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Lord Lloyd of Berwick moved Amendment No. 8:

The noble and learned Lord said: My Lords, the purpose of the amendment is to leave out Clause 1(3). That subsection creates the offence of the glorification of terrorism.

It is helpful to look back on how we got to where we are in relation to this provision. Subsection (3) was originally a separate offence—then Clause 2. It applied to anybody who glorified acts of terrorism, whether past, present or future. Events that occurred more than 20 years ago were exempt, unless they were put on a list to be compiled by the Secretary of State. The origin of that unusual offence was a single sentence in the Labour Party manifesto. However, the manifesto did not explain how you could create a criminal offence out of something so broad, so vague and so nebulous as the idea of glorification without—this is the important point—infringing freedom of speech.

Encouragement of terrorism, whether direct or indirect, was covered—as it now is—by a separate clause, Clause 1. The purpose of that clause, as
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explained in the Explanatory Notes, was to enable us to comply with Article 5 of the Council of Europe Convention on the Prevention of Terrorism.

There was no definition of indirect encouragement and there was no reference in the original Clause 1 to glorification. Clause 2 attracted a maximum penalty of five years for the glorification offence, and Clause 1, concerning the encouragement offence, a maximum of seven years.

The glorification offence attracted a good deal of what one could call ridicule as soon as it was published. It quickly became apparent that it would be unworkable in practice, and so glorification as a separate offence was then abandoned. Instead, it was tacked on at the end of Clause 1, dealing with the encouragement offence, where we now find it in subsection (3). My argument will be that subsection (3) has all its original vices as a separate offence in that it is much too broad and much too vague, but there is now an additional objection: in its new context it is very difficult to understand at all and almost impossible, one would imagine, for a judge to explain to a jury. So my suggestion is that subsection (3), which was attached to Clause 1 only at a very late stage, should now be detached and confined to what I believe is called the recycle bin, but I hope that it will not be recycled in some other form.

I now turn to views expressed during Second Reading. Almost everyone who dealt with the glorification issue condemned it as being incomprehensible or unworkable or both. I shall never forget the scathing attack—I think that that is the right adjective—advanced by the noble and learned Lord, Lord Morris of Aberavon. Many others spoke to the same effect and I listed them all during the Committee proceedings. Some noble Lords referred to the report of the noble Lord, Lord Carlile, in support of glorification, and I shall, if I may, come back to that a little later. But he did not touch on glorification in his Second Reading speech. Otherwise, there was nothing in favour of glorification, and the Minister did not deal with it at all in her reply.

Between Second Reading and Committee occurred a very important event—the publication by the Joint Committee on Human Rights of its third report of 28 November. The committee formed the view that glorification is too vague to form the basis of a criminal offence, and I will trespass on your Lordships' patience to read paragraph 27:

There could be nothing clearer than that. The committee came back to the same point when it dealt with Clause 21, to which we shall come later—the new clause providing for a new basis of proscription. It said:

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That is exactly what Members of this House were saying in the course of the Second Reading debate.

That is a view expressed by the Human Rights Committee, and it is a view that has been expressed by numerous other bodies. It has been expressed by Liberty and by Justice and in an excellent paper produced by the Mayor of London. I have never known a case in which the commentators have been so united and unanimous in the views that they have expressed about any clause in any Bill before your Lordships' House.

More important than all of that is the letter written by Louise Arbour, a very distinguished Canadian judge and a member of the Canadian High Court. She is now the High Commissioner for Human Rights. The letter was written on 28 November, but for some reason it became available to us only on 9 January. No personal blame attaches to the Minister because she told us that she simply did not know of its existence until 9 January. The letter is from Louise Arbour to our ambassador. I shall read two or three paragraphs:

Of course, that has now happily been covered by the amendments put forward at a very late stage.

This is the important point for the purposes of this amendment:

I need not read any more.

I now come to the views expressed by the noble Lord, Lord Carlile, to which I said I would return. I have great sympathy for him in having to deal with the question in such extreme haste. I think he would say that this is not a matter on which his particular expertise gives him any great advantage over the rest of us. Ultimately, of course, it is a matter for the courts, as we saw in the Belmarsh case.

Perhaps I may read what he said in paragraph 23. It is right that it should be read, as he is under a self-denying ordinance not to take part in this stage of the proceedings.

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If the noble Lord had been aware of the full weight of opinion in favour of the view that the clause is not compatible, he might have reached a different conclusion.

5 pm

I find it very difficult to say anything in favour of subsection (3). The Minister said that it would be useful in providing what she called "guidance" to the court as to what Parliament has in mind. That is a strange way of creating a brand new criminal offence. My own view is that subsection (3) will have to go, first, because it is unnecessary. We do not need it to meet our international obligations. Cases of provocation, encouragement, or incitement—they all mean exactly the same—are amply covered by our existing law, as is shown all too clearly by the case of Abu Hamza, which is currently before the criminal courts.

Secondly, it will have to go because it is damaging to community relations for all the reasons given on so many occasions by the noble Lord, Lord Ahmed. We should listen very carefully to what he says. So far from adding to our safety—and I do not think it will—it may in the end prove "counter-productive"—the phrase used by the noble Lord, Lord Condon, in another context.

Thirdly, it is quite clearly incompatible with Article 10. With respect to the noble Lord, Lord Carlile, I must say that I cannot envisage our courts holding that the glorification offence is a proportionate response to the threat—everyone accepts that there is a threat—from which we suffer. The courts will ultimately decide. When the first person is convicted under this provision, that conviction is bound to be appealed and will come before the courts. The consequence will be as I have predicted. The provision is incompatible, but Clause 1 can so easily be made compatible by simply omitting subsection (3).

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