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The Earl of Onslow: In subsection (8)(a) there is a reference to,

Presumably that is a criminal offence already, is it not, as is the conduct referred to in paragraphs (b) and (c)?

Lord Phillips of Sudbury: No, they are not.

The Earl of Onslow: Are they not? Is conduct which encourages someone to prepare or instigate a criminal act not a criminal act?

Lord Phillips of Sudbury: Without intent, no.

The Earl of Onslow: But an encouragement implies intent anyway. I accept that it would be better to put it in the Bill, but are not most of the matters in the subsection criminal offences already?

Lord Falconer of Thoroton: Not in every single case. However, I should address the substance of the noble Earl's point. It is hard to imagine that the commission of an act of terrorism is not a criminal offence in some shape or form. But, to deal with the basic point that I think the noble Earl is making, the fact that it is a criminal offence is not the same as saying it can be prosecuted.

Let me give an example. Let us say that you have information from foreign intelligence which you regard as reliable because it has proved reliable in relation to a terrorist offence committed in another country, and you have good reason to believe that a terrorist offence has been committed here by X, you know that, on that basis alone, you could not possibly prosecute because the material from the foreign intelligence could not be turned into admissible evidence in court. The informant abroad would not leave abroad and you would not wish to reveal his name. So you will very frequently have material suggesting the commission of a criminal offence but you cannot prosecute. That is the dilemma with which we are always wrestling in relation to the Bill. But the noble Earl
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is absolutely right that many of the actions covered by Clause 1(8) would be criminal offences. But that does not solve the problem.

Baroness Falkner of Margravine: My noble friend Lord Phillips was very delicate, but I shall be rather more direct. Could an imam who was preaching in a sermon at a mosque and referred to the need for, let us say, jihad—which has several different meanings in that context—be covered by subsection (8)(c)?

Lord Falconer of Thoroton: I do not want to deal with examples of that specificity. But if someone was sitting in a room saying, "I would urge you three to do the following: go out and get the materials to commit a terrorist act in the United Kingdom. Here are the things that you should do and I strongly urge you to do them", that could definitely constitute conduct which gives encouragement to the commission of a terrorist act. In those circumstances, on the basis of that material, it may well be that you would take the view that a control order was required.

Lord Clinton-Davis: Although Amendment No. 42 has not been formally moved, will my noble and learned friend attempt to deal with its purport? I am particularly concerned about Section 40 of the Terrorism Act 2000.

Lord Falconer of Thoroton: I prefer not to deal with it now. We will deal with it when we get to the amendment referred to by the noble Lord, Lord Thomas of Gresford—namely, Amendment No. 168. I apologise for not dealing with it now but, if we are going to cover the same point on Amendment No. 168, it might be convenient to deal with it then.

The Earl of Onslow: Will the noble and learned Lord answer the very valid point made by the noble Baroness, Lady Falkner, about the imam in the mosque encouraging jihad? Is he or is he not committing an offence? Does this apply to fundamentalist Christians?

Lord Falconer of Thoroton: I am not going to be drawn into saying whether or not a person is committing a criminal offence without specific facts. It would be extraordinarily unwise of me to do so. I have given an example which is more specific than the one given by the noble Baroness, Lady Falkner, to indicate that of course it is possible to envisage circumstances where urging someone to carry out a specific act—and I emphasise "specific" in these circumstances—could constitute both a criminal offence and justify the making of a control order. But I will not be drawn on condemning or saying that a particular kind of speech by a imam constitutes a criminal offence. That would be both unwise and irresponsible on my part.

Baroness Falkner of Margravine: Is the noble and learned Lord planning to have Islamic theologians to assist the courts in these matters?

Lord Falconer of Thoroton: I do not think that will be necessary.

Baroness D'Souza: Does the noble and learned Lord agree that there is already a law against incitement?
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Incitement is a crime in this country. The noble and learned Lord gave an example of a particular person inciting three people in a room to do something. But provided those people had the wherewithal to commit that crime and provided they committed it within a certain time after those words were uttered, that would already be a crime accounted for in our law. One wonders why it has to be repeated here in this particular form.

Lord Falconer of Thoroton: It is here is because we are defining what constitutes terrorist-related activity. The person against whom a control order is made has to be someone involved in terrorist-related activity. These are not being defined as crimes. They are defining what terrorist-related activity is.

As the noble Earl, Lord Onslow, pointed out, that will very frequently constitute material that is criminal. But for the reasons already given, and bearing in mind the sorts of examples that I referred to, if you cannot prosecute where there happens to be a crime, then you need some other protection. That is the dilemma—something is being done which threatens the public by terrorism. You cannot prosecute, for example, because your source is an informant you do not wish to put at risk; or your source is foreign intelligence which you cannot use in court. There may not be enough to get to the criminal burden of proof but the threat is real. In those circumstances, in order to protect the public, you need a control order. We always come back to this central dilemma: if you cannot use the criminal prosecution process, are you powerless to act? That is why we are introducing these provisions.

Lord Kingsland: I am most grateful to the noble and learned Lord for the scope of his replies on what I thought was a fairly simple issue. Surely the way to test the amendments that I and my noble friends have tabled is to ask ourselves whether conduct falling within the scope of paragraphs (b), (c) and (d), if committed either innocently or negligently, could possibly pose a threat of the sort that would require the measures contained in the Bill? Surely the answer must be no. In those circumstances how can the noble and learned Lord possibly reject these amendments on a rational basis?

Lord Falconer of Thoroton: I have gone through the matter again and again and again. I could do so again but I do not think I would strengthen my arguments by repeating them unless the noble Lord would like to hear them again.

Lord Kingsland: I was only asking the noble and learned Lord. I am most grateful to all your Lordships who have spoken in this debate. Tempted though I am to put this to the test, my sense of personal survival is sufficiently strong that on this occasion, I shall not.

The Duke of Montrose: I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
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[Amendments Nos. 41 and 42 not moved.]

Lord Falconer of Thoroton moved Amendment No. 43.

"(8A) In this Act—
"derogating obligation" means an obligation on an individual which—
(a) is incompatible with his right to liberty under Article 5 of the Human Rights Convention; but
(b) is of a description of obligations which, for the purposes of the designation of a designated derogation, is set out in the designation order;
"designated derogation" has the same meaning as in the Human Rights Act 1998 (c. 42) (see section 14(1) of that Act);
"designation order", in relation to a designated derogation, means the order under section 14(1) of the Human Rights Act 1998 by which the derogation is designated."

The noble and learned Lord said: This is a drafting amendment. If your Lordships look at the current Bill, in Clause 2 which is to be omitted, there is a definition of a derogating obligation and a designated derogation. Amendment No. 43 takes that definition and puts it at the end of Clause 1. It does not effect any substantive change to the Bill. It is simply a drafting amendment. I am told that the amendment was discussed as part of the first group of amendments—not very actively is all I can say.

On Question, amendment agreed to.

[Amendment No. 44 not moved.]

Clause 1, as amended, agreed to.

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