My Lords, I beg to move that the Commons amendments be now considered.
My Lords, before I move Motion A, will the House give me the indulgence to note that Lord Ackner is no longer in his place? Many noble Lords will know that the only reason that Lord Ackner is not in his place is that he died yesterday.
Lord Ackner had been a Member of your Lordships' House for 20 years. His elevation to a Lord of Appeal in Ordinary was the culmination of a very distinguished legal career. After Cambridge and military service during the Second World War, Desmond Ackner was called to the Bar in 1945 and took silk in 1961. Throughout his legal career, he made a great contribution to the General Council of the Bar, serving in a variety of positions, including as chairman from 1968 to 1970. He was loved by this House. There is not one Minister who has had the temerity to represent and speak on behalf of the Government for Home Office affairs who has not been placed in terrorem by Lord Ackner. If he rose to his feet, as he rose increasingly unsteadily as the years passed, one could be certain of one thing; that there would be a missile heading straight at you between the eyes—and he never missed.
There are many in this House who not only came to fear the acuity of his decision-making and assessment but came to love his love of justice very much indeed. I was privileged to hold Desmond Ackner as my friend. His loss today is one that this House will have to bear for a very long time indeed. There is one advantage of course; when I come to move the Motion, I will hear him in my head and not in this House.
My Lords, I say from the Cross Benches how much we appreciated Lord Ackner as a Cross-Bencher and for his defence of the judicial system and the interests of the individual. Sometimes we thought that he was a law unto himself, but he was actually a spokesman for fair and just law in this country. I spoke to his daughter this morning, and she told me that when he was in hospital yesterday, shortly before he died he asked for his bed to be moved to the window so that he could look out at the Parliament.
My Lords, first, our thoughts go out to Lord Ackner's family, to whom we extend our deepest condolences.
Lord Ackner had probably the most well defined personality in your Lordships' House. I find it impossible to believe that he will no longer be here to make one of his characteristically disintegrating observations about the intentions or negligence of the government of the day.
Lord Ackner freely admitted that he was not a candidate for the diplomatic corps. In his ferociously uncompromising search for the truth, he took no prisoners. Above all, he was merciless in his defence of this nation's hard-won freedoms. He was a cartographer whose maps contained no middle ground. In that respect there was much of the 17th century about him.
Yet, there was nothing, there, cold or hard. He was, on the contrary, an immensely warm man, deeply loyal to his friends and passionately attached to Mr Burke's small platoons—to his school, to his college, to his Inn of Court and, of course, to your Lordships' House.
Of all the qualities that Lord Ackner brought to the Bench—including a voracious appetite for work, a forensic mind of deep penetration, a wry self-deprecating sense of humour and a formidable grasp of the common law—what marked him out above all was his humanity. This was manifested in so many ways that an attempt to catalogue them would present an impossible task. But one particular theme dominates throughout. He was intensely protective of the rights of the criminally accused, and watched with growing dismay their remorseless erosion over the past 20 years.
Lord Ackner had a deep respect for the traditions and hierarchy of the Bench and Bar, albeit on occasions disproportionately. A few years ago, I recall asking him whether he would try and influence the noble and learned Lord, Lord Simon of Glaisdale, about some legislative matter. At that time Lord Ackner was in his early 80s and the noble and learned Lord, Lord Simon, in his early 90s. Lord Ackner's response to me I recall verbatim: "Oh, I couldn't possibly do that, old boy. I'm far too junior".
Although increasingly infirm, Lord Ackner's mind remained, as all your Lordships know, razor sharp, and his appetite for work seemingly insatiable. They say that none of us is indispensable; but in your Lordships' House Lord Ackner is as near indispensable as makes no difference.
My Lords, it is very sad that Desmond Ackner—and I always think of him now as Desmond rather than as the noble and learned Lord, which he has just ceased to be—is no longer with us. He had a most distinguished career at the Bar and on the Bench, including as a member of the Appellate Committee of your Lordships' House. But I think he will be remembered best in your Lordships' House for his service on the Cross Benches as a retired Lord of Appeal in Ordinary. In that, as we all know, he was very active up until the last few days of his life, in spite of his increasing infirmity.
Lord Ackner was dedicated to justice, the rule of law and the rights of the individual, and he rightly saw his function as being a thorn in the side of the government, as the Minister made all too clear, and from time to time of others as well, including myself. He was an outstanding example of the value that retired Law Lords can bring to your Lordships' House, and he will be very sorely missed.
My Lords, perhaps I may briefly add to the tributes. The other Thursday, after six months off on sick leave, it was my privilege to sit opposite Lord Ackner at the Long Table. I sat watching him and talking with him. He seemed to me to combine two, shall I say, proleptic episcopal attributes: gentleness and firmness. We are much the poorer for his passing.
My Lords, I owe being a Queen's Counsel to Lord Ackner—which is a heavy responsibility. He said something of direct relevance to the Minister and what we are about to debate. It happened when we were in the Appellate Committee arguing a case called Pepper v Hart. The Attorney-General was trying to persuade the Law Lords that what we say in this House should not be looked at by judges in interpreting dodgy legislation. Lord Ackner looked at him—I believe it was the noble and learned Lord, Lord Lyell of Markyate, who had to face this—and said, "Mr Attorney, is the maxim, 'think before you speak' for Ministers incompatible with good governance?". There was no reply.
My Lords, Lord Ackner's father was a dentist. He told me that his first ever successful case was a dental case. It may be because of that—although I think many other Members of the House were in the same position—that he was always willing to look at anything for me. He was enormously helpful on the high hedges issue and only last week spoke to me about it both before and after the Question. I shall miss him very much.
My Lords, as a beneficiary of possibly as many of these missiles as anyone here I would like to say how much I appreciated Lord Ackner. He became a Lord of Appeal in Ordinary shortly after I was made a Lord of Appeal in Ordinary and therefore I had the extraordinary privilege of being slightly senior to him, which had some important implications for the amount of work one had to do in the Appellate Committee. commons amendments
[The page and line references are to Bill 38 as first printed for the Lords.]
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)
31 Clause 20, page 18, leave out lines 13 and 14
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 insist on their disagreement to Lords Amendments Nos. 5, 11, 31 and 34, insist on their Amendment No. 34B, but propose Amendment No. 34D in lieu.
34B Page 19, line 39, leave out "of a description" and insert "that is illustrative of a type"
34D Page 6, line 24, at end insert—
"(8A) The reference in subsection (8) to something that is likely to be understood as an indirect encouragement to the commission or preparation of acts of terrorism or Convention offences includes anything which is likely to be understood as—
(a) the glorification of the commission or preparation (whether in the past, in the future or generally) of such acts or such offences; and
(b) a suggestion that what is being glorified is being glorified as conduct that should be emulated in existing circumstances."
My Lords, I beg to move that the House do not insist on its Amendments Nos. 5, 11, 31 and 34, and do agree with the Commons in their Amendments Nos. 34B and 34D in lieu.
In moving the Motion I join with all of those who send their deepest sympathy and condolences to Lord Ackner's family. I will say a few words about the amendments tabled by the noble Lord, Lord Goodhart. We turn today to the question of whether the offence of encouraging terrorism in Clause 1 should include a provision relating explicitly to the glorification of terrorism. We have already debated the question extensively, so I shall try to be brief, even telegraphic, for the benefit of noble Lords opposite.
The reasons that the Government seek to include explicit references to glorification are clear. First, it is necessary to tackle those who inspire others to become terrorists by glorifying terrorism. It is a sad fact but there are those who would be recruited to terrorism through its glorification. In ensuring that this offence includes a reference to the glorification of terrorism, this Terrorism Bill will send a strong message—a message that the press and the public and would-be terrorist proselytisers understand—that we will not tolerate those who glorify terrorism with a view to encouraging terrorist outrages.
Secondly, because of the clear danger that arises from the glorification of terrorism, the Government made a commitment to the electorate to tackle it. The electorate voted for this Government on the basis of that manifesto. Thirdly, in tackling the glorification of terrorism we will be reinforcing our commitment to the aims and aspirations of the United Nations Security Council Resolution 1624, which referred to the "glorification" of terrorism. The nations of the world were clearly prepared to accept the word when they voted to adopt a resolution that incorporates it. I congratulate the noble Lord, Lord Goodhart, on the ingenuity of his drafting in respect of the latest group of amendments that he has tabled, but by omitting any reference to glorifying or glorification they do nothing to deal with the points to which I have just referred.
I will speak at greater length on the need to tackle those who would encourage terrorism through glorifying it, but we are all familiar with the strength of those arguments. Indeed, the arguments are so strong that, on
I should remind your Lordships of the point that I made when we last discussed this issue. In the oral Statement made in another place on
Rather than developing the arguments about the glorification provisions themselves—which, if I may say so, have been repeated on so many occasions that the words ad nauseam come to mind; but I could not of course say that because your Lordships' contributions are always so delicious to enjoy—I should like to offer some observations about the constitutional position of this House and the relationship between this House and another place. This House, as I mentioned recently when we were discussing another Bill, should function as a revising Chamber. It can ask the other place to reconsider certain provisions in proposed legislation. No one can doubt that there are occasions when legislation is made significantly stronger by the scrutiny it receives here.
But this House should not seek to oppose the will of the elected Chamber for too long, or on too weak a basis. I should remind your Lordships that when the other place's wording was overturned on
There have been four votes on this issue in another place. In Committee, on
At this point, I should perhaps invite your Lordships to remember what the noble Lord, Lord Goodhart, said in our debate on
"on this occasion"— that is the last occasion—
The other place has now had the advantage of that "one further consideration" and, in the light of those comments, I hope that the noble Lord, Lord Goodhart, will be able to tell us that he is true to his word and, although we can have an interesting debate, this will end here today. That was my hope and expectation, so I was a little surprised to see the amendments that he was asking us to consider, but I know that the noble Lord does not like to disappoint.
The noble Lord, Lord Goodhart, suggested that the matter should be sent back to the other place. The other place has had that further consideration. I for one am glad that it has done so. The arguments in favour of referring to "glorification" are in the Government's view totally convincing and the constitutional duty of this House to listen to the other place is equally clear.
We believe that following the last vote on this, the noble Lord, Lord Kingsland, made it clear that he was interested to hear about the undertaking, to see how it would go. I hope that with this fulsome explanation I have entirely satisfied him, to such an extent that he need not trouble to rise from his seat, if we divide on this. He and all those on his Benches can sit in great comfort while the Bill goes through safely on its way to another place. With that, and in great expectation, I beg to move.
Moved, That the House do not insist on its Amendments Nos. 5, 11, 31 and 34, and do agree with the Commons in their Amendments Nos. 34B and 34D in lieu.—(Baroness Scotland of Asthal.)
rose to move, as an amendment to Motion A, Amendment A1, leave out from "House" to end and insert "do insist on its Amendment No. 31, do not insist on its Amendments Nos. 5, 11 and 34, but do disagree with the Commons in their Amendments 34B and 34D in lieu, and do propose Amendments 34E to 34J in lieu—
34E Clause 1, page 2, line 1, leave out subsection (4) and insert—
"( ) For the purposes of this section "indirect encouragement" means the making of a statement which does not expressly encourage the commission, preparation or instigation of acts of terrorism or Convention offences but which is likely to convey to persons who become aware of the statement the inference that they should commit, prepare or instigate such acts or offences."
34F Clause 2, page 3, line 23, leave out subsection (4) and insert—
"( ) For the purposes of this section, matter that is likely to be understood by a person as indirectly encouraging the commission, preparation or instigation of acts of terrorism means any matter which is likely to convey to that person the inference that he should commit, prepare or instigate such acts."
34G Clause 3, page 6, line 24, at end insert—
"(8A) The reference in subsection (8) to something that is likely to be understood as an indirect encouragement to the commission or preparation of acts of terrorism or Convention offences includes anything which is likely to be understood as conveying the inference that persons becoming aware of that statement, article or record should commit, prepare or instigate such acts or offences."
34H Clause 21, page 19, leave out lines 29 to 39 and insert—
"(a) include the indirect encouragement of the commission, preparation or instigation of acts of terrorism or Convention offences (as defined in section 20 of the Terrorism Act 2006); or
(b) are carried out in a manner which ensures that the organisation is associated with statements containing any such encouragement."
34J Page 19, leave out lines 41 and 42"
My Lords, the Terrorism Bill is now coming back from the other place for the second round of ping-pong. I have put down a series of new amendments in lieu. They have not been put down because of any intrinsic merit, but to make it clear that while we wish to get rid of the references to "glorification" in the Bill, we are also anxious to avoid deadlock.
We have no wish to force the Government to use the Parliament Act on a Bill that contains a number of useful anti-terrorist provisions, even if we were in a position to do so, which I doubt we are today. I note in particular the absence of the noble Baroness, Lady Thatcher, who regularly attends when there is likely to be a serious vote from the Conservative Benches.
We remain deeply concerned with the Government's insistence on including "glorification" in the Bill somewhere or somehow. I briefly want to explore why the Government want it and whether there is any reason for doing so beyond saving face following their commitment to making the glorification of terrorism an offence.
There are two possible interpretations involved in including references to glorification in the Bill in the form that the Government have done. The first is the meaning most likely to be applied by the court—that glorification is simply given as one example of the way in which terrorism can be indirectly encouraged. It does not, therefore, extend the meaning of indirect encouragement. If so, it follows that no one will be convicted who would not have been convicted simply on the basis of indirect encouragement even if there was no express reference to "glorification" in the Bill. In that case the references to "glorification" would be harmless, but also pointless.
The second interpretation is more seriously worrying—that the references to glorification add something to the meaning of indirect encouragement that would not be there otherwise. So people could be convicted of an offence that would not have been an offence within the ordinary meaning of the words "indirect encouragement".
If that is the correct interpretation, it follows that there is enormous uncertainty about the effect of the Bill. One would have to consider what is the meaning in the context of "glorification", and what is the meaning in the context of the word "emulate". How can it be possible to justify treating as a criminal offence glorification that does not in the ordinary meaning of the word amount to indirect encouragement of terrorism? Would that not be an unacceptable restraint on freedom of expression? If the second interpretation is correct, the references to glorification would not be harmless; I believe that they would be unacceptable.
In moving her Motion, the Minister has not made the position altogether clear and I hope that she will be able to give a more direct answer to my questions when she winds up. If she is saying, "You have nothing to worry about because glorification here is simply given as an example and it does not extend the meaning of indirect encouragement of terrorism", that would of course be welcome. The trouble is that, even so, it is not for her to decide on the interpretation. The inclusion of references to glorification make the second interpretation possible. As long as that is a possibility, many people will fear that any statement that they make will be an offence under the Bill if, for example, it expresses sympathy with the activities, past or present, of others that fall within the extremely broad definition of terrorism, even though that statement carries no implication that anyone becoming aware of it should go and do likewise.
Because of the possibility that that could be the case, the inclusion of references to glorification is not just unnecessary but harmful. The Government should recognise that and accept the removal of the references. I beg to move.
Moved, as an amendment to Motion A, Amendment A1, leave out from "House" to end and insert "do insist on its Amendment No. 31, do not insist on its Amendments Nos. 5, 11 and 34, but do disagree with the Commons in their Amendments 34B and 34D in lieu, and do propose Amendments 34E to 34J in lieu.—(Lord Goodhart.)
My Lords, I quite understand the noble Baroness's concern about the time that we have spent on this and the fact that we are going over much of the same ground, but I hope that she will feel that there was something to be gained from our proceedings when we last considered this matter, even if it was only the amusement or astonishment of those who read the Division List and found that I was in the Division Lobby with the noble Lords, Lord Ahmed and Lord Lester of Herne Hill. That suggests that there is a rather wide coalition against Her Majesty's Government on this point. However, each of us was looking at it from a slightly different point of view.
For my part, I am still not happy about the definition even of terrorism that we use. There is a great deal of work to be done on better defining terrorism. Like the noble Baroness, I have no taste for those who glorify terrorism, but I do not think that she dealt terribly well with the points which I put to her the last time that we discussed this. Many of us feel that the celebration of the Easter Rising of 1916 comes pretty close to the glorification of terrorism. That leaves a lot of us unhappy. At the other end of the spectrum, I notice that a film is shortly to be released that has as its theme a masked desperado who commits an enormous number of terrorist acts, finishing up in the blowing up of Parliament at the end of the film. Is that glorification of terrorism, or is it just rather silly fiction? I know that the Attorney-General will have the sole right of instituting a prosecution under those provisions.
In a way, that makes me even more uneasy. It gives people the feeling that some people will be able to glorify some sorts of terrorism and some people will not, although there might be no difference in what is in the legislation, but there would be a difference in what was in the mind of—I will not say the Attorney-General—any attorney.
However, for what it is worth, I would say to the noble Baroness that I recognise when we have kicked this around for long enough and when we have tramped through the Lobbies for long enough, and so I will not be tramping through a Lobby today.
My Lords, perhaps I may say a couple of things very briefly. I have a feeling that this will be the end of the matter in this House. But something still worries me, on which I have not been properly reassured. Although the Attorney-General will have to give his fiat before any prosecution, I am worried that complaints will be made to the police—perhaps on matters that other people will consider trivial—and the police will immediately start an investigation. Before we know where we are people will be taken to the police station and interviewed, as many have been under previous legislation. I will not go into all the cases that have appeared in the newspapers, but the author Lynette Burrows said that she did not believe that male homosexuals should foster children, and then had the police on the telephone to her. That is what worries me. Can the noble Baroness give the assurance that the police will be given guidelines, so that this is treated as a very serious matter and not a triviality?
My Lords, I shall speak briefly. As others have said, we have all spoken a great deal about this matter when we have debated it in this House. I should like to make a few points about the importance of including "glorification" in the Bill. First, as the Minister said in moving the Motion, "glorification" is the word used in United Nations Security Council Resolution 1624 of
I am just about to say what the loophole is. Perhaps I may give way after that. Present laws of incitement do not cover everything. The best example of that is the placard about the "magnificent four" in the demonstration in London. As I said before, you do not have to be a lawyer to know that you could not really bring an incitement charge on someone talking about the "magnificent four". But that is definitely, without doubt, glorification of an act that none of us would want to see glorified.
Does the noble Baroness agree that it could also properly be regarded as—whether or not the word "glorification" is used—the encouragement, direct or indirect, of terrorism? If so, why would the word "glorification" be needed as well?
The word "magnificent" definitely is glorification. I would not put it past clever lawyers to get round saying that "magnificent four" did not mean anything about encouraging terrorism. Thirdly, there seems to be expressed a doubt about the meaning of glorification. We have heard it again and again, especially from the Liberal Democrat Benches. It seems to me that only lawyers have a problem about knowing the meaning of glorification, because in Glasgow we know very well what glorification means. I can never get over how lawyers can make something straightforward very complicated. Speaking on the phraseology concerning glorification in the Bill, as it came to your Lordships, the independent reviewer, the noble Lord, Lord Carlile of Berriew, said that he considered it 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 also believed that it was human-rights compatible. That is from paragraph 23 of his report of
I have a lot of sympathy for what the noble Lord, Lord Tebbit, said in his intervention. I just happen to think that the wording makes it very clear that it is about encouraging others to emulate terrorist acts "in existing circumstances". It seems to me clear that this legislation is about glorification that encourages others today to commit terrorism in today's context. That probably will not satisfy the noble Lord, Lord Tebbit, but that is where I diverge slightly from him. To take out glorification would send the wrong signal to the country at a time when it is important that Parliament sends out a clear signal that no one—by carefully avoiding direct incitement—can continue to encourage others, especially the young, to commit terrorism. I would ask the House to support the Motion in the name of my noble friend Lady Scotland.
And, my Lords, in this season of the year, there is forgiveness as well.
One of our problems is the definition of language. The noble Lord's helpful remarks about looking at the definition of terrorism might point to the issue that lies behind the problems we have with the word "glorification". I share the view expressed around the House that this is not the time to pursue this matter further. I am sure the Minister will be pleased to hear that. What do we mean when we use this language? Are those who are fighting in Iraq insurgents or terrorists? How do we define the IRA? These are difficult questions.
It needs to be placed on the record, as we think about what is not a very tidy use of language—the use of "glorification"—that, when we on these Benches are engaged in giving glory to God, that is an expression of the heart and of the feeling of the community, and the consequences of that cannot be spelt out in terms of the actions that flow from it. There is looseness in the language here, which I think the courts will have some difficulty with. Nevertheless, at this moment in our community, we need some sense of coherence and unity in the face of the perceived sense of threats that there are around our society. Now is the time to bring this matter to a conclusion and to trust our courts to help us to give some common-sense definition to the language we use.
My Lords, it is precisely for the reason that the right reverend Prelate referred to that we object to the use of this word "glorification". Why should it be left to the courts to interpret words like this? Why cannot this Bill set out quite clearly what it intends to punish with a sentence of imprisonment of up to seven years?
I do not know what glorification means in Glasgow, but let us look at what it means in the Bill. Clause 1(4) states:
"For the purposes of this section the statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism or Convention offences include every statement which . . . glorifies the commission or preparation (whether in the past, in the future or generally) of such acts or offences".
It does not attempt to be an exhaustive definition of what is indirect encouragement and it refers to acts committed at any time in the past and in any place in the world.
Turning to Clause 21, we actually have a definition of what glorification is. This definition does not apply to Clause 1; it applies only in relation to Clause 21:
"In this section . . . 'glorification' includes any form of praise or celebration".
So the definition of the word "glorification" here is not meant to be comprehensive—simply an example is given. We therefore come back to the point that the word is used to refer to acts committed at any time and in any place in the world, whether going back 2,000 years or moving 2,000 years into the future, and "any form of praise". Nothing could be vaguer than that.
I follow what was said by the right reverend Prelate: we ought not to pass criminal legislation that leaves it to the courts to decide what the definition means and, further, leaves it to the Attorney-General to decide whether in a particular case a prosecution should be brought or to a chief constable to decide that in a particular case an inquiry should be launched. That is why we have tabled these clear definitions in my noble friend's amendments, which would not leave it to the courts but would allow this Parliament to decide what the criminal law should be.
My Lords, I am most grateful to the noble Lord. It seems that he is saying that, in his view, the legislation as drafted would include the celebration of the Easter Uprising as an act of glorification of terrorism, which makes it extremely embarrassing when our ambassador goes to such an event in the United States.
My Lords, I have made the point before that it refers to William Wallace in Scotland, to the Welsh nationalists in 1937 who blew up the bombing range in the Lleyn peninsula, to the Easter rebellion, and to any movement throughout the world—as I said, this applies to the whole world—where a movement or organisation takes up arms against the recognised government. We may support that movement, but in these terms we would still be glorifying it.
My Lords, I thank the noble Lord for allowing me to intervene briefly. Surely when we talk about the present circumstances the point is that something like the Easter uprising might well be covered if the IRA as of now was asking people to emulate it. That is what makes the difference; it is not about the ANC, William Wallace or any of the other examples given by the noble Lord.
My Lords, I have had the experience of defending an IRA person who was moved not by the Easter rebellion, but by the words of Robert Emmet on the scaffold in 1797. If you take anywhere at any time, you can see how a person may be incited by stories from the past to commit terrorist acts. Consequently, the Easter rebellion is certainly still a matter that could be—if the Attorney-General of the day so decided—the subject of a criminal prosecution and investigation.
My Lords, is not the practical reason for this Bill the wish of Parliament to ensure that people who incite terrorism are brought to justice? It has emerged that the Crown Prosecution Service, for instance, might find it very difficult to decide, and deliberate for many months, whether somebody on a charge of pure glorification did in fact need to be brought to court. It seems to me that what matters is making the offence more precise so that it is easier for the law to operate against the people against whom we wish it to operate. "Glorification" is fine, but I cannot see why there is a problem in identifying within that what precisely people might do in order to deserve that epithet—whether they have incited, in what way and so forth. It seems to me common sense that we should make the offence as precise as possible and that we do not leave the unfortunate Crown Prosecution Service or, indeed, the police unable to prosecute because it is too vague.
My Lords, I did not intend to take part in this debate today but, after listening to it, I thought that I would give noble Lords a practical example of what my noble friend is putting forward. Three weeks ago in Belfast, the PSNI had information that an event was going to happen in one of the paramilitary bars. The police surrounded the bar—they got great publicity out of that. They found a bunch of men dressed up with masks and dark sunglasses and carrying plastic guns. The men, who were members of the UDA, were practising for an event to take place the next night. They were arrested and taken away. Whether they will ever be prosecuted is debatable, but that one act gave so much confidence back to the community that the police were prepared to tackle that kind of thing that it was of immeasurable benefit. So many incidents of that kind have happened in Northern Ireland over the past 30 years and people have asked, "Where were the police?" My noble friend is trying to achieve the same thing. The measure might not result in a prosecution—we all know that lawyers can talk and do what they like—but, at the end of the day, it would give back confidence to communities who are being held hostage by these people.
My Lords, I am very sorry to disagree with the noble Baroness, Lady Blood, but it seems to me that the incident to which she referred could perfectly well have been caught under the existing law on incitement to violence and on the proposed law in this Bill about direct and indirect encouragement. So on those grounds I support the amendment.
My Lords, I agree with what the noble Lord says but the event I mentioned took place on private property; it did not take place on the street. The very fact that the police acted was of enormous benefit to the community. That is the point I am trying to make.
My Lords, the noble Baroness anticipated that I had followed her instructions in her opening remarks by remaining in a sedentary position. I think that my response to that is, in the words of a famous English novelist of the middle half of the 20th century, "Up to a point".
As I understand it, from the events in another place last Thursday, and from what the noble Baroness has said today, the Government are essentially making five points about the amendment of the noble Lord, Lord Goodhart, and, in effect, the amendments that we tabled at an earlier stage.
The first is that our definitions—if I may refer to them collectively—provide an exhaustive definition of indirect encouragement and not an illustrative one, with the implication that it is more desirable to have an illustrative definition than a comprehensive definition. Secondly, in any case, the use of the words "describe or refer", which we have always preferred to "glorification", means that the Bill would not catch glorification. Thirdly, if we were at this stage to expunge the expression "glorification", the courts would conclude that the expression "describe or refer" would not include glorification. I see that the noble Baroness nods, so she is with me so far. The fourth point made by the Government, in another place and in your Lordships' House, is that glorification is in the manifesto. The final point is that it is a question of which House should prevail.
Perhaps I can make some comments, reasonably telegraphically, about each one of those. First, on the exhaustive definition versus illustration, it is quite true that our definition seeks to be comprehensive or exhaustive, but in law that is the whole point of a definition. It should seek to cover all the issues and it is up to the courts, armed with a definition, to do their best to ensure that a jury understands clearly what the law is.
The Government do not purport to provide any definition of "indirect encouragement". In Clause 1(4), they simply present us with a single illustration—the illustration of glorification—emphasising in all the speeches that have been made by Ministers that, of course, there are many other illustrations that could influence a court in deciding whether someone is indirectly encouraging or not. We regard that as deeply defective.
First, glorification is a monumentally imprecise concept and there is nothing in the interpretation section of the Bill that undermines that assertion in any way. Indirect encouragement is not like the famous illustration of a duck. If it walks like a duck, if it looks like a duck and if it quacks like a duck, then it is a duck. That is not the nature of indirect encouragement. The courts need real guidance on what it means.
Secondly, in my submission, even if glorification appeared in the Bill as a definition, it would be too narrow. There may be circumstances in which terrorism is merely described by a speaker or referred to by a speaker where the public are likely to infer that that which is described or referred to is conduct that should be emulated by them. The interpretation that we and the Liberal Democrats have consistently put to your Lordships' House throughout the passage of the Bill is that glorification is too narrow.
The other defect of the Government's approach was extremely well illustrated by the noble Lord, Lord Thomas of Gresford. It is not consistent with the rule of law to deprive the courts of a clear definition of law. Indeed, it is inconsistent with Article 7 of the Convention on Human Rights. Potentially, an even more serious defect concerns the behaviour of the prosecutor, the DPP. The fact that there is no definition, but just a single illustration which is not comprehensive, gives the DPP enormous scope to decide whether or not to prosecute. It is essentially an unfettered discretion. The Bill replaces the rule of law by an unfettered, absolute discretion to be exercised by the prosecutorial authorities. That is deeply undesirable, especially in an area like this.
I shall deal briefly with the remaining issues that the Government have raised. From what I have already said, I hope your Lordships will conclude that the words in the amendment tabled by the noble Lord, Lord Goodhart, or in the amendments that we have tabled in the past, plainly capture glorification, and that because we have said that, time and time again, there can be no question but that the courts would also conclude that "refer or describe" includes glorification.
The manifesto has been covered so many times that I hesitate to remind the Minister that her point about the word "glorification" appearing in that document has no foundation. It is true that the words "glorification" and "condoning" appeared in the manifesto, but they describe an offence. By the time the Bill came along, "condoning" had disappeared and "glorification" was merely an illustration of a new offence of indirect encouragement. The Government have no basis for saying that your Lordships' House is bound because this is a manifesto matter.
Finally, there is the question of the relative role of the two Houses. I accept that we are a scrutinising House and that, in normal circumstances and after doing our best to persuade the Government otherwise, we should concede. There are of course occasions when we have to stand our ground.
At the early stages of the Bill, I had thought that it would come to that, but two things influenced me to think otherwise. First, if this Bill is subjected to the Parliament Act, it will be delayed for nine months, and we need this Bill. Secondly, as the noble Baroness said, the Secretary of State has given an undertaking to reconsider next year all the measures on terrorism that are on the statute book and to introduce a new, comprehensive measure to replace them. That will give your Lordships an opportunity to consider a range of issues that have given us deep discomfort during the passage of this Bill: the definition of terrorism, the use of the word "glorification" and so on.
Bearing that in mind, and if the noble Lord, Lord Goodhart, chooses to put this matter to a vote, I shall recommend to my colleagues that they abstain.
My Lords, I shall say straight away what considerable pleasure the noble Lord's last sentence has given me, if no other Member of this House. I hope that I can be as telegraphic as he has been in dealing with some of the points raised. The noble Lord accurately understood the Government's points and expounded on them with great clarity and precision. I can but say that I agree with him. Those points are right, but the qualifications that he made afterwards were, I regret, fundamentally flawed.
I shall take up one of them. The noble Lord, Lord Kingsland, said that glorification was supposed to be a stand-alone matter in the manifesto. Noble Lords will know that we have said that glorification is a species of indirect encouragement and is therefore illustrative. Therefore, the manifesto holds true. We have had that debate on a number of occasions therefore perhaps I need say no more.
I reassure the noble Lord, Lord Goodhart, that we hope that we have made clear that glorification is an example of indirect encouragement and is included in the Bill to guide the courts, as has been the case in previous legislation. Therefore, I agree with my noble friend Lady Ramsay of Cartvale that the need to include it for illustrative purposes is clear and that the ordinary man in the street—we old-fashioned lawyers used to say, "the man on the Clapham omnibus"—would understand it with the greatest of ease.
I say to the right reverend Prelate the Bishop of Chelmsford that there are of course always difficulties. He was right to talk about the difficulties of language, but, on this occasion, that difficulty is not so great that the courts of our country could not deal with it. Quite often, whether it can be inferred that direct or indirect encouragement has taken place will be a question of fact. It will be a question of fact also whether, on the basis of the facts disclosed to the court at the time, acts of terrorism were thereby glorified. That, therefore, makes precision and rigidity of definition difficult, because it would fail to address the mischief that this is intended to cure. I know that that is not the intent of the noble Lord, Lord Kingsland, and am therefore happy to assist him and the House in identifying why the flaws of that drafting would not meet the mischief that we have collectively identified as needing to be addressed.
I reassure the noble Lord, Lord Stoddart of Swindon, who asked about the guidance to be given to the police, that we take this matter seriously and are clear that the police must not use these powers lightly and disproportionately. We have every confidence that they will exercise due discretion in the operation of all new powers the Bill confers upon them; a Home Office circular will be issued to coincide with its commencement.
I say to the noble Lord, Lord Tebbit, that one of the absolute joys of this House is the breadth and oddity of alliances that, from time to time, take place as people go through the Lobbies. There are many Pauline conversions as a Bill goes through, and I am satisfied that the noble Lord's conversion will be such that he can rest easy on his Bench, and not take the exercise that would otherwise be forthcoming.
My Lords, I will take the victory any way it comes.
We have thoroughly explored this issue. I hear what the noble Lord, Lord Thomas of Gresford, says, but I also listen carefully to what my noble friend Lady Blood says about the possible impact of these sorts of statements, and the reassurance they can give to communities that we are on their side and not that of the terrorists. We are clearly saying that these things are wrong and should not be tolerated. That has some little importance, too. We would be remiss to forget that there are circumstances where some feel that clear encouragement has been given for people to commit acts of terror. It is incumbent on all of us to do what little we can to ensure that we do not compound that.
I therefore hope that the noble Lord, Lord Goodhart, having taken the temperature of this debate and this House, will be satisfied that he has more than discharged his duty—a heavy burden that often rests on his shoulders—and will not trouble the House to express itself with the clarity it has often had to in the past. We can now let this Bill go safely on its way.
My Lords, before the Minister sits down—I am sorry to interrupt—some Members have lessened their opposition because there is going to be a comprehensive Bill in a year's time. In the light of our discussion, will there be consultation with all the political parties—and, in this House, the Cross Benches—before a new Bill is published? I hope she thinks that that would be sensible.
My Lords, I hope that I am paraphrasing my right honourable friend the Home Secretary correctly, but he has already indicated that he is open to further discussions on this matter. Noble Lords will know that we do business in this House by trying to talk to each other, sometimes quite trenchantly, before matters come back. I am sure the normal practice will prevail.
The new Bill, which my right honourable friend has mentioned and I have confirmed will be forthcoming to this House, gives us an opportunity to look again at a number of issues, not least the definition of "terrorism". The Government have already indicated our belief that the current definition is sound, but are more than happy to await the outcome of the deliberations of the noble Lord, Lord Carlile of Berriew, to see whether he gives further advice for us to look at. We will have that opportunity.
If, by the time we have had experience of the Bill, there are difficulties in relation to glorification, as I have indicated—and it was confirmed by my right honourable friend in the other place—we shall have the opportunity to look at that again, too. I know that that is one of the matters that have given noble Lords opposite the confidence to say that they can take their ease at the moment. I absolutely understand that if and when the matter comes back, we shall doubtless have another enjoyable, vigorous, lengthy debate.
My Lords, we have had a debate that, although somewhat shorter than on previous occasions, was still undoubtedly full. I took the opposite view from the noble Baroness's in that I welcomed everything in the speech of the noble Lord, Lord Kingsland, except the final sentence.
Let me make it clear at the start that we are not trying to kick this Bill into touch and force the Government to rely on the Parliament Act. All we are doing today is asking the House of Commons to consider the new amendments tabled in my name. I have to say that I remain concerned about the inclusion of the word "glorification" in the Bill, and the noble Baroness has not done anything to reduce my fears on the matter. She said that the references to glorification were merely an illustration, but went on to say that they were needed as guidance—no doubt, guidance to the courts. That carries the implication that the addition of the word "glorification" will mean that people who would not have been convicted merely on the basis of indirect encouragement of terrorism will be convicted under this Bill. That leaves me at least as worried as I was in the beginning.
The concern is not to any great extent that people who should not be convicted will be convicted. My concern is that there will be an inhibition of legitimate expression and debate. That concerns us very seriously. In view of what the noble Lord, Lord Kingsland, said, and the expressions from the noble Lord, Lord Tebbit, and the right reverend Prelate, I cannot say that we are expecting to win a vote this time. Indeed, I did not expect to win a vote on the previous occasion. I am even less confident this time.
Nevertheless, I believe that we need to put on record our opposition to the inclusion of the word "glorification", which we believe will cause significant trouble over the next few years. I therefore wish to test the opinion of the House on this matter.