Andreas Whittam Smith: The bombings don't require a new Terror Act

A new Act might look dramatic but would add virtually nothing to our security

It will join a considerable body of anti-terrorist legislation which has been placed on the statute book during the past five years. There is the Terrorism Act, 2000. It was followed by the Anti-Terrorism, Crime and Security Act, 2001. Then, earlier this year, Section 4 of the 2001 measure was replaced by the Prevention of Terrorism Act, 2005.

In light of this, the obvious thing to do would be to consolidate the previous three measures into a single Act and then add the new proposals to it - that is if, on closer examination, they do add anything worthwhile. There is time because Parliament's long summer holiday gives room for extensive preparatory work before the Bill begins it journey through the legislative process. The opposition parties will be consulted this week.

Even if the new legislation is well drafted, however, it is unlikely to achieve much. We are at the limits of what the law can contribute in combating terrorism. It would be a new offence, for instance, to receive training in terror techniques in Britain or abroad. Yes, we know that there are terrorist training camps in Afghanistan and elsewhere, but how exactly would proof be secured that a British citizen had participated in a terrorist course overseas?

Equally it is far from clear that a new offence of "indirect incitement to commit terrorist acts", which will make it a crime to glorify or condone terrorism if the intention is to incite people to take part in attacks, is actually workable. Notice the qualification "indirect". For direct incitement is already outlawed.

So what the Government's new proposals would produce is linguistic confusion compounded. There is only one action to consider - incitement full stop. Incitement is urging on or urging forward, provoking, stirring up, causing to act. Whether the means used to "urge on" etc can be divided between direct or indirect is irrelevant. It is the provoking to criminal action that the law should address, however it is done. No wonder Hazel Blears, the Home Officer Minister, when asked to define indirect incitement, said: "It is very difficult to give examples of this."

She did, however, try. She said that factors such as the "tone" of remarks and whether there was an element of glorification could be taken into account by the courts. And she gave two formulations. Someone referring to the London bombings might say "Isn't it marvellous this has happened!" or "These people are martyrs."

In practice, whether either of these phrases could be classified as criminal incitement would depend entirely on the context in which they were uttered. Calling them "indirect" as opposed to "direct" incitement doesn't help at all. Take another example. Cherie Blair, the Prime Minister's wife, once said, referring to Palestinian suicide bombers: "As long as young people feel they have got no hope but to blow themselves up, you are never going to make progress." Was that incitement, direct or indirect, or just a sensible comment? Again, only by reference to the circumstances could a conclusion be reached.

The clauses of Mr Clarke's new Bill which are more likely to be effective would make it a crime to plan or prepare for a terror act, including accessing terrorist websites and providing and receiving training in the use of hazardous substances and in other methods or techniques for terrorist purposes. The offence would also cover people trying to acquire chemicals or keeping instructions on how to produce a bomb.

If the police raided a house where suspected terrorists were living and found bomb-making manuals and evidence from computer hard drives of access to terrorist websites, that would presumably constitute an offence. And rightly so. But yet again I wonder whether this is adding much to the law as it already exists. The crime of conspiracy - agreement of two or more persons to commit a criminal or otherwise unlawful act - is a common law offence.

Everything thus points to consolidating existing legislation and amending it where necessary to reflect the new phenomenon of suicide bombing. This is the moderate and sensible course that Government ministers should take. It is doubtful whether a brand new act of Parliament is really required. It would look dramatic but add virtually nothing to our security.