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Terrorism Bill

My Lords, Amendment No. 9 is in my name and those of my noble friend Lord Henley and the noble Lord, Lord Goodhart. As your Lordships can easily discern, the amendment would also leave out subsection (3), but would in addition include an alternative definition of the offence of indirect encouragement. I will swiftly encapsulate the history of the word glorification, which is at the root of Clause 1(3). As your Lordships will recall, together with condoning, glorification began as a self-standing offence in the Government’s manifesto at the May election. By the time the Bill came along, the word ““condoning”” had been dropped altogether. ““Glorification””, instead of defining an offence, became a word explaining an offence. The new offence was that of ““indirect encouragement”” contained in Clause 1(1). The explanation of ““indirect encouragement”” is in Clause 1(3). We have no objection whatever to the new offence of ““indirect encouragement””. We support the Government in that. Our only concern is with the way that it is defined. It is not with ““glorification”” itself, but the way in which it is defined and is used in Clause 3. I suppose it can be said at the outset of this debate is that our objection to what the Government have done is not one of principle, but one of drafting. One view that has been ventilated is that the    interpretation of an offence of ““indirect encouragement”” should simply remain with the judge, and that there should be no additional guidance for the judge in the Bill. I respectfully disagree with that, which is why we have tabled Amendment No. 9. We have provided an alternative definition to the Government’s definition in subsection (3):"““For the purposes of this section””—" that is, Clause 1—"““‘indirect encouragement’ comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it””." In my respectful submission, that encapsulates exactly what ought to be encapsulated in the notion of an offence of ““indirect encouragement””. Why is the Government’s draft inadequate? I could not have put it more eloquently than the noble and learned Lord, Lord Lloyd of Berwick. It not only offends Article 10, it also offends Article 7 of the European Convention on Human Rights. Indeed, I respectfully submit that, above all, a contravention of Article 7 is the most damaging and dangerous aspect of subsection (3). Article 7 requires certainty from the legislator. Article 7 requires that when somebody is considering an activity, it should be reasonably clear to that person before he engages in the activity that, if he does so, he will be committing a criminal offence. With great respect to the Government, I do not see how anybody contemplating the text of subsection (3) could know whether he was going to commit an offence or not. That is at the root of the problem that the Government face, and why we have moved Amendment No. 9.