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Lord Kingsland: My Lords, as the noble Baroness indicated, terrorism represents the biggest single threat to the security of the United Kingdom. Anyone who
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has any lingering doubts about that has only to contemplate the hideous atrocity that took place on 7 July.
We fully support the Government's determination to conquer terrorists, and the Bill should prove an important weapon in their armoury. As the noble Baroness also indicated, we disagree with the Government on the scope of some clauses; but, in doing so, we are in absolutely no doubt that the Bill should have been brought forward.
I should, at the outset, pay tribute to the sterling efforts of the right honourable gentleman, the Home Secretary in seeking to resolve some of the differences between us before the Bill completed its stages in another place. If he was unsuccessful in resolving what, I suppose, was the central issue of contention between us—the length of time for pre-charge detention—he had important successes in other respects, two of which I should like to stress. The first is the introduction of a sunset clause; and the second is the decision to give High Court judges a role in determining whether someone ought to remain in detention during the period from 14 to 28 days. Both are extremely constructive initiatives to emerge from what I regarded as a helpful initiative on the Government's behalf.
As noble Lords are aware, the sting has been extracted from the most hotly contested issue between the Government and the Opposition in this Bill; that is, the length of pre-charge detention. The increase recommended in the Bill in another place, as the noble Baroness, Lady Scotland, has indicated was a colossal 14 to 90 days. In the event, an amendment tabled at Report stage, to reduce the 90 days to 28, succeeded by an extraordinary 33 votes, thanks to an unprecedented rebellion by Government Back-Benchers. I am not going to dwell on the wisdom of the Prime Minister choosing to ignore the Home Secretary's political advice on this matter.
We, as the Opposition, will not be tabling amendments to the length of time determined by the other place, 28 days, but, as the noble Baroness suggested, we cannot exclude the possibility of such an amendment coming from the Back Benches in your Lordships' House. I therefore feel compelled to say something about that issue.
We yield to no one in our admiration for the way the police have conducted the battle against terrorism. We have read carefully the report by the Association of Chief Police Officers. We question, however, their conclusions about the right length of time for pre-charge detention. Our view is that that solution is not necessary to confront the problems identified by the police in their report. These problems are far better dealt with by investing more resources in decryption and interpretation facilities, and in allowing, in strictly controlled circumstances, intercept evidence to be used in court proceedings.
It is important that we do not fall into the trap of assuming that a nation's security is enhanced by the constraint of its citizens' liberties. This lesson was no more vividly learnt than during the period of the
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Troubles in Northern Ireland when the policy of internment was pursued. It sharpened the differences between the two communities; it exacerbated the problem we faced in the no-go areas and, perhaps, above all, it proved a massive disincentive to Catholics to provide information to our security forces.
The 90-day pre-charge detention period is not as visible as the internment issue, but the fact is that if someone is detained for 90 days, that is a period which amounts to a six-month sentence from a court. It is highly likely to affect, disproportionately, British Muslims; and there is no doubt that in many instances, to a greater or lesser degree, those who serve such a sentence—along with their friends and families—will become disaffected. We will defeat terrorism in this country only if we have the full co-operation of the Muslim community. It is vital that members of the community recognise that their interests lie in the values of our society being upheld. If that is so, then the necessary intelligence will come forward to ensure that early warnings are given to the security forces about terrorist intentions.
Two outstanding issues in the Bill are especially troubling to us, both of which are concerned with Clause 1. The first is the state of mind required of someone who commits the offence in Clause 1 of "encouragement". The second concerns the definition of "indirect incitement".
It is trite for me to point out that, in almost all circumstances, in order to be convicted of a criminal offence in this country, you need either to intend to commit that offence or to be reckless as to whether it is committed "reckless" in the sense of not caring one way or another whether the offence is committed.
Superficially, the Government have followed the tradition very carefully. Clause 1(2) makes it clear that a person who intends to commit the offence of encouragement or a person who is reckless in relation to committing the offence of encouragement are the only two categories of person capable of being prosecuted. But if one's eye drops to Clause 1(3), one sees that recklessness for the purposes of this Bill is given a very special definition,
There can be no doubt that that imports into the Bill a test of negligence, which has no place in our criminal law in relation to an offence of this sort, and we shall be tabling amendments to that effect when we consider this legislation in Committee.
Our second concern is the definition of indirect encouragement in subsections (4) and (5) of Clause 1. I shall read out the subsection because it is absolutely vital to understand how difficult it will be for anyone making a statement to know whether or not it falls within its terms. Subsection (4) states that,
"statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of acts of terrorism . . . include every statement which—
(b) is 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".
"For the purposes of this section the questions how a statement is likely to be understood and what members of the public could reasonably be expected to infer from it must be determined having regard both—
A fundamental principle in our criminal law is the principle of certainty. We must know where we stand in relation to the criminal law. We must know where the line is between legality and illegality. That principle has now been reinforced by Article 7 of the European Convention on Human Rights. In my submission, subsections (4) and (5) fall well short of meeting those tests.
The definition of "glorification" is given in the interpretation section of the Bill, which states:
"'glorification' includes any form of praise or celebration, and cognate expressions are to be construed accordingly".
I shall be most interested to find out in Committee exactly what the Government think that expression means. It is extremely vague.
Vague, too, is the link between glorification and emulation. What about the need to address the contents of the published statement and the circumstances and manner of that publication in trying to establish how a statement is to be understood to be likely to encourage terrorism? What might the public infer from that? The subsections fall well short of the standard that we are entitled to expect from a legislative draftsman in drafting a criminal offence.
In another place, the Government suggested that we need not really worry about this because prosecutions could be instituted only by the Director of Public Prosecutions. I suppose we should deduce from that that the Director of Public Prosecutions will always know what the law is. However, that is an extremely bad constitutional principle. What matters is not what the Director of Public Prosecutions thinks the law is, but what Parliament says the law is. There is a real danger that the Government will substitute the rule of law for prosecutorial discretion.
The Bill in other respects, too, does not meet the standard of certainty. That is one of the areas upon which the Opposition intend to focus fully in Committee and on Report. There are many other issues that we intend to address as well.
The noble Baroness has already mentioned the definition of "terrorism", and we are extremely pleased to learn that the Government have decided to ask the noble Lord, Lord Carlile of Berriew, to look into the definition in the course of the first year of the Act's operation. We are also concerned about the geographical scope of some of the offences. What seems highly questionable to us is whether somebody
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making a statement abroad, which is caught by Clause 1, in relation to terrorist acts that are committed wholly abroad, ought to be caught by the Bill. We are also concerned about statements made by individuals in this country about alleged terrorist acts abroad, in circumstances where they are simply supporting the opposition to a particularly repellent totalitarian regime.
There are problems in Clause 2 of the Bill concerning the dissemination of terrorist publications, especially for those working in universities or lending libraries. Those who are involved in Internet activity will be extremely concerned about Clause 3(2) and the powers that it gives for a constable to issue notices. We shall be tabling amendments to that clause as well. We also believe that the Government are wrong in being determined not to provide a defence to the definition of "Training for terrorism" under Clause 6.
In making these points, I wish to repeat what I said at the beginning of my speech. We support the Bill and, in tabling amendments, we want to make it better than it is. We hope that when it becomes an Act it will significantly enhance the Government's ability to confront terrorism.
3.40 pm
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