorist activity? Is not the Government right, in possibly a changed environment, to tighten the law to reflect the fact that, and everybody has seen the interviews and the speeches which are taking place on television, it is actually unable to do anything about them?

  Mr Smith: It is absolutely right to look at it and to grapple with that as an issue, and it is a very real issue. However, the problem with this legislation, if you just look at its structure, is that when you asked the Home Secretary his reasons for the legislation, his first one was, "We want to send out a strong message". Now, that is absolutely understandable, and he wants to send out a political message. The problem with the legislation is that it is so widely drafted that, as a number of you came in on, it captures all sorts of things that Mr Clarke does not mean it to capture. There were various examples, ANC, North Korea, we could throw in Burma and we could state the support for the contras in Nicaragua, and all of these things show that this Bill has gone too far the other way and it needs a more precise definition on terrorism and it needs a more precise definition in relation to intention. It is going to catch all sorts of people that it is not intended to, and the safeguard Mr Clarke has in there is that a judicial figure or a semi-judicial figure will actually make sure that the thing operates sensibly. However, we know from events at your own Party Conference that legislation which can be passed for one purpose, once it is in, can be used much more broadly than anybody else intends.

  Q82  Chairman: I hope the Committee did give a good airing to the criticisms that you have been making when we had the Home Secretary sitting there, but you are there now and it is the other way round because the danger is, is it not, that actually if we took the advice from your organisations, the Government would do nothing, yet out there in the community there are people propagating a broad support for the idea that terrorist violence is justified, is legitimate, is the right way forward and that some of those in the audience at least who hear that argument may actually get drawn into real terrorism? I need to know really, and we have already had some constructive suggestions from the Law Society and Liberty, but turning to JUSTICE now, what would you do if you were the Government to actually tackle that problem or would you just say that it is too difficult which seems to be what you are saying this morning?

  Dr Metcalfe: Not too difficult. It is simply wrong in principle to seek to address that problem by this kind of measure.

  Q83  Chairman: So how would you address it, non-legal measures?

  Dr Metcalfe: Well, I am firmly committed to the idea of freedom of expression and I sincerely hope that the Government is too, and I think it is a profound misunderstanding, the idea of freedom of expression, where you want to attack ideas which are reprehensible, but not themselves said with the intention of inciting violence, and try to censor expressions of those points of view because you fear the effect of those views on people who may understand them as incitement, and that is the profound problem with this clause because you are removing the requirement of intention and then you are in effect putting the obligation on people—

  Q84  Chairman: But I got the impression from you earlier, Dr Metcalfe, that actually you would not be happy with it if it did have the requirement of intention.

  Dr Metcalfe: Well, if it did have the requirement of intention, Mr Chairman, with all due respect, it would be identical to the existing law of incitement and I can list them now, all the different ones, and we say "law of incitement", but there are in fact a dozen—

  Q85  Chairman: That goes back to my basic problem, I suppose, as a Member of Parliament, that I have constituents concerned about the active promotion of terrorism which is taking place and you are telling me there is nothing legally I can do about it?

  Dr Metcalfe: I would say that you should be explaining to your constituents that in order to protect the values of a free and democratic society, you not only need to take action, but you also need to show restraint, and in order to protect what is free and good about this society, it means that you have to make sure not to pass laws that limit their own freedom to engage in political discussion and make contentious remarks because any one of their contentious remarks might end up being misunderstood by an unreasonable person as an incitement or encouragement to terrorism and there is no check, no legal check that you can put into this clause which would prevent that because incitement is always directed at the unreasonable person. When we speak, we do not have to fear the consequences that our words will have on someone who is reasonable, but you have to think about how your words will affect the fanatic.

  Q86  Chairman: It is always possible to construct theoretical concerns about what might happen, but in practice if a prosecution has to be approved by the Director of Public Prosecutions or possibly, as the Home Secretary seemed to be open to from my earlier question, the Attorney General, how likely do you actually think it is that somebody would end up in court charged with these offences who was not actually fairly actively involved in the positive promotion of terrorism?

  Mr Smith: Unlikely, but slightly random and very unsatisfactory.

  Q87  Mr Streeter: Turning to Clause 4 again, the issue of acts preparatory to terrorism. It has been suggested by some or all of you that this is too widely drafted and one of the ways of combating that is to try and restrict it to a certain number of foreseen activities or actions and so on which of course is always very difficult to do under law because it is the one thing you do not specify and do not foresee which actually happens and you end up excluding it. If you want to tighten up on this clause, bearing in mind that this will all come to some of us in committee at some stage for specific action and amendment, how would you propose that it is specifically amended?

  Mr Crossman: Perhaps I could come in on that. The one thing I would say about Clause 4 is of course that it does contain the necessary element of intent that we would like to see running throughout the speech offences in this Bill. Without coming out with an exhaustive list because the resources of an organisation like Liberty do not allow us to be able to do such a thing, there are certain things, such as, for example, moving money, financially based actions or possibly arranging meetings that might fall short of the conspiracy element which would currently be required under existing conspiracy law or obtaining items. The crucial point here, and this is not an exhaustive list, but it might be indicative of the sort of thing which could fall into the category of acts preparatory to terrorism, but the crucial point is the requirement on the prosecution to prove intent.

  Q88  Mr Streeter: Do you not accept that it is impossible to produce an exhaustive list—

  Mr Crossman: Yes.

  Q89  Mr Streeter: —and that if you can come up with some examples, all you are simply doing is excluding the very thing which is going to happen?

  Mr Crossman: It is quite common in legislation to see non-exhaustive lists and that is why they are non-exhaustive, because there are always going to be ideas outside the scope of what is actually catered for in the legislation, but it gives an indication of the type of action that might be considered appropriate. The difficulty with the Bill as it is currently drafted is because it is any act whatsoever, there is no indication of the sort of act that could be referred to.

  Q90  Mr Streeter: What is the Law Society's view on that?

  Ms Marks: The Law Society's view is again to welcome the fact that the draft Bill includes crucially for this particular proposed offence an element of intent and I echo the remarks which have been made by Liberty in that respect. We were particularly struck by comments that have been made by both the Newton Committee and the Joint Committee on Human Rights which seem to suggest that for this type of offence, the problem is unlikely to be particularly assisted by the creation of more offences. Again I echo what I said before, that if there is thought or perceived to be a gap in the existing legislation, then we would not have an objection in principle to an offence of preparatory acts, particularly since the thrust, it appears, of the concern is that with the threat that the country is facing at the moment, waiting until the last moment is too late, but we too feel that there are ways in which this particular provision could be assisted, there are two respects in which we would like to see changes. One is, as Liberty has already suggested, a non-exhaustive list of the types of conduct that are contemplated so very minor activities are excluded. Our concern is that were there to be an atrocity, there will then be a witch hunt to look back and see who might have been involved in any particular way in any minor conduct and that is not what we feel is the intention of the clause and that should be made clear. The other is that both the Newton Committee and the Joint Committee on Human Rights indicated, and we believe this very strongly to be the case, that it is not the absence of offences which is causing the problem (ie appropriate offences with which to charge prospective offenders), but evidential difficulties and the Home Secretary himself touched on this and it was gratifying to hear that this is something being actively considered. Certainly the Law Society is very much taken with the view that the absolute ban on intercept evidence is causing a real problem in this area and if that issue could be addressed, then many of the difficulties that are faced by the existing legislation could well be overcome by that route.

  Q91  Mr Benyon: What are your opinions on the proposed banning of Hizb ut-Tahrir and Al Mujahiroun?

  Dr Metcalfe: Well, we are very concerned. We do not want to express a view about the specific ones.

  Q92  Mr Benyon: Well, organisations like them. I am not being specific.

  Dr Metcalfe: We are very concerned at the idea that you would proscribe organisations that express extreme views but in a non-violent way. If they are not directly or indirectly seeking to incite actual terrorist violence, then I do not think there are any real grounds for proscription. You are interfering in their right to free expression, but also their right to freedom of association. We have very broad grounds for proscription already under the 2000 Act and I do not really see that there is any basis for extending it. Because of the language that has been adopted in Clauses 17 and 18, you are very much in danger of recreating some of the same problems that you had in relation to Clause 1 with the revised clause because it is extremely unclear who might be making a statement that someone else might regard as incitement or encouragement to terrorism. Organisations which actually incite terrorism are already subject to proscription. This is extending the grounds for proscription beyond that to people who say things that other people might understand as incitement.

  Q93  Mr Malik: Just on that same point and extending it a little, if it is a global movement which has a wing in the UK and if in other parts of the world it is actually advocating violent measures to overthrow legitimate, democratic governments or other governments, what would your opinion be then?

  Dr Metcalfe: I think the difficulty would be that which we have already identified in our written evidence, which is the difficulty with the breadth of the definitions in Section 1 of the Terrorism Act of `terrorism' itself. You are then engaged in political discussions over which governments, which foreign governments it is okay to engage in political violence against. Again I think it is unhelpful in terms of freedom of expression to be engaged in proscribing such groups. Unless you are involved in inciting violence against the United Kingdom, unless there are people involved in inciting violence against the United Kingdom or UK interests overseas or UK nationals overseas, then I think it is very difficult.

  Mr Crossman: Could I just make one more point in relation to that. If we are to accept, as the Home Secretary seems to have accepted, that glorification in the old draft of the Bill under Clause 2 was unacceptable, it went too far, then I would suggest that you cannot keep the current drafting of the extension of proscription because exactly what that does is it includes within the definition of the organisations that can be proscribed organisations whose activities include the glorification, exultation or celebration. Therefore, what you are doing is saying, "We're going too far to make it a criminal offence for you to glorify, but if you have any connection with an organisation that does glorify, you are committing an offence". If you wear a T-shirt which has the logo of a proscribed political organisation on it, you will be committing an offence, so if glorification is going too far, you are going too far throughout the Bill and that clause should go.

  Q94  Mr Winnick: Recognising obviously our arguments against banning any particular organisation, like the one which has been mentioned here, do you accept, Dr Metcalfe, because you seem to be very strongly opposed to what is being proposed, that this particular organisation has been spreading the most racist propaganda on campuses in many parts of the United Kingdom amongst Muslims and that mainstream Muslim organisations, though they may not be in favour of banning those organisations, confirm that that has been the position and is that not a concern which the Government and indeed Members of Parliament should have?

  Dr Metcalfe: Well, again I am not prepared to express views on this particular organisation.

  Q95  Mr Winnick: Why not?

  Dr Metcalfe: Simply because we are not briefed and we—

  Q96  Mr Winnick: But this organisation is notorious. I must say, Dr Metcalfe, you surprise me by saying you do not particularly want to express an opinion. Justify the organisation, so be it, but to come here and to say that you have no particular views as an organisation or as people somewhat surprises me. You must have a view as an organisation about this particular group. It has been around for some time and its racism is—

  Dr Metcalfe: I am afraid you misunderstand the function of our organisation. We are a human rights policy organisation engaged in human rights and law reform work. We are not a campaigning organisation or a grassroots organisation and we do not take individual cases. It is not our business to screen each and every individual association in the United Kingdom or outside it in relation to the statements that they may make. I have looked at their website and glanced at a couple of public statements that they have made. They seem to me a very extreme group, but nothing that I saw from my very preliminary glance appeared to incite violence, but I am not offering that as a categorical assessment by JUSTICE. I am simply saying that we are familiar with the group, but we make no assessment as to whether they are liable to be proscribed or should be proscribed or otherwise.

  Q97  Mr Winnick: Well, that is the Government's job to do that and they reach a decision rightly or wrongly—

  Dr Metcalfe: On the facts of any particular case.

  Mr Winnick: —presumably about this organisation, but I will accept what you have said that you are not a campaigner.

  Chairman: Could we move on please.

  Q98  Colin Burgon: Could I first of all address my question to Liberty and the briefing you sent to us.[2] You talk in your document, and you mention it several times, about undermining national unity. Now, national unity really in relation to the people we are talking about is a foreign concept and in part of your submission, and I am not quite sure how you play this one, you do quote an opinion poll which says about three-quarters of the people in Britain are quite accepting of any restriction of certain rights in order to combat a greater evil. Now, if that is a national response to the situation we find ourselves in, how are you also arguing in your document that pursuing measures like those being proposed will actually undermine national unity? There is a concept in there which I am kind of struggling with.

  Ms Chakrabarti: Well, let's try to unravel that. We are a human rights campaigning organisation and, if I may piggy-back on Mr Winnick's point, I have profound concerns about what I have read of Hizb ut-Tahrir, but I think we cannot drive organisations like that under ground any more than we should seek to martyr or drive under ground the BNP or other organisations of that sort. We are engaged, in my view, in an ideological as well as an operational rebuttal of those sorts of ideas. To go on then to your point about on the one hand, we as a nation, perhaps we as human rights campaigners, will accept some restrictions on our rights and freedoms, but not others, well, I take you then to the post-war human rights framework that is reflected in the European Convention and in now our Human Rights Act. That does allow for some limitations on free speech, it does allow for perhaps some greater limitations on privacy during a moment of particular threat, but the situation changes and the framework is flexible enough to allow some proportionate interference, but the rules of the game, if I may use that analogy, themselves do not change. The rules are robust and flexible enough to deal with developing and different threats from time to time. We say, therefore, that of course there is some limitation on free speech, on privacy and so on, but it should be proportionate and what we should never do is to basically give ammunition to those who say that we are a decadent, Western democracy with no values of our own, that there is something exciting, there is an alternative ideology that is certain and exciting and gives hope and expression to young, disenchanted people, particularly of black and Asian race. I feel a certain closeness to people of my generation and a certain particular, if I may say so, chill at what it is that made them so excited by this ideology and I want to say that I think, therefore, that this framework is not just important in guiding policy-makers and police officers, but this framework is the ideological counterbalance to this new and desperately dangerous creed. Do not drive dangerous ideas underground; address them head on both in the even-handedness and the principle of your operational response and in the speeches and so on that you make.

  Q99  Colin Burgon: Because we are in a situation we have not found ourselves in before, do you accept that with the very, very complex cases that are thrown up to the police and intelligence services time is needed actually to pursue evidence, links, et cetera, and that the power to extend intention limits in those cases, therefore, is needed?

  Ms Chakrabarti: If I may say so, I think that the greatest problem that emerges in these cases that come from the police and so on about complexity is one of resource. If in a democratic society at a moment of great threat there is a choice to be made between injecting more financial and personnel resources into the police and security services on the one hand or doing away with habeas corpus or going into radical extensions of pre-charge detention, I say that the better and more productive and proportionate response is to provide more resources. In a sense, understandably police officers and parliamentarians obviously have different roles to perform, important, but distinct roles, and of course a police officer might think that he could always do more with more time, but I say that it is about complexity, it is about resources and the issues about international co-operation are as relevant in a complex fraud case as they are in a terror case, so I do think it would be very difficult to say that three months is okay for terrorism, but not for complex fraud and other cases that involve a complexity of evidence.

2   Not printed. Available in the House of Commons Library (for inspection by Members of the House) and the House of Lords Record Office, and on the internet at: Back

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