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Terrorism Bill

My Lords, Clause 5 makes it an offence to prepare to commit an act of terrorism. This clause fills an important gap in terrorist legislation. It will enable us to catch suspected terrorists at a much earlier stage and thereby save lives. I give Clause 5 a warm welcome. I turn next to Clause 1 and glorification. The idea of making glorification an offence was, we have been told by the Minister, included in the Labour Party manifesto. It was certainly given prominence by the Prime Minister in his press conference on 5 August this summer. When the draft Bill was published, glorification was treated as a separate offence in a separate clause, but it did not survive long in that form. In his announcement on, I believe, 6 October the Home Secretary said that glorification would now be transferred from a separate clause to Clause 1. It would have been much better if it had been dropped altogether at that stage. There are a great many words in Clause 1(4). I have read them many times and I am still not at all sure that I really understand them. Sometimes I come to the conclusion that they mean nothing and sometimes I conclude that they mean something really rather sinister. They seem to be saying that a statement glorifying an act of terrorism, whether past, present or future, is to be deemed to be likely to be understood by members of the public as an encouragement to commit other acts of terrorism. If that is the meaning, then it is a most unusual provision. In any event, on any view, it fails the test of legal certainty, so well described by the noble Lord, Lord Kingsland. I am a member of the public—we are all members of the public.  But if I read a statement glorifying the activities of the African National Congress, I am not at all likely to understand it as an encouragement for me to commit acts of terrorism. So why should I be deemed to be likely to understand it in that way by this provision? It does not make sense. When one looks at it closely, it is clear to me that Clause 1(4) must go. If it stays in the Bill, I predict that it will never see the light of day in a court. When the Home Secretary made his announcement on 6 October, he said that the new offence of glorification would catch only those who intended to incite further acts of terrorism. That is important, and it is unobjectionable. But we now find that it catches those who are reckless. That is bad enough, but we then find that recklessness is defined in terms of negligence or carelessness. It is a basic principle of the criminal law that a defendant must have a guilty mind. The fact that a defendant,"““could not reasonably have failed to be aware””," of something does not mean that he was aware of it. So in my view, Clause 1(3) must go as well. I support Clauses 1(1), 1(2)(a) and the first half of 1(2)(b), which will bring the clause into line with what Mr Clarke originally intended. The fact that they would then add absolutely nothing to the existing law of incitement may perhaps be overlooked. I turn to Clause 23. If one starts from the original proposal to detain suspects for three months without charge, it may seem unreasonable to oppose 28 days. But I start from the other end, and I make two brief points. Have the police made out a case for extending the period from 14 days? In my view, they have not. It was not until 2003 that they asked for 14 days, and that was long after the events of 9/11. The reasons they then gave were the usual ones—language difficulties, the need to analyse chemical substances and the problems with hard disks on computers. The reasons they now give for extending the period to 28 days are exactly the same as the reasons they gave in 2003. Not a single matter of substance has been added. If they were therefore content with 14 days in 2003, why are they asking for 28 days now? Secondly, I do not see how 28 days can be compatible with Article 5 of the convention. It is said that it will be saved by having a High Court judge look at the case once a week. But there is here the possibility of serious confusion and misunderstanding. Wheeling in a High Court judge will not give Clause 23 the same immunity from Article 5 that the French enjoy, for the system in France is completely different. In France, the judge conducts the investigation, as if the trial had already started. In England, the police conduct the investigation. The sole function of the judge will apparently be to make sure that the police are getting on with the investigation. But that is not a judicial function; it is an administrative function. That is why I recommend that this function should be performed by a magistrate or a district judge and not by a High Court judge. So I regret that here I part company with the noble Lord, Lord Thomas. I do not think the interposition of a judge in this way—any more than the interposition of a judge in the matter of control orders—will make the difference. Of course, 28 days sounds like a sensible compromise. That is not how it will seem, however, to the suspect who has committed no offence, who is detained for 28 days and who is then released without charge.