Terrorism Bill

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 Bill—particularly clause 1—are 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.””" In fact, article 5 does not end at that point. It is headed ““Article 5—Public provocation to commit a terrorist offence”” and continues:"““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"““causes a danger that one or more such offences may be committed””." 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 research laboratories are either a legitimate target for action or—this would be a lesser incitement—places 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:"““Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment.””" 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 torture 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 convention on the prevention of torture? 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 to be 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 view—and I fear that this may well be happen if the clause is passed unamended—is 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.