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Lord Phillips of Sudbury: I hope that the noble Lord, Lord Kingsland, is going to move his Amendment No. 39.

Lord Kingsland: I cannot move my Amendment No. 39 because I negligently misread the text. I think that I can manage to work it in in the context of Amendment No. 41. All these amendments refer to Clause 1(8). Paragraphs (a) to (d) seek to constrain somewhat the definition of terrorism-related activity. It is an essential tightening of that definition to insert the word "intended" into paragraphs (b), (c) and (d).

One only has to ask oneself whether it would make sense to subject to a control order someone who innocently or negligently contributed to those matters to realise that it is only those who intend,

or intend,

or intend,

who should be in the Government's sights.

Lord Phillips of Sudbury: I strongly support Amendment No. 39, which was so insidiously moved by the noble Lord, Lord Kingsland, and Amendments Nos. 41 and 40. Clause 1(8) is crucial. The definition of terrorism-related activity runs throughout the Bill and ensuring that it is appropriate is of the first magnitude.

Vis-à-vis Amendments Nos. 39 and 41, I would prefer the wording in paragraphs (a), (b) and (d) to be left intact, but with the word "or" replaced by "and", because we should require that the conduct is not only intentional as regards facilitating the commission of terrorism but facilitates it in fact. Both elements are needed. As matter of fact, the conduct should facilitate, encourage or support terrorism and intend so to do.

I return to the example that I gave at Second Reading of another government and another Home Secretary, because it is never safe when discussing measures such as this to work on the assumption of the current people remaining in power. A thoroughly vindictive government and a thoroughly panicky Home Secretary could use the power, without amendments such as this, to bridle a journalist, be it a television or print journalist, who was running a series of passionate articles attacking the policy of the government of the day. It might be the invasion of Iraq, for example. That journalist's work would be brought within the definition of terrorism-related activity unless amendments such as this were allowed.
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I am bound to say that although the noble and learned Lord the Lord Chancellor earlier assured us that the protections for somebody caught up in the non-derogation orders were sufficient in terms of judicial review—the necessity of proving proportionality, for example—as an old solicitor who has seen this protection work or not work, I am not as sanguine as he is about the availability of that defence in the reality that will be created by the Bill.

As I started by saying, the amendments are of the very first importance, and I hope that the Government will agree with them.

6.30 p.m.

Lord Thomas of Gresford: I note that Amendment No. 168 is grouped with these amendments. I propose to break the fixture. I have been sitting on this Bench all day and have had no opportunity to consider groupings.

The purpose of Amendment No. 168 is to try to find out who carries out the arrest of the suspect. There is provision in the amendments tabled by the Government for a derogating order for arrest; there is nothing if it is a non-derogating order. I wonder who is supposed to act on behalf of the Secretary of State in apprehending a suspect, serving an order on him and so on.

It is the issue that I raised earlier today: when there is a knock on the door, who will be on the other side? I will raise it in its appropriate place, which is probably in connection with the arrest powers in derogating orders covered later in the Bill.

Lord Falconer of Thoroton: I am grateful to the noble Lord, Lord Thomas of Gresford, for breaking the fixture on that provision.

Amendment No. 39, which we swept past but have swept straight back to, and Amendments Nos. 40 and 41 would amend the definition of "terrorism-related activity" by importing the need for intent into Clause 1(8)(a) to (c). As noble Lords have rightly pointed out, paragraphs (a) to (c) also catch conduct that facilitates, gives encouragement, gives support and so on to acts of terrorism or terrorism-related activities, whether or not so intended. The premise on which the amendments are based is correct.

We should, however, remember that the Bill is intended to provide the power to prevent terrorist acts in the future. It is extraordinarily unlikely that the Bill is intended to or would catch people who were not in fact terrorists, but were inadvertently caught up in terrorism in some way.

However, material has to be put before the court which indicates that the individual,

and that the order is necessary to protect the public from a terrorist-related activity. I submit that those two tests, taken together, provide adequate protection. If an additional element has to be proved—namely,
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intent or knowledge—that would add an element that would be inappropriate, particularly having regard to the sort of material that would be relied on.

I shall deal specifically and head on with the example cited by the noble Lord, Lord Phillips of Sudbury. I think he put it this way: could a journalist at some future date writing aggressively anti-government articles be said to be doing something,

of terrorist acts by inflaming people against the government? We most certainly say that it would not. Equally, we emphasise that it would not be something that would justify the making of an order, because it would not be necessary in order to protect the public from terrorism. It could not possibly be done as a legitimate aim under the Convention and it could not possibly be proportionate.

I have identified three separate legal hurdles that would have to be overcome before such a proposition could come to pass. So while I fully understand the noble Lord's concern, and he is right to be as anxious as possible to determine the extent of the provision, I respectfully suggest that there are enough safeguards in the Bill to make sure that that sort of thing would never happen.

Lord Phillips of Sudbury: I am most grateful to the noble and learned Lord for addressing my point head on. Perhaps I may make life a little more difficult for him by citing a journalist working for a minority paper—I shall not say which one—that felt vulnerable under the prevailing circumstances. Would it not then be possible for a vindictive Home Secretary—we do not have one, but we have to look at circumstances that we do not want to contemplate—to act under the definitions set out in subsection (8)?

Lord Falconer of Thoroton: I would say no, but I accept that we have to test this Bill to destruction—not against the current Government but against a government who sought lawfully to use this Bill in order to achieve the kind of malign result the noble Lord envisages. However, for the three separate reasons I have given, I suggest that adequate protections are in place. One brings forward a law, sets out what it prescribes, and ensures that the court enforces that law. If the law would not allow the result which the noble Lord poses as a bad possibility, I think we can be secure.

Lord Mayhew of Twysden: Even if he has said so already, would the noble and learned Lord the Lord Chancellor be kind enough to repeat the reason why it is inappropriate to insert the word "intentionally" in the instance put by the noble Duke a few minutes ago; that of someone who produced the textile covering for a fuse that was intended to be used in a terrorist activity? I simply cannot see why it would be inappropriate to require an act to be intentional before the sanctions provided by this Bill comes into operation.
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I must say that when I first looked at it, I thought that this was one of the provisions put in the Bill so that the Government could concede it and thereby gain some good will.

Lord Falconer of Thoroton: The circumstances would have to be such that the making of the order was necessary to stop a terrorist act occurring or to protect the public from terrorism. If the person who produced the fuse covering was working in Boots or another chain store, of course no court would make such an order. The court will look at all of the circumstances and come to a sensible conclusion, just as the Home Secretary would when he first looks at it. If he did not, his order will be struck down by judicial review.

Noble Lords are seeking to incorporate a new requirement in the Bill before an order can be made. With the greatest respect, I think that the protections already provided are adequate.

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