Terrorism Bill

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 which is described or referred to as 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 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.