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Viscount Bledisloe: My Lords, I support the proposal that subsection (3) be excluded. On balance, I also support the proposal by the noble Lord, Lord Kingsland, to substitute a different subsection (3). The noble Lord's subsection (3) is genuinely a definition clause and tells us what indirect encouragement is; on the other hand, the existing subsection (3) merely includes glorification, but leaves anything else available to be included if a court so holds. That is an important difference.

Subsection (3) as it stands is largely unnecessary and, in so far as it is not unnecessary, it is highly undesirable. Many statements which glorify previous acts of terrorism are obviously indirect encouragement of the commission of those offences. If one goes around saying that the destruction of the World Trade Centre in New York and the bombing on the Tube were wonderful events and should be repeated as often as possible, one is glorifying them and indirectly encouraging the commission of like offences. Subsection (3) is not needed to enable a prosecutor to say to a jury, "He said, 'Aren't these people wonderful?
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They blew up half of America—that's the way to get to heaven'. Surely, members of the jury, that's a fairly obvious encouragement to do the same". That is why subsection (3) is largely unnecessary.

But what subsection (3) actually states is that the statements,

That means that if one finds a statement that does not encourage terrorism, none the less—by reason of subsection (3)—the judge must direct the jury that, whatever it may think about that statement, if it is a glorification it has to be incitement by indirect encouragement. That must be highly pernicious. That is why subsection (3) is, in many cases, unnecessary and is, in some important cases, positively pernicious since it requires a jury to consider something as indirect encouragement whereas, in reality and common sense, it would not decide it to be so. It is not a result which, on the whole, we should greatly encourage in our criminal courts.

The Lord Bishop of Winchester: My Lords, I am increasingly puzzled. It seems to me that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, is precisely what the House needs to accept. However, the more that I look at the amendment from the noble Lord, Lord Kingsland, it seems that it opens up precisely the can of worms which the amendment tabled by the noble and learned Lord seeks to close by removing the subsection altogether.

The more that I look at Amendment No. 9, the more it seems likely to have just as chilling an effect on the teaching of, for instance, almost any period of British history in schools, and still more in universities. Maybe that is because I have in mind that extraordinary form of words in subsection (3),

That goes across the whole range of history. The same would be still truer of the history of every other continent, as the noble Lord, Lord Goodhart, has just made clear. What puzzles me is that that noble Lord supports the amendment of the noble Lord, Lord Kingsland, as well as that of the noble and learned Lord, Lord Lloyd of Berwick. I even wonder whether this is why the statue of Oliver Cromwell is so nearly invisible outside your Lordships' House and the other place today.

There is a wider point, which I will be grateful to have the opportunity to make now to your Lordships. It is, precisely, that there are parts of the world where the whole question of what terrorism is and what it is another generation later, when it is something regarded quite differently, is a much more live issue than in this country with its long history. We are, of course, legislating for this country. Yet it is important at every point in this Bill, much of which I find profoundly questionable, to remember the political, educational and legal influence of our work and its results elsewhere. That is especially so in those Commonwealth countries that significantly share our legal system and its traditions, not
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least in sub-Saharan Africa, where governments and legislators—and the often fragile and threatened human rights organisations—may each, in their different ways, look to and quote in aid both our existing law and the developing legislation.

We need to be acutely and constantly aware that there are governments, in that part of the world and elsewhere, whose tendencies to oppressive behaviour are as clear today as they have been in the past. We need to ensure that, by bringing in what may be oppressive legislation ourselves, we offer neither assistance to such governments nor great discouragement to fragile human rights organisations in such countries. I look at every proposal from that standpoint, as well as from that of our own country.

Lord Ackner: My Lords, I agree that subsection (3) must clearly go, for the reasons which have been fully explained. However, I also agree with the noble Lord, Lord Kingsland, that this is no matter of principle but one of drafting. I would strongly support his proposals in Amendment No. 9, as and when we come to it.

Baroness Williams of Crosby: My Lords, I want to echo what the right reverend Prelate the Bishop of Winchester said about the extent to which British legislation becomes an instance and, indeed, a model for legislation in many other Commonwealth countries—not least, in countries which are far more threatened with tyranny than ourselves. That is highly striking, as anyone who follows the discussions of the Commonwealth Heads of Government will be well aware. Our legislation is closely copied, particularly in a large number of African countries. We should bear that in mind.

When my grandmother was a young woman she was brought up on the glorification of Garibaldi, so much so that it became the name of a famous biscuit. My grandmother was an extremely respectable and conventional lady but she thought Garibaldi was simply wonderful. When my mother was a young woman she began to admire very greatly those who sought to bring about the franchise for women by putting little firebrands into postboxes. She admired this because years and years of effort to get the women's franchise by every possible moderate method had been relatively unsuccessful. When I was a young woman I was brought up to admire Nelson Mandela because apartheid had been in existence by then for many decades, steadily getting worse, and it was only when, in effect, he adopted a policy of limited violence against property—not against human beings—that the position of the South African government became intolerable. Was my family wrong to glorify each of those people?

Baroness Kennedy of The Shaws: My Lords, I too support the efforts of the noble and learned Lord, Lord Lloyd, to remove subsection (3) and I echo what was said by the right reverend Prelate and the noble Baroness, Lady Williams, a moment ago. It is really important that we take account of the great influence that our law has on the rest of the common law world. It is for that reason that it is particularly important that we take account of the letter of Louise Arbour.
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When the United Nations High Commissioner for Human Rights writes and alerts us to the folly of this part of the legislation, we should give serious consideration to what she says.

As the noble and learned Lord, Lord Lloyd, said, not only is she an eminent lawyer and judge—indeed, she was a member of the Supreme Court for a short time before her appointment as High Commissioner—she was also a very experienced prosecutor who prosecuted at the tribunal in the Hague for a significant time. We should take account of her understanding of human rights and the impact of and follow-on from our legislating in this way. I am concerned that other countries which also feel that they are facing issues of terrorism will take great delight in our passing such legislation and will use it in ways that will alarm us all. I heartily endorse the amendment of the noble and learned Lord, Lord Lloyd.

I too think that there is perhaps some confusion. I urge the noble Lord, Lord Kingsland, a colleague at the Bar, to think again about his amendment because it introduces confusion. In an effort to find a third way—and I know that the Conservative Party has now become rather enthusiastic about the third way—I suggest to the noble Lord that this piece of legislation is not needed. The noble and learned Lord, Lord Lloyd, is right: there is already sufficient legislation to deal with the wickedness with which we are concerned, which is really incitement.

Lord Kingsland: My Lords, is the noble Baroness therefore saying that the Bill should contain no definition of "indirect encouragement"?

Baroness Kennedy of The Shaws: My Lords, I understand the temptation to define it but I think we should remove this part of the Bill altogether.

Lord Peyton of Yeovil: My Lords, I agree with what has been said. I salute with joy the speech of the noble and learned Lord, Lord Lloyd. I will be delighted to say goodbye to "glorification", which seems to me to have no home whatever in any Act of Parliament I have ever seen or heard of. I am glad to see that it is going—or at least I hope it will. I am not particularly attracted by the definition proposed by my noble friend. I rather lean towards the remarks made, with great eloquence and persuasion, by the right reverend Prelate. I certainly support the amendment.

5.30 pm

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