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Lord Carlile of Berriew: My Lords, the noble and learned Lord has put words into my mouth without my having notice of what he was about to say. Despite the power of his advocacy, my view remains as set out in the report from which he quoted. I have read all the materials, including the letter from Louise Arbour, and I want to put on the record that what the noble and learned Lord has suggested are now my thoughts are not in fact my views. I wanted to correct that assumption.

Lord Lloyd of Berwick: My Lords, I have nothing to add to what I have already said. The clause can be made compatible in the way that I have suggested by leaving out subsection (3). I hope that the House will agree to that. I beg to move.

Lord Kingsland: My Lords, Amendment No. 9 is in my name and those of my noble friend Lord Henley and the
 
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noble Lord, Lord Goodhart. As your Lordships can easily discern, the amendment would also leave out subsection (3), but would in addition include an alternative definition of the offence of indirect encouragement. I will swiftly encapsulate the history of the word glorification, which is at the root of Clause 1(3). As your Lordships will recall, together with condoning, glorification began as a self-standing offence in the Government's manifesto at the May election. By the time the Bill came along, the word "condoning" had been dropped altogether. "Glorification", instead of defining an offence, became a word explaining an offence. The new offence was that of "indirect encouragement" contained in Clause 1(1). The explanation of "indirect encouragement" is in Clause 1(3).

We have no objection whatever to the new offence of "indirect encouragement". We support the Government in that. Our only concern is with the way that it is defined. It is not with "glorification" itself, but the way in which it is defined and is used in subsection (3). I suppose it can be said at the outset of this debate is that our objection to what the Government have done is not one of principle, but one of drafting.

One view that has been ventilated is that the interpretation of an offence of "indirect encouragement" should simply remain with the judge, and that there should be no additional guidance for the judge in the Bill. I respectfully disagree with that, which is why we have tabled Amendment No. 9. We have provided an alternative definition to the Government's definition in subsection (3):

that is, Clause 1—

In my respectful submission, that encapsulates exactly what ought to be encapsulated in the notion of an offence of "indirect encouragement".

Why is the Government's draft inadequate? I could not have put it more eloquently than the noble and learned Lord, Lord Lloyd of Berwick. It not only offends Article 10, it also offends Article 7 of the European Convention on Human Rights. Indeed, I respectfully submit that, above all, a contravention of Article 7 is the most damaging and dangerous aspect of subsection (3). Article 7 requires certainty from the legislator. Article 7 requires that when somebody is considering an activity, it should be reasonably clear to that person before he engages in the activity that, if he does so, he will be committing a criminal offence. With great respect to the Government, I do not see how anybody contemplating the text of subsection (3) could know whether he was going to commit an offence or not. That is at the root of the problem that the Government face, and why we have moved Amendment No. 9.

Lord Morris of Aberavon: My Lords, I rise to support the noble and learned Lord, Lord Lloyd of Berwick. I am particularly grateful to him for his too kind words. This part of the clause is vague, uncertain,
 
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and unnecessary. It would make it extremely difficult in practice for a judge to be able to direct a jury. I bow to the superior wisdom of the noble and learned Lord on this.

I am impressed by the words of the high commissioner, writing to our ambassador on 28 November. It would have been helpful if greater urgency had been shown in ensuring that mail that the ambassador received was brought to the attention of the House. It seemed to take an intolerably long time for matters that were specifically asked to be brought to our attention—albeit it was presented on Second Reading, but that matters not; certainly, it should have been at the earliest possible stage.

The issue of "glorification" is set out in Clause 20, where there is the definition subsection:

In the draft Bill, it included the word "exalt", whatever that may mean. That has certainly been dropped, an improvement which I pointed out on Second Reading.

I wrote to the Minister, and she kindly replied that she did not feel it would be appropriate for her to prepare draft directions to a jury or to place any example directions in the Library. That was because any directions would have to be related to specific cases under consideration. I have not sat as a recorder for a few years since the age of 65 when the previous Lord Chancellor declared that that was enough. He may well have been right. All recorders—presumably all judges—are supplied with a book of draft directions which are in general and are applied almost every day by judges across the land. The argument that directions would have to be related to specific cases under consideration does not hold water. The book is available and is used daily when we sit in judgment.

Let me return to a specific case. I shall not delay the House for more than a moment. At Second Reading, I reminded the House of what the Minister in the other place had said. She had commented that the kind of expression she would feel comfortable with was if someone had said, "What a wonderful thing happened on 7 July", with the intention that it alone would persuade people to go out and commit acts of terrorism. I surmise that no English or Welsh jury would convict on that kind of evidence. I may be wrong, but if that is the best the Minister in the other place can produce, it is not a particularly persuasive point. Perhaps the Minister here can produce a better example.

I again ask that, before we conclude our debates on the Bill, draft directions on the particular case with which the Minister said she was comfortable are produced so that we can examine rationally and objectively whether it would be easy to direct a jury on this vague and uncertain clause.

Lord Goodhart: My Lords, my name is attached to all the amendments in the group and I endorse everything said by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon, and
 
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the noble Lord, Lord Kingsland. Including the glorification of terrorism in the Act is at best useless and at worst could cause serious problems.

It is primarily useless because it seems to me to add nothing whatever. It is not a sensible definition of indirect terrorism and it is only a limited feature of that at best. There is no question that it would not have appeared in the Bill if the Prime Minister had not said last summer that we should legislate against the glorification or condoning of terrorism. Sensibly, the condoning of terrorism was left out, but the glorification of terrorism was left in. Indeed, it found its way into the Labour Party manifesto for the general election. It is entirely pointless here. The definition by the noble Lord, Lord Kingsland, is much better and simpler.

The whole question of glorification is simply going to confuse and trouble the courts. The definition is amazingly wide. As I said in Committee, it is clear that if one is looking at past acts of terrorism within the very wide definition of terrorism in the 2000 Act, the War of American Independence is a terrorist act. When one then looks at glorification, it includes celebration, so that act of terrorism is celebrated every 4 July, on Independence Day. It is only a slight stretch of the imagination to suggest that the Chancellor of the Exchequer might be encouraging terrorism by saying that 4 July is something we ought to emulate by having a national day of our own. That is perhaps going a little further than the courts would be prepared to go, but I mention it because it illustrates the general unsuitability of using glorification of terrorism, which can in the right circumstances be a test of whether there is an indirect intention, but it is absolutely wrong to make it the sole method of encouraging terrorism. I know it is not an exhaustive method, but it is the sole method that is referred to in the Bill. That is entirely inappropriate. All these references to glorification should be removed from the Bill.

5.15 pm


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