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Lord Lloyd of Berwick: My Lords, I rise to support the Motion of the noble Lord, Lord Goodhart, and speak also to my Motion. The sole purpose of my Motion is to remove all references to glorification from the Bill.
Clause 1 covers two forms of encouragement—direct encouragement and indirect encouragement. Direct encouragement is already covered by the law of incitement; I believe that now to be common ground on all sides. It may help the House if I give an example of how far the existing law of incitement goes. It may be that some of your Lordships have one of the devices—which I have not—that warns one of an approaching speed trap. In 1976, the manufacturers of such a device were prosecuted for advertising their products. It was said that they were inciting motorists to break the law by speeding. The defence was that they were not inciting anyone to do anything, certainly not to break the law—that was up to the driver. That defence was rejected. The manufacturers were duly convicted, and the conviction was upheld by a strong Court of Appeal.
It is rather a good example of what I think the Government have in mind by indirect encouragement, yet it is covered by the existing law. There is nothing wrong with the existing law of incitement, and the reason why no one has been prosecuted for inciting terrorism is not some fault or deficiency in the law; it is quite simply a reluctance on the part of the police, for whatever reason, to prosecute. Instead of encouraging the police to use the existing law, the Government's response has been to make it easier, as they believe, for the prosecution to secure a conviction, by including indirect incitement in Clause 1. That is good as far as it goes. The trouble is that the Bill does not define what it means by indirect incitement. It may be that the Home Office lawyers or the draftsmen of the Bill found that task too difficult. Instead, all we have to go by is an example of a statement which is to be treated as falling within the scope of indirect incitement, namely glorification. To legislate by example is a most unusual way of proceeding. It is as if the Government were to say that they cannot define
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the offence with any degree of precision, but that this is the sort of thing they have in mind. That will not do for a criminal offence.
On the last occasion the Bill was before this House, an amendment put down by the noble Lord, Lord Kingsland, attempted to cure that defect and improve the Bill by including a definition of indirect incitement. It was an olive branch, held out to the Government by him in all good faith. The Home Secretary did not accept that olive branch. Instead of adopting—and perhaps improving—the definition suggested by the noble Lord, he rejected it out of hand. What were his objections? I submit that they were trivial. First, the amendment had referred to the "listener" and one cannot listen to a placard. That was a good debating point, but we need something better than debating points if we are to reach consensus on this important matter. That defect could have been so easily cured.
Baroness Scotland of Asthal: My Lords, I ask the noble and learned Lord whether he therefore contends that there is no distinction to be drawn between listening and reading.
Lord Lloyd of Berwick: My Lords, I do not contend that for one moment. I far prefer the amendment now suggested by the noble Lord, Lord Kingsland, and I wish the Home Secretary had accepted it when he had a chance to do so.
The second argument was that we need glorification in the Bill, because indirect encouragement on its own is not sufficiently "strong and clear"—these are the words of the Home Secretary—to send out the required message. If indirect encouragement is not clear enough on its own, what is it doing in the Bill? Then it was said that if we were now to remove glorification from the Bill, that word having been included by the House of Commons, it would mean that glorification will, by implication, have been excluded from indirect incitement. To do the Home Secretary justice, he described that argument as "technical". It is worse than technical; it is simply scraping the barrel. Nobody has ever suggested that glorification cannot, given the facts of a particular case, amount to indirect—or even direct—incitement. Of course it can. What we object to is the use of glorification to define the parameters of the offence. That is the sticking point.
Finally, the Prime Minister relied strongly on the fact that glorification is to be found in Security Council Resolution 1624 of 14 September. That sounded, at first, like quite a strong point. It seemed to corroborate the Prime Minister's view. However, it loses some of its force when one appreciates that the United Kingdom tabled that resolution. I shall quote from the speech of President Bush at the full meeting of the Security Council:
"Today we support a resolution sponsored by the United Kingdom that condemns the incitement of terrorist acts, and calls on all states to take appropriate steps to end such incitement. I want to thank the Prime Minister and his government for their hard work on this issue. The United States of America strongly supports the implementation of this resolution".
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I have tried to find out from the Foreign Office who first included a reference to glorification in the draft. It does not seem likely to have been the Algerians, the Brazilians, the Chinese, the Greeks, the Japanese, or the Russians and it certainly was not the French. The French objected to glorification and substituted their own word "apologie". I have been told by the Foreign Office that it was not the United Kingdom delegation that first suggested the inclusion of glorification. Of course, I accept what I have been told without reservation. Maybe it was the United States, but I cannot tell; I was not allowed to know. However, it is an odd coincidence that whoever suggested glorification should have chosen the very word that was included in the Labour Government's manifesto very shortly after the Prime Minister used the word at his press conference.
These were the arguments in the House of Commons for disagreeing with Amendment No. 5, but neither the Prime Minister nor the Home Secretary dealt at all with the great objection to glorification as an offence, which is that it offends against the principle of legal certainty and, therefore, is incompatible with Article 10. They never mentioned that, yet that was the argument that was repeated over and over again in this House. It was the basis on which the Joint Committee on Human Rights condemned "glorification". It was also the basis on which Clause 1 was questioned by Louise Arbour, the United Nations Commissioner for Human Rights, in her letter of 28 November last year.
These are matters of great importance which deserve a proper answer if our amendment is not to be accepted. They cannot be brushed under the carpet. Therefore, I urge the House to stand firm now and not to wait until November next year. If we do so, we are not being soft on terrorism. We are anxious only to ensure that the law makes good sense and is enforceable.
Lord Kingsland: My Lords, first I shall deal with a matter that the noble Baroness raised early on in her speech—the Government's manifesto for the elections last May—and the amount of weight that your Lordships should place on it in making up your minds this afternoon before the vote.
The manifesto indeed mentioned glorification; but it did so in the context of being a self-standing offence, the offence of glorification. By the time this Bill came before your Lordships' House for the first time, there was no mention of any self-standing offence of glorification. The offence had become indirect encouragement, and "glorification", in so far as it appears in the Bill, does not even appear as a definition. As the noble Viscount, Lord Bledisloe, said on Report, glorification is simply a guideline.
That point was emphasised, with his customary skill, by the noble and learned Lord, Lord Lloyd of Berwick, in the remarks that he made earlier. Whatever other factor is to influence your Lordships in making up your minds, in my submission, the manifesto of the Government at the previous election should not be one of them.
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The noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, have presented a fundamental case against Clause 1(4) cogently and compellingly. I shall not attempt to elaborate on what they have said. I shall merely draw out two points from their analysis, which I shall make shortly—even telegraphically.
First, as the noble and learned Lord said, the definition of indirect encouragement is so vague as to plainly contradict the European Convention on Human Rights. The noble and learned Lord mentioned Article 10. For me, the crucial one is Article 7. If before he does something, somebody does not know whether or not it is a crime, that is bad law, which ought to be struck down.
The second reason why I think the analysis of the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd, is so pertinent is what I describe as the constitutional malignity of Clause 1(4). The definition of indirect encouragement is so vague that the scope of the Director of Public Prosecutions to decide whether or not to prosecute is immense. In effect, the DPP will decide what the law is when launching prosecutions in court. That is a fundamental breach of the rule of law. I do not have to cite the European convention to reach that conclusion; it is enshrined in our own common law.
I want to make it absolutely clear that the Opposition support this Bill. In particular, we support the offence of indirect encouragement. We need a really effective weapon against the preachers of hate, and we want the Bill on the statute book as quickly as possible. The reason why we tabled the amendment is not because we are opposed to the offence of indirect encouragement; we are, rather, opposed to its definition. We think that the Bill, when enacted, with glorification still contained in it, will not achieve results in the courts—the results we need to combat terrorism effectively.
Far from being soft on terrorism, as the Prime Minister has so petulantly asserted from time to time, it is we who are being tough on terrorism. By refusing to use their head in relation to the definition, the Government are being soft. Not for the first time, the Government prefer the soundbite to the substance of the matter.
We have now to consider whether to send this back to another place. I do not like the idea of waiting another nine months for this Bill to go on to the statute book. Effectively, if we carry on our resistance to the point of invoking the Parliament Act, that is what would be implied. I also take the point, made more than once by the noble Baroness, that another place is the democratically elected place. But equally, we have a constitutional duty, given to us by another place, to make it think again if we think that it is wrong.
Early in her speech, in response to a question posed by the noble Lord, Lord Clinton-Davis, the noble Baroness gave an undertaking that, at the beginning of 2007, a whole range of issues connected with the offence of terrorism would be reconsidered by the
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Government. She said, most significantly, that glorification would be included in that review. Before deciding whether to put our Motion to your Lordships' House, I shall have to set that against my fundamental feeling that what we are about to make is bad law.
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