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Terrorism Bill

moved Amendment No. 10:"Page 2, line 1, leave out subsection (4)." The noble and learned Lord said: This brings us to what may be the one of the most contentious provisions in the Bill. It may help to start by looking at the history of the clause. The glorification offence hit the headlines when the Prime Minister held his press conference on 5 August shortly before going on holiday, but it had already figured in the Labour Party manifesto. The relevant paragraph contains a brief mention of glorification but it is not informative and does not say what is meant by glorification, nor how it could be enforced as a criminal offence. That may explain why, when drafting the Bill, the draftsmen found it so difficult to express it in terms that any of us can understand. This provision was originally a separate clause—Clause 2—but the Home Secretary abandoned that at an early stage and transferred the glorification provision to what I call a deeming provision in Clause 1(4) because he said that that would be an improvement. Almost everyone who spoke at Second Reading about glorification, condemned the clause because it was either incomprehensible to the man in the street or unenforceable or both. Those who spoke to that effect included the noble and learned Lord, Lord Morris of Aberavon, and the noble Lords, Lord Thomas of Gresford, Lord Kingsland, Lord Hurd, , Lord Soley, Lord Stratford, Lord Judd, Lord Griffiths of Burry Port, Lord Ahmed and the noble Baroness, Lady Sharp. Nobody who I am aware of spoke in favour of glorification as an offence or the basis of an offence, certainly as drafted. The noble Lord, Lord Carlile, did not support it and the noble Baroness, Lady Scotland, did not deal with it in her reply. We do not have the advantage of her view but we do have the advantage of her presence. Let me describe what I think the clause means. Subsections (1) and (2) make it an offence to publish a statement with the requisite mental element, whatever that may turn out to be, which is likely to be understood by members of the public as an encouragement to commit acts of terrorism. Under Clause 20(3) ““public”” includes members of the public at home or abroad. So guilt will or may depend upon how a statement is likely to be understood in, for example, Palestine or Pakistan, because they are included under the term ““members of the public””. I do not know how a jury is supposed to form a view about that. Under Clause 1(4), which is the deeming provision, a statement celebrating the achievements of, for example, the African National Congress in South Africa or the rebels in Chechnya, is deemed to be likely to be understood as an encouragement to commit terrorist acts in, say, Palestine, if potential terrorists there could reasonably be expected to infer that they should do likewise. I have put that in as simple language as I can, but the very involved language of Clause 1(4) seems to amount to that. That immediately prompts the question: how on earth can anyone know what a potential terrorist in Palestine, or in England, is likely to infer from what is stated? How can anyone know what a potential terrorist would reasonably infer, when, almost by definition, terrorists are not reasonable people? Making an offence depend on something which is almost a contradiction in terms—what would be understood by a terrorist in Palestine—is not a proper basis for an offence committed in England. I cannot imagine that any jury would convict in the circumstances that are put before us. Juries do not like these catch-all offences, as we saw the other day in the case of the couple who failed to inform the police about a member of their family who turned out to have been a suicide bomber. Quite rightly, the jury acquitted them. That should never have been an offence, any more than this should be an offence, as it is currently drafted or, indeed, as it could be drafted. It could be drafted more clearly, but it could not be drafted in a way that would make it a suitable subject for a criminal offence under our law. In the unlikely event that a jury convicted someone under Clause 1(4), what would be the chances of that conviction being upheld? They would be minimal. The subsection would fail on two separate grounds, both of which were explained earlier by the noble Lord, Lord Lester of Herne Hill. It would fail the test of legal certainty, because people must know where they stand, which is the principle that was explained clearly by the noble Lord, Lord Kingsland, at Second Reading. The subsection would also fail on the ground that it was an unjustifiable restriction on freedom of speech—a principle that still stands for something in this country. It is clearly a restriction on freedom of speech and it is difficult to believe that any court would hold that Clause 1(4) was a proportionate response to the threat of terrorism that we face, although that threat is serious. So it would be held inevitably that Clause 1(4) is not a necessary provision in a democratic society. It would of course be some years before that matter were tested in any court, but in the end the result would be the same as it was in the Belmarsh case. Clause 1(4) would be held to be incompatible with the provisions of the convention, and, in particular, with Article 10.2—and another suspect would have been detained in prison wrongfully in the mean time. I earnestly hope that the Government will look again at the suggested basis of an offence of glorification because it just does not add up. I beg to move.