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Lord Lloyd of Berwick: My Lords, Clause 5 makes it an offence to prepare to commit an act of terrorism. This clause fills an important gap in terrorist legislation. It will enable us to catch suspected terrorists at a much earlier stage and thereby save lives. I give Clause 5 a warm welcome.
I turn next to Clause 1 and glorification. The idea of making glorification an offence was, we have been told by the Minister, included in the Labour Party manifesto. It was certainly given prominence by the Prime Minister in his press conference on 5 August this summer. When the draft Bill was published, glorification was treated as a separate offence in a separate clause, but it did not survive long in that form. In his announcement on, I believe, 6 October the Home Secretary said that glorification would now be transferred from a separate clause to Clause 1. It would have been much better if it had been dropped altogether at that stage.
There are a great many words in Clause 1(4). I have read them many times and I am still not at all sure that I really understand them. Sometimes I come to the conclusion that they mean nothing and sometimes I conclude that they mean something really rather sinister.
They seem to be saying that a statement glorifying an act of terrorism, whether past, present or future, is to be deemed to be likely to be understood by members of the public as an encouragement to commit other acts of terrorism. If that is the meaning, then it is a most unusual provision. In any event, on any view, it fails the test of legal certainty, so well described by the noble Lord, Lord Kingsland.
I am a member of the public—we are all members of the public. But if I read a statement glorifying the activities of the African National Congress, I am not
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at all likely to understand it as an encouragement for me to commit acts of terrorism. So why should I be deemed to be likely to understand it in that way by this provision? It does not make sense. When one looks at it closely, it is clear to me that Clause 1(4) must go. If it stays in the Bill, I predict that it will never see the light of day in a court.
When the Home Secretary made his announcement on 6 October, he said that the new offence of glorification would catch only those who intended to incite further acts of terrorism. That is important, and it is unobjectionable. But we now find that it catches those who are reckless. That is bad enough, but we then find that recklessness is defined in terms of negligence or carelessness. It is a basic principle of the criminal law that a defendant must have a guilty mind. The fact that a defendant,
of something does not mean that he was aware of it. So in my view, Clause 1(3) must go as well.
I support Clauses 1(1), 1(2)(a) and the first half of 1(2)(b), which will bring the clause into line with what Mr Clarke originally intended. The fact that they would then add absolutely nothing to the existing law of incitement may perhaps be overlooked.
I turn to Clause 23. If one starts from the original proposal to detain suspects for three months without charge, it may seem unreasonable to oppose 28 days. But I start from the other end, and I make two brief points. Have the police made out a case for extending the period from 14 days? In my view, they have not. It was not until 2003 that they asked for 14 days, and that was long after the events of 9/11. The reasons they then gave were the usual ones—language difficulties, the need to analyse chemical substances and the problems with hard disks on computers. The reasons they now give for extending the period to 28 days are exactly the same as the reasons they gave in 2003. Not a single matter of substance has been added. If they were therefore content with 14 days in 2003, why are they asking for 28 days now?
Secondly, I do not see how 28 days can be compatible with Article 5 of the convention. It is said that it will be saved by having a High Court judge look at the case once a week. But there is here the possibility of serious confusion and misunderstanding. Wheeling in a High Court judge will not give Clause 23 the same immunity from Article 5 that the French enjoy, for the system in France is completely different. In France, the judge conducts the investigation, as if the trial had already started. In England, the police conduct the investigation. The sole function of the judge will apparently be to make sure that the police are getting on with the investigation. But that is not a judicial function; it is an administrative function. That is why I recommend that this function should be performed by a magistrate or a district judge and not by a High Court judge. So I regret that here I part company with the noble Lord, Lord Thomas. I do not think the interposition of a judge in this way—any more than the interposition of a judge in the matter of control orders—will make the difference. Of course, 28 days
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sounds like a sensible compromise. That is not how it will seem, however, to the suspect who has committed no offence, who is detained for 28 days and who is then released without charge.
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Baroness Ramsay of Cartvale: My Lords, as a general observation on this Bill, I should like to say that, just like the noble Lord, Lord Carlile, the independent reviewer, says in his excellent report of 6 October, I have heard the view that there is no need for new terrorism-specific legislation—that the law already has a range of offences which have the potential to counter terrorism. This view, as the noble Lord, Lord Carlile, points out, had been expressed by some,
He comments that that view has been far less in evidence since 7 July and he also says that he disagrees with it. As a non-lawyer, I disagree with it too. I believe that the terrorism threat the UK faces now is of a different level of seriousness and complexity from anything we have faced before, and I shall come back to that later.
The Government have attempted to build a consensus around legislation, as my noble friend the Minister said in her introduction, in order to give the police the tools they need, and have asked for, to tackle terrorism. They have consulted widely and made significant alterations between first and later drafts. Following the Committee stage in another place, they also made further alterations, including those to narrow the offence of glorification, look at the definition of terrorism, increase the scrutiny of pre-charge detention and impose a sunset clause.
Briefly, on the question of glorification, Clause 1(1) now makes clear that the offence of glorification can be committed only if a person intends his remarks to be an inducement to terrorism or is reckless as to that possibility. The noble Lord, Lord Carlile, says in his review that he found the proposal in its revised form 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. And he believes that it is human rights-compatible.
I need to move on, but to answer some of the alarmist fears we have all heard in the media where, in hypothetical situations, entirely innocent people would be caught up in this legislation, I draw your Lordships' attention to the extensive list of defences enumerated in the Bill, which anyone proceeded against can use and be covered by. Those defences are set out in paragraphs (a) and (b) of Clause 1(7), paragraphs (a) to (c) of Clause 2(8) and in paragraphs (a) to (d) of Clause 2(9). I do not have time to enumerate them but they are in the Bill.
I now turn to an important part of the Bill with which I profoundly disagree: in Clause 23, the provision that pre-charge detention can be up to 28 days. I firmly believe that this should be 90 days—
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for many reasons. First, I want to pick up the thread from the beginning of my speech—that the gravity and nature of the terrorist threat differs significantly from anything we have had to deal with before. We are facing fanatics aiming to kill and maim as many people as possible and to sacrifice themselves in the process. Often they are part of a network of complex terrorist organisations with international links, as my noble friend Lady Symons so ably explained in her speech. They are making ever-increasing use of advanced new technology, including computers with encryption, and other new tools of the trade in the ever-changing world of IT.
The normal procedure of letting plans for a crime run until evidence is accumulated to incriminate the participants must be shortened because no one would dare to risk losing track of a suspect and some terrible terrorist event taking place. The international links mean that there are inevitable delays as those are tracked and are dependent for speed on foreign liaison services—again, as my noble friend Lady Symons explained. Some of those liaison services are less efficient, and some less co-operative, than others. Foreign help is often required to establish accurate identity, in some cases even of those in custody, let alone their contacts.
The provision of an adequate supply of interpreters and translators to deal with a mountain of work and material also slows the process. As Assistant Commissioner Andy Hayman of the Metropolitan Police points out in the impressively detailed attachment to his letter of 6 October to the Home Secretary, it is not just a question of resources, unlike what the noble Lord, Lord Kingsland, said, because some of those procedures will unavoidably take time. Speaking of the papers supplied by Assistant Commissioner Hayman, which are very much echoed in paragraphs 57 to 60 of the report of the noble Lord, Lord Carlile, I must say to those, including the right honourable David Davis and the honourable Dominic Grieve, who say that they do not find those arguments compelling that their definition of the word "compelling" must be different from mine.
The noble Lord, Lord Carlile, says at paragraph 61:
"On the basis of my own enquiries and processes as independent reviewer, I am satisfied beyond doubt that there have been situations in which significant conspiracies to commit terrorist acts have gone unprosecuted as a result of the time limitations placed on the control authorities following arrest".
"I share the view that as a maximum three months is probably a practicable and sensible option, all other things being equal. I recommend that the proposal for that maximum should be so regarded".
I agree and I cannot find that up to a maximum of 90 days' pre-charge detention, with a review every seven days by a senior judge and with a sunset clause, would be an unjustified infringement of civil liberties. I also cannot see how, when you ask the professional experts for their opinion—the Met terrorist experts, ACPO and ACPO Scotland—and they give it, you can override that unless you have overwhelming and compelling reasons to do so. I have heard no such reasons.
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I read in amazement that the shadow Culture Secretary, the honourable Theresa May, is reported to have said last week concerning licensing laws that she hoped that the Government would listen to public opinion and senior police officers. Clearly, public opinion and senior police officers should be listened to only when it suits the Conservative Party. On this most serious of issues, national security, the Government tried to do just that. In my opinion, that was correct and 28 days is wrong. In other respects, I support the Bill.
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