---

Terrorism Bill

My Lords, all Members of this House agree that terrorism must be detected, defeated and punished. My noble friend Lord McNally said that we will play a full and constructive part, as we have in earlier terrorism legislation. For example, we proposed earlier that there should be an offence of acts preparatory to terrorism and we are pleased that that is now contained in Clauses 5 and 6. However, we have considerable reservations about other proposed offences. We believe that badly thought out and rushed-through new offences may, by risking the conviction and imprisonment of entirely innocent people, weaken not strengthen the security of the state. Resentment and bitterness may breed new terrorists. Suicide bombers are by definition oblivious to criminal sanctions. If the confidence of the community in the fairness and justice of the law is lost, so is the best chance of conviction. It takes bravery for a person to come forward to give information to the police, let alone to give evidence in court. That bravery is sustained by the community that supports those people. Without reliable sources of human intelligence, the detection and punishment of crime would be impossible. My noble friend Lord Goodhart will address Clause 1 in some detail, but I want to make two points. The noble Lord, Lord Kingsland, referred to the definition of ““reckless”” in Clause 1(3). In 1982, in the case of Caldwell, I argued that a person should not be held to be reckless unless he realised the risk that his actions caused and knowingly took that risk. I was unsuccessful and it was held that the test of recklessness was objective. Two years ago, 20 years after that earlier decision, in the case of the Crown against G, the Judicial Committee reconsidered and reversed Caldwell—to my great satisfaction, as your Lordships would expect. The noble and learned Lord, Lord Bingham, said that an objective test of recklessness was capable of ““leading to obvious unfairness”” yet, in the Bill, the Government are seeking to revert to an objective definition of reckless, a definition that this House, in its judicial capacity, has discarded. We shall seek to remove the likelihood of obvious unfairness from the clause. Then there is the curious expression, ““glorify””. What is that supposed to mean? Is it mere approval? Suppose that there were a scheme to drown another Welsh valley to extract water and I were to praise those who blew up the pipeline near to Llyn Celyn about 50 years ago, on the grounds that their actions were a significant and fruitful political act. Would I be glorifying them? Would I have committed an offence if some hotheads were encouraged by my words to conspire to blow up the new scheme in future? Suppose that I commended the Afghans who hijacked the plane and caused the pilot to fly to Stansted as freedom fighters against the Taliban—a group that we have since attacked and destroyed. Would I be glorifying them? Would I have committed an offence if my words encouraged a group of opposition supporters in Zimbabwe to hijack a plane to fly to safety in this country—a Schedule 1 offence under the Bill? How would one direct a jury about the meaning of ““glorification”” in Clause1? Is it expressing approval? Is it praising? Is it going down on my knees and crying, ““Hallelujah””? When we introduce emotive expressions such as that, which do not clearly describe the conduct to be criminalised and could be interpreted quite differently by different people, we are asking for trouble. We shall seek to remove the, ““Glory, glory, hallelujah”” element from the Bill. However, that word does not just appear in Clause 1, because in Clause 21 in Part 2, there is a definition of glorification. Clause 21 prescribes non-violent political organisations that indulge in the ““unlawful glorification”” of terrorist acts. The clause is engaged where the organisation praises the activities of revolutionaries, freedom fighters or a resistance movement against their constitutional government, however repressive and anti-democratic that government may be. Unlike individuals charged under Clause 1, it will not be necessary to prove that the praise of celebration of terrorism by the organisation is intended to encourage violent acts. What is unlawful is a risk that someone might want to alienate the contract praised. Dare an organisation or political party praise the Chechnyans for resisting the Russian-backed Government or the Zimbabwean opposition for resisting Mugabe? Glorifying Mr Mugabe will not be a criminal offence because, for better or worse, he is recognised by this country as the head of a constitutional government. But whether an organisation is proscribed as unlawful is not the decision of a British court—it is the decision of the Home Secretary, who brings forward regulations. He decides whether the organisation is glorifying terrorism and, by the stroke of a pen, may make membership of such a body a criminal offence, punishable by 10 years’ imprisonment. We will need to examine this clause with considerable care because we believe it involves the banning of free speech and the criminalising of membership and supporters and we do not believe it will do anything to combat terrorism. It is more likely to create martyrs and more resentment. I turn to the issue of 90 days or 28 days. It became a trial of strength for Mr Blair—and he lost. We do not propose to reopen the issue of 28 days, although it is of course twice as long as the present period between arrest and charge. The basis of it is that the security services and the police assert, ““We know something you don’t know and if we told you, we’d have to kill you””. But we have been here before. I have only to mention weapons of mass destruction; we should not fall for that sort of argument twice. There was no logic to 90 days; there is no logic to 28—it is a compromise, with no practical value one way or the other. No one can be arrested without there being at least some reasonable suspicion of his having committed an offence based on something: intercepts, human intelligence or surveillance. Little more is required to charge him with an offence of ““acts preparatory to terrorism””. Under the Director of Public Prosecution’s charging guidelines, already issued to the CPS and police, there is a ““threshold test””. It is already possible for the CPS to charge suspects prospectively, where there is a reasonable suspicion of guilt but admissible evidence is not yet available and it is in the public interest to do so. The guidelines set out a number of factors, including the sort of evidence that is required and how soon it will be recovered. Under the Police and Criminal Evidence Act, Code C, paragraph 16.5, questioning after charge is permitted to prevent harm to the public or in the interests of justice. Fresh evidence obtained from encryption or something of that sort may be put to a person who has already been charged. There is no reason why an investigation cannot continue after charge. It should be possible under proper judicial supervision to extend this practice in terrorist cases, subject to the overall scrutiny of a senior judge. We shall bring forward amendments to that end and we hope that we shall improve this Bill.