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Terrorism Bill

My Lords, we have now passed the gap in the speakers’ list, so the end of this long but interesting debate is at last in sight. I start by summing up our position. The vote in the House of Commons to limit detention without charge to 28 days rather than 90 days has removed the most controversial single issue from your Lordships’ House. Our preference was to leave the limit at 14 days, but we voted for 28 days in the House of Commons, and we will stick to that in your Lordships’ House. I recognise that a number of government Back-Benchers wish to reverse this position, and they will no doubt put down amendments on which we will have a debate in due course. However, I do not wish to deal with that matter tonight, because there are other matters on which we will wish to see the Bill amended. We welcome fully many parts of the Bill. This includes Clause 5, on acts preparatory to terrorism; it includes Clauses 9 to 12, on radioactive material and nuclear sites; and it includes a number of more detailed provisions. I regret that the Bill does not permit intercept evidence to be used in court. Where intercept evidence would prove guilt and where that evidence could be used in court without a threat to national security, it should be so used. We had a full debate about this on Friday during consideration of the Bill of the noble and learned Lord, Lord Lloyd, and I shall not go into that again tonight, but it is not impossible to reconcile national security with the ability to use some intercepts in trials. We will no doubt come back to that matter in Committee. I turn to those clauses where there is a need for amendment. A number of substantial amendments are needed to make the Bill acceptable. I start with Clause 1, which creates the crime of ““Encouragement of terrorism””. We certainly accept the principle that it should be a criminal offence, but that clause as it now stands needs to be improved in three ways. First, we believe that the person in question should be convicted only if he or she intended to encourage terrorism. The Government have modified the original test by amendments introduced on Report in the House of Commons, but they have not gone far enough. The Bill now retains the test of recklessness as an alternative to intent. If the obvious message of a statement is that terrorism in some form or other is a good thing, surely it is easy to draw an inference of intention. But if the statement says less than that, I see no reason why it should be an offence without clear evidence of intent. I do not think that it is useful or desirable, therefore, to include a recklessness test at all, and it is doubly undesirable if, as the Government propose, that test is objective rather than subjective—that is, the defendant does not have to realise that he or she was being reckless. I agree with the noble Lord, Lord Plant, on that. Secondly, regarding the glorification of terrorism, I agree entirely with the criticisms made by the noble Lord, Lord Kingsland, the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon, and several other speakers. I believe that these provisions are completely unnecessary. Glorification of terrorism is, under the Bill, an offence if, and only if, it is likely to lead hearers of the statement to infer that they should emulate the terrorist acts which are being glorified. That, in any ordinary meaning, would plainly be encouragement of terrorism. References to glorification add nothing and increase the complications of the Bill, which is already drafted in a way that is impossible for ordinary readers to understand. I believe that the reference to glorification is included only to save the face of the Government because they promised in their manifesto to make glorification an offence—so the word had to appear somewhere in the Bill; although I note that ““condone””, which was also in the manifesto, does not appear. The third problem with Clause 1 is that it contains, as do Clauses 2 and 3, specific defences which have to be proved by the defendant. If offences depend on intent alone, it may be possible to remove those specific defences as being unnecessary. But if that is not the case, the burden of proof should be evidential only, as was the case with similar provisions in the Terrorism Act 2000; that is, once the defendant produces evidence to raise an issue, the prosecution must disprove that defence beyond reasonable doubt. That was spelt out in Section 118 of the 2000 Act. Clause 2, relating to the ““Dissemination of terrorist publications””, is of particular concern to universities, libraries and the media. The definition of ““terrorist publication”” is extremely wide. I can think of a publication which indicated to its readers that they should use violence against their lawful government, which has been much glorified subsequently and which an oppressed minority could well regard as something that they should emulate. I refer, of course, to the Declaration of Independence. So there is a need to tighten the circumstances in which prosecutions can be brought. At present, the test of whether a publication is a ““terrorist publication”” depends on whether it is likely to be understood by the recipients as an encouragement of terrorism or as something useful for terrorism. Of course that could be something as simple as a London A to Z or a map of the Underground. Nothing whatever is said in Clause 2 about the intention of the provider of the publication, the person who will be charged with the offence. That is completely unacceptable. The Government’s test for guilt is not what was in the mind of the defendant, but what might be in the mind of some unidentified persons who are, in all probability, unknown to the defendant. The offence must be limited to cases where the intention of the provider is to encourage or give assistance to terrorism. Unless offences are limited in this way, we will find that television news services will be reluctant to, for example, rebroadcast extracts from an Osama bin Laden tape which has been broadcast by Al-Jazeera to the rest of the world. Libraries will be reluctant to lend books to anyone if, in any circumstances, it might fall into the wrong hands and encourage them to assist terrorism. Universities will be inhibited in providing courses such as studies of the motivation of terrorists, as the noble Lord, Lord Parekh, pointed out. I agree on this issue with the noble Baronesses, Lady Carnegy of Lour and Lady Warwick of Undercliffe, and the noble Lord, Lord Eatwell, and my noble friends Lady Williams of Crosby, Lady Sharp of Guildford, Lord Carlile of Berriew and Lord Clement-Jones. The effect of the Bill will be to place severe restrictions on legitimate teaching by universities, lending by libraries and reporting by the media. I do not believe that the Government intend any of this, but they must amend the Bill. It is not enough to say that the Director of Public Prosecutions would not authorise a prosecution. That would not prevent the chilling effect of the law as it would stand if this Bill were enacted. Clause 6 on training for terrorism also creates serious problems for universities which provide training courses in fields such as chemistry. Clause 3 contains what I can only describe as an extraordinary provision. The extraordinariness of it has hardly been recognised, even today. A policeman can serve a notice on an Internet service provider because, in his opinion, it is transmitting a terrorist-related statement. If the service provider does not block that statement within two working days, it will be charged with a serious criminal offence. The blocking of websites is a favourite weapon of authoritarian states. It happens regularly in China, Saudi Arabia and other oppressive states. Yet we are here saying that a policeman—no doubt it would not be a bobby on the beat, but we do not say how senior they have to be—can simply take a decision to block a statement on the Internet. The service provider, of course, will have little or no interest in defending the case, and will not dispute the notice. I accept that there will indeed be a need for websites which promote terrorism to be blocked. The interference with freedom of expression which this involves, however, will need to be justified in each case. It is therefore essential that the notice must be authorised by a judge who is satisfied that the police have shown grounds justifying the blocking of the website or statement. There must also be a right, when it has been blocked, to apply for a revocation of the notice. A difficult issue arises out of Clause 17, which gives the United Kingdom courts jurisdiction over terrorist offences committed by anyone anywhere in the world, whether or not the perpetrators or victims have any connection with the United Kingdom. That raises what I might call the ““ANC issue””. What happens if the act falls within the definition of terrorism under the Terrorism Act 2000, but is an act of economic sabotage against an oppressive government? It is not an adequate answer to say ““Oh well, we can rely on the need to obtain consent from the Attorney-General before the prosecution””. I have heard it suggested that the jurisdiction should be limited to cases with UK connections. I am not sure that is adequate either. What happens with someone who has committed terrorist acts in a foreign country, but cannot be extradited to that country because they might face torture or the death sentence? It is surely better to try that case in the United Kingdom than to allow that person to be released. So there is a need to find a formula which will stop a trial in the United Kingdom where terrorist acts are committed against an oppressive government and do not involve the deliberate killing of civilians. As my noble friend Lord Thomas of Gresford said, we also oppose Clause 21. If an organisation encourages terrorism, they can be proscribed under Section 3 of the Terrorism Act 2000. I see no justification for giving an artificial meaning to what is otherwise a simple phrase. I would have to say that if the Declaration of Independence is a terrorist publication, then the Daughters of the American Revolution is a terrorist organisation. Let me therefore sum up. The Bill is one whose objectives are largely good, and we largely support them. However, it is a Bill with serious flaws. As with the Anti-terrorism, Crime and Security Act 2001 and the Prevention of Terrorism Act 2005, it suffers from too rapid preparation and a lack of consultation. In particular, there is a need to ensure that new offences under the Bill will involve a deliberate intent to further terrorism. The Government’s failure to foresee problems for universities and libraries in the Bill, and its failure to consult them, is frankly extraordinary, as has already been said. The blocking of websites must be brought under judicial control. Once again, it falls to your Lordships’ House to correct defects in an important Bill. Given goodwill by the Government, we will co-operate to produce a Bill which deserves to be on the statute book. The Bill, as it stands, does not.