Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 153-159)


31 OCTOBER 2005

  Q153 Chairman: We are now joined by Professor Clive Walker of Leeds University for the second part of this evidence session. I think you were here earlier on for the previous evidence session. A lot of the questions are going to be along similar lines, I suspect. Perhaps I could start off by asking you about the lacuna which the Home Secretary has identified in relation to the law of general incitement which the proposed offence of provocation to commit a terrorist offence is designed to plug. Do you accept that there is such a lacuna in the law?

  Professor Walker: I start from the premise, taking the Home Secretary's word on the point, that he is trying to enforce Article 5 of the European Convention on Prevention of Terrorism. If we stick with that formulation in Article 5, then you could say that there are perhaps two areas that amount to a lacuna, although that does raise issues about freedom of expression and I am not sure I accept the premise of the question. But in terms of those lacunas they would be related to the fact that the existing law is primarily directed either against forms of encouragement in relation to proscribed organisations, first of all, or, secondly, relate to forms of incitement or encouragement of acts of terrorism abroad rather than acts of terrorism at home. I would point to those two differences, but I would also point to the fact that Article 5 is somewhat different in a number of crucial respects from the way in which clause one is actually worded, and some of those we heard about earlier. They relate in particular to the fact that Article 5 requires specific intent, whereas clause one does not, and also clause five talks about an intended outcome in terms of the commission of a terrorist offence, and it does not mention words like "preparation", "instigation" or, indeed, "acts of terrorism, "acts of terrorism" not per se being an offence in British law.

  Q154  Chairman: What laws do you say already cover this then?

  Professor Walker: I would probably endorse a lot of what was said in the earlier session, and I am going over some of their ground, but the ones that I think are of a special relevance here: I mention broadly laws to do with proscribed organisations, and laws to do with incitement abroad—they fall into those two categories. The laws relating to proscribed organisations are set out in section 12 and they cover, for example: "inviting support for a proscribed organisation"—that is in section 12(1); section 12(2) is about "arranging, managing, assisting a meeting to support a proscribed organisation"; section 12(3) is actually "addressing a meeting"; and section 13(1) is "wearing any item or displaying any article which supports a proscribed organisation". Of course "proscribed organisation" includes groups like al-Qaeda which I am not sure is an organisation. It is very wide organisation if it is an organisation. It is more like a concept than an organisation. So it is very easy to support a proscribed organisation. You certainly do not have to have a membership card to support it. That is one area. The other area I said was incitement abroad, and that is covered by section 59 of the Terrorism Act. Any form of incitement of terrorism abroad is an offence under section 59. That was passed not too long ago, particularly with internet sites in mind. Again, as was mentioned earlier, these incitements can be very general in their nature; they may not be aimed at specific people or specific acts. Aside from all of those there are lot of other offences. Dr Metcalfe mentioned some. I would also mention public order offences. I can remember as along ago as before the Prevention of Terrorism Act 1974, which is when anti-terrorism laws in Britain started, and it was not the case that people escaped prosecution for supporting the IRA; they were prosecuted under various public order offences for supporting the IRA and no doubt still could be.

  Q155 Dan Norris: I am a sure you will correct me if I am wrong, Professor, because I want to talk a little bit about some of the written evidence that you have put down in relation to the training of terrorism and acts in preparation for it. I notice that you base some of your criticisms of the Bill in those areas on the expression based offences in the Bill, you reference the principle that "only speech which causes harm not offence should be criminalised"—I hope I have got that right—and your criticism of the new offences of training for terrorism and acts preparatory to terrorism appear to be based on the same principle, that the conduct in question is not sufficiently related to harm. Why then does the harm principle apply to non-expression based offences?

  Professor Walker: As a liberal democrat in one sense of that term at least I would say that the harm principle applies to all offences, and, indeed, all forms of state coercion; it is not just relevant to forms of offences which relate to expression; and it might be, I think, a good principle to apply across the board. It is why, for example, we penalise, let us say, murder and theft but we have some hesitations about penalising forms of activity which we may find disgusting or outrageous, which was one of the words used earlier, or reprehensible, all of which are part and parcel of the liberal democracy. We all outrage, disgust each other from time to time, but that is living in a free society for you. Seeking to put it in terms of a common phrase, there are those words that are like sticks and stones and do hurt your bones and words that do not; and so we are looking for some sort of link to actual activity which causes harm. The difficulty with preparatory acts, if we look to that, or training, indeed, is that at that stage of the process it is very equivocal what people are actually doing, what they have in mind, and there is a great danger we catch the wrong people. I came from Leeds today with a train ticket and a holdall. It does not make me a terrorist, does it? Although some people with train tickets from Leeds were terrorists. It is a question of the link to the activity and at what point we intervene and prove a crime has been committed, which is why, for example, the Criminal Attempts Act 1981, which currently sets the limit on the extent of the criminal law, uses the phrase that "an attempt is an act which is more than merely preparatory towards the commission of an offence". That is the actual phrase in section one of the Criminal Attempts Act. The reason why the law draws the line at that point is because it wants to be sure that people we are putting in prison really are bad people and that we are not making mistakes; we are not intervening at a point when their actions are equivocal and their intentions are equivocal.

  Q156  Dan Norris: Could I follow that up a little? Though you are critical of the width of the new offences that concern training and preparation, do you accept there is some scope, nonetheless, for new offences which would cover conduct not currently caught by existing offences and comply with human rights obligations as well? What amendments, if you do feel that way, would you be proposing?

  Professor Walker: Here we probably should look at least at two clauses, may be three. If I can take clauses 5, 6 and 8 together as all are dealing with forms of preparation for terrorism, the case of 6 and 8 dealing with training. In the case of clause 5, my difficulty with clause 5 is I find it very difficult to imagine factual situations which do not fall under section 57 of the Terrorism Act, which again was mentioned earlier. Section 57 is the provision which criminalises the possession of an article in circumstances which give rise to a reasonable suspicion that the possession is for terrorist purposes. If I have an article, I can see at least there is something tangible there. If do not have an article, what is it? This preparation which is not an article seems to me to be very vague. So, to answer your question, yes, I can see in logic there is a gap there—that there may be forms of preparation which do not involve materials or the possession of something which is for the preparation of terrorism, but I am saying it is dangerous to extend the criminal law in that way because, if I do not have something material there, then I am not sure whether the action can be sufficiently linked to terrorism. Indeed, I mentioned in my submission that the explanatory memorandum which tries to give an example, in a way which I find it very difficult to do, does actually give an example of the possession of materials which is exactly covered by section 57, and there you do not need clause five. That is clause 5. Clause 6, yes, again in logic there is a gap. The existing offences of relevance include section 54 of the Terrorism Act, which talks about training in weapons, munitions training, training where you have to shoot an AK47, or make a bomb, or whatever it might be, and that covers, I think, a broad field, but clearly not as broad as clauses 6 or clause 8, particularly clause eight which is a passive clause of "attendance at a training camp". Yes, I can see again in logic there is an extension of the law here. My question is do we want to extend the law that far because the actions are very equivocal? We are casting suspicions very wide here—for example, if people go off to, let us say, Madrassas in Pakistan, does that immediately cast suspicion on them in all cases? If they access combat-related materials on the Internet, does that immediately cast them as potential suspect terrorists liable to three months detention? Potentially yes, I think is the answer under this legislation. I hope you catch my drift that it is becoming a very wide net that we are casting. In terms of what I would think would be justifiable, I should come back to the European Convention again which the Government says it is trying to enforce. If you look at Articles 6 and 7 of the Convention on the Prevention of Terrorism, it talks about "active recruitment" rather than being recruited, it talks about the "provision of training" rather than being trained, and I would suggest also the tightening of the mens rea in clause five and six would also be helpful: that you intend that the training or the preparation does result in terrorist acts, that that is an element of the offence.

  Q157  Lord Judd: Professor Walker, you have obviously thought about these issues in some depth and perspective. In your evidence you make the point that clause 17 of the Bill, extending the jurisdiction of UK courts over acts committed abroad, may result in the UK Government being asked "to do the dirty work of dubious foreign governments". Can you tell us a bit more about how you believe the clause gives rise to this risk?

  Professor Walker: It is a combination of the impact of clause 17 and the breadth of the offences that we have just been through, clause one, clause 5, clause 6 and clause 8. Let me give you an example, as it might be the best way of doing this. If we imagine that this Bill was enforced 10 years ago, let us say, or even five years ago, and I am the head of, let us call it, the Movement for a Democratic Iraq, and I plot against the Government of Iraq. I encourage those who are daft enough to listen to me by means of publication to engage in forms of terrorism and engage in training to commit forms of terrorism. The forms of terrorism I have in mind might include some of the following: to commit serious violence against a person. That is terrorism under section one of the Terrorism Act if committed with certain motivations. In this case I encourage other people to kill Saddam Hussein's torturer in chief, whoever he was. Serious damage to property: I encourage people to blow up the headquarters of the secret police in Baghdad, or destruction to the electronic systems of the Government, which is also part of the definition of terrorism in section one, I encourage my followers to disrupt electronic systems in a way which stops the wiring of assets to a Geneva bank account or to the subversion of Food for Oil programme, let us say. All of those, are now covered by clause 1, and clause 17 then says that actions under cause one committed abroad are also covered.

  Q158  Lord Judd: You make an interesting case. Could I just pursue this for a moment? I do not want to put words into your mouth, but the Home Secretary has been very strong in saying that he does not believe there is any situation anywhere in the world today that can in any way exonerate terrorism. You made the point that there are different forms of terrorism, and we have terrorism against the innocent, you can have terrorism against state institutions, but basically do you think that that concept that there is nowhere which justifies it is valid?

  Professor Walker: Where I would agree with the Home Secretary is in terms of the forms of terrorism which are defined by universal offences, and there are quite a few universal offences relating to terrorism. For example, we have offences of hijacking; we have offences of killing diplomats, taking hostages, committing torture. All of these are universal offences based on UN conventions. We have offences of terrorist bombings, a convention related to terrorist bombings, bombings directed against civilians. Here, I am with the Home Secretary, I would agree that in all circumstances those are forms of activity, no matter how bad the regime, whether it is Saddam Hussein or whoever, they are not permissible. They are a bit like war crimes except there is not a war. It is an analogy that I think is useful in that case. My difficulty is this though, that our own definitions of terrorism in section one of the Terrorism Act go well beyond those universal offences, but whilst I can argue that it might be justifiable to apply those wider concepts in the context of a liberal democracy called the United Kingdom, I might have some doubts whether it is justifiable to employ the same restraints on resistance, if I can call it that, in all societies, in the society of Saddam Hussein to give one example.

  Q159  Lord Judd: You are basically making the point that state terrorism has to be taken as seriously as any other form terrorism?

  Professor Walker: There are some governments in the world we would rather see deposed and resisted, yes.

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