Select Committee on Home Affairs First Report



  54. The Bill contains other provisions on which we have not taken evidence covering a wide range of ways of combatting terrorism. We have been told about the need for measures to freeze or monitor bank accounts (clauses 4 to 16), to require the retention of communications data (clauses 101to 105), to share information between government agencies (clauses 127 to 20), to re-introduce the offence of failing to disclose information (clause 115)[46] and to extend the powers of Ministry of Defence and Transport Police (clauses 97 to 100). The Defence Committee is taking evidence on this latter matter. We do however draw the House's attention to three specific measures which deserve careful scrutiny in committee.

  55. We welcome the measures designed to improve data-sharing between government agencies which we recommended in our report on Border Controls earlier this year. [47] The various provisions for preventing terrorists moving money around to finance their activities are also desirable.

Religious hatred offences (clause 38)

  56. The Bill contains a provision to amend Part 3 of the Public Order Act 1986 so that incitement to racial hatred is extended to include religious hatred and to increase the maximum penalty for such offences from two to seven years' imprisonment. Clause 38, defines "religious hatred" as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". However, no definition of "religious belief" or religion is provided. In addition, the Bill will amend Part 2 of the Crime and Disorder Act 1998 to extend the nine racially-aggravated offences so that they are committed if aggravated by religious factors.

  57. The Minister told us that, despite the relatively low numbers of prosecutions for incitement to racial hatred[48]:

    "We do feel that the deterrent effect on the extent to which some of these racist groups would go otherwise without this legislation is a significant one in that, whilst they still produce propaganda, they are mindful of the chance of prosecution and that does limit to some extent the excesses to which they would otherwise go."[49]

  58. JUSTICE has suggested that if a new offence is created " the old common law offence of blasphemy which only covers Christian beliefs should be abolished as recommended by the Law Commission in 1985."[50] John Wadham, Director of Liberty told us that:

    "Our concern is that these measures, apart from being a sop that the Government wants to throw at the Muslim community, will be divisive, impractical and breach fundamental issues relating to freedom of expression."[51]

  59. The Minister's response - to the suggestion that the playing field should be levelled by the abolition of the blasphemy law - was:

    "Representations were made during the process of our considerations about that. The reason that that is not in the Bill is because not just that provision itself but other things that would have to be alongside that are outside the scope of an anti-terrorism Bill and were just too wide for us to consider and would generate a debate which is a different debate than the debate we need to have in the context of the measures of this Bill, which are about security and greater protection in relation to terrorism."[52]

  60. A consortium of Muslim organisations and individuals have suggested that prompt action be taken to deal with the present anomaly in our anti-discrimination laws.[53] This is supported by John Wadham, Director of Liberty, who told the Committee that:

    "At the moment it is unacceptable that somebody who is a Muslim can be sacked for being a Muslim and there is nothing they can do about it because it is not directly related to their race."[54]

  61. We have not seen sufficient evidence to justify the proposition that extending the law of incitement to include religious as well as racial hatred will work in practice. The proposals in the Bill would be difficult to enforce. We note in particular the evidence from a group of distinguished Muslim organisations and individuals: "we have grave reservations about the extension of this criminal power to cover religious groups at this particular time."[55] We therefore see no reason for this measure to be included in this emergency terrorism Bill.

Hoaxes and threats involving noxious substances (clause 46)

  62. The Bill will create a new offence for hoaxes and threats involving noxious substances. At present, it is only an offence to make hoaxes or threats in relation to explosive devices.[56] Under the new provision, however, a person would be guilty of an offence if they placed, sent or communicated false information about any substance or article intending to make others believe that it was likely to be a noxious substance which could endanger human life or health. The maximum penalty will be seven years' imprisonment, which is in line with the penalty for bomb hoaxes.[57]

  63. It was initially reported that the Government proposed to apply the offence retrospectively, to any hoax or threat made on or after midnight 20 to 21 October 2001.[58] However, this proposal has since been dropped - the offence created under the Bill will not apply retrospectively. We understand that there have been many anthrax hoaxes since the events of 11 September.

  64. We accept that there is a strong case for a new offence for hoaxes and threats involving noxious substances. We welcome the decision not to make it retrospective.

Implementation of EU third pillar (clause 109)

  65. The Bill contains a broad power for Ministers to make statutory instruments, subject to the affirmative procedure, implementing EU measures in the area of Justice and Home Affairs. Such instruments will be debatable in standing committee for 90 minutes and subject if necessary to a vote on the floor of the House. This is the procedure used under section 2(2) of the European Communities Act 1972 to implement many EU measures. It does not apply to police and judicial co-operation in criminal matters under Title VI of the Treaty of European Union. Until now any such measures which need enactment in UK law have been the subject of primary legislation. Such a power could be used to put into effect current proposals for a framework directive on combatting terrorism or introducing a European arrest warrant. The Minister told us that the arrest warrant could instead be contained in a forthcoming Bill on extradition.[59] We were told by the Minister that:

    "...what we are providing for in the Bill is a clause which will enable those Third Pillar provisions to be implemented in the United Kingdom, not through primary legislation, which is the requirement at the moment, but through the affirmative resolution procedure in both Houses. This is to enable the decisions that come out of the framework decision particularly to be implemented on a timescale that meets the current requirements. Otherwise, we would have to find a slot in primary legislation and the ability to do that is more restricted."[60]

  66. The Minister admitted, however, that the provision could be used to enact, by secondary legislation, any measure agreed under the Third Pillar, regardless of whether or not such measures had relevance to the fight against terrorism.[61]

  67. We view with concern the broad power to implement justice and home affairs measures under the third pillar of the Treaty of European Union - whether concerned with terrorism or not - by means of a secondary rather than primary legislation. This would enable a wide range of EU measures on police and judicial co-operation on criminal matters to be brought into effect in the UK. We believe that the power to do so in this Bill should be confined to EU measures contained in the proposed Framework Decision on combatting terrorism.

46   This offence was previously contained in the Prevention of Terrorism Act 1989, s.18. In his inquiry, Lord Lloyd recommended against its re-introduction (Cm. 3420, Vol 1, paras 14.16-14.24). Consequently it did not appear in the Terrorism Act 2000. We were told that the events of 11 September had changed the situation (Q261). Back

47   First Report 2000-01 HC 163. Back

48   Figures provided by the Solicitor-General show that, since 1988, 42 defendants have been successfully prosecuted. In 1999, there were four prosecutions, which resulted in three convictions: Official Report, 29 October 2001, 491-492w and 1 November 2001, 851w. Back

49   Q230. Back

50   Evidence, p.55, para.9. Back

51   Q90. Back

52   Q236. Back

53   Evidence, p.69, para.18. Back

54   Q93. Back

55   Evidence p.68, paras.8 and 13. Back

56   Criminal Law Act 1977, s.51. Back

57   Criminal Law Act 1977, s.51(4)(b) - as amended. Back

58   Evidence, pp.62-63. Back

59   Q246. Back

60   Q246. Back

61   QQ253-254. Back

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