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Terrorism Bill

My Lords, this Terrorism Bill is the Government’s fourth counter-terrorism Bill in five years. I start off from the premise that, if the need is there, it has my support. But measures, in the absence of a consensus, can run into difficulty, as this Bill has. The overwhelming need is to preserve the balance between the liberty of the subject and the need for the rest of us not only to have our liberties but our lives preserved. I am sure that this would be the approach of the families of the victims of the July bombings. The duty of balancing is for us in Parliament. There are two controversial parts of the Bill: first, the period of detention without charge; and, secondly, the revised offence of glorifying terrorism. Despite the way the first has been handled, and I pity the Home Secretary who has sought to take the blame, I was inclined to support the Government in their proposal to detain without charge for up to 90 days, provided they could get over the objections of Article 5 of the Human Rights Act. Perhaps I may say in passing that encouraging chief constables to campaign for the 90 days is not the right way of doing things. My local chief constable is reported as saying ““It would not be appropriate””. A line must be drawn between what is right and what is not right, and sometimes that is difficult without a written constitution. I suspect that many would agree that reproducing letters drafted by the Home Secretary must cause just a little raising of an eyebrow. I bear in mind the comment of the noble Lord, Lord Carlile. Although I reached the conclusion that the case for the desired 90 days was not proved, I was prepared to give the Government the benefit of the doubt, particularly as there is now weekly supervision after 14 days by a High Court judge and the sunset clause. I fear that the 28 days passed by the other place is too short for a few important cases. In an age of international terrorism—with the tentacles of crime extending well beyond our shores, different jurisdictions, the problems of translation and of computer networks, the multiplicity of SIM cards for mobiles phones running into hundreds and many names for the same person—the case for extending the period of detention without charge is formidable. One factor has fortified my views more than anything is that, following surveillance, the need for a much earlier arrest than before, if the wrongdoer is to be stopped in his tracks before he causes mayhem, is imperative. If he slips the gathering noose before enough evidence to charge him is available, it could be too late and the deed would have been done. The extra time may be needed to fill out the gaps in the evidence. It is not the case of a simple murder that is being investigated. There is no magic in the figure of 90—90 days is unproven, as a figure. It could be 42, 60 or even 90. I believe that there should be more than 28 days in those few important cases. Why we cannot have a code of practice, with proper safeguards for allowing wider questioning after charge than the present arrangements, baffles me. Neither do I accept the Government’s stance against the use of intercept evidence in court. I understand that the United Kingdom is the only country, other than Ireland, to have an absolute prohibition in place. The noble and learned Lord, Lord Lloyd, has given his views in the strongest of terms. The Joint Committee on Human Rights has given its support, subject to safeguards. Public interest decisions on evidence are taken every day in our criminal courts by our judges, even by a mere recorder, as I was for 20 years or more. They have to consider the position, and, if they hold against the Crown, then the Crown has to consider its own position. Why should there be a blanket position in the world that we are now living in? I now come to the new offence of glorifying the commission of acts of terrorism, past, present or future, which other people may understand as direct or indirect encouragement to similar acts. A judge will have to direct the jury as to the ingredients of this offence. There is no time for me to set out before this House the kind of direction that I had prepared, but I believe that a jury will not find it all that easy—I refer to the test of recklessness and the problems of indirect incitement. The only comfort I draw is that in the original draft Bill there were other options of ““celebrating”” or ““exalting””, whatever that may mean, terrorism. In Clause 20(2) the definition of ““glorification”” includes,"““any form of praise or celebration, and cognate expressions””." What a catch-all definition! Example after example has been given in another place of conduct that might be considered questionable, from Mandela to Palestine and, nearer home, Ireland. What are we likely to achieve, in the words of the noble and learned Lord, Lord Lloyd, again,"““by creating a criminal offence out of something that is just too vague and uncertain””?" I agree with the noble Lord, Lord Kingsland, that certainty is a fundamental requirement of our criminal law. Incitement to commit terrorism is already covered by a range of criminal offences. What is the need for a fresh offence, so poorly drafted and, on the floor of the court, not all that easy to prove? That is my view, having spent most of my life in the criminal courts. Why have those one or two who now preach hate not been arrested by the existing law? I know there are difficulties of collecting evidence, but do the authors of this Bill believe that it is more likely to prosecute under these new provisions? A junior Minister in the other place said that she had been asked to speculate on what kind of phrase might make people fall foul of the new provision. The only example she could give, ““comfortably”” she said, was where someone said:"““‘Wasn’t it a fantastic thing that happened on 7 July’,””—[Official Report, Commons, 9/11/05; col. 392.]" knowing that the likely effect would be to encourage their audience in acts of terrorism. Really, is this the best that can be said on behalf of the Bill? Would members of any congregation rush out and plan acts of terrorism on that basis? Most English juries I have known, in a long life, are more hard-bitten than that. If the existing law is not strong enough to encompass the worse and most obvious acts of encouragement, I suggest to the Government that they should go back to the drawing board. I would then listen carefully to what the need is, and what more appropriate proposals to deal with them were before us. At the moment, I am certainly not with the Government on this issue. The Minister said in another place that we must have ““practical, effective and workable legislation””—this clause is not.