Motion A

– in the House of Lords at 3:07 pm on 28th February 2006.

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Votes in this debate

5 Clause 1, page 2, line 1, leave out subsection (4) and insert—

"( ) For the purposes of this section, "indirect encouragement" comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it."

11 Clause 2, page 3, line 23, leave out subsection (4)

15 Page 3, line 46, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1), (1A) and (2)"

28 Clause 3, page 6, line 25, leave out subsection (9)

31 Clause 20, page 18, leave out lines 13 and 14

32 Page 18, line 14, at end insert—

""indirect encouragement" comprises a statement describing terrorism in such a way that the listener would infer that he should emulate it;"

34 Clause 21, page 19, leave out lines 29 to 44 and insert "indirectly encourage terrorism, within the meaning of "indirect encouragement" as specified in section Terrorism Act 2006"

The Commons disagree to Lords Amendments Nos. 5, 11, 15, 28, 31, 32 and 34, but propose Amendments 34A and 34B in lieu—

34A Page 3, line 46, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1) to (4)"

34B Page 19, line 39, leave out "of a description" and insert "that is illustrative of a type"

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I beg to move Motion A, that the House do not insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34 and do agree to Amendments Nos. 34A and 34B proposed by the Commons in lieu. I urge noble Lords to accept the decision of the other place when it decided not to agree with your Lordships' amendment in respect of glorification. I also invite noble Lords to accept the two amendments in lieu which were made by another place and to reject the various amendments that have been tabled to Motion A.

The two amendments in lieu made by another place are minor tidying-up provisions and I do not intend to devote much time to them. However, I should point out that Commons Amendment No. 34B responds directly to criticisms which your Lordships made of the drafting. I hope that it will be welcomed. The key issue is whether this House should again disagree with another place and seek to restore the wording which your Lordships adopted at Third Reading, or a modified version of that wording.

If, as I hope will be the case, your Lordships do not insist on your amendment, your Lordships will accept that the Bill should contain provisions relating explicitly to the glorification of terrorism. That is important because people who glorify terrorism help to create a climate in which terrorism is regarded as acceptable. This should clearly be outlawed. Your Lordships will also remember that, in outlawing the glorification of terrorism when it is an encouragement to terrorism, our legislation will be in line with decisions taken at an international level. The word "glorification" is not something that the United Kingdom has just plucked from the air but features in the preamble to United Nations Security Council Resolution 1624. That resolution speaks of:

"Condemning also in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification . . . of terrorist acts that may incite further terrorist acts".

It is also expected nationally that we should outlaw glorification when it is an encouragement to terrorism. I say this because the public elected the Government on the basis of a manifesto which included a commitment to outlawing the glorification of terrorism. Let me remind your Lordships what the manifesto said:

"we will introduce new laws to help catch and convict those involved in helping to plan terrorist activity or who glorify or condone acts of terror".

I respectfully suggest that that could not have been clearer. We should demonstrate to our electorate that we take its views seriously; we should demonstrate too that we are concerned to protect its interests by creating an offence that is legally sound and can act as a deterrent.

The Members of another place have given effect to the wishes of the electorate not just once, but three times. There have been three separate votes on the precise question of whether the Bill should include references to glorification. Each time they have voted on the matter the majority in favour of referring to glorification has become larger. We are, rightly, a revising Chamber. We can invite the other place to think again. That is what we have done. The other place had a very full debate on this subject two weeks ago and the elected Chamber, in giving effect to the commitment in the manifesto, has now made it clear that the Bill should refer to glorification.

If your Lordships oppose the appearance of the word "glorification" in the Bill this House would be opposing both the elected House and those who elected its members. It would be doing so in favour of an amendment which is defective for three reasons, which I will explain in turn. The reference in the wording inserted by your Lordships to "listener" limited the scope of the provision. It confined the definition to statements that are capable of being heard and so, for example, would have excluded those written on placards.

In that respect, your Lordships may be interested to know what the shadow Attorney General, speaking in another place, said on the issue. His first reaction was the optimistic and intriguing suggestion that the meaning of the word "listening" could include "reading". I will not comment further on that suggestion. More revealingly, however, he went on to say on 15 February (at col. 1437 of the Official Report) that he accepted texts could be "improved or changed". I am pleased to note that Amendment No. 34C standing in the name of the noble Lord, Lord Kingsland, seeks to address that particular weakness. By contrast, I confess to some surprise that Amendment A1, from the Liberal Democrat Benches, makes no such concession. I will be interested to hear how the noble Lord, Lord Goodhart, puts the difference between listener and reader.

However, even with the changes that the noble Lord, Lord Kingsland, seeks to make, the wording which your Lordships sought to insert in the Bill causes problems. I have taken it that in tabling the amendments the noble Lord, Lord Kingsland, is seeking to address the point about glorification, about which we are concerned—I absolutely accept that. But instead of being an exemplary description of what indirect encouragement could be, it is an exhaustive description. In other words, the offence is limited so that it is committed by making available to the public a statement directly encouraging terrorism or a statement indirectly encouraging terrorism but only by actually describing it in such a way that the listener will infer that he should emulate it. But the use of the word "describing" means that the Bill would not catch, as the original wording would, glorification, praise or celebration of an act of terrorism that does not actually describe the act. The revised wording put forward today by the noble Lord, Lord Kingsland, does not address those points.

The second objection to these amendments is that those who seek to recruit terrorists do so not just by directly encouraging terrorism or by provoking people to commit violent acts, but by glorifying terrorism and terrorists. They may claim that terrorists are heroes whose actions should be copied, or that terrorists go straight to paradise when they die. The single word that best captures this is "glorification". It is this clarity of meaning that makes that word so important: not only does our electorate know what it means, and not only is it defined in the Bill with total clarity for the courts, but those who seek to recruit terrorists also know what it means. If this word appears in the Bill, it may—

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

We have considered them, my Lords, but it is clear, from what has been said both in this House before and in the other place, that we do not agree. Consideration yes, agreement no. The alternative expression before us now sends no such clear message.

Thirdly, as it passed through this House, the offence in Clause 1 of the Terrorism Bill included a provision that referred explicitly to glorification. If it does not appear in the final text of the Act, one conclusion is obvious: it will be presumed that the offence was not intended to cover glorification, and we believe that would undermine both the legal effectiveness of the offence and its effectiveness as a deterrent.

Taken together, the three major reasons I have outlined mean that we must not insist on our amendments, but should accept the alternative amendments that the other place has offered in lieu of them. Even now, we should proceed on the basis of consensus.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, if it is shown in the light of experience that this clause meets with judicial disfavour, would the Government consider a further amendment?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, of course there will be an opportunity for us to do so if that proves to be the case. It has been clearly indicated that we will have an opportunity to consider control orders, the definition of terrorism, and whether there are to be further provisions. We must always bear experience in mind when we come to look at the new provisions. There is bound to be another opportunity fairly soon to look at this issue again.

We have that opportunity in our legislative programme, which we do not always have, because we have jointly indicated that that is something that we collectively—across the parties—believe will be necessary to take into account the outcome of the review currently being undertaken by the noble Lord, Lord Carlile of Berriew, and the work he is doing on our behalf.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, the Minister has just said something important to the House. In the light of her response to the noble Lord, Lord Clinton-Davis, can I conclude that the Home Secretary's legislative review that is likely to take place in the early months of 2007 will include a consideration of glorification?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, it will and could include such a consideration, because I am conscious that noble Lords will want to look at the interrelationship between control orders and the other provisions and terrorism. It would be perfectly possible for us to look again at this issue and give consideration to it. We might come to the same conclusion, or a different one. Nothing we do now would prohibit us looking again at this issue.

Photo of The Bishop of Oxford The Bishop of Oxford Bishop

My Lords, I am sorry to interrupt the noble Baroness and thank her for allowing me to intervene. I agree with the noble Lord that the opportunity to revise is important. Does the noble Baroness agree that we are in a muddle over this fundamental disagreement because of the highly unsatisfactory definition of terrorism in the 2000 Act? We need to wait for the noble Lord, Lord Carlile, to bring forward a more satisfactory definition of terrorism. I believe that with a more satisfactory definition we can achieve consensus.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we have that opportunity. We have to deal with the response to the current Act. The other place has now said clearly on three occasions that it wishes the current provision before the House to be included in this Bill. That must be right for now. But it must also be right that when we look again at the definition of terrorism and the issue of control orders we have an opportunity to consider whether our conclusions continue to hold good for the future.

I have indicated something similar as regards the definition of terrorism. We shall have an opportunity to look clearly at that definition next time around.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am grateful to the Minister for giving way. Can the noble Baroness help me and the whole House? She indicated that the Government had considered the report of the Joint Committee on Human Rights—we said that the lack of clarity and over-breadth were serious problems—but that the Government did not agree with the Joint Committee's view. She said that the great virtue of the word "glorification" is its clarity. Will the Minister explain to the House how a judge will be able to direct a jury so as to distinguish between acts of glorification and other acts? How can one avoid the risk of political discrimination or manipulation of the criminal justice system? One person's glorification of terrorism would be another person's glorification of historical events regarded as glorious: let us say, after the Easter Rising, in relation to the ANC or other historical events. How will a judge be able to direct a jury without any criteria? How will we be able to avoid the risk of political manipulation leading to a lack of confidence among British Muslims?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, most importantly, we do not look at the issue of glorification in isolation; we have to consider it within Clause 1. It is important that we remind ourselves of the hurdles that we have now put into the Bill which will have to be satisfied by the prosecution if this offence is to be made out. In Clause 1 we have agreed that the offence should be committed only if the requisite mental tests of intent and subjective recklessness are satisfied. The offence will be committed only if someone encourages terrorism, whether directly or indirectly—including through the glorification of terrorism, because it is a species of the way in which one can commit this act—intending to encourage it, or knowingly taking an unreasonable risk that he will encourage it. In that context, we cannot see why anyone should object to the inclusion of a provision relating to glorification of terrorism. Nor can we see any merit in the halfway house contained in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. We believe, just as with many other words, that the court will be able, in given cases, to explain this issue with a degree of clarity which will enable juries to come to a decision. It will not stand alone; it will sit within that context. It is very important to remind ourselves of that reality.

My right honourable friend the Home Secretary made a commitment in the oral Statement he made in another place on 2 February to publish a draft terrorism Bill for pre-legislative scrutiny in the first half of next year. That is what we have just been talking about. We will have not just the Bill in due course; we will also have that opportunity for pre-legislative scrutiny. The Bill will cover matters that go far wider than the three issues we have discussed and there will an opportunity for us to consider them in greater detail. On the basis of the presence of glorification in the manifesto, the presence in the UN resolution and the way in which the other place has now on three occasions said very clearly that it is not minded to agree with your Lordships' House, I believe this is the moment where we bow to the other place, confident, as we are, that we will have an opportunity to return to this in the way that the right reverend Prelate indicated when we will have the benefit of the advice on definition. We will look again to see whether that definition changes. If it changes—I make it clear that we do not know whether it will and we have talked about the difficulties inherent in that—it may well have an impact on the other provisions, and we would have to look again at them. I beg to move.

Moved, That this House do not insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do agree to Amendments Nos. 34A and 34B proposed by the Commons in lieu.—(Baroness Scotland of Asthal.)

Photo of Lord Brabazon of Tara Lord Brabazon of Tara Chairman of Committees, House of Lords

My Lords, before calling Motion A1, I have to inform the House that if Motion A1 is agreed to, I cannot call Motions A2 or A3.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do disagree with Amendments Nos. 34A and 34B proposed by the Commons in lieu."

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, Clause 1(4) of the Bill as it emerged from the House of Commons provided in complex, convoluted language that glorifying terrorist acts should be treated as the encouragement of terrorism if that glorification is in terms which encourage people to emulate the glorified acts. That provision was removed and replaced by a much simpler and clearer definition of what is meant by "indirect encouragement" in Amendment No. 5, which did not contain the word "glorification".

Amendment No. 5, as I recognise, has defects. They are defects which could have been, and could be, easily corrected by the House of Commons accepting the principle and sending back to us an improved version. The House of Commons has, however, chosen to put back the reference to glorification in Clause 1(4) and, indeed, everywhere else in the Bill. That, I believe, is entirely wrong. I believe it is wrong because the reference to glorification is not only unnecessary but useless. I cannot imagine any case in which a prosecution based on glorification would succeed, but a prosecution based simply on a law treating indirect encouragement as an offence would fail. There is here no loophole that needs to be filled.

The Commons version saddles us with an elaborate, confusing and unnecessary provision. As the Joint Committee on Human Rights pointed out—in my view absolutely rightly—glorification, which is defined in Clause 20 as including any form of praise or celebration, wholly lacks the necessary legal certainty. But this use of the word "glorification" is worse than useless because it causes unnecessary damage to freedom of speech. It will lead to self-censorship. The definition of "terrorism", as the right reverend Prelate the Bishop of Oxford pointed out, is extraordinarily wide. It remains wide and we certainly cannot assume at this stage that it will be narrowed by any future legislation. It may be; it may not be.

The present position is that someone wanting to write a book, an article, or a film or television script about the Easter Rising in Dublin in 1916, and doing so in a way that was sympathetic to the rising, might fear that that could be regarded as calling for a return of IRA terrorism in Northern Ireland as an uncompleted job. It may of course be unlikely that the Director of Public Prosecutions would give leave to prosecute. It may be unlikely that prosecution would lead—if there was a sensible jury on the case—to conviction. But the fear is there, and it has a chilling effect.

The reference to glorification is also a matter of particular concern to the Muslim community of the United Kingdom and its groups. Many places where terrorist acts are now being carried out are part of the Islamic world; I am thinking in particular of the West Bank and Gaza, Iraq, Chechnya, and Kashmir. I wish to make it clear that I do not in any way support terrorism in any of these places. It is also true that, in some or most of these places, some terrorists have been guilty of actions which are repulsive to decent human beings, but people in this country must be free to debate the issues which give rise to terrorism there. It must not be a criminal offence to argue that at least some of the objectives, if not the methods, of terrorists in these places are in fact justified. The Government say that it is not the intention of the Bill to stop this argument, but the inclusion of references to glorification will make many people who, for example, support independence for Chechnya or the end of Israeli occupation of the West Bank fearful that in doing so they will be glorifying terrorism and committing an offence. "Glorification" will stifle debate that is not only legitimate but important in this country.

Why is it that the Government are so obsessed with outlawing glorification? The answer can only be described as being to save face—their own and that of the Prime Minister. He said that glorification must be made a crime and it was put into the manifesto, along with condoning terrorism. "Condoning" was rather rapidly dropped and has not since reappeared, for reasons which are pretty obvious. It also became obvious that glorification, as a free-standing offence, would be in itself an absurdity. The definition of terrorism is so wide that it extends to the actions of Robin Hood and his merry men or the War of American Independence. If glorifying these were to be a crime it would make such radical organisations as the Daughters of the American Revolution criminal organisations. The Government therefore backed down half-way and made glorification a sub-species of encouragement instead of an independent species of its own. At that point, the Government should have recognised that all that was needed here was a simple offence of direct or indirect encouragement of terrorism, an offence which we accept as necessary and which we support. But the Government had become so committed to glorification that they had to stick it in.

Your Lordships' House should stick to the decision to remove references to glorification. We now have the worst of both worlds: we have statutory provisions which add nothing to security but which will restrict freedom of speech. Your Lordships are offered three alternatives to the Motion that has been moved by the noble Baroness, Lady Scotland. One is the one in my name; the second is in the name of the noble and learned Lord, Lord Lloyd of Berwick. The differences between us are insignificant. It is only that he would accept the removal of Lords Amendments Nos. 15 and 32 and the inclusion of Commons Amendment No. 34A. Amendments Nos. 15 and 32 do not remove references to glorification, and we do not need to insist on them or to object to House of Commons Amendment No. 34A. That being so, if he wishes to press his Motion A2 to a vote, as I understand he does, I would beg leave to withdraw Motion A1 and support him.

Motion A3 in the name of the noble Lord, Lord Kingsland, is another matter altogether. If it was adopted, it would remove the reference to glorification in Clause 1(4), but retain the references to glorification in Clauses 2(4), 3(9), 20(2) and 21. I cannot see the point of an amendment that would do that. Deleting one reference to glorification would annoy those who think that it should be in the Bill; leaving four other references in the Bill would annoy those who think that it should not be in the Bill. It appears to me that Motion A3 has no point and, unless the noble Lord, Lord Kingsland, is extremely persuasive, my recommendation to my noble friends would be to abstain if he was to move it following a defeat of an earlier Motion.

In spite of the persuasive arguments of the noble Baroness, Lady Scotland, on this occasion your Lordships' House should send this matter back to the House of Commons for one further consideration, and we should not accept the government amendments that were reintroduced by the House of Commons.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do disagree with Amendments Nos. 34A and 34B proposed by the Commons in lieu.".—(Lord Goodhart.)

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 3:30 pm, 28th February 2006

My Lords, I rise to support the Motion of the noble Lord, Lord Goodhart, and speak also to my Motion. The sole purpose of my Motion is to remove all references to glorification from the Bill.

Clause 1 covers two forms of encouragement—direct encouragement and indirect encouragement. Direct encouragement is already covered by the law of incitement; I believe that now to be common ground on all sides. It may help the House if I give an example of how far the existing law of incitement goes. It may be that some of your Lordships have one of the devices—which I have not—that warns one of an approaching speed trap. In 1976, the manufacturers of such a device were prosecuted for advertising their products. It was said that they were inciting motorists to break the law by speeding. The defence was that they were not inciting anyone to do anything, certainly not to break the law—that was up to the driver. That defence was rejected. The manufacturers were duly convicted, and the conviction was upheld by a strong Court of Appeal.

It is rather a good example of what I think the Government have in mind by indirect encouragement, yet it is covered by the existing law. There is nothing wrong with the existing law of incitement, and the reason why no one has been prosecuted for inciting terrorism is not some fault or deficiency in the law; it is quite simply a reluctance on the part of the police, for whatever reason, to prosecute. Instead of encouraging the police to use the existing law, the Government's response has been to make it easier, as they believe, for the prosecution to secure a conviction, by including indirect incitement in Clause 1. That is good as far as it goes. The trouble is that the Bill does not define what it means by indirect incitement. It may be that the Home Office lawyers or the draftsmen of the Bill found that task too difficult. Instead, all we have to go by is an example of a statement which is to be treated as falling within the scope of indirect incitement, namely glorification. To legislate by example is a most unusual way of proceeding. It is as if the Government were to say that they cannot define the offence with any degree of precision, but that this is the sort of thing they have in mind. That will not do for a criminal offence.

On the last occasion the Bill was before this House, an amendment put down by the noble Lord, Lord Kingsland, attempted to cure that defect and improve the Bill by including a definition of indirect incitement. It was an olive branch, held out to the Government by him in all good faith. The Home Secretary did not accept that olive branch. Instead of adopting—and perhaps improving—the definition suggested by the noble Lord, he rejected it out of hand. What were his objections? I submit that they were trivial. First, the amendment had referred to the "listener" and one cannot listen to a placard. That was a good debating point, but we need something better than debating points if we are to reach consensus on this important matter. That defect could have been so easily cured.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I ask the noble and learned Lord whether he therefore contends that there is no distinction to be drawn between listening and reading.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, I do not contend that for one moment. I far prefer the amendment now suggested by the noble Lord, Lord Kingsland, and I wish the Home Secretary had accepted it when he had a chance to do so.

The second argument was that we need glorification in the Bill, because indirect encouragement on its own is not sufficiently "strong and clear"—these are the words of the Home Secretary—to send out the required message. If indirect encouragement is not clear enough on its own, what is it doing in the Bill? Then it was said that if we were now to remove glorification from the Bill, that word having been included by the House of Commons, it would mean that glorification will, by implication, have been excluded from indirect incitement. To do the Home Secretary justice, he described that argument as "technical". It is worse than technical; it is simply scraping the barrel. Nobody has ever suggested that glorification cannot, given the facts of a particular case, amount to indirect—or even direct—incitement. Of course it can. What we object to is the use of glorification to define the parameters of the offence. That is the sticking point.

Finally, the Prime Minister relied strongly on the fact that glorification is to be found in Security Council Resolution 1624 of 14 September. That sounded, at first, like quite a strong point. It seemed to corroborate the Prime Minister's view. However, it loses some of its force when one appreciates that the United Kingdom tabled that resolution. I shall quote from the speech of President Bush at the full meeting of the Security Council:

"Today we support a resolution sponsored by the United Kingdom that condemns the incitement of terrorist acts, and calls on all states to take appropriate steps to end such incitement. I want to thank the Prime Minister and his government for their hard work on this issue. The United States of America strongly supports the implementation of this resolution".

I have tried to find out from the Foreign Office who first included a reference to glorification in the draft. It does not seem likely to have been the Algerians, the Brazilians, the Chinese, the Greeks, the Japanese, or the Russians and it certainly was not the French. The French objected to glorification and substituted their own word "apologie". I have been told by the Foreign Office that it was not the United Kingdom delegation that first suggested the inclusion of glorification. Of course, I accept what I have been told without reservation. Maybe it was the United States, but I cannot tell; I was not allowed to know. However, it is an odd coincidence that whoever suggested glorification should have chosen the very word that was included in the Labour Government's manifesto very shortly after the Prime Minister used the word at his press conference.

These were the arguments in the House of Commons for disagreeing with Amendment No. 5, but neither the Prime Minister nor the Home Secretary dealt at all with the great objection to glorification as an offence, which is that it offends against the principle of legal certainty and, therefore, is incompatible with Article 10. They never mentioned that, yet that was the argument that was repeated over and over again in this House. It was the basis on which the Joint Committee on Human Rights condemned "glorification". It was also the basis on which Clause 1 was questioned by Louise Arbour, the United Nations Commissioner for Human Rights, in her letter of 28 November last year.

These are matters of great importance which deserve a proper answer if our amendment is not to be accepted. They cannot be brushed under the carpet. Therefore, I urge the House to stand firm now and not to wait until November next year. If we do so, we are not being soft on terrorism. We are anxious only to ensure that the law makes good sense and is enforceable.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 3:45 pm, 28th February 2006

My Lords, first I shall deal with a matter that the noble Baroness raised early on in her speech—the Government's manifesto for the elections last May—and the amount of weight that your Lordships should place on it in making up your minds this afternoon before the vote.

The manifesto indeed mentioned glorification; but it did so in the context of being a self-standing offence, the offence of glorification. By the time this Bill came before your Lordships' House for the first time, there was no mention of any self-standing offence of glorification. The offence had become indirect encouragement, and "glorification", in so far as it appears in the Bill, does not even appear as a definition. As the noble Viscount, Lord Bledisloe, said on Report, glorification is simply a guideline.

That point was emphasised, with his customary skill, by the noble and learned Lord, Lord Lloyd of Berwick, in the remarks that he made earlier. Whatever other factor is to influence your Lordships in making up your minds, in my submission, the manifesto of the Government at the previous election should not be one of them.

The noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, have presented a fundamental case against Clause 1(4) cogently and compellingly. I shall not attempt to elaborate on what they have said. I shall merely draw out two points from their analysis, which I shall make shortly—even telegraphically.

First, as the noble and learned Lord said, the definition of indirect encouragement is so vague as to plainly contradict the European Convention on Human Rights. The noble and learned Lord mentioned Article 10. For me, the crucial one is Article 7. If before he does something, somebody does not know whether or not it is a crime, that is bad law, which ought to be struck down.

The second reason why I think the analysis of the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd, is so pertinent is what I describe as the constitutional malignity of Clause 1(4). The definition of indirect encouragement is so vague that the scope of the Director of Public Prosecutions to decide whether or not to prosecute is immense. In effect, the DPP will decide what the law is when launching prosecutions in court. That is a fundamental breach of the rule of law. I do not have to cite the European convention to reach that conclusion; it is enshrined in our own common law.

I want to make it absolutely clear that the Opposition support this Bill. In particular, we support the offence of indirect encouragement. We need a really effective weapon against the preachers of hate, and we want the Bill on the statute book as quickly as possible. The reason why we tabled the amendment is not because we are opposed to the offence of indirect encouragement; we are, rather, opposed to its definition. We think that the Bill, when enacted, with glorification still contained in it, will not achieve results in the courts—the results we need to combat terrorism effectively.

Far from being soft on terrorism, as the Prime Minister has so petulantly asserted from time to time, it is we who are being tough on terrorism. By refusing to use their head in relation to the definition, the Government are being soft. Not for the first time, the Government prefer the soundbite to the substance of the matter.

We have now to consider whether to send this back to another place. I do not like the idea of waiting another nine months for this Bill to go on to the statute book. Effectively, if we carry on our resistance to the point of invoking the Parliament Act, that is what would be implied. I also take the point, made more than once by the noble Baroness, that another place is the democratically elected place. But equally, we have a constitutional duty, given to us by another place, to make it think again if we think that it is wrong.

Early in her speech, in response to a question posed by the noble Lord, Lord Clinton-Davis, the noble Baroness gave an undertaking that, at the beginning of 2007, a whole range of issues connected with the offence of terrorism would be reconsidered by the Government. She said, most significantly, that glorification would be included in that review. Before deciding whether to put our Motion to your Lordships' House, I shall have to set that against my fundamental feeling that what we are about to make is bad law.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, before the noble Lord sits down, can he confirm that his Motion A3—as it does not insist on Amendments Nos. 11, 15, 28, 31, 32 and 34—would mean that four of the five references to glorification therefore remain the Bill?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, as usual, the noble Lord, Lord Goodhart, is quite correct. From our point of view the crucial clause is Clause 1(4).

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I speak as one whose vote on this matter is still essentially up for grabs. That may not be the case for everyone in the House. I listened extremely carefully to what the noble Baroness said and was sorry that, by her remarks about terrorists going to paradise, she seemed to imply that the legislation was solely about Islamic terrorism. I accept that that was not her intention, yet it could have been heard in that way.

We cannot know what outrages there may be in future, but at present the victims of Islamic terrorism here in this country are mercifully few against those of our own home-grown northern Irish terrorism. I have long been concerned that it has seemed impossible to take proceedings against Mr Adams and Mr McGuinness, who have glorified terrorism and still do that. It is no good the noble Lord, Lord Bassam, sniffing when we have all seen those two gentlemen standing at military-style funerals with hooded gunmen firing in celebration of the terrorist. If that is not glorification of terrorism, it would be rather difficult to define what is. If those gentlemen continue to glorify terrorism and terrorists, does the noble Baroness feel that they would be caught by the provision of her legislation?

Furthermore, the Minister spoke of the problems of references in the amendments which were passed by this House to "the listener"; she also mentioned placards. I presume that she was trying there to bring to our minds the recent Islamic march in London and the grossly offensive placards seen there. Yet I understand that it would have been possible, under existing law, to bring prosecutions against those carrying the placards. Is my understanding right? Would it have been possible to bring prosecutions and if so, why was it decided not to bring them? If we are to give powers to proceed against the offence of glorification of terrorism, we would want to know whether the Government were going to use them or have them only as an eye-catching initiative.

If placards are to be brought into the legislation, what about the murals on the walls of Belfast and Londonderry which glorify both republican and loyalist terrorism? Would the creators of those murals be likely to be found guilty of glorifying terrorism? Would it make any difference to the likelihood of their prosecution and conviction whether we accepted the Minister's proposals or those of my noble friend and the noble Lord, Lord Goodhart? Before I finally decide into which Lobby I should go, I would be interested to hear the noble Baroness's reply.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I want to explain why I certainly support Motion A. To remove all references to glorification from the Bill is to remove a clear signal from this Parliament that glorification of terrorism is unacceptable—not just the commitment of terrorism, or direct and indirect incitement of it, but glorification as well.

As my noble friend Lady Scotland explained, UN Security Council Resolution 1624 of last September, about which the noble and learned Lord, Lord Lloyd of Berwick, spoke, was sponsored by the UK. I have always said clearly that the UK sponsored that resolution and strongly supported it, but it was passed—it is a UN Security Council resolution, whatever went on during the drafting, which goes on in the drafting of every UN Security Council resolution. You never know whose hand is in which word or phrase but, at the end of the day, it is what is agreed that matters. That resolution is very clear. It states:

"repudiating attempts at the justification or glorification . . . of terrorist acts that may incite further terrorist acts".

I do not understand people who have difficulty with the meaning of glorification. I tend to think that only lawyers could find it a subject of debate. People on the proverbial Clapham omnibus or on the streets of Glasgow certainly know exactly what it means. The Oxford English Dictionary definition of glorify is,

"describe or represent as admirable, especially unjustifiably or undeservedly".

To those who say that present laws on incitement cover the ground, I say that there is a small but significant area that is not covered. To my mind, that is best illustrated by one placard that I saw on my television screen in the now infamous recent London demonstration mentioned by the noble Lord, Lord Tebbit. That placard mentioned, "The Magnificent 4", a reference to the 7 July bombers. I do not think that you need to be a lawyer to know that it would be very difficult to bring an incitement charge on that, but it sure is glorification. To those who say that reaction to that demonstration is a bad basis for advocating a charge of glorification, I say that I spoke in favour of the inclusion of glorification in the Bill in my Second Reading speech, as many of us did, last November, so it is no knee-jerk reaction, certainly on my part.

The independent reviewer, the noble Lord, Lord Carlile of Berriew, said of the government proposal on glorification in the Bill as it came to this House last time, and as it will be if Motion A is carried tonight, that it,

"is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context".

He believes that it is human-rights compatible, as he states in paragraph 23 of his report of last October.

To those who have spoken of the provision applying to praise of Robin Hood or the ANC, I say that the government wording makes it absolutely clear that only those who seek to encourage others to emulate terrorist acts, "in existing circumstances", will be covered. It is crystal clear that the legislation is about glorification that encourages others to commit terrorism in today's context. Furthermore, any prosecutions would need to be approved by the DPP.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:00 pm, 28th February 2006

My Lords, I am sure that the noble Baroness appreciates that in the subsection to which she has just referred, the offence is said to include,

"every statement which . . . glorifies the commission or preparation of such acts or offences (whether in the past, in the future or generally".

Whereas the original draft clauses from the Home Office included a 20-year limitation, there is now no limitation. To take Irish terrorism for example, as I was discussing in Dublin this weekend, Irish terrorists are inspired by events that happened in the late 1790s to commit terrorist acts at the present time.

Photo of Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale Labour

My Lords, I refer the noble Lord to subsection (4)(b) and,

"a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances", which is exactly what I said. Furthermore, any prosecutions would need to be approved by the DPP in cases of domestic terrorism or by the Attorney-General in cases of overseas terrorism. Only prosecutions that are in the public interest would be brought.

Those who glorify terrorism will be prosecuted only if they do so in a way that encourages others to copy these acts in today's circumstances. I should add that on the criteria for the proscription of terrorist groups, which is another very important part of the Bill, specific safeguards are in place, including parliamentary approval subject to affirmative procedure and appeal rights. The power of the Home Secretary to proscribe terrorist organisations is very far from being unfettered.

I think it is very important for this House to send out a clear signal that no one, by carefully avoiding direct incitement, can continue to encourage others, especially the young, to commit terrorism. I support Motion A in the name of my noble friend Lady Scotland.

Photo of Baroness Park of Monmouth Baroness Park of Monmouth Conservative

My Lords, I shall make a totally different and very small point. I was very concerned by what the noble and learned Lord, Lord Lloyd of Berwick, said about the difficulty of things not being precise enough to make it possible for the Crown Prosecution Service to recommend that a case should be brought. I have in mind what happened in Oxford on Sunday, when a young man of 16 and some students did what no one has really done so far; they condemned and resisted those people who have been terrorising Huntingdon Life Sciences and trying to prevent the university having a very necessary and valuable scientific laboratory in which animals are used.

It seems to me that it would be disastrous if glorification was so vague that those people could not be caught. I want to be reassured, as I am by my noble friend Lord Kingsland's Amendment No. 34C, that the provision is spelt out so carefully that there can be no possible reason why those people, if they are caught and identified, cannot be prosecuted.

Photo of Lord Judd Lord Judd Labour

My Lords, the will of the Commons should ultimately prevail. That is a constitutional principle to which I strongly adhere. However, I cannot vote for a measure which I believe to be wrong, fundamentally flawed and, worst of all, counter-productive. I shall therefore abstain, but with considerable misgivings, because my own convictions on the matter before the House would have me voting against what I believe to be the misguided will of the majority in the Commons.

There have been references to the Joint Committee on Human Rights. I am a member of that committee. We have reached and reported clear conclusions on the Government's proposals; they are there for all to read. Apart from the important issue of intent, our concerns centred on the vagueness of the glorification requirement, the breadth of the definition of terrorism, and the lack of any requirement to demonstrate as part of the offence the likelihood of terrorist offences being caused. We became convinced, and so we reported to both Houses, that to make the new offence compatible with Article 10 of the European convention, it would be necessary to delete references to glorification, insert a more tightly drawn definition of terrorism, and insert into the definition of the offence requirements of intent and likelihood. It is particularly unconvincing to pursue the legislation unyieldingly when the Government have asked the noble Lord, Lord Carlile of Berriew, to review the definition of terrorism. We all await his findings.

Successful law depends on a high degree of consensual support and identification with it across a wide cross-section of the population. The Muslim population of the United Kingdom is a significant part of our community: in London alone, it is 10 per cent of the population. The strength of opposition in the Muslim community to this clause would be difficult to overestimate. When the Government indicate that it is necessary to have this clause to send a signal—my noble friend Lady Ramsay, with her usual candour, has made the same point—members of the Muslim community understand this to be a signal to them, in particular. They believe that they are being warned, because of their anxieties about recent and, indeed, current events, that their views are not legitimate and should be suppressed. They may be right or they may be wrong in that, but that is the message which they interpret. This is not helping to win the most important and demanding battle of all if terrorism is to be overcome—the battle for hearts and minds.

It has been argued that supporters of Nelson Mandela—I was one, as indeed I was of Eduardo Mondlane and others in the struggle for freedom in Mozambique, Angola and Guinea before the restoration of democracy in Portugal—would not be indicted by this clause. I simply do not understand that. After Sharpeville in 1960, the ANC abandoned non-violence and supported Spear of the Nation, its military wing committed to a strategy of sabotaging targets of economic and political importance.

The activities of Spear of the Nation would clearly have fallen foul of Section 1 of the Terrorism Act 2000. Subsection (2) refers to "serious damage to property"—a technique that was deliberately deployed. Section 1 also refers to where,

"the use or threat is designed to influence the government", and

"is made for the purpose of advancing a political, religious or ideological cause".

The apartheid regime denounced the struggle as terrorism. Others across the world, including, I am glad to say, some current members of the Government and Cabinet, expressed support. That support was explicit and intentional. I recall speaking in the other place on the need to relate to the liberation movements. None of the Government's amendments, covering intent, recklessness or non-endorsement, would provide protection from imprisonment under Clause 1.

There have been references to Nelson Mandela—I have made them myself—during our deliberations on this Bill. I hope that the House will therefore bear with me if I quote Nelson Mandela at his trial in 1964. He said:

"I do not, however, deny that I planned sabotage. I did not plan it in a spirit of recklessness, nor because I have any love of violence. I planned it as a result of a calm and sober assessment of the political situation that had arisen after many years of tyranny, exploitation, and oppression of my people by the Whites. . . . I, and some colleagues, came to the conclusion that as violence in this country was inevitable, it would be unrealistic and wrong for African leaders to continue preaching peace and non-violence at a time when the Government met our peaceful demands with force. This conclusion was not easily arrived at. It was only when all else had failed, when all channels of peaceful protest had been barred to us, that the decision was made to embark on violent forms of political struggle, and to form Umkhonto we Sizwe. We did so not because we desired such a course, but solely because the Government had left us with no other choice".

The Government argue—the Home Secretary argued it in his oral evidence to the Joint Committee on Human Rights—that while such resistance may have been justified on occasion in the past, such conditions no longer exist. After my years as rapporteur to the Parliamentary Assembly of the Council of Europe on the conflict in Chechnya, a country suffering grievously and which I visited nine times, I wish the world were as simple as the Home Secretary and his colleagues have portrayed it.

I believe without qualification that it is wrong and totally unacceptable to target innocent civilians, whether this be by states or non-state organisations. I also believe that that absolute principle demands some caution on our part about our own credibility. Just read AC Grayling's latest book, Among the Dead Cities, dealing with the area bombing of Germany and Japan, or reflect on more recent events. The deliberate targeting of the innocent is not just wrong and wicked, it is usually counter-productive, whoever does it and for whatever cause.

I do not believe that the rebels of Chechnya are right to be fighting, but I understand why many of them feel that they have no alternative. Just as I despise the atrocities against the innocent by some within their ranks, I admire the courage of others who themselves abhor such atrocities as much as any Member of this House. It would be tragic if, by our insensitivity and intransigence, we play into the hands of the extremists. Chechnya is not, by far, alone; there are other dictatorships and highly repressive regimes in the world today.

Attacks on innocent civilians are something we should all condemn, but the definitions of terrorism we are considering today are not specifically about that.

Photo of Lord Hurd of Westwell Lord Hurd of Westwell Conservative 4:15 pm, 28th February 2006

My Lords, I intervene briefly because of what the noble Baroness, Lady Ramsay, quite rightly said—that lay people also have a right to speak in a debate that has, inevitably, been partly dominated by lawyers. As a lay person, I come to a different conclusion from the noble Baroness.

The word "glorification" appears in the Labour manifesto and in the Security Council resolution. Some of us are reasonably acquainted with both types of document, and the words are chosen carefully for the purpose of those documents. I do not think anyone drafting them has the notion that the words, as opposed to the concepts, need to or should be automatically translated into the domestic law of member states or—in the case of the Labour manifesto—of Parliament. They have a different purpose, and there is no reason why legislators should follow the wording of either of those documents.

This point has been made already, but the noble Baroness again used this phrase about sending a signal. I simply do not believe that when we discuss legislation in this Chamber or in the other place we are in the business of sending signals or messages. We are in the business of creating and defining offences. The moment we stray from that, the moment we wander into the message-giving process, we are wandering away from our proper path as legislators.

The fundamental, lay background is this: we are wrestling, and have to wrestle, to retain loyalty for this country among a number of people in this country, mostly perhaps young people, who are being tempted and seduced away from that loyalty, with consequences that can be desperate, damaging and lethal for ourselves. That is what it is about. We have three weapons. One is persuasion, another is example and the third is law. I believe that the third weapon—the weapon of law—is the most double-edged and therefore on the whole the weakest, but it is necessary. The law does not deal with thoughts. As Queen Elizabeth I said, in this country we do not seek to open windows into men's souls. We are not trying to search people's thoughts. That is beyond the law. Action is within the law, not just action to commit acts of terrorism, but action to incite and prepare for terrorism. The law has steadily been strengthened so that that is clear.

In the middle, between thoughts and actions, are the things we say and the things we write. The law has a place, but it should enter the middle area of words and writings on tiptoe and with caution. If the law goes too far into that area, it discredits itself and ceases to be a weapon; it becomes a boomerang. For myself, I believe that the glorification clause, even in the form it has been sent back to us by the Government, crosses that frontier. It ceases to protect and, in a way, harms the protection of the cause in which we are all united.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

My Lords, the noble Lord, Lord Hurd, has spoken some extremely wise words both on the nature of manifestos and on the absolute necessity for certainty in the law, and as I understand from what was said by the noble Lord, Lord Kingsland, and my noble friend Lord Goodhart, the crucial aim here is to make sure that the law is unambiguous and clear. "Glorification" is a slippery word, as indicated in the letter from the United Nations Commissioner on Human Rights, Louise Arbour. It does not have a clear meaning and therefore, paradoxically, in addressing us the Minister made it plain that one of the things which would limit the number of prosecutions that might be brought under glorification was intent. That was put into the Bill after a very long argument in this House which, of course, came after the use of glorification, which in turn preceded the introduction of intent into the law. If intent is one of the things that narrow the area in which cases alleging glorification can be brought, it is rather strange that it should now be adduced as an argument for keeping the term "glorification".

There is another factor which links what was said by the noble Lord, Lord Hurd, with the moving words of the noble Lord, Lord Tebbit. Quite simply, the glorification of what might be called terrorism lies deep in many cultural traditions, not only in the tradition of Islam. On Sundays I go to a church called the Church of St Joseph's and the English Martyrs. It glorifies terrorism. Those martyrs died under the reigns of Henry VIII and Queen Elizabeth I and therefore they are being glorified for what they did in defiance of the state at the time. As has been pointed out by my noble friend Lord Thomas, there is no limitation on how far back in time glorification may go. If I travel to Oxford I will see a monument which glorifies Archbishop Cranmer, who equally offended the Roman Catholic regime at the time.

The problem here is that at some point most cultures glorify terrorism, and the noble Lord, Lord Tebbit, was absolutely right to remind us of very recent examples. Terrorism has been glorified in Northern Ireland and, in effect, is still being glorified on placards and posters. As the noble Lord, Lord Judd, rightly said, consider for a moment the impact on the Islamic community when it is picked out for a series of cases about glorification when it is perfectly clear that not many miles away similar acts of glorification leading, as the noble Lord, Lord Tebbit, reminded us, directly to deaths at violent hands have not been prosecuted. There has not been even an incentive or an instigation of prosecution in those cases. I for one have found it extraordinary that in the long period when the IRA refused to decommission its weapons no attempt was made to bring its members to justice on the grounds of their being involved in terrorism.

We are walking on deeply ambiguous territory. It would be most dangerous, if we seriously believe that we have to curb terrorist actions—I agree with the noble Baroness, Lady Ramsay, that we need to do so—as a result of the cases brought for us to be seen to be very aware of terrorism in one quarter and completely unaware and not even wishing to be aware of terrorism in another. In the history of our relations with Northern Ireland we have a different attempt to deal with terrorism by compromise. With that history behind us, and indeed with us, we are almost the last country on earth that can now declare clearly that terrorism is a distinctly Muslim characteristic. Yet that is what is being read all too much into our debates and deliberations.

Therefore I plead with the House, if it is serious about bringing cases that will be upheld on the basis of absolutely clear law, that the noble Lord, Lord Kingsland, is right: far more effective to have that law clear and unambiguous, even if fewer cases are brought to fail, than to play the game of appearing to pick out one culture of glorification over another leaving us with the general impression of a deeply built-in prejudice against the Islamic community.

Photo of Lord Grabiner Lord Grabiner Labour

My Lords, I will be extremely brief because I suspect that all the points that could have been made have already been made. Is it not plain that the examples given by the noble Lord, Lord Tebbit, are obviously capable of amounting to glorification? More to the point, is it not obvious that a jury would be entitled so to conclude? The word "glorify", or "glorification", is a simple English word that would be well understood by an English jury.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I want to make one or two points that have not yet been made. I agree with the general thrust of all the speeches that have been made. First, in dealing with the rest of the world, I am not aware that in the United States such an offence could possibly pass muster under the first amendment because of the strong constitutional guarantee of free speech. I am not aware that any other country party to the United Nations resolution has introduced such an offence. The only state I know of that had something similar was Spain. When Spain introduced that offence it was challenged before the constitutional court of Spain which decided that it was unconstitutional in the form in which it was expressed.

We are therefore doing something unique—and uniquely bad—in law making. When my friend and colleague the noble Lord, Lord Judd, and I and others on the Joint Committee on Human Rights visited Madrid recently—Spain is the European state that has faced even more terrorism than us, both from ETA and the Madrid bombings—to inquire about its counter-terrorist measures we had the privilege of meeting Ministers, the public prosecutor and senior judges and asking questions about their pattern of law making. One of the questions was whether they considered it necessary in Spain in their counter-terrorist measures to detain people, for example, for up to 90 days without charge or by having the offence of glorified terrorism. The answer we received was, "No, we don't consider it necessary. What you do not need is more laws. What you do need is to make the existing laws work properly".

That seems correct to me. We have a vast armoury in our criminal law of offences against public order of one kind or another; they cover all the disgraceful events of the recent demonstrations. They cover everything from incitement to murder to other, lesser crimes against public order. The amendments this House agreed upon would make the offence of direct and indirect encouragement of terrorism workable and effective. I believe that the inclusion of glorification will make the offence, if applied in any way at all, contrary to Article 10 of the European Convention on Human Rights and the Human Rights Act. I do not see the point in passing legislation that will lead to a result in our courts that none of us would wish to see.

This is not the first time we have faced political speech crimes of this kind. As we all remember, we did so with regard to the offence of stirring up religious hatred, and on all sides of this House we managed to amend a manifesto Bill to make absolutely sure that freedom of speech would be effectively protected. In the other place, the opposition parties and Labour Back-Benchers joined together in a great alliance in order to copper-fasten those amendments. Unfortunately that could not be accomplished on this occasion, so the Bill has returned to this House. It is a manifesto Bill, as was the other one. On the face of it there is no specific guarantee of free expression of the kind we put into the other one. The other offences were much less serious—they were not concerned with terrorism—and yet we managed to get adequate safeguards. We do not have such safeguards in this Bill, and I believe it would not be contrary to the Salisbury convention, or any other convention of this House, to send it back again to the other place so that it could be improved. Then we could have something on the face of the Bill that would work in practice and not be counterproductive.

Photo of Lord Glentoran Lord Glentoran Shadow Minister (Sport), Culture, Media & Sport, Shadow Minister, Northern Ireland 4:30 pm, 28th February 2006

My Lords, I did not intend to speak on this Bill, but I feel strongly about the glorification issue. I greatly respect the noble Lord, Lord Judd, who referred to the intelligence and the rights of the other place. Frankly, the rights of the other place are dictated by No. 10 Downing Street, but let us leave that—that is the way it is. I also respect my noble friend Lord Hurd, and other noble and learned Lords who have spoken on this subject.

I have lived for 25 years in the middle of terrorism, probably the most complex near-to-home terrorist situation that those of us alive today and in this House have had to deal with politically, practically and financially. From where I stand, Mr Hain is guilty of glorification of terrorism by giving Mr McGuinness and Mr Adams back their rights and their money for not attending or sitting in the House of Commons. You may say that that is a small point, and, in a global situation, it is. I accept that. I am not an intellectual. But for me it neatly demonstrates the dangers of the issue of the glorification of terrorism. I could repeat that sort of example again and again, as could other noble Lords.

To pass an Act that enshrines in British law the glorification of terrorism as something which can be condemned, of which people can be accused or from which they can be let off is utterly wrong in human rights terms, as the noble Lord, Lord Lester, has said far better than I can. It is also counterproductive from a practical point of view. I am surprised that the noble Baroness from the Government's Back Bench, with her background, spoke in the way that she did. To enshrine in our law a criminal act of glorifying terrorism is seriously dangerous and will prove to be counterproductive.

Photo of Lord Ahmed Lord Ahmed Labour

My Lords, at Second Reading and in Committee I expressed my concerns on the glorification clauses. I am not satisfied today and wish, therefore, to speak. Much has been said about the Muslim community and Muslim youth. First, I refer to the placards. I understand that the demonstration organised last month was hijacked by a handful of criminals who held placards which had nothing to do with the Muslim community. That small group has been glorifying—if one wishes to use the word—the terrorists involved in 9/11; the placards also referred to the "Magnificent 4". I am not a lawyer but I understand that with regard to many of those placards some of the people could have been prosecuted under current legislation with incitement to murder and incitement to violence. I have not heard whether those people have been prosecuted.

The noble Baroness, Lady Williams, spoke of martyrs. There are references in all holy books, in particular the Koran, to those who have sacrificed their lives in the name of God. Where there are specific places where people have been oppressed, their rights abused, raped and tortured, it is made compulsory to rescue those people. In the Koran, such people who die are then martyrs. With regard to Kashmir, Amnesty International Physicians for Human Rights and Asia Watch have reported on abuses of human rights. Although there have been United Nations resolutions on Kashmir the United Nations has taken no action against the state responsible for those abuses of human rights. The international community called the Kashmiris Kashmiri militants. But in the past 12 months they have suddenly become Kashmiri terrorists. If Parliament passes the provision regarding the glorification of those involved with terrorism in the past and in the future, those of us who have supported people struggling for the right of self-determination could also fall foul of such legislation.

More importantly, I do not think that the Muslim community is concerned for one minute about legislation to prosecute those responsible for the terrorist attacks on 7and 21 July but it is concerned about the definition expanding to other areas. We have no legislation to stop governments from supporting tyrants, as in Uzbekistan, who can kill their own civilians. Governments can freely support those types of regimes. Regimes such as that in Uzbekistan could classify the good people who try to resist them, or who try to escape from such tyrannies, as glorifying terrorism.

I have heard nothing that will change my mind. If the provision is put to a vote, I am afraid that I will have to vote against the glorification measure.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, most of what I wanted to say has already been said, and probably more elegantly than I would have said it. However, I want to make two short points that have not been made. The noble Baroness, Lady Ramsay, correctly said that there could be no prosecutions under this legislation without the consent of the Attorney-General. That is right. I am worried about what leads up to the question of whether there should be a prosecution and who will define the new offence of glorification. In the first place it will be the police. They will have to decide whether somebody should be put under arrest, questioned and held.

What worries me is legislation creep. We have had some very stark examples of what can happen when we have not defined things properly just lately. For example, we passed an Act that prohibited assembly without permission within 916 yards of Parliament. Ostensibly that was to deal with terrorism, but I think that it was probably intended to get rid of the shacks which are just outside but which are still there in spite of the legislation. But what happened? A woman decided that she was so concerned about the Iraq war and the British dead that she and a colleague decided to announce by the Cenotaph the names of the British soldiers who had been killed. Before she had got very far down that unfortunately very long list, nine policemen descended on her, arrested her, told her she was committing an offence, took her to a police station, charged her and she was taken to court. That is the sort of thing that worries me—the fear that the police will overstretch themselves, as the north Wales police have, I believe, overstretched themselves in wanting to prosecute the Prime Minister for saying some derogatory things about the Welsh. In voting on these amendments, we ought to keep that in mind.

The only other point I want to make is on the manifesto commitments. Of course, we all want to respect manifesto commitments, don't we? Some people, like the Minister, think that they are sacrosanct, but I wonder whether they really are. I remember that in the Labour manifesto there was a commitment on smoking. The manifesto commitment was that smoking would be allowed in bars where there was no eating and that private clubs would be exempt. I am quite sure that noble Lords will all have read every word of the Labour manifesto and they will know that what I have said is true. But, unfortunately, manifesto commitments are not always taken in their complete context. On 14 February the House of Commons decided that the manifesto commitment was not good enough—that what the people had voted for was not good enough and that the people had to be corrected. It therefore decided to amend that manifesto commitment to say that there should be no smoking in any enclosed public space whether there was eating or not and that even private clubs would not be able to decide whether or not they should allow smoking.

Manifesto commitments are not sacrosanct—they can be altered. This House has altered them and I hope that it will do so again today without being accused of insulting the electorate by not keeping completely in line with a manifesto commitment made by the Labour Party at the last election.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:45 pm, 28th February 2006

My Lords, it is necessary to look briefly at how "glorification" has come to be in this legislation. It is defined in Clause 21 in these terms:

"'glorification' includes any form of praise or celebration".

Notice that it does not say "comprises", but "includes", which suggests that glorification is wider than any form of praise or celebration. That in itself indicates how vague the concept is. It appeared in the manifesto, as noble Lords have said. The Prime Minister, in his press conference in August, said that he was going to introduce anti-terrorism legislation to include an offence of condoning or glorifying terrorism anywhere—not just in the United Kingdom. So you have a vague concept to apply to "anywhere". I have already pointed out that the Bill refers to acts of terrorism—past, future or generally. Nothing could be broader or wider than the way it has been put.

This House was able to introduce amendments to try to tighten it up. We had already received a concession from the Government that intention was to be part of the glorification offence. This was the way in which the Home Secretary defined the offence on 15 February when he was considering our amendments:

"The offence will be committed only if someone encourages terrorism, whether directly or indirectly, including through the glorification of terrorism, intending to encourage it or knowingly taking an unreasonable risk that they will encourage it".—[Hansard, Commons, 15/2/06; col. 1439.]

Your Lordships will notice again the word "including" through the glorification of terrorism and not "comprising". "Comprises" appears in the amendment of the noble Lord, Lord Kingsland, Motion A3, which is an attempt to give some boundaries to that particular concept.

In answering questions in another place on the same day, the Prime Minister said:

"The term 'glorification' is easily understood by members of the public and by juries".—[Hansard, Commons, 15/2/06; col. 1415.]

The noble Lord, Lord Grabiner, has made the same point today. I do not believe it is true at all. The Prime Minister said that by weakening our law on terrorism at this time from what was proposed, we would send the wrong signal to the whole of the outside world. He said:

"Let us be quite clear that this is not only about the Conservatives and the Liberal Democrats combining to take 'glorification' out from the offence; it is also about taking out any reference to glorification from the list of proscribed groups. That would mean that we could not proscribe people who were glorifying terrorism, unless it could be proved that they were actively inciting terrorist acts".—[Hansard, Commons, 15/2/06; col. 1416.]

What he said suggests that he had not yet grasped the introduction into this legislation of the concept of intent or recklessness, of which the Home Secretary was talking later in the day in that debate. If the Prime Minister does not understand the ambit of the offence as it now appears in the Bill, what hope is there that a jury at some subsequent stage will understand how widely it is expressed?

The noble Lord, Lord Hurd, said that the criminal law is not about giving signals or sending messages. It is about setting a firm boundary by which people regulate their conduct, knowing that if they step over it they will open themselves up to, in this case, seven years' imprisonment. That is what it should be to regulate conduct. Vague expressions that have no meaning in themselves and that extend worldwide, throughout history and into the future, do not set a firm boundary. I urge your Lordships to support the amendments that have been tabled to the Government's Motion.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I think that we can say without fear of contradiction that we have had yet again a comprehensive discussion of glorification. I confess that I wished that we could perhaps have had a slightly different hue to the debate, but I am refreshed that no new ideas seem to have come forward. We have made some clear points throughout the debate as to where the differences lie between the various parties. I absolutely understand, for example, the anxiety of those such as the noble Lord, Lord Glentoran, who say that they are fearful that glorification will not assist but may exacerbate. I hear, too, the concerns of the noble Lords, Lord Lester and Lord Goodhart, and the noble and learned Lord, Lord Lloyd, about compatibility with the ECHR and with our human rights legislation. We have concluded that these provisions are compatible. Of course, it will be a matter for the courts to determine in due course whether we are right or wrong about that, but our understanding is that they are compliant.

I say to the noble Baroness, Lady Williams, that there is a marked distinction to be drawn with the martyrs, who were not terrorists but gave up their lives because of their faith. St Thomas More, St Stephen and others did not engage in acts of aggression against others, consistent with their faith. It would be unfortunate if we were to conflate the two. In relation to the comments made by the noble Lord, Lord Hurd, I agree that we have to tread carefully and tiptoe into this area, and we must do so judiciously and proportionately. That is why we have put in place safeguards in relation to the DPP and the Attorney-General. They are robust safeguards that will not be easily overturned.

I warmly welcome the openness of mind of the noble Lord, Lord Tebbit, in demonstrating in his usual way that he is persuadable on issues. I reassure him that these provisions are of universal application. Therefore, anyone who contravenes the provisions of the Act, if it comes on to the statute book, will be liable to prosecution if the facts complained of comply with the Act. It would be wrong for us to deal with specifics.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, what gives me some unease is that not only may the facts be brought into play in the decision of the Attorney or the DPP, but the context of the facts; for example, there might be further negotiations going on with a particular terrorist group that would decide whether a prosecution was thought to be appropriate. I know that is of concern to people such as the noble Lord, Lord Ahmed. The noble Baroness, Lady Williams, said it might appear that negotiations with one group caused it to be immune to prosecution, whatever the law said, while another group was prosecuted.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, it is always going to be important in every single prosecution to look at where the public interest lies. That is part of the judgment that has been made. I say very clearly indeed that these provisions should not be applied discriminatorily. These provisions are not set up to attack one part of the community and leave another part of the community to go free. These provisions are not to impinge improperly and disproportionately on the Muslim community. My noble friend Lord Ahmed is absolutely right that the Muslim community has a vested interest in making sure that criminals who complete acts of terror are dealt with very directly indeed. It is important that he makes that point on behalf of the Muslim community, because many others wish to conflate those issues and pretend that the Muslim community is not similarly concerned about them.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, is the noble Lord, Lord Tebbit, not absolutely right? Go to Belfast today and look at the walls of buildings: they are full of the glorification of terrorism of the most extreme, militant and terrifying kind. Is it not the case that no one would dream of prosecuting anybody found putting those horrible images on the walls? They would not dream of doing so for political reasons. Does that not create the risk of political manipulation of these vague offences? That is the point made by the noble Lord, Lord Tebbit; is he not absolutely right?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the point is that the legislation we are putting through the statute book will apply from now on. It is important for us to look at the context in which decisions are made, but it would be quite wrong to say that we should not take such opportunities as we have to address what is now a very clear and challenging issue. We have talked about it throughout this Bill: the whole issue of terrorism has mutated and we are now dealing with a particularly virulent form, which is significantly different from anything any of us has ever dealt with.

I agree with the comments made by the noble Lord, Lord Grabiner, and my noble friend Lady Ramsay. I say to the noble Baroness, Lady Park, that we believe we have a sufficiently high degree of precision. We do not agree with the comments made by the noble and learned Lord, Lord Lloyd, or the noble Lord, Lord Goodhart, about vagueness. We believe that these provisions have substance. I certainly invite the noble Lord, Lord Kingsland, not to press his amendment. We have a very clear opportunity to taste and see who is right about this. We believe, with due humility, that we are.

We have also demonstrated very clearly throughout our response to this and other Bills that this Government listen. We understand that people in this House and the other place wish to protect the people of our country. We wish to do that in a proportionate way, consistent with our belief in human rights and the protection of the rights of the individual. We do not wish to take disproportionate measures that are unnecessary for the safe protection of our nation's people. We believe that these provisions meet those tests. If we are proved wrong, we will have an opportunity to look at this again. Having asked the Commons—which we purport to acknowledge as the House with the final say—three times to think again, and it having told us with increasing volume that it disagrees, now is a time to rest and keep our counsel for another day.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, we have had a very valuable debate, lasting close to two hours. I thank all those who have spoken, particularly those who supported the amendment in my name. The argument has basically been about one word: "glorification". Even single words can have enormous symbolic importance, and I believe that this is such a word. The retention of "glorification" in the Bill, not only in Clause 1, but in any of the other clauses in which it appears, will do nothing to improve national security, and is a threat both to freedom of speech and community relations. For reasons that I explained at the beginning, it is my intention to withdraw the amendment in my name, in the expectation that the noble and learned Lord, Lord Lloyd of Berwick, will move his amendment and press it to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments 5, 11, 28, 31 and 34 and do disagree with Amendment 34B proposed by the Commons in lieu; but do not insist on its Amendments 15 and 32 and do agree with Amendment 34A proposed by the Commons in lieu".

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 160; Not-Contents, 156.

Division number 1 Private Parking: Ports and Trading Estates — Motion A

Aye: 158 Members of the House of Lords

No: 154 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

[Amendment A3 not moved.]

On Question, Motion A, as amended, agreed to.

:TITLE3:MOTION B

22 Clause 3, page 5, line 17, leave out ", in the opinion of the constable giving it,"

The Commons disagree to this Amendment for the following reason

22A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3

23 Page 5, line 27, at end insert—

"(3A) A notice under subsection (3) shall not be given unless it has been approved by an appropriate judge.

(3B) An appropriate judge shall not grant an application for approval under subsection (3A) unless he is satisfied, on the evidence before him, that the statement or the article or record is one to which subsection (1) applies.

(3C) The Secretary of State may make regulations relating to applications made under subsection (3A).

(3D) Regulations made under subsection (3C)—

(a) may provide for an application to be heard without notice to the relevant person and in his absence;

(b) shall provide that the relevant person and other persons having an interest in the matter may apply to a court for the revocation of the notice.

(3E) The first regulations made under subsection (3C) may not be made unless a draft of the statutory instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament.

(3F) Other regulations made under subsection (3C) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."

The Commons disagree to this Amendment for the following reason—

23A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3

29 Page 6, line 37, at end insert—

"( ) In this section "appropriate judge" means—

(a) in England and Wales, a circuit judge or a judge of the High Court;

(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;

(c) in Northern Ireland, a High Court judge."

The Commons disagree to this Amendment for the following reason—

29A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 5:12 pm, 28th February 2006

My Lords, I beg to move that the House do not insist on its Amendments Nos. 22, 23 and 29, to which the Commons have disagreed for their reasons 22A, 23A and 29A. In relation to Motion B, perhaps your Lordships could give me a moment as I know that I must be precise in the terminology that I use in moving this Motion.

Motion B covers the Lords Amendments Nos. 22, 23 and 29. In relation to these amendments, I would invite your Lordships to accept the decision of the other place by accepting its reasons and rejecting those which are lobbied in opposition.

These amendments relate to the body of Clause 3. This clause extends the offences set out in Clauses 1 and 2—namely, encouragement to terrorism and dissemination of terrorist publications—to the Internet. I am sure that the House has no disagreement with the principle of the clause that knowingly encouraging terrorism through the Internet should be a crime. We have heard often of the kind of radical material that might be available through the world wide web. However, in applying the offences in Clauses 1 and 2 to the Internet we had to face one significant problem, which is the knowledge of the offence. It is possible, through certain bulletin-board style websites, to run a website and be totally unaware of the content posted on to it. Clause 3 provides for a notice and take-down procedure which enables the police to notify those previously unaware of the offending material and to request them to remove it from public view. If they choose not to do so, they will be deemed to have endorsed the material and will lose the chance, if prosecuted under Clauses 1 or 2, to use the defence of non-endorsement set out therein.

There are a number of things that it is prudent for us to remember. First, refusal to obey a notice is not an offence in itself. The legal effect of refusing to comply with a notice is merely to set out that the statutory defences in Clauses 1 and 2 of non-endorsement are not open to them. Secondly, even if an individual fails to comply with a notice, the prosecution will still have to prove that he intended to encourage terrorism, or make information of assistance available to terrorists, or was subjectively reckless about that. Those are significant burdens on the prosecution. I repeat that failure to comply with a notice simply removes one possible defence. The substantive offence, with all of its elements, still has to be proved.

The intention behind Clause 3 was, therefore, to provide a method by which webmasters could be made aware of the content on their websites, while ensuring that they could not claim that they were not aware of it, or did not endorse it, if later prosecuted. The Internet is a fast moving medium. This is a fact of which we are all only too well aware. In the field of removal of child pornography, in which the UK has taken great strides forward in the past five years, it is accepted that offensive material can change location multiple times in one day. Those shifts in location may be across computer servers, but also across countries and continents. Locating that material and ensuring that it is removed is therefore a really difficult job. It was therefore proposed—and accepted by another place—that a police constable could be capable of issuing a notice to the person responsible for disseminating or publishing content considered to be capable of prosecution under Clauses 1 or 2.

The amendments that your Lordships made at Third Reading drastically changed the effect of that clause. They stipulated, ostensibly on the grounds of protection of freedom of speech, that only a judicial authority should be capable of issuing such a notice. What is more, they stipulated that the judicial authority should be a circuit judge, or judge of the High Court in England and Wales, or equivalent level judges in Scotland or Northern Ireland.

The argument advanced for such a change was that it would not be in the interest of a service provider or webmaster to ignore a notice, and that a police constable was not an appropriate authority to issue such a notice, given the effect on freedom of speech. Although I can understand some of those concerns, we believe that they are not founded in fact.

First, we reject the suggestion that Internet service providers will simply unthinkingly always comply with a notice, even if it has been inappropriately issued. The noble Lord, Lord Goodhart, has referred to that in the past as the "chilling effect". We do not believe that such notices will be issued in cases where they should not be, but in that unlikely eventuality, we think it does a great disservice to Internet service providers to assume that in such a competitive industry they would be quite so negligent of the interests of their customers.

Secondly, we are working to produce guidance on the issue of notices under Clause 3 with a working group comprising the police and Crown Prosecution Service, as well as other interested parties. It is certain that a clearly stated protocol will exist under which notices will be issued. It will not, therefore, be possible for a notice to be issued without serious consideration. Notices will not be issued just on the whim of a police constable.

In another place, my right honourable friend Hazel Blears was able to give a little more information on this. The issue of notices under Clause 3 will use the current Special Branch communications data single point of contact (SPoC) procedures. An officer in the anti-terrorism branch of the police service who carries out such duties is known as the single point of contact and deals regularly with Internet service providers and the communications industry. Our relationship with the communications industry does not focus simply on terrorism, and there are a range of issues on which the police must foster good relations.

The accredited single point of contact officers will ensure efficiency and good practice in their management of relationships. They will use only practical and lawful requirements for the acquisition of communications data. They will provide a guardian and gatekeeper function to minimise the burdens on the Internet providers so that a huge amount of bureaucracy is not created. I know that the noble Lord was particularly concerned about that when we discussed this the last time. At the same time, however, they will ensure that there is access to the information that could help us to tackle such problems. This has been agreed by the Internet industry. It is clear that it will not be appropriate for any police constable to issue a notice; notices will be issued by specialised personnel.

The special branch officers who, as I said, are properly accredited, would assess whether it was necessary to get the information from the service providers, and they would try to assure those providers and work with them. I am assured that the officers have all been on a proper course of training. Details of all the accredited individuals are available to the service providers, so that they can be reassured about the person with whom they are dealing. We are considering the appropriate level for the authorisation of the power. In many areas, powers are authorised at superintendent level. We have not taken a final decision about that, but reading across from the regulation of investigatory powers legislation, that appears to us to be the appropriate level of seniority.

Thirdly, as we have previously discussed, these amendments were not advocated by the Internet industry. It has been clear in our discussions with the industry through its trade body, the Internet Service Providers' Association, that it welcomes the setting out of a clear notice and take-down model in this legislation. It has had several concerns which we have sought to address and which were discussed in another place. However, at no time did the Internet industry ask for the changes which these amendments make, as the noble Lord, Lord Goodhart, who has frequently prayed in aid the views of the industry at earlier stages of the Bill, has acknowledged; he was unaware of where we were precisely. I say that because it is important that we understand that, in this case, we are all on the same road—at least, I hope that we are.

As I have already highlighted at length, there is also no immediate penalty for failing to comply with a notice issued. Any prosecution of an offence under, for example, Clause 1, which involved the Internet, will require the proof of either an intention to encourage terrorism or a subjective recklessness in publishing a statement that could have that effect. In addition, we have the consent of the DPP. For this reason, we believe it would be wholly inappropriate to seek to involve a judge in the issue of such notices. I am very concerned that to agree with the amendments made by your Lordships would remove all effectiveness from Clauses 1 and 2 in relation to the Internet. That means that an individual would clearly be prosecuted for encouraging terrorism on a street corner, but not for doing so from his computer in his bedsit, from which he can reach a far wider audience of disaffected individuals. A requirement for judicial authorisation would add in time and delay when our aim must surely be to get terrorist-related material removed as soon as possible.

We have some straightforward provisions that would notify providers that material was unacceptable and that they should remove it, and tell them that they could choose to ignore the notice but that, if they did so, they could not avail themselves of the statutory defence that they did not know or endorse it. The Members of the other place took the view that your Lordships' amendments would elevate this matter to too great a level by seeking to have judicial scrutiny of the process. The Internet service providers have not requested that; they are happy with this process and feel that it will help to reduce the amount of such material available. This is a practical and common-sense provision.

Those Lordships who have read the Hansard of another place will have seen that there was a very full and well informed debate on this matter. The points which your Lordships made were fully covered and considered. At the end of the debate, the Members of another place voted not to accept your Lordships' amendments. They did so by the very clear majority of 64—a figure which, incidentally, is 64 times the size of the majority by which your Lordships originally passed these amendments.

The elected House has clearly spoken on this occasion. I hope that its voice will find greater resonance on this group of amendments than it did on the last. I beg to move.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, this is a short issue. It arises from a vote in your Lordships' House a few weeks ago, which was won by a majority not only a 64th of the size of the majority in the Commons, but a quarter of the size of the majority that we enjoyed in this House a few minutes ago. Under the Bill as it came to the House of Lords, a constable who thinks that a statement being transmitted by an Internet service provider from a website which that ISP serves is unlawfully terrorism related can serve notice on the ISP requiring the removal of that statement within two working days.

As the Minister pointed out, it is not an offence in itself to fail to comply with the notice. But the main significance of the service of the notice is that if the Internet service provider continues to transmit that statement for more than two working days after receipt of the notice, it will be treated as having endorsed the contents of that statement. The effect is to treat the ISP as having approved the statement and a defence of intent will not therefore be available. The only defence that would be available would be to argue that the police had got it wrong in regarding this as an unlawful terrorism-related statement. So the question of intent is out of the picture.

In practice, it will almost invariably be in the interest of the Internet service provider to comply with that notice. It will have absolutely no wish to face prosecution for the sake of one statement from one website. Refusing to comply with the notice would involve a great deal of expense in defending a possible prosecution, the possibility of a large fine and the stigma of being associated with terrorism. Market forces will plainly ensure that result.

The Minister has laid considerable stress on the fact that no Internet service provider is concerned about that. The ISPA—the association—is happy with the idea of a notice, which strengthens my case. It shows that Internet service providers will not exercise their own judgment on whether the material that they are required to stop transmitting is terrorism material. They will simply comply with the notice, so they are not worried. They would be much more worried about this if they were contemplating the possibility that they would take steps to refuse to comply with notices. So it seems to be a thoroughly bad argument.

The result therefore is that the police, by serving the notice, can block any material that they dislike. I accept that there will be special procedures by which this will be done. The ordinary bobby on the beat will not do this. It will be carried out by a specialist group, which will no doubt have strong views of its own. The Internet is now an extremely important method of passing information and views. It is therefore of very great significance to freedom of communication. Recently, there has been strong criticism of the actions of Google in setting up a censored Chinese search engine.

I believe that we should not leave a power as important as the power to serve a notice of this kind in the hands of the police alone. There should be a procedure which is similar to that for getting an arrest warrant. The police should go to a judge to get permission to serve the notice. I do not suggest that there should be anything in the nature of a hearing. There is, of course, no foolproof protection of freedom of communication here. There will be no hearing. The judge will have to rely on information from the police, and some judges may, as with arrest warrants, be more willing than others to authorise the service of notices. I believe that the need to get the warrant will make abuse of police powers less likely and will delay the service of notice only by a few hours at most—far less than the two working days which are already allowed for the Internet service provider to block the material.

Saying that there must be something in the nature of a judicial warrant before a notice of this kind can be served is an important protection for freedom of communication through the Internet and will not restrict the police in the proper exercise of their powers. I beg to move.

Moved, as an amendment to Motion B, leave out from "House" to end and insert "do insist on its Amendments Nos. 22, 23 and 29".—(Lord Goodhart.)

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat 5:30 pm, 28th February 2006

My Lords, I am sure there are many who will feel a sense of weariness at the thought of having to pick up the cudgels yet again to try to protect freedom of speech and expression on behalf of a brand new technology, namely Internet service provision. The point made by my noble friend is absolutely right; we have recently seen the willingness of Google, probably the most powerful Internet system in the world, to accept restrictions on its own ability to transmit freely what is thought to be factual truth in order to complete a contract with the Republic of China.

Those with long memories will recall that at a much earlier stage, when the BBC was attempting to get a contract for news in China, it was told that to do so it had to accept edited Internet service provision, and it was unable to do that because it had agreed to transmit a terrifying film, "The Dying Room", about what happened to young girl infants in China. That was found so reprehensible by the Chinese authorities that they made it plain that the BBC would not be permitted to have either Internet or other positions in the Republic of China. Instead they moved to a Star system, within the empire of Mr Rupert Murdoch.

We find yet again that this newest of technologies is threatened by attempts to limit its freedom of expression. To offset that, there has to be a major legislative input to remind people, all the time, of the importance of the right to freedom of expression, not least to this new and powerful technology. As your Lordships will be well aware, it is a technology that particularly appeals to people under the age of 35 much more than traditional newspapers or broadcasts, so it is of the most significant importance that its freedom should be protected.

My concern about the group of amendments before us now, and the decision of another place to reject them, relates to something that the noble Lord, Lord Stoddart of Swindon, said earlier in our debate on the amount of responsibility which is now being put on the police, and the question of whether they are properly trained for that set of responsibilities. If one looks over recent legislation, the degree to which more and more discretion is placed on the police in one area after another is actually rather frightening. I say that with considerable respect for the police forces of this country, but respect alone will not offset these growing responsibilities which they are not fully qualified to meet. Making a decision about whether some sort of announcement or statement on an Internet service provider's network could be described as, to use the words of the Bill, "an unlawful terrorist act" is a delicate decision. Once again, we in this House are looking at what was called, in debate on early amendments to this Bill, the chilling effect.

You are a young constable, who has had rather limited training. You know that you will not be faulted or rebuked if you get it wrong in the direction of bringing an order when the case for it is weak. You will unquestionably be rebuked if you do not bring an order when it is felt, later, that the case for it was strong. The weight of evidence is almost entirely on one side, and it would encourage the police—to use the earlier remarks of the noble Lord, Lord Stoddart—to somewhat overstep the mark. I repeat that that is not a criticism of the police, but rather a statement about the amount of responsibility we are now placing on an individual police constable.

Those orders carry with them, as my noble friend Lord Goodhart said, the possibility of a heavy penalty if it is assumed that the person has endorsed the statement because he has not taken action to wipe them off the screen or tell them to be stopped within two working days—a pretty short period by almost any measure. That then means that that whole set of information will be banished from the public stage. The sum effect is a heavy responsibility, and one that in some cases will add up to a substantial incursion of freedom of expression and freedom of information.

My noble friend has tried to deal with this by bringing another voice into the decision-making—a judge who could make a rapid decision on the basis of the information put before him, as he does in an arrest warrant. Essentially, the main point is that we have another judgment here, another view and opinion, on top of that of the single police constable who otherwise can make the decision on his own. This is a troubling area, where the borders of freedom of expression will be pushed back quite a long way by the decision of the police to play it safe. We have to set up this second voice against that, with perhaps more experience and knowledge of the way in which the law works than that of a single police constable, however well intentioned. Therefore, I strongly support these amendments.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I understand the proper concerns of the noble Baroness and the noble Lord, Lord Goodhart, but I really feel in this instance that they are not well founded. The Special Branch officers who have been entrusted with this work have already been doing it with the Internet industry in a challenging area, and I dispute what the noble Lord says—that the service providers' being content with this demonstrates why they cannot be trusted. With respect, that is a perverse argument because of what in fact has happened.

We can take pornography as an example. As noble Lords know, there are pornographic and other sites where one has to differentiate between the legitimate pornography—if that is not a contradiction in terms—and what is illegitimate and unlawful, and remove the latter from the net, particularly with paedophilic material. We have demonstrated that the delicate balance between what is lawful and permissible and what is not has had to be carefully policed in that area, so we know that the Special Branch officers who are entrusted with this work are trusted to make those judgments by the Internet industry, too. It is not something that is done injudiciously or in a cavalier manner; it is done carefully by those who are trained and who develop an appropriate level of expertise.

I have never stinted for one minute in giving my total admiration to the judiciary, but a practitioner who deals with material on a day-to-day basis may have a little more experience than a judge who will deal with this from time to time. If we are asking someone to chase things around the Internet rapidly, it is unrealistic and unfair to expect the judicial overseer to be able to do it with the acuity that a honed practitioner does on a daily basis.

There are other opportunities, but this is simply not a practical way forward. We understand everything that people have said about freedom of speech. It is absolutely important—that goes into the training and into the balance—but the protocols we have put forward meet the needs of the case. I invite noble Lords to agree with the Commons, and reject the amendments now advocated and which went to the other place before.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, the noble Baroness spoke of "chasing around" the Internet. Does that imply that this legislation has effect over foreign service providers? If not, does anything in the Bill prevent someone who is at present posting illegal material on a UK-hosted site moving it as soon as he gets the notice to quit?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, that is precisely why we have to work so hard on international co-operation. As I indicated in my initial remarks, what often happens is that people remove things from one site and post them on another. We have had to be fleet of foot in relation to paedophilic material that is moved from place to place, but working in concert with other agencies, noble Lords will be aware that we have been able to capture some pernicious and evil people who have promulgated evil material, using the Internet as their vehicle. We have stopped them and we think it appropriate, where material is likely to do great damage to the democracies we hold dear, to remove it as well.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, this debate has been brief and I accept that the issue is not as important as the previous one, which kept us going for two hours, but it is an issue whose importance has been seriously underrated by most people who have been considering the effect of this Bill.

First, the noble Baroness takes what is perhaps an unduly optimistic view of the willingness of ISPs to challenge the notices served upon them. If I was running an ISP, my reaction would certainly be to say, "If you are served a notice, don't mess about, just follow it". That is understandable and I put no blame on the providers. They are not doing anything wrong in taking that attitude. It makes commercial sense and they are not the protectors of human rights.

Secondly, to leave this to the police is undesirable. The police are altogether too deeply involved in these matters. They will have a strong belief in the justification for the service of the notice they propose, will not look at it independently and will not have the broader picture in mind. It is therefore wholly appropriate to introduce a very limited judicial intervention. As I said, this would not be a hearing, but simply something analogous to the issue of an arrest warrant. That would be an appropriate role for a judge to play, as well as a highly desirable one. If that were not so, one wonders why it would ever be necessary for the police to get an arrest warrant. It is for exactly the same reason: there are of course recognised circumstances in which the police are allowed to make an immediate arrest without going first to a judge, but where an arrest warrant is required, that is so because some degree of judicial oversight is necessary to prevent the over-exercise of powers and abuse. In those circumstances, it is my wish to test the opinion of the House.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 165.

Division number 2 Private Parking: Ports and Trading Estates — Motion A

Aye: 77 Members of the House of Lords

No: 163 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion B agreed to.

:TITLE3:MOTION C

25 Clause 3, page 6, line 17, leave out "capable of being" and insert "likely to be"

26 Page 6, line 21, leave out "capable of being" and insert "likely to be"

27 Page 6, line 23, leave out "capable of being" and insert "likely to be"

The Commons disagree to Lords Amendments Nos. 25, 26 and 27, but propose Amendments 27A, 27B, 27C, 27D and 27E to the Bill, and to the words restored to the Bill by the Commons' disagreement with Lords Amendment No. 28, in lieu—

27A Page 6, line 17, leave out "capable of being understood" and insert "likely to be understood, by any one or more of the persons to whom it has or may become available, "

27B Page 6, line 21, leave out "capable of being useful" and insert "likely to be useful to any one or more of those persons"

27C Page 6, line 23, leave out "capable of being understood" and insert "likely to be understood by any one or more of those persons"

27D Page 6, line 25, leave out "capable of being" and insert "likely to be"

27E Page 6, line 27, leave out "capable of being" and insert "likely to be"

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 5:55 pm, 28th February 2006

My Lords, I beg to move that the House do not insist on its Amendments Nos. 25, 26 and 27; and do agree to Amendments Nos. 27A, 27B, 27C, 27D and 27E proposed by the Commons in lieu. I hope your Lordships will not be tempted by Amendments C1 and C2 standing in the name of the noble Lord, Lord Goodhart. Indeed, I have great hopes that the noble Lord will not be tempted by his own amendments either.

In our amendments, we have taken the substance of the concern contained in the amendments that went to the other place and placed it in proper order. If any Member of the House wishes the issue to be outlined more fully, I am happy to do that, but in the light of our previous success I am tempted simply to invite your Lordships to repeat the agreement so beautifully expressed by the House moments ago.

Moved, That the House do not insist on its Amendments Nos. 25, 26 and 27; and do agree to Amendments Nos. 27A, 27B, 27C, 27D and 27E proposed by the Commons in lieu.—(Baroness Scotland of Asthal.)

Photo of Viscount Ullswater Viscount Ullswater Conservative

My Lords, I have to inform the House that if Amendment C1 is agreed to, I cannot call Amendment C2.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, we have probably spent long enough on the Bill in your Lordships' House this afternoon. Amendment C1 is really a drafting amendment rather than one of serious significance. In the circumstances, I will not move it.

[Amendment C1 not moved.]

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

rose to move, as an amendment to Motion C, leave out from "House" to end and insert "do not insist on its Amendments Nos. 25, 26 and 27; do agree to Amendments Nos. 27A, 27B and 27C proposed by the Commons in lieu; but do disagree with Amendments Nos. 27D and 27E proposed by the Commons in lieu."

On Question, amendment agreed to.

On Question, Motion C, as amended, agreed to.