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Terrorism Bill

Our names are not added to this amendment but that does not mean to say that we do not applaud the intention that lies behind it. Our difficulty lies in how it has been drafted. I say that not to criticise the drafting style of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, but merely to reflect what I imagine will be a view held by a number of your Lordships—that trying to enshrine the Mandela situation in legal form is extremely difficult. We all know what we mean by this concept; but to translate it into words which will stand up in every situation is exceedingly difficult. Indeed, we think it is impossible. The main observations on the text itself have, I think, already been made. One illustration ought to demonstrate why, if we go further with this on Report, we ought to reconsider the text of the amendment. It might well be argued that the events in Guantanamo Bay constitute a grave breach of human rights. In the amendment, the only acts of encouragement which are penalised are acts involving the deliberate killing of members of the public. But what about acts of encouragement to kill American soldiers because of the grave breach of human rights in Guantanamo Bay? That is the difficulty we face when we look at this text. I constantly marvel at the ingenuity of the noble Lord, Lord Goodhart, as a draftsman; he is one of the most brilliant I have ever come across. Nevertheless, to encapsulate what we would all like to see in this text, but do not at the moment see, will be a formidable challenge even for the noble Lord. I wholly sympathise with the concerns expressed by my noble friend Lord Campbell of Alloway about the discretion given to the Attorney-General. The discretion to decide to prosecute by the Director of Public Prosecutions or the Attorney-General cannot be judicially reviewed—that was decided in Kebilene a few years ago; but the decision of the Director of Public Prosecutions or the Attorney-General not to prosecute can be judicially reviewed. So there is an imbalance between those two situations. If your Lordships wish to know why, I suggest you read the 80-odd pages that constitute the decision of the Appellate Committee of your Lordships’ House. If I am challenged on the point, however, I shall have to try to summarise them at some stage in the course of the afternoon.