Read a third time.

Clause 2 [Dissemination of terrorist publications]:

3:40 pm
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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 1:

Page 2, line 43, leave out from "offence" to "if" in line 5 on page 3 and insert "if he engages in conduct falling within subsection (2) and, at the time he does so—

(a) he intends an effect of his conduct to be a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism;

(b) he intends an effect of his conduct to be the provision of assistance in the commission or preparation of such acts; or

(c) he is reckless as to whether his conduct has an effect mentioned in paragraph (a) or (b).

(2) For the purposes of this section a person engages in conduct falling within this subsection"

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, the amendment does not just stand in the name of my noble friend Lady Scotland. In a model of co-operation and consensus, the amendments that have been tabled also have the support of the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick. We are always grateful to these noble Lords for their co-operation and for the spirit in which they have approached scrutiny of this Bill, but I am especially grateful on this occasion. I understand the concerns they originally had about intent and recklessness and how these could be inserted into Clause 2, but I am particularly grateful to them for working closely with my noble friend Lady Scotland and with colleagues in the Bill team to ensure that we could find a test that would prove satisfactory to us all.

Before turning to the text of the amendments, perhaps I may say something about procedure, a subject I know is always close to your Lordships' hearts. Only last week noble Lords agreed to the recommendations of the Procedure Committee, which touched on, among other things, amendments at Third Reading. What we are doing here today is exactly in line with those recommendations. One of the permitted purposes of Third Reading amendments is simply to tidy up a Bill, and that is what these amendments seek to achieve. They make no change of substance; indeed, if they did, I doubt whether such a star-studded cast of Peers would have put their names to them. Rather, these amendments respect the decision of principle that was taken on Report and ensure that the legislation is both effective and workable.

For those of your Lordships who may be somewhat bewildered by the amendments before us, and by the differences between them and the text as it stands, I shall explain as briefly as possible why they are required. The text of Clause 2 has two main weaknesses, which these amendments seek to address. First, it does not sufficiently recognise that it is the publication, not the person, that does the encouraging. Secondly, it does not sufficiently cater for those categories of action that do not involve actual dissemination, including, most obviously, possessing terrorist publications with a view to their dissemination. The same problems apply to material of use to terrorists and to recklessness. For those reasons, the text of the Bill is in need of some revision.

The noble Lord, Lord Kingsland, made use of the concept of the effect of dissemination in his provision on recklessness in Clause 2(1)(b). We have been able to use this concept to ensure that the test we now propose to insert can work. The new test says that the person carrying out the conduct has to intend that an effect of his conduct will be the direct or indirect encouragement to the commission, preparation or instigation of acts of terrorism and that references to "an effect" include an effect of the publication or one or more of the persons to whom it may become available as a consequence of that conduct.

Amendments Nos. 1 and 2 revise the test in Clause 2 in such a way that the current weaknesses can be overcome. Amendment No. 3 is purely to correct a nonsense that I think we can all accept crept into the text on Report. We in the Government, the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, are all satisfied that the test we now propose will work. I urge your Lordships to accept all these amendments. I beg to move.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, we are genuinely grateful to the Government for their decision, taken some weeks ago, to accept the principle that offences under Clause 2 as well as under Clause 1 should require intent, or at least recklessness. We on these Benches would have preferred recklessness not to be there, but we voted on that on the first day of Report, and lost.

The version of Clause 2 tabled by the Government on Report was, we thought, unsatisfactory, confusing and extremely difficult for anyone to understand. We therefore put forward our amendment which was not different in principle, but which we thought provided a simpler and clearer definition of the real issue. Subsequently, the Government have produced a very much revised version of their original amendment which has been considered by bodies representing the university librarians and has met with their approval. In those circumstances, we see no useful purpose to be served in seeking to insist on our own amendment. We on these Benches, and no doubt noble Lords on other Benches in your Lordships' House, are content to accept the present version put forward by the Government which, we are glad to say, will bring to an end one contentious issue on the Bill.

3:45 pm
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Baroness Carnegy of Lour (Conservative)

My Lords, university librarians have written to me, and doubtless to other noble Lords, to say that they are now satisfied with what is proposed. I am not sure whether these are the amendments on which they so decided. However, by their nature librarians are not political; they trust the Government, the Front Benches and the noble and learned Lord on the Cross-Benches to do the right thing for them.

I still do not understand how the Government could have made such a mistake at the beginning on producing the Bill. It has taken a lot of time and trouble by many people to get it right. However, we shall not worry about that now. I am sure everyone is extremely grateful that the right solution has been found. Time will tell whether the Government have made sure that innocent librarians will not have to appear in court to defend themselves for simply doing their proper job.

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Baroness Warwick of Undercliffe (Labour)

My Lords, I join noble Lords in thanking my noble friend the Minister for the characteristically open way in which she has pursued an understanding of the effect of Clause 2. Libraries and the academic community, including Universities UK—I declare an interest as chief executive—saw potential in the original draft to catch innocent activities. They feared that confusion about what was intended to be an offence under Clause 2 as originally drafted might lead to self-censorship. I am delighted that the Minister has sought to make it clear that only those who intend to provide encouragement or assistance to terrorists will be caught by this offence. Not only has she done this by means of numerous assurances; we now have an amendment which puts the matter beyond doubt.

I pay tribute to the way in which the noble Lords, Lord Kingsland and Lord Goodhart, have sought to achieve this clarification. The noble Baroness, Lady Williams, has also been unstinting in her support for the libraries and academics, as indeed have many other noble Lords who have spoken eloquently on the subject. I wholeheartedly support the government amendment. It will set many minds at ease outside this House.

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Lord Eatwell (Labour)

My Lords, I declare an interest as chairman of the British Library. I join in the general congratulations to the signatories of the amendment on having achieved the consensus that is represented before us.

While I welcome the amendment, I ask the Minister for two assurances. First, at Second Reading and other stages of the Bill, I raised the issue of the relationship between the requirements of this Bill and of the British Library Act 1972 and the Legal Deposit Libraries Act 2003 with respect to the corporate person of the British Library and the other copyright libraries. The two issues on which I particularly focused were the requirement under the 1972 Act that the British Library maintain a comprehensive collection—and, therefore, it should indeed collect terrorist materials—and the requirement placed on the legal deposit libraries in general under the 2003 Act to receive copyright material whether in print or electronic. Those two requirements do not now conflict with the Bill, as amended, but I should like the Government's assurance that the Bill does not conflict with the statutory requirements under those two Acts.

The second assurance that I would be most grateful if the Minister could give me refers to what has now become known as the Hazel Blears letter written in January of this year to many persons interested in this Bill, and quoted on Report by the noble Baroness, Lady Williams of Crosby, in which my right honourable friend Hazel Blears argued that libraries should not allow,

"impressionable people to see such publications".—[Official Report, 17/1/06; col. 563.]

The letter was suggesting that libraries would in future have to examine and test everyone who wanted to look at particular materials.

My noble friend Lady Scotland, in replying to the noble Baroness, Lady Williams, said that my right honourable friend's letter had been written prior to the Government's change of mind with respect to Clause 2 and that if the letter were to be written again, it would be phrased differently. If the Minister can indicate in what way it would be phrased differently, that would be enormously helpful to the libraries community.

In conclusion, I echo what has been said by my noble friend Lady Warwick. I thank those who have supported the libraries, particularly the British Library and the copyright libraries, in the discussions on the Bill. I pay particular tribute to the indefatigable support of the noble Baroness, Lady Williams of Crosby, for the British Library, for which, I assure her, the library and its staff are enormously grateful.

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Baroness Williams of Crosby (Liberal Democrat)

My Lords, I, too, thank those who have produced this comprehensive amendment. It is very pleasing that agreement has been reached. The Government, the opposition and my noble friend have contributed substantially to that, as have the chief executive of Universities UK and the chairman of the British Library.

At this late stage in the game I am reluctant to pick any nits, if one can use that phrase in this noble House, but, like the noble Lord, Lord Eatwell, I have one other question concerning deposit libraries to which I seek a response from the Minister. This time it involves not the noble Baroness, Lady Scotland, but the noble Lord, Lord Bassam of Brighton, who I am pleased to see is responding to the questions being raised. In the debate on Amendment No. 84 on the final day of Report, the noble Lord said:

"This amendment, prompted by those changes, will give further protection to the interests of libraries, for example. That is because publications could conceivably be seized from libraries because of the actions of particular librarians".—[Hansard, 25/1/06; col. 1254.]

He added that it was a "matter of interpretation". I should be most grateful if the noble Lord, Lord Bassam, in responding to the questions he has been asked, would comment on what interpretation he was placing on that because he will appreciate that a lot of librarians became worried by the awful prospect of gentlemen and ladies, possibly wearing black balaclavas, coming in and forfeiting large chunks of deposit libraries. Perhaps he could say something to calm those fears.

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Lord Stoddart of Swindon (Independent Labour)

My Lords, I, too, welcome the amendment and compliment those who drafted it. I do not want to be churlish about it but it shows the value of the way this House runs itself. The House was able to take all the time that was necessary to get this part of the Bill right. That is a tribute to the House and to the way it runs its affairs. I hope that will be a lesson to those people who want to alter the way this House runs itself and to impose on our deliberations the sort of restrictions that the House of Commons has seen fit to accept. I think that this could be a salutary lesson to the House not to change its procedures too quickly.

What worries me is that the Bill came forward in the first place from the Home Office in a form that was completely unacceptable to virtually everybody in this country. There is a lesson there for the Home Office, too. When it is framing legislation that will have a possible effect on individual people of all sorts throughout this country, it should be ultra-careful. Ministers in that department should also be extra careful in agreeing to allow such legislation to come forward.

This has been a good experience for the House of Lords—for Ministers, for noble Lords on the Front Bench and, indeed, for the whole House—in the way in which it has been able to improve the Bill. I sincerely hope that the Commons will not try to alter the Bill when it goes back, but I feel sure that Ministers will not allow that to happen.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I shall endeavour to ensure that my noble friend Lady Scotland receives the paeans of unadulterated praise that have rained on us this afternoon as a consequence of our bringing forward these amendments. I am genuinely grateful for all the help that we have had.

It was never the Government's intention to capture the innocent activity of librarians, as I am sure all Members of your Lordships' House would accept. However, we have been pleased to try to make progress in ensuring that the legislation is more accurately and precisely drafted, so that it does not have any unintended consequences. For that reason, if no other, I think that this exercise has been very useful.

My noble friend Lord Eatwell has understandably asked for further points of clarification. I am more than happy to try to give him further assurance on the effect of Clause 2, as it now stands, on the work of libraries and librarians; I am happy to put our further thoughts on record.

The Government are clear that the offence in Clause 2—with intent and subjective recklessness—will not have the effects that some of your Lordships had feared. It will not force libraries to stop activities that we would all, I am sure, regard as legitimate and it will not force copyright libraries to desist from activities that they are legally bound to carry out. Nothing in the Bill will prevent the British Library carrying out its statutory functions under the British Library Act 1972, in particular maintaining the comprehensive collection that it is required to maintain by Section 1(1) of that Act. Nor does the Bill contain any provisions that would hinder the operation of the Legal Deposit Libraries Act 2003, including the British Library's automatic receipt of a copy of every work published in print. It is clear that such works must be deposited at the British Library without the library having to request them in advance, although even if the library had to request them in advance, that would not present any difficulties with regard to Clause 2 of the Bill. In addition, Clause 2 does not present any hindrance whatever to the British Library in maintaining a collection of on-line publications that is representative of this medium. It has never been the Government's intention that these possible consequences should ever have happened, nor, I believe, has the offence ever been drafted in such a way that they would have happened. The fact that we have now inserted intent and subjective recklessness should remove any lingering doubts on this issue.

Having given the House that general assurance, I should like to explain in a little more detail why any specific provision relating to the copyright libraries would be unnecessary. First, the offence in Clause 2 does not place any new obligation on libraries to examine the publications that they obtain or possess. It will therefore not be the case that if a library does not know the contents of a publication it could be prosecuted under this offence. Secondly, it is now necessary for the prosecution to show that anyone charged with this offence committed it through either intent or subjective recklessness. If someone disseminates a terrorist publication with the intention that it should come into the hands of someone who would be encouraged by it to commit terrorist acts, such a person should be guilty of an offence. If someone disseminates a terrorist publication knowing that this will happen, or knowingly takes an unreasonable risk that it would, they too should be prosecuted. These points should be acceptable with regard to libraries and librarians. Obviously if they commit the offence with intent they should be prosecuted, but even with regard to recklessness there is no problem.

Libraries and librarians are under no obligation to examine publications more than they would otherwise have done. They are not obliged to examine the people to whom they make the publications available more than they would otherwise have done. So I do not see how, in the ordinary course of events, they could be said to be subjectively reckless in disseminating them. Even when they know that a text has the potential to encourage terrorism, for example, if they are alerted to that possibility by its title or reputation, to be subjectively reckless they would still have to know that they were taking an unreasonable risk in lending it to a particular individual. If the librarian did not know that a publication was likely to encourage terrorism, or if they did not know that a person seeking to borrow it was likely to be susceptible to such encouragement, they could never be convicted of the offence because they would not have knowingly taken an unreasonable risk. They could therefore not be subjectively reckless. As we have explained, they are under no extra obligation to examine either publications or borrowers. I hope that those reassurances are sufficient to end any concerns that your Lordships may have had about the possible effects of Clause 2 on libraries.

Responding to the reflections of the noble Baroness, Lady Williams, at an earlier stage in the Bill, of course the Bill allows for the seizure of terrorist publications, but there is no intention to seize material from deposit libraries or other legitimate libraries. What is more, the amendment made on Report to Schedule 2 ensures that in the highly unlikely event of an inappropriate seizure the material can more easily be returned. I hope that reassures the noble Baroness. I think that we have now come to a reasonable accommodation. I hope that the further assurances that I have given to the noble Lord, Lord Eatwell, more than suffice; and I trust that I have answered the point understandably raised by the noble Baroness, Lady Williams. We do not want to alarm librarians, but we need to have clarity on the way in which the law operates. I am grateful to all noble Lords who have been concerned about this part of the Bill.

On Question, amendment agreed to.

4:00 pm
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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendments Nos. 2 and 3:

Page 3, line 30, at end insert—

"(4A) In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct."

Page 4, line 6, leave out from "intention" to end of line 7 and insert "specified in subsection (1)(a)"

On Question, amendments agreed to.

Clause 3 [Application of ss. 1 and 2 to internet activity etc.]:

Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 4:

Page 4, line 44, leave out ", in the opinion of the constable giving it,"

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, in moving Amendment No. 4, I shall speak also to Amendments Nos. 5, 6, 7, 8 and 10. This group of amendments applies to Clause 3, which deals with the dissemination of material by Internet service providers. The Internet is now, as all noble Lords will know, an extremely important method of transmitting information and opinions. The transmission by an Internet service provider could include the transmission of a terrorist publication. Internet service providers do not and in practice cannot monitor all the material that they transmit. Clause 3 contains a mechanism for giving notice to an Internet service provider if the authorities discover that the provider is transmitting what is called in the Bill "unlawfully terrorism-related" material. Notice is given by a constable if, in his opinion, the Internet service provider is transmitting such material. "Unlawfully terrorism-related" material is defined in subsection (7); I will return to that definition later.

The notice to be served under Clause 3 requires the removal of the offending material within two working days. Non-compliance with the notice is not, in itself, an offence, but a non-compliant Internet service provider is treated as endorsing the material and, therefore, exposed to prosecution under Clause 1 or 2. An Internet service provider could, in theory, object to the notice and defend the prosecution on the grounds that the material was not, in fact, unlawful. However, the inevitable result in practice is that the Internet service provider will comply with the notice. That provider has no benefit from fighting the notice. If it does so—or continues to transmit that material and then seeks to defend a prosecution—it faces costs, considerable time and expense from the court, and a possibility of conviction. Against that, it will get no benefit at all in practice from objecting to the notice. The obvious answer for any Internet service provider is simply to accept the notice and remove what is regarded as offensive material.

On Report, the noble Baroness, Lady Scotland, said that market forces would deal with that problem. Well, they will not; in fact, market forces make it obvious that Internet service providers will not contest any notice that is given to them. It is also extremely unlikely that whoever has authored the material that is being objected to will challenge the notice. They may well not know that it has even been blocked.

We believe that this gives rise to two big problems concerned with freedom of speech. It is convenient to speak to them together because, while they are quite different in nature, only by doing so does one get the full picture. The first relates to the Internet, which, as I have already said, is an extremely important method of communication. However, many authoritarian governments block unwanted material and take steps to ensure that such blocking is effective. That is notorious in, for example, Saudi Arabia, but particularly in China.

There has been much recent publicity in China about Google, which is setting up a new search engine for customers there. The Chinese authorities are insisting that it should not carry material which they do not want Google to carry for people there. For example, if in China you search for references to Falun Gong, you would only get extremely critical articles saying that that is a dreadful terrorist organisation. You would not get the other side of the story at all. Therefore, to allow the police to serve Clause 3 notices—in effect, to block transmissions—with no oversight and by any other authority, especially with no judicial control, is not acceptable. It may be acceptable to the Chinese or Russian authorities, but not here.

We believe that this is a real threat to freedom of speech, and Amendments Nos. 4, 5 and 10 would require judicial authority for the issue of the notice. The procedure that we envisage is something similar to that for the issue of an arrest warrant. No notice will be given to the Internet service provider, and the service of the notice will be delayed by a few hours—24 hours, at most. The judge would, of course, have to satisfy himself or herself that there were indeed grounds for serving the notice. This will have a limited effect for obvious reasons, particularly for time, and we accept that there could be no hearing; but at least this step would prevent obvious abuses and would make the police think twice about whether the notice was really needed before they went to a judge to obtain authority to serve it.

The second problem, dealt with by Amendments Nos. 6, 7 and 8, is the extreme width of the definition of what is "unlawfully terrorism-related" in subsection (7). I shall read it to noble Lords to demonstrate its breadth. The subsection states:

"For the purposes of this section a statement or an article or record is unlawfully terrorism-related if it constitutes . . . something that is capable of being understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences".

I draw the attention of noble Lords to the words, "capable of being understood". All sorts of things are capable of being understood in all sorts of different ways by different people. Material may be capable of being understood in ways that are unexpected by anyone who creates or transmits certain material. Saying that that material is "unlawfully terrorism-related", simply because it may possibly be understood by some unknown person as encouraging terrorism, is way beyond anything that is reasonable.

Before anything that is being transmitted by an ISP is blocked, the police and the judge should be satisfied that that material is "likely to be" understood as encouraging or assisting terrorism. A Clause 1 offence is committed only if the published statement is "likely to be understood" as encouraging terrorism. That is on the face of the Bill. Similarly, in Clause 2(3) a publication is a terrorist publication only if it "likely to be understood" by persons to whom it is available as encouraging terrorism.

There is no justification whatever for applying a weaker test in Clause 3 for something that is unlawfully terrorism-related. Otherwise, we will end up in the absurd situation where the police can serve a notice under Clause 3 warning an Internet service provider to remove material from transmission, even though that material is not "likely to be understood" as encouraging terrorism, but merely that it is possible that it might be. It might be material that could legitimately be published or disseminated by its creator under Clauses 1 or 2. That is plainly wrong. The test for the notice under Clause 3 should be the same as the tests under Clauses 1 and 2.

The combination of those factors—the absence of any oversight of the police's use of their powers under Clause 3 and the unreasonably wide meaning given to "unlawfully terrorism-related"—means that Clause 3 as it stands is likely—I repeat, likely—to be a serious threat to freedom of communication. I have little doubt that those views will be shared by the courts.

These are important amendments that should be accepted by the Government. I beg to move.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

My Lords, in view of the scope and incisiveness of the analysis given by the noble Lord, Lord Goodhart, I can be extremely telegraphic. We share the noble Lord's concern about the threat to freedom of speech posed by the power of constables to issue Clause 3 notices. As the noble Lord rightly said, there is no incentive for an Internet service provider to challenge the notice. The only control contained in the Bill is the words,

"in the opinion of the constable".

The noble Lord has explained graphically why that is a wholly inadequate protection of the principle of freedom of speech. He will have our support.

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Baroness Williams of Crosby (Liberal Democrat)

My Lords, this is not only a major issue, but it will become more and more important as the Internet extends to more countries and more people in those countries. Members of the House may recall that a couple of years ago the BBC attempted to extend its contract in China to enable it to produce new services for the Chinese people.

The Chinese Government took extreme exception to a harrowing and profoundly disturbing programme, which some noble Lords may have seen, called "The Dying Room", about the deaths of many infant girls in China which were not prevented. In consequence, the Chinese Government made it plain that they were not likely to accept an extension of the BBC's remit. In other words, the principle of censorship was once again made central to the basis upon which a contract might or might not be accepted.

This kind of behaviour is likely to become a greater threat, not only in this country but elsewhere, as my noble friend has indicated, to the freedom of expression at a time when the world badly needs such freedoms. Indeed, the recent willingness of Google to accept certain limitations on the provision of its services to Chinese citizens is profoundly troubling. Similar attitudes have been taken in the past by governments like those of Malaysia, Russia and others.

This matter is of much more than technical importance. It is extraordinary that an issue of such significance, where the example given in this country may well have an extensive influence far beyond its borders, should be able to turn on the opinion of a constable, however serious and conscientious a police officer he may be.

I therefore plead with the Government to consider carefully the position put forward by my noble friend and the noble Lord, Lord Kingsland, because much more than a simple technicality is involved. There is, in this set of minimal and modest-looking amendments, a great deal at stake.

4:15 pm
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Lord Hylton (Crossbench)

My Lords, this group of amendments seems designed to protect not only freedom of expression but also freedom of information. Those freedoms are highly important for the continued existence of democracy and thus, indirectly, for the restraint of terrorism. I am therefore very pleased the support the amendments.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, to use a word much favoured by the noble Lord, Lord Kingsland, I shall be telegraphic in putting the Government's argument. I see no point in prolonging a debate which we have had on two, if not three, occasions.

As ever, we are grateful to the noble Lord, Lord Goodhart, for tabling these amendments because they enable us to get to the point of the issue. We do not have a lot more to add to comments made from these Benches on Report. I will, however, deal with Amendments Nos. 4, 5 and 10, and then Amendments Nos. 6 to 8.

As the noble Lord, Lord Goodhart, has expertly explained, Amendments Nos. 4, 5 and 10 insert a measure of judicial oversight into the notice provisions on the Internet in Clause 3. I understand that this has been principally argued for by the Opposition because they believe that the effect of a notice, when served on an Internet service provider, will be to force it to comply. The Government believe that this is incorrect, and that judicial oversight is unnecessary. First, we do not think that the effect of the notices will be to oblige Internet service providers to comply in all cases. This is the case not just because of the effect of such compliance on their customers and brand reputation, but also because the principal mischief this clause is aimed at is that of those who run websites—the webmasters—not Internet service providers. We expect very few notices to be served on Internet service providers.

Secondly—as the noble Lord, Lord Goodhart, conceded on Report—the amendment is not even desired by the UK Internet industry. UK Internet service providers want a process similar to those already in operation for communications data. They want a single point of contact between them and the prosecuting authorities, and clear guidance on what, how and when to deal with notices when received. That is exactly what we aim to deliver.

Thirdly, the inclusion of "intent and recklessness" in Clauses 1 and 2, while not directly dealing with notices, makes it far more likely that an Internet service provider—or, indeed, a webmaster—will take issue with the serving of a notice, and refuse. More importantly, we are also worried that the insertion of "judicial involvement," proposed by this amendment, will prove unnecessarily burdensome, especially as the amendment requires a senior judicial level of involvement; that is, the involvement of a High Court judge.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, the appropriate judge is not a High Court judge; it can be a circuit judge or a judge of the High Court under Amendment No. 10. So, it is not restricted to High Court judges.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, having looked at the amendment again, I accept that as a point of clarification and interpretation.

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Viscount Bledisloe (Crossbench)

My Lords, could the noble Lord explain how he reconciles his two statements: the first being that there will be very few notices; the second being that judicial involvement will very burdensome? To my simple mind those two statements seem somewhat difficult to reconcile.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I do not think that they are particularly difficult to reconcile. Clearly, when a notice is served, it will be burdensome to deal with that particular procedure, at that particular time, and in that particular case.

The other argument I take some exception to is that made by the noble Lord, Lord Goodhart, in comparing what we are doing here with what has been happening in China with Google. I think the analogy with China is quite inappropriate. After all, a notice under this clause does not require anyone to remove or censor material. It simply advises an Internet service provider that it will not be able to rely on the defence of non-endorsement. In that sense I cannot see that it is a direct restriction to freedom of speech in the terms used by the noble Lord to describe, and compare with, what is happening in China with Google. In any event—and I have heard the noble Lord say this—freedom of speech is not exactly an absolute concept with regard to the Internet. For instance, I am sure the noble Lord would accept the point that it is inappropriate and wrong for child pornographers to have access to Internet to publish their appalling material, and that we should seek to limit such access. So, I cannot accept his argument on that.

Turning to Amendments Nos. 6, 7 and 8, again I do not believe that there is much to add. The test of whether some or all of the persons who come into contact with a statement are likely to understand that statement as encouragement exists in Clauses 1 and 2. Under Clause 3, a constable applies the test of whether a statement is capable of being understood as unlawfully terrorism-related when considering issuing a notice. That difference is the root of the difference in the tests. The constable is asked to make a judgment as to whether a statement is capable of being understood as unlawfully terrorism-related. The noble Lord's amendment would require a constable to second-guess whether the court will take the view that an audience is likely to understand the statement as an encouragement. The Government's view is that this is unnecessary and that the police ought to issue a notice saying that they are concerned about the statement's presence as they would under present drafting.

I realise that there is a difference of view on this; I suspect that the noble Lord will not favour the Government's response, but we have to reach a conclusion. I hope that the noble Lord will reflect further upon it; I am asking the noble Lord, Lord Goodhart, to withdraw his amendment, but not with great expectation.

Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I shall be very brief. I am very grateful to all those who have spoken in support of these amendments, and particularly to the noble Viscount, Lord Bledisloe, for his very trenchant intervention during the Minister's response. It is of course true that Internet service providers have not been lobbying for this particular group of amendments. That is perfectly understandable. They are commercial organisations concerned with having a procedure which they can understand and comply with. They are not concerned with issues of freedom of speech—indeed, that has been shown by the action of some major Internet service providers in other parts of the world.

I have not been asking for uncontrolled access to the Internet. I entirely accept the principle behind this—that something on the Internet, transmitted in material from a website, which is truly terrorist-related should be removed. It is simply that the police should not have the authority to enable them to go around removing any material which they have the slightest suspicion might possibly be of some interest to somebody for terrorist purposes.

I do not think that something "capable of being" understood and something "likely to be" understood are different in nature; they are simply different degrees of probabilities. Something is capable of being understood if it has maybe a one in 10 chance that it will be understood in that particular way. It is only likely to be understood if it has a 51 per cent chance. I think that the arguments for and against have been fully placed. I therefore seek the opinion of the House.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 148; Not-Contents, 147.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

4:39 pm
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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 5:

Page 5, line 9, at end insert—

"(3A) A notice under subsection (3) shall not be given unless it has been approved by an appropriate judge.

(3B) An appropriate judge shall not grant an application for approval under subsection (3A) unless he is satisfied, on the evidence before him, that the statement or the article or record is one to which subsection (1) applies.

(3C) The Secretary of State may make regulations relating to applications made under subsection (3A).

(3D) Regulations made under subsection (3C)—

(a) may provide for an application to be heard without notice to the relevant person and in his absence;

(b) shall provide that the relevant person and other persons having an interest in the matter may apply to a court for the revocation of the notice.

(3E) The first regulations made under subsection (3C) may not be made unless a draft of the statutory instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament.

(3F) Other regulations made under subsection (3C) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."

On Question, amendment agreed to.

Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 6:

Page 5, line 36, leave out "capable of being" and insert "likely to be"

Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, this amendment has already been spoken to but it is not consequential. I therefore wish to test the opinion of the House.

Photo of Lord Boston of Faversham

Lord Boston of Faversham (Crossbench)

My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content".

Noble Lords:

Content.

On Question, amendment agreed to.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendments Nos. 7 to 8:

Page 5, line 40, leave out "capable of being" and insert "likely to be"

Page 5, line 42, leave out "capable of being" and insert "likely to be"

On Question, amendments agreed to.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 9:

Page 5, line 43, at end insert—

"( ) Nothing in this section shall apply to a transmission which is excluded from a criminal sanction under the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002/2013)."

Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I hope that we shall have only a short debate on this point and I do not intend to test the opinion of the House. This amendment has been tabled in order to try to get an assurance from the Government. I understand that the Internet Service Providers Association has been having discussions with the Government. Internet service providers are keen to ensure that the protection given to them under the e-commerce regulations 2002 should not be overridden by the Bill. Those regulations implement a European Community directive that is binding on the United Kingdom. However, the ISPA is still not satisfied with the assurances given on the application of the e-commerce regulations, although its concerns have been met on a number of other issues.

The protections offered by the directive are essential to ISPs in the United Kingdom. Can the Minister answer questions which, if the answers are right, would have the effect of giving the assurances we seek? First, do the Government accept that exemptions from criminal proceedings under the e-commerce regulations should not be overridden by the Bill? Secondly, it appears not to be clear in the Bill that those exemptions do in fact remain in full force. Do the Government believe that the exemptions are not overridden by the Bill or, if they intend to deal with the problem at all, will they do so in some other way—and if so, how? In particular, are the Government contemplating secondary legislation—and if so, on what basis?

I should add that the concerns of the ISPA also extend to the possibility of forfeiture of members' servers under Clause 28. If that happened, it would be disastrous for an Internet service provider. My own view is that a court would have no power to do this and therefore I have not tabled an amendment on the point. However, the ISPA would be comforted if the Minister can confirm that this is also the Government's view. I beg to move.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, this amendment would ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protections in the Electronic Commerce (EC Directive) Regulations 2002 against criminal liability. "Mere conduits" are, broadly speaking, providers who supply transmission and access services. These are usually Internet service providers who may also perform a number of other functions.

During discussions between officials, the UK Internet Service Providers Association and LINX, the ambiguity of the relationship between the regulations and the Bill was of clear concern to the industry. The Government have been less concerned, although obviously not complacent, because of the way the offences in Clauses 1 and 2 are structured. The intent and subjective recklessness tests and the defences of non-endorsement in both clauses mean that mere conduits who would be very unlikely to know about the presence of statements equally would be very unlikely to be considered criminally liable under the terms of the Bill. However, to provide additional clarity, during the Report stage, I confirmed to the House that the Government intend to bring forward a statutory instrument which will apply the protection against criminal liability currently enjoyed by mere conduits to the Terrorism Bill, as well as other provisions of the regulations. It is the Government's aim to do so as soon as is practicably possible with the aim that it will be completed within this parliamentary Session. So I can say that all sides of your Lordships' House are committed to achieving the same effect. In essence we are seeking to examine the best means to provide the necessary protections via the statutory instrument which we intend to bring forward.

I cannot advise the House to accept the amendment as it confers far wider protection than is granted under the terms of the e-commerce regulations. I am sure that the noble Lord will accept that point. It does so by conferring protection on transmissions rather than just the mere conduits protected by the regulations. We believe that the approach I have outlined to solving this little problem is the best way forward, given all the other safeguards that exist, not least the requirement for intent or subjective recklessness. I do not believe that the short gap that may occur between Royal Assent and the making of the statutory instrument will place anyone at undue risk and certainly the industry does not seem concerned about the issue either.

The noble Lord, Lord Goodhart, sought another assurance about the seizure of articles under Clause 28. I can give the assurance on the ISPA request regarding search and seizure that the powers to search, seize and forfeit cover only articles that can be disseminated under Clause 2. Servers and other IT equipment owned by ISPs do not come under that definition. The noble Lord asked whether the Government accept that exemptions are not overridden—yes we do and, as I explained, we will deal with the matter through secondary legislation.

I hope that having heard what I said about the amendment and about our intention to bring forward a statutory instrument as soon as we can, the noble Lord will feel happy to withdraw his amendment.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, as I said at the beginning, I do not wish to test the opinion of the House on this amendment. Discussions between the Government and the ISPA and LINX are not concluded and no doubt there will be further issues. As regards your Lordships' House, for the time being we must leave the matter there. I hope that what the Minister said will prove satisfactory to the organisations concerned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 10:

Page 5, line 48, at end insert—

"( ) In this section "appropriate judge" means—

(a) in England and Wales, a circuit judge or a judge of the High Court;

(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;

(c) in Northern Ireland, a High Court judge."

On Question, amendment agreed to.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 11:

After Clause 4, insert the following new clause—

"DEFENCES

(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (3), it is a defence for a person charged with an offence to prove a particular matter.

(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter, the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

(3) The provisions in respect of which subsection (2) applies are sections 1(6)(b), 2(7)(b) and 3(5)."

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, the amendment relates to the standard of proof on matters that have to be proved by the defendant. A defendant is never required to prove anything beyond reasonable doubt, but there are two possible standards that a defendant may be required to meet. The higher of the two is that the defendant must prove his or her case on the balance of probabilities. The lower level is that there is what is known as an evidential burden of proof; that is, if the defendant produces enough evidence to raise an arguable case, the burden shifts back from him or her to the prosecution to disprove that defence beyond reasonable doubt. The lower standard—simply having to show an arguable case—has been applied in a number of terrorist defences; for example, the evidential burden of proof applies to seven different sections of the Terrorism Act 2000 by virtue of Section 118 of that Act.

Requiring a defendant to prove particular facts as part of his or her defence, of course, conflicts with the general presumption of innocence and must, therefore, be used only with great care and when really necessary. I accept that in some circumstances where the facts are in the particular knowledge of the defendant, requiring the defendant to give evidence of those facts may be justified. But a reverse burden of proof should not be used beyond that.

This amendment applies to three provisions. The first two apply respectively to Clauses 1(6)(b) and 2(7)(b), which are similar. They both provide that it is a defence for the defendant on a charge of publishing or disseminating terrorist statements to show that what was published or disseminated did not represent the defendant's own views and, furthermore, clearly did not represent those views. It can be argued that the first issue—that the statement did not represent the views of the defendant—is wholly within the knowledge of the defendant and, therefore, requiring him or her to prove that on the balance of probabilities is acceptable. But the second issue—was it made clear in the context that they did not represent the defendant's views—is different.

Let us look, for example, at a magazine which publishes an article which is sympathetic to the terrorist acts of Hamas. The magazine contains an article also which puts the contrary view. The magazine is prosecuted and the prosecution says that it has been acting recklessly. The publishers of the magazine satisfy the court that they do not agree with the article which is sympathetic to Hamas and that that article does not therefore represent their view. But the question arises: have they made that clear? That seems to be to a large extent an objective test. It depends not on the views of the defendants but on the likely reaction of readers, which is not within the specific knowledge of the defendants. I believe that it should be beyond doubt that once the defendants have shown what steps they took to make clear their disagreement with the views expressed in the article, it is for the prosecution to show that those steps were insufficient.

The third clause to which this amendment applies is Clause 3(5). This arises out of the problem of repeat statements; that is, where a blocked statement reappears in the same form through the same Internet service provider, which is very difficult to prevent. It is a defence under the Bill to show that the Internet service provider has taken every step it reasonably could to prevent a repeat statement being transmitted. It is reasonable to require an Internet service provider to give evidence about what steps it took. But the question of whether it should have taken further steps is technical, because it is a matter of having to tell the court what other steps might have been available to be taken, and objective, because it is a test of reasonableness. The burden of showing that the ISP could reasonably have taken further steps must once again be on the prosecution.

I accept, reluctantly, that it is legitimate to require the defendants to explain their views, or what steps they have taken to publicise those views or to prevent repeat statements being published. But it is wrong to require a defendant to prove matters which may not be within his own knowledge and may be objective in their application. The amendment aims to prevent what I believe would be an injustice and is inconsistent with the rules of our criminal process and the need to prove the guilt of the defendant. Any reverse burden of proof should be limited only to those elements of the offence which are primarily within the knowledge of the defendant and should not go beyond that, as the Bill now does. I beg to move.

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Lord Goldsmith (Attorney General, Law Officers' Department; Labour)

My Lords, I rise with a little trepidation as I have not taken part in this debate before. The House may know that I am deputising here for my noble friend Lady Scotland.

As the noble Lord, Lord Goodhart, has made clear, this amendment relates to the defences in Clauses 1 and 2 of the Bill, including as they are applied by Clause 3. The House has debated Clauses 1 to 3 at length, and plainly I do not want to go back over that ground. It is right, however, to remind the House that this is an area where the extensive amendments which have been brought forward into Clauses 1 and 2 have done two things. First, they make it clear that the Government have been prepared to listen to the concerns expressed in Committee and to refine Clauses 1 and 2 to take account of those. I refer particularly to the acceptance that the test of recklessness should be subjective rather than objective. Secondly, flowing from that, the result is the heavy burden on the prosecution in each of these offences. It was always a heavy burden, but it is heavier still. In particular, when one looks at the offences of recklessness, the prosecution will now have to prove beyond reasonable doubt the criminal standard; not simply that it would be reasonable to be concerned about the risk, but that there were those aspects of the defendant's own state of mind sufficient to justify subjective recklessness. It is important because one does not get into the defences under Clauses 1 and 2 until and unless the prosecution has proved that.

I know that at an earlier stage the noble Lord, Lord Goodhart, indicated that the switch of evidential or legal burden was a poor substitute for changing the intent that was necessary, and that the House has not gone quite as far as he wanted on that occasion. It is right to say that although this is not limited only to intent, it is subjective recklessness which is the only addition to it.

I also recognise that in these amendments the noble Lord accepts, in relation to Clauses 1 and 2 but not Clause 3, that the elements in the defence should be treated differently. He accepts that, he said, reluctantly. I am not sure why he said that, but never mind; he accepts that a defendant should have to show whether he himself endorsed these views. He accepts that in relation to Clauses 1 and 2, and therefore the defendant will continue to bear the legal burden in respect of that element. His concern in relation to Clauses 1 and 2 is showing whether it was clear in all the circumstances that the statement or publication did not express the defendant's view or have his endorsement. Under the amendment, the defendant would bear the evidential burden only in respect of this element; one needs to be quite clear what that means in practice. Having the evidential burden means no more than raising the issue, whereupon it is for the prosecution to prove—it may well do so before the defendant ever reaches the witness stand—that the defence is not made out.

In previous debates, the question of whether a burden should fall on the defendant has been discussed. It is not a straightforward matter. The House is also well aware that ultimately it may be for a court to determine whether it is appropriate to have placed a legal burden on the defendant in the particular circumstances. What is being provided by the Government in these clauses does not prevent the court from taking that view. The Government's view would be that it is perfectly right, appropriate, proper and compatible to place the burden in these circumstances on the defendant; but it would be ultimately for a court to say so. The noble Lord's final remark was that this is contrary to principles and present law. If that were so to the extent that it made the trial unfair, that is a matter the court could deal with.

I then look to why, in the Government's view, it is fair and reasonable to place the legal burden on the defendants in these cases. I start with Clause 3(5). I was a little unclear about what the noble Lord said. I may have misheard him but I understood him to accept that it was reasonable that the defendant should have to prove what steps he had taken. But the amendment would take that burden away from the defendant because it applies to the whole of the defence in Clause 3(5), not just a part of it.

5:00 pm
Photo of Lord Goodhart

Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I am grateful to the noble and learned Lord for giving way. My understanding was that if the evidential burden of proof is introduced, the defendant could not just say nothing. The defendant would have to give evidence about what steps he had taken. Once he had done that, unless they were plainly inadequate, it would be for the prosecution to say, "No, the steps you took do not amount to reasonable steps". I do not think that there is an inconsistency.

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Lord Goldsmith (Attorney General, Law Officers' Department; Labour)

My Lords, I cannot agree with that. On the example given, I am not sure that it would be necessary for the defendant to give evidence. However, for the purpose of argument, let us assume that. But what about the next limb of Clause 3(5) which, again, by the amendment, the noble Lord takes out of a legal burden on the defendant: that part of the defence is showing that he was a person to whom subsection (6) applied? Subsection (6) includes the fact that he is not aware of the publication of the repeat statement. The effect of the amendment would be—I am happy for him to intervene and explain otherwise but it seems clear—that the legal burden would be on the prosecution to prove that the defendant was someone who was aware of the publication of the repeat statement. There can be nothing more within the knowledge of the defendant than his own state of mind. We are at Third Reading; there is no coming back on the amendment. If the amendment were passed, there would be a real problem with the Act as then passed.

On Clauses 1(6)(b) and 2(7)(b), I accept that the noble Lord has been more precise in the parts that he has taken out. But let us examine the purpose of the defence. The defence would arise in circumstances where somebody published—and the prosecution would have to prove it—a statement which was, to put it crudely, a direct or indirect inducement to terrorism, as so understood by reasonable people. So the person has published the statement. He also has sufficient knowledge of the risk that the statement will induce terrorism, but is subjectively reckless about taking it. I do not want to try to define precisely what "subjective recklessness" means; it has been discussed before. The person publishes the statement and has sufficient knowledge that it may be an inducement to terrorism, but is prepared to take that risk.

I can imagine circumstances in which somebody—perhaps a broadcaster—is prepared to do that. That person says, "I realise that if I publish this on the television, or wherever, it may have the effect of inducing people to commit terrorism, but I think it is justifiable to take that risk because it is in the public interest". In those circumstances is it unreasonable to say to that person, "It is a defence for you to do that provided you do not endorse that view, and it is clear that you do not endorse that view"? Is it really unreasonable in those circumstances to say that that person needs not only to have the burden of taking that risk but of proving that that was the circumstance? I respectfully suggest that, given that we are providing this exception to meet that category of offence, it is not at all unreasonable to say, "You may take that risk but you must prove that you did not endorse the view expressed, and it was clear that you did not endorse it". That will very clearly put on to the person who chooses to take that risk the burden of making it clear that they did not endorse the view expressed, which would be an easy enough thing for them to do.

I respectfully suggest that the amendment would plainly require the prosecution to do something that would not be within its knowledge, at least in relation to the point that I made on Clause 3(5). It would also be unreasonable not to say to someone who is publishing this material with subjective recklessness, "You must take the risk and you must prove it". We must consider what lies behind this. I think that the House is agreed on the fundamental principle—we must stop people publishing statements which may encourage other people to commit acts of terrorism. I invite the noble Lord not to press the amendment.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I am grateful to the noble and learned Lord for his very full, clear and thorough explanation of his views. However, I remain largely unpersuaded by them. There is a strong case for applying the evidential burden rather than the higher burden in some cases, as was done in the Terrorism Act. However, we have made the case for the measure. I recognise that there are arguments on both sides. Therefore, I do not intend to divide the House and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Attendance at a place used for terrorist training]:

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 12:

Page 9, line 28, at end insert—

"( ) In proceedings against a person for an offence under this section it is a defence for him to show that he had at no time while attending at that place intended to further any of the purposes specified in subsection (1)(c) or to assist other persons to further such purposes."

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, Amendment No. 12 raises a freedom of speech issue. It seeks to amend Clause 8. Under Clause 8, attendance at a terrorist training camp is an offence whatever the defendant's motive for being there. Furthermore, it is an offence which carries a maximum sentence of 10 years, so it is very serious. The offence applies to attendance at a camp anywhere in the world and whether or not the terrorism involved is directed against targets in the United Kingdom. There could be a number of reasons for attendance at a terrorist training camp without having any intention to further terrorism, but I want to concentrate on one which I think is the most important of these—the effect that it will have on journalism.

It is surely a matter of public interest and, indeed, of very great importance to understand terrorism in all its different aspects. That has become increasingly clear in recent years since we have been threatened by and, indeed, have suffered terrorism in our own country, as we have done for many years. It is important to understand the objectives of the terrorists and how they plan to attain those objectives. Clause 8, as it now stands, would seriously hinder this. It would prevent a journalist from going to the camp under cover in order to report to the world what is going on. Furthermore, and perhaps even more important, it would prevent a journalist from openly—and with the knowledge and consent of those who are running it—visiting a training camp in, let us say, Chechnya or Sri Lanka, where the terrorism is not directed against the United Kingdom.

Clause 8 would, I believe, seriously undermine investigative journalism. That is also the view of John Simpson, one of our most important, experienced and respected reporters. In a long article in the Sunday Telegraph on 15 January, he said:

"Everyone who saw Peter Taylor's meticulous series on al-Qaeda recently on BBC television will remember how valuable it was in explaining the thinking behind the violent threat to our society and values. It was an important piece of work, thoroughly in the public interest. Yet already, according to Taylor's executive producer, Fiona Stourton, Clause 8 of the Terrorism Bill is making the investigation of their next series on al-Qaeda extremely difficult".

This is, of course, hearsay, but it is hearsay that comes from somebody who is in a far better position than I am—and probably than any other Member of your Lordships' House is—to form a judgment on these issues.

Furthermore, I believe that Clause 8 is plainly incompatible with Article 10 of the European Convention on Human Rights. To be compatible, the absolute restriction in Clause 8 would have to come within one of the permitted restrictions under Article 10.2. Is Clause 8, as it stands,

"necessary in a democratic society, in the interests of national security"?

In its full strength, it is plainly not. Is it necessary in the interests of,

"territorial integrity or public safety"?

Again, I believe not.

On Report, the noble Baroness, Lady Scotland, said that the proper thing for any journalist to do when they ascertain that a place that they are visiting is a terrorist training camp,

"is to leave and to notify the . . . authorities".—[Hansard, 17/1/06; col. 650.]

That would presumably be, for example, an obligation to go straight to notify the authorities in Russia—an obligation that is hardly likely to get the journalist into the camp or, if they get in, to get them out of it. It seems to me that this shows a total lack of understanding of the role and ethics of journalism.

We have gone some way towards meeting the Government's objections. The burden will be on the defendant to prove a defence on the balance of probabilities; the burden will not be merely evidential, as we proposed in our earlier amendments on the subject. However, the provision is plainly, I believe, a serious danger to freedom of speech. Moreover, it is a danger whose removal would, I think, offer no threat at all to the security of this country. It is important to allow people to make a case to explain why they were at the terrorist camp and to show that they were there for purposes that are in no way connected with the furtherance of terrorism. This is something on which I would certainly wish to insist; I hope that your Lordships' House will have the same view. I beg to move.

5:15 pm
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Baroness Kennedy of The Shaws (Labour)

My Lords, I support the amendment for all the reasons that have been outlined by the noble Lord, Lord Goodhart, and for another reason. It is important for the House to know that these camps are not like Sandhurst; they are often very informal and they are often in rural villages in places such as northern Pakistan or in tribal areas. They often operate on an ad hoc basis, put together because it is known that a number of people will be willing to attend at a particular time. People often travel there under cover of tourism or say that they are going to visit family members. Sometimes they travel with their womenfolk—wives or sisters—to provide that cover. Therefore, a woman may be there not because of any willingness to be associated with terrorism, but she would find it very difficult to assert her opposition because of the nature of the relationships and the power disparities that there are within many of those family situations, with which I am familiar. Therefore, I am anxious that there is an opportunity for women who are placed in those situations to be able to afford themselves of a proper defence.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I shall keep my comments brief, as we have rehearsed this territory on at least two occasions. I express my gratitude to the noble Lord, Lord Goodhart, for at least providing us with the opportunity to come to a view as a House. Nothing in this clause, or the Bill as a whole, will in any way hinder the work of legitimate investigative journalism or legitimate academic pursuits. I repeat the point that was made very capably on Report by my noble friend Lady Scotland; a journalist who has suspicions that terrorist training is taking place can take steps to establish whether there is any foundation to their suspicions. However, at the point when those suspicions have been confirmed, the correct course of action is for that journalist to leave and alert the appropriate authorities. That is as true for journalists as anyone else.

On Report, many noble Lords pointed out that journalists or academics may want to interview guerrilla leaders for the purposes of furthering knowledge and understanding of the purpose and methods of their movements. That is an understandable, laudable and highly desirable activity. I am sure that many of us have benefited from reading important contributions towards that understanding. I can think of one or two books that I am sure have been gleaned as a result of interviews with those who are very close to or who are involved in guerrilla activity. However, as was explained in correspondence to the noble Baroness, Lady Williams, on 24 January, there is no reason why those interviews cannot take place, provided that they do not happen in a place where terrorist training is being provided.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I am grateful to the noble Lord for giving way. Is he really suggesting that it is perfectly legitimate for a serious journalist to have an interview with a terrorist leader 10 yards outside the gates of the camp, but once he goes through those gates he is committing an offence that is punishable by 10 years' imprisonment?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, clearly a practical view will be taken of the circumstances in which interviews are given.

As we have indicated before, we consider that this amendment would allow a significant loophole. It is not difficult to imagine that our courts may be faced with a steady stream of people claiming that they were simply observing but not participating, and that is not acceptable. The Government's position is clear; no one has any legitimate reason to be in a place where they know that terrorists are being trained. It is as simple as that. We simply should not allow a get-out clause. I am confident that terrorists would not be slow to exploit one.

In the light of what has been said and, in particular, the reassurances that we have given and sought to offer in respect of journalists—whose work must clearly be encouraged and fostered—I had hoped that the noble Lord, Lord Goodhart, would withdraw his amendment. Having heard what he said earlier, it seems extremely unlikely that he will. We simply have to draw a line here and express our clear difference of view on how this part of the legislation—

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Baroness Kennedy of The Shaws (Labour)

My Lords, before the Minister sits down, I took his slight barb that there had been no reception of any notice from me that I would raise the issue of women. I should have thought that the Government, being so mindful of women's issues, would have had that before them in any event. The reason I raise it today, not having raised it before, is that it has only just been drawn to my attention how people going to such camps frequently use women as cover. It is important that the Government have a view on whether such a woman would have a proper defence.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I suspect that the noble Baroness's understanding of what she described as informal camps is accurate. She clearly is knowledgeable on the subject and knows much more about it than I. No doubt such a defence could be offered in those circumstances, but that does not deter me from the view that we have expressed before on this amendment and how it has been argued by the noble Lord, Lord Goodhart. We clearly have a difference of view, and no doubt the noble Lord will seek to ensure that that difference of view is expressed by your Lordships' House.

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Baroness Kennedy of The Shaws (Labour)

My Lords, I am sorry to interrupt again, but unless there is a possibility of a defence for such a woman, then she will be convicted for being there in attendance with her husband. The expectation seems to be that she should leave and notify the authorities. That is unrealistic, given our understanding of the situation that often prevails in relationships in Pakistani families. It is important for the Government to address that, so that we do not find women in an impossible situation before the courts were they to be present, but unwillingly, in such a camp.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, the noble Baroness is clearly entitled to her view and interpretation of how the legislation will work. We happen to disagree with that.

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Lord Goodhart (Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, it seems that the Government's position combines the risk of serious damage to journalism with the absence of any benefit whatever to our national security. I want to read another passage from what John Simpson wrote. He said:

"There have been unreflective, knee-jerk laws in this area in the past: the ban on broadcasting the sound of Gerry Adams's voice, for instance. It will be much harder to defend society better against terrorism if we prevent journalists from finding out the precise nature of the threat against us. Does the Government really mean to do this amount of damage to the meticulous, independent journalistic investigation of terrorism? Surely not".

Unfortunately, the Government have shown that their answer is "Surely yes". In those circumstances, I must take the opinion of the House.

On Question, Whether the said amendment (No. 12) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 145.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Clause 21 [Grounds of proscription]:

5:34 pm
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Lord Lyell (Conservative)

My Lords, Amendment No. 13 stands in the name of the noble Lord, Lord Thomas of Gresford. I should advise the House that there is a mistake in the amendment. It should read:

"(a) after 'terrorism' in subsection (4), insert 'advertently or by design';

(b)"

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Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 13:

Page 18, line 33, at end insert—

"(a) after "terrorism" in subsection (4), insert "inadvertently or by design";

(b)"

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, the Government have very properly accepted that intent and recklessness should be an element in the offence under Clause 1 where a person publishes a statement to which the clause applies.

There is a loophole, because the Government could say, "We cannot prove intent or recklessness in this particular case. We will get the Secretary of State to proscribe the organisation to which this individual belongs. If the Secretary of State does that, and no question of intent or recklessness comes into it, then we can do him simply for being a member of that organisation". He will face exactly the same penalty—up to 10 years' imprisonment—for being a member of an organisation or, if he wears a T-shirt or carries a banner, up to two years' imprisonment. This is therefore a small amendment to Section 3(4) of the Terrorism Act 2000, which sets out the mechanism by which the Secretary of State adds an organisation to Schedule 2—proscribes it—with the effects to which I have alluded.

All that "advertently or by design" adds is that the Secretary of State, in exercising his power to proscribe an organisation, must believe, first, that it is concerned in terrorism; and, secondly, that it is deliberately concerned in terrorism, not by accident. It may well be that if a person inadvertently published something that would answer the definition of "indirect encouragement"—

"the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it"—

the Secretary of State could exercise his powers under Section 3(3).

These are two simple words, which are simply trying to introduce into the concept of proscription an intent on the part of the organisation to support terrorism. I beg to move.

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Baroness Williams of Crosby (Liberal Democrat)

My Lords, on some occasions there is nothing so powerful as an example. This is a good occasion briefly to bring such an example to the attention of the House.

In the course of the passing of the Terrorism Act 2000, provision was made for setting out a list of proscribed organisations, and then to add to it or—in certain circumstances, rarely met—to take a proscribed organisation off the list. In March 2001, an organisation rather amazingly known as Hamas-Izz al Din al-Quassem Brigades was added to that list; we know it as Hamas. It came in two forms. One was a military and terrorist organisation, which will be familiar to those who follow the affairs of the Middle East. The other was a charitable organisation which, among other things, provided welfare, hospitals and medical attention to the people of Palestine. Both those parts of the organisation are on the proscribed list.

My noble friend Lord Thomas of Gresford has pointed out that if somebody wildly enthusiastic about the electoral success of Hamas in the past few days were to appear outside the Houses of Parliament wearing a T-shirt saying "Victory to Hamas", she would be liable to a two-year sentence. If she appeared and shouted the words "Victory to Hamas" within one kilometre of the Houses of Parliament, she would have committed an offence which could, in turn, lead to considerable imprisonment.

I mention that because we are all aware in this House that we are literally on the edge of an extremely difficult political decision on what one does about a terrorist organisation that decides to cease to be—which Hamas has not yet done but may do at any moment—a terrorist organisation and which abjures violence for the pursuit of electoral victory. We are familiar with this because of the endless drawn-out process under which the IRA has slowly moved from being a terrorist organisation to being part of the political process—and it has been something of a nightmare to decide at what point that organisation changed from one to the other. It is not, however, any longer an academic matter, apart from Northern Ireland. It is an all too present matter and one which means that it would be difficult under this law and its associated laws for British citizens to talk to representatives of Hamas and to do so without any risk of being possibly regarded as supportive of a terrorist organisation.

I believe that my noble friend's amendment helps to some extent. It does not of course cross the huge question of how we legislate for that change to be made. If we are bent on the concept that we want to see democracy extended to more and more parts of the world, that will involve necessarily more and more so-called terrorist or, if you like, freedom-fighter organisations having to choose to become constitutional and democratic. So far none of our legislation gives us any indication of how that can be done. My purpose in rising to support my noble friend is to hope that the House will support his amendment, modest through it is, and to give the Government an opportunity, if the Minister wishes to take it, to say how they intend to tackle this extraordinarily difficult problem.

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Baroness Kennedy of The Shaws (Labour)

My Lords, I support the amendment. In doing so, I mention the organisation Hizb ut-Tahrir. Hizb ut-Tahrir is an Islamist organisation that has views with which many will disagree, but which clearly enunciate its opposition to violence. I was recently involved in a case in which a number of eminent public figures gave evidence about the nature of Hizb ut-Tahrir—and from which I learnt a great deal.

One concern I know that the Government have is the belief that there are oganisations which, although they themselves may not be espousers of terrorism, may because of their strong views act, even unintentionally, as a conveyor belt towards terrorism. That view should be approached with great caution. Many senior police officers and human rights organisations involved in these issues are very anxious that we do not alienate large numbers of people by creating or outlawing organisations whose views we may not espouse but which are not supporters of violence and which in many ways denounce the use of violence. In those circumstances, I am most anxious that we incorporate the idea of intent into this part of the Bill.

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Lord Hylton (Crossbench)

My Lords, the noble Baroness, Lady Williams of Crosby, has mentioned Hamas in supporting the amendment. I should like to refer to the PKK in Turkey and to the MEK or People's Mujaheddin of Iran as regards Iran. The latter organisation benefits from massive support in both Houses of Parliament, which may surprise some, but it is perfectly true. There arises in this connection the question of ceasefires and when organisations have or have not come forward with a genuine ceasefire and with a genuine intent to negotiate with governments and others. So I am very much in favour of the two words which this amendment inserts into the Bill.

5:45 pm
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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, in essence, I guess that the noble Lord, Lord Thomas of Gresford, wants to know whether an intent requirement is contained within the new grounds of proscription set out in Clause 21. Intent is a matter that can be proved only in a criminal trial, so it is not an appropriate concept to import into proscription. Nevertheless, there are important safeguards that will ensure that proscription does not happen in inappropriate cases.

It may be worth reminding your Lordships of how the proscription regime operates. If the Secretary of State believes that an organisation has been concerned in terrorism, he may by order add it to the list of proscribed organisations. However, the order must be approved by both Houses of Parliament, subject to the affirmative resolution procedure. Parliament has the absolute right to reject such an order if it disagrees with the Secretary of State's decision that an organisation has been concerned in terrorism and warrants proscription.

In reaching its decision on the provision on grounds of proscription in Clause 21, Parliament can have regard to any statements issued by or on behalf of the organisation and the context and manner in which they were made. In that respect, amendments passed in your Lordships' House at Report stage may not be as helpful as the previous version of Clause 21, which included a description of "unlawful glorification". However, the Government are carefully considering our response to the amendments and may address them in another place.

I am conscious that generally, in regard to proscription, Parliament is required to some extent to take advice from the Government on trust. It has been the Government's practice to make available a sanitised version of the intelligence cases against groups that are candidates for proscription but, for obvious reasons, the detail of the intelligence must remain confidential. That is unlikely to be the case for organisations being proscribed on the basis of their indirect encouragement of terrorism. The reason for their prospective proscription will be their public statements, so Parliament will be able to assess the case against the organisations in question and determine whether the Secretary of State was right to say that they are suitable candidates for proscription. Among the factors that can be to taken into account is the nature of the statements in question.

The Secretary of State, and Parliament in deciding whether to uphold his decision, will be able to consider whether the statements were such as to lead a listener to infer that he should emulate it. Parliament will also be able to consider whether the statement in question was a one-off mistake that did not usually and actually associate the organisation with the indirect encouragement of terrorism, or was symptomatic of the behaviour of the organisation. In forming that decision, the only issue at stake is the behaviour of the organisation. That is what both Houses of Parliament consider when deciding whether an organisation has been correctly proscribed. The process by which they reach their decisions will only be confused if it is suggested that they should stray outside those parameters.

Once an organisation has been placed on the list of proscribed organisations, it, or someone affected by its proscription, can appeal to the Secretary of State against proscription. If he does not accept the appeal, the matter can be appealed to the Proscribed Organisations Appeal Commission, an independent judicial tribunal. If the Proscribed Organisations Appeal Commission dismisses the appeal, it is still possible for further appeals to go to the Court of Appeal or its equivalents in Scotland and Northern Ireland.

Those arrangements are appropriate and would not be improved by the amendment. It does not add clarity to the way the Secretary of State makes his decision; nor, for that matter, does it change how both Houses of Parliament will consider the case for proscription and either accept or reject it. In any case, it is inappropriate to seek to impose a statutory intent test in a matter that is not the subject of a criminal trial. The existing safeguards governing proscription are substantial and, we argue, have worked well.

The noble Baroness, Lady Williams, made some interesting comments and reflections on the proscription of Hamas, but it is worth reminding the House that it is only the military wing of Hamas that is currently proscribed. The political wing of that body is not proscribed, so it would not be affected in the way in which the noble Baroness suggests.

My noble friend Lady Kennedy of The Shaws made comments about Hizb ut-Tahrir. Again, that organisation is not currently proscribed. The list of proscribed organisations is kept under review. If the Secretary of State decides that Hizb ut-Tahrir meets either the current criteria for proscription or those in the Bill, the matter will, as I have said, need to be endorsed by Parliament. The same point arises in response to the noble Lord, Lord Hylton. I do not intend to comment in detail on individual cases, as that would be inappropriate while discussing legislation which, after all, provides the framework for those later considerations. The amendment is unnecessary, and would add nothing to the process of proscription. It would, if anything, confuse that process, which, as I believe most noble Lords accept, has worked very adequately until now. For those reasons, I hope that the noble Lord will withdraw the amendment.

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Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I am most grateful to the Minister for his response. I have not used the word "intent" in my amendments for the very reason that he stated; intent is a matter for proof in the criminal court. Instead, I have sought to circumscribe to a very small degree the discretion which the Secretary of State has in deciding whether to proscribe an organisation. However, I have listened with care to the safeguards to which the Minister referred, and note particularly that there is parliamentary scrutiny of the Secretary of State's decision and that affirmative orders are required before proscription can be affirmed.

Mindful of the fact that the clause is to be considered later in another place, I am prepared to withdraw the amendment, and express my great thanks to those who have spoken in favour of it in this short debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

moved Amendment No. 14:

After Clause 29, insert the following new clause—

"COUNTER-TERRORIST POWERS

(1) Part V of the Terrorism Act 2000 (c. 11) (counter-terrorist powers) is amended as follows.

(2) In section 44 (authorisations)—

(a) in subsection (3), for the words after "if" to the end, substitute "the person giving it reasonably considers it to be necessary for the prevention of acts of terrorism";

(b) after subsection (3) insert—

"(3A) The area or place specified in the authorisation may not be greater in extent than is necessary for the purposes of the authorisation."

(3) In section 46(3) (duration of authorisation), after "practicable" insert "and in any event within 24 hours".

(4) After section 46 insert—

"46A PUBLICITY

The Secretary of State shall publicise without delay and in such manner as he considers appropriate, the confirmation, cancellation or renewal of an authorisation under sections 44 and 46.""

Photo of Lord Thomas of Gresford

Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, your Lordships will recall that more than 20 years ago, the Police and Criminal Evidence Act 1984 abolished the infamous sus laws, which had enabled policemen to stop and search and to arrest individuals on the street without any cause. As a result of that Act, an officer was required to have reasonable grounds for suspecting that when he stopped and searched someone, he would find a weapon or stolen articles or tools for the purpose of committing offences. That is the basic law, to which Section 44 of the Terrorism Act 2000 is a very considerable exception.

When the noble Baroness, Lady Scotland, replied to a similar amendment moved by the noble Baroness, Lady Kennedy of The Shaws, she said:

"We think that Section 44 is merited and that it does exactly what it was intended to do inasmuch as stop and search under Section 44 of the Terrorism Act 2000 is an important tool in the ongoing fight against terrorism".—[Hansard, 20/12/05; col. 1635.]

Having listened to that point, I checked what was said when the Bill that ended in the Terrorism Act 2000 was introduced. In the House of Commons on 14 December 1999, Mr Straw said:

"The main purpose of the Bill is not to extend the criminal code, but to give the police special powers to enable them to prevent and investigate that special category of crime. Those powers include an enhanced power to arrest and detain suspects, and powers to set up cordons, to stop and search vehicles and pedestrians, to investigate terrorist finances and to examine people passing through ports.

"The police have no interest in using those powers in circumstances in which the normal criminal law will suffice, nor do they have the resources to do so. In 1998, only 45 people were detained in connection with terrorism, and extensions of detention were granted for just 21 of them".—[Hansard, Commons, 14/12/99; col. 162.]

Considering those words given by way of introduction to Section 44 of the 2000 Act, it is fair to say that the Home Secretary had in mind a limited power to be exercised in limited circumstances. Indeed, save in one or two respects, the power was limited.

Authorisation under Section 44 for a uniformed constable to stop a vehicle or a person in a place specified in the authorisation was limited, for example, to a certain period of time. It was to be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and could be exercised whether or not the constable had grounds for suspecting the presence of articles of that kind, but only for a period of 28 days beginning on the day on which the authorisation was given. The authorisation could be given only if the person giving it considered it expedient for the prevention of acts of terrorism. Those were the limitations of the 2000 Act and it is interesting to note how the legislation has been applied.

When the Act came into force in 2001, not 45 people were arrested under the powers, but 10,200; by 2003–04 that number had risen to 33,800, and the most recent report from the Home Office records 35,776 searches of vehicles and people, of whom only 455 were arrested—not for terrorism offences but for matters discovered on their arrest under Section 44.

On the type of people who have been arrested, a detailed breakdown of those stopped in 2003–04 under this Act showed that more than one in five was black or Asian, and of course that was before the events of last July, since which time there has been a huge increase in the number of black and Asian people who have been stopped. Noble Lords may recall that while saying that they were not stereotyping, the British Transport Police issued a directive to their officers saying that they should target a part of the population.

Another group which has been targeted is demonstrators, the most famous of whom is Mr Walter Wolfgang, who was arrested under Section 44 powers at a Labour Party conference. A Mr John Catt, an 81 year-old anti-war campaigner was stopped while making his way through Brighton to an anti-war demonstration wearing an anti-Blair T-shirt. So the initial purposes announced by the Home Secretary back in 1999 for the way the powers under Section 44 were to be used have been ignored. The result is a grave danger that sections of the population will feel as targeted under this provision as those who were targeted under the sus laws, abolished some 22 years ago.

So it is in that context that I put before noble Lords this modest amendment. It would substitute the words,

"the person . . . considers it expedient for the prevention of acts of terrorism",

with the words,

"'the person . . . reasonably considers it to be necessary for the prevention of acts of terrorism'".

The amendment also attempts to limit the area in which the provision can be applied. Since 2001, the whole of the Metropolitan Police area has been designated within which the powers of the section can operate. Noble Lords will recall that initially the power was to be given for 28 days in very specific circumstances directly related to terrorism. Now the whole of the Metropolitan Police area is designated on a rolling basis. At the end of a 28-day period, the person who authorised the previous 28-day period signs a piece of paper, takes it to the Home Office where it is rubber-stamped, and the period is renewed for a further 28 days. That has been repeated over a period of five years. No thought is given to individual circumstances.

For example, one can understand that if a political party conference is being held in Brighton and there are security problems, an authorisation under Section 44 is justified. But to designate the whole of the Metropolitan Police area on a rolling basis year after year was not the original intention of the Act. So the third amendment to the section I want to introduce provides that:

"The area or place specified in the authorisation may not be greater in extent than is necessary for the purposes of the authorisation".

It should relate to the area where terrorist activity is thought to be likely to take place. I shall turn to the question of publicity in a moment.

The Act requires the person authorising the powers under Section 44 to inform the Home Secretary "as soon as practicable", to which I seek to add the words,

"and in any event within 24 hours",

and finally, to introduce some transparency. The noble Baroness, Lady Scotland, suggested that we do not tell anyone which areas are subject to an authorisation under the Act, because all the terrorists will go to some other area and therefore that would be wrong. That is not a sensible way of proceeding: if a particular part of London, or of England and Wales is thought to require this special protection, the public should know about it and it should not be a matter of operational secrecy simply rolling over the authorisation, as has happened over a wide area. That is the reason for the final part of the amendment on publicity: that,

"The Secretary of State shall publicise without delay and in such manner as he considers appropriate, the confirmation, cancellation or renewal of an authorisation".

Obviously we on these Benches are anxious—as are noble Lords in every part of the House—to have effective tools to combat the curse of terrorism in our society, but we believe that those tools need to be focused, specific and not in themselves to cause a problem in the community by bringing about a sense of grievance among tens of thousands of people who are being stopped and searched for no proper reason. I beg to move.

6:00 pm
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Lord Thomas of Swynnerton (Crossbench)

My Lords, I speak as the father of someone who was once stopped in such circumstances. He looks a responsible person; indeed, once when he was at university he was in this House and asked by the then-Conservative Whip to delay his departure from the House on the grounds that the Whip supposed he was a hereditary Peer, so I assume that he looks respectable in normal circumstances. He was stopped in Walton Street on his way to a luncheon appointment. All his possessions were put on the pavement. He was detained for about 40 minutes and was therefore late for lunch. To be late for lunch is not a very serious matter, but there is no question that if the police did not cause a sense of grievance they caused a sense of distress and anger in the person concerned—perhaps anger is too strong, but in all events there was a sense that inconvenience had been unnecessarily caused. I shared that naturally, because I always side with what my family does or does not do. I have heard my son pouring ridicule on the police in consequence of that action, which seemed an excessive intrusion on his privacy.

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Lord Harris of Haringey (Labour)

My Lords, I agree with the views that have been expressed about the abuse of the former sus laws and that it would be extremely undesirable if Section 44 of the Terrorism Act 2000 was abused, misused or used in a totally inappropriate circumstances. I cannot comment on the account given by the noble Lord, Lord Thomas of Swynnerton, of what happened to his son. It may not have been a reasonable use of powers under Section 44.

However, we have to examine what the powers are there for. I have not had the opportunity of looking in detail at the comments that the noble Lord, Lord Thomas of Gresford, quoted from my right honourable friend Jack Straw. In that context I do not know whether he was introducing just this section or a wider part of the Bill, but my understanding of Section 44 has been that it is used under a range of different circumstances. It may be used in relation to a particular location, where there is a specific concern.

I would like to pose a question to your Lordships' House. If, for example, there was intelligence suggesting that a particular site was in danger and by taking action in response the source of that intelligence would be compromised, I think that publicity would not be helpful and that highlighting a particular location and therefore potentially the source of the intelligence would be a mistake. Similarly, if a counter-terrorist operation was under way in a particular area—for example, a surveillance operation involving a number of properties—it might be a proper use of Section 44 for the police to be stopping either at random or virtually everyone in the surrounding area. However, because it was a continuing operation, it would not be in the interests of that operation to publicise the fact that the operation was in process.

There needs to be very careful thought on this amendment. In the context that we are talking about, I certainly do not see that publicity will ever be helpful. It is also important that there is the opportunity—I know that the police authority of which I am a member takes this very seriously—to monitor closely the use of these powers, the way in which it happens, the circumstances and the statistics that are available. But there should also be the opportunity to get underneath that in order to know what guidance is being given to individual police officers on how they should use Section 44 powers when an authorisation is in force and to understand what happens when a police officer uses the power.

One very clear message relating to the problems arising from stop and search in other contexts is that the way in which the stop takes place causes the most offence—whether people are treated individually with respect or whether they are given any reason. I do not know the precise details of the example given by the noble Lord. But a lot of hurt, irritation and subsequent anger is mitigated if individuals are treated with respect and an explanation is given which at least they can understand. They would be able to say, "Yes, clearly, I am not who you are looking for" or "I am not the sort of person you are looking for". It should be done in a way where that explanation is given.

While I understand the nervousness about the Section 44 powers, we need to be very cautious about the amendment. It will impede counter-terrorist activity in a number of circumstances. It would be dangerous to pursue the lines that have been set out. I hope that after the Minister's reply the noble Lord will withdraw the amendment.

Finally, the noble Lord, Lord Thomas of Gresford, made much of the growth in the stop and search figures. But Section 44 of the Terrorism Act was part of the Terrorism Act which was passed in 2000. It was prior to the events of September 11 in New York and Washington and, of course, long prior to the events of last July. I do not find it surprising that the number of stops that have taken place under the terms of the Terrorism Act have increased sharply since the initial period after the introduction of the Act.

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Lord Hylton (Crossbench)

My Lords, I think that the noble Lord has been a member, and perhaps still is a member, of police authorities. What is his view on the application of this power to the whole of the metropolitan area for a considerable period of years?

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Lord Harris of Haringey (Labour)

My Lords, I have discussed this in some detail. If you go through London borough by London borough to identify potential targets, your Lordships may be surprised to know that there is no London borough which does not have significant potential targets in its area—whether they are installations of military significance or of major importance to the infrastructure or to the functioning of the state, or whatever else. Every part of London could potentially be a target. If you add to that the present objective of the terrorism that we are having to deal with—to inflict mass casualties—you start to think about places of entertainment, major shopping centres, football stadia and so on. It becomes very difficult to say that there is no part of London which is immune.

Whether the approach of saying, "Let us designate the entire metropolitan police district rather than being a bit more selective" is right or whether it is right that this should happen on a regular basis, it is not appropriate to comment. But I come to where I started when I intervened initially. Clearly, the police in using the powers under Section 44 must be very mindful of the danger of misuse and must avoid a situation in which we have recreated the sus laws, which many of us were involved in arguing against at the time. That is why I come back to the way in which the Act is used—the way in which guidance is given to individual police officers about the circumstances in which they should do this, the way in which the stops take place, and the nature of the interaction between the police stopping an individual or a car and what is said to the individual concerned.

6:15 pm
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Lord Lloyd of Berwick (Crossbench)

My Lords, I apologise to the noble Lord, Lord Thomas, for having missed the first minute or two of what he said in moving this amendment. The powers under Section 44 are of great utility. Everyone agrees with that. Like many others, I am concerned that they are being used to an extent which is far in excess of whatever anyone originally imagined and, in some cases, are clearly being abused. The amendment is carefully drawn to limit the opportunities for abuse and to confine the powers to within the limits which were originally intended. I lend strong support to the amendment.

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Baroness Kennedy of The Shaws (Labour)

My Lords, I, too, support the amendment. I want to elucidate some of the confusions existing around this amendment. I had originally placed an amendment before the House, which I accept was probably much too complicated. I am grateful to my noble friend on the Liberal Democrat Benches for making a better go at this than I did. The reason why I support the amendment—and the reason why I think there is some confusion—is that when Section 44 was brought into the terrorism legislation in 2000, there was agreement that there could be circumstances in which stop and search should not require a reasonable suspicion and that the circumstances would be of such an extreme kind that one would want to move away from the police being expected to have a reasonable suspicion, which is what we require ordinarily.

We were saying that there could be circumstances where, for example, the whole of Whitehall—because of information or because an event was taking place, such as a visiting dignitary—has to be subject to greater scrutiny and security and everyone, or every fifth person, has to be searched. One did not want to have the possibility of an individual police officer looking around and saying, "I'm going to search that chap there", because of the risk of discrimination in that. It may be that when my noble friend on the Cross Benches described the stopping of his son, it was because a police officer on a whim decided that here was a toff who looked like a Lord and that he would interfere with his going on his way. I do not know what the motivation was. But as regards the suggestion that politeness or giving a good reason would meet the problem, this is precisely where a policeman does not have to give a reason. The point of Section 44 is that no reason has to be given.

It gives an incredibly new power to a police officer. For that reason, it should be used only in very special circumstances and in ways which are not discriminatory. This amendment attempts to put those limits back. There is clear evidence that police officers use it to select people without knowing full well that they will not be required to give a reason. That is the difficulty which we have to countenance.

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Lord Harris of Haringey (Labour)

My Lords, I understand the point that my noble friend makes. There is a distinction between not having to have reasonable grounds of suspicion of an offence or whatever and making the stop; but there is then a distinction concerning what you say to the individual. In circumstances where you stop the person and say, "We are stopping you because we are stopping one in five of the people going down this road"—I doubt whether that was the circumstance to which the noble Lord referred—people can understand that.

Similarly, in wider cases of stop and search, if you say, "We are stopping people with yellow anoraks with hoods over their heads, because someone has just been seen doing something, and you happen to have a yellow anorak with a hood over your head", that again people can understand. They may still resent it, but it removes some of that sense of hurt. I am not trying to suggest that simply being polite and providing that sort of background reason is a sufficient guardian against abuse of the power. I am saying it is an important component, and one which police authorities will take extremely seriously.

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Baroness Kennedy of The Shaws (Labour)

My Lords, to respond to the points made by my noble friend, the example he gave of the person in the yellow coat answering a description is precisely the circumstance in which you do not use Section 44.

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Baroness Kennedy of The Shaws (Labour)

My Lords, the point of Section 44 is that you do not have to have an explanation. The difficulty, about which many organisations complain, is that police officers are not understanding the provision. Indeed, the Metropolitan Police Authority raised this as a source of anxiety, saying that it was interfering with trust in the police and they were worried about the consequences. Their powers are not sufficiently explained to them, and are using the provision in ways which are indiscriminate. As a result they are discriminating, using their powers most particularly against people deemed to be politically active, or who are brown-skinned and who look as though they may be Arab or of Islamic persuasion, or for whatever other reason they think might be involved in terrorism simply on appearance. That inevitably leads to real alienation within certain communities. That is what we have to guard against and the amendment attempts to return limitations to this power, to ensure that it is used only in the proper way.

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Lord Harris of Haringey (Labour)

Then before my noble Friend completely sits down, my Lords, the first three parts of the amendment are precisely that in terms of setting definitions about the way Section 44 might be used. They clearly tighten the definition, and that may meet some of what the noble Lord and my noble friend are trying to achieve. But the fourth point, about publicity, seems to be a separate issue and I am not sure that it is helpful to the objectives the noble Baroness is trying to encourage us to meet.

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Baroness Farrington of Ribbleton (Baronesses in Waiting, HM Household; Labour)

My Lords, I remind my noble friend that this is Third Reading. Important points of elucidation are allowed if the noble Baroness gives way, but we may not go back to having a thorough debate at Third Reading.

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Lord Kingsland (Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament; Conservative)

My Lords, the noble Baroness is correct about the state we have reached in the Bill. However, it was such an attractive and free-flowing exchange that I am sure your Lordships, in those circumstances, will be entirely forgiving.

The noble Baroness, Lady Kennedy of The Shaws, was extremely modest in the way that she said to the noble Lord, Lord Thomas of Gresford, how much he had improved the amendment. He has, indeed, improved the amendment; but we owe the noble Baroness a great debt for introducing it in the first place.

I entirely agree with the noble and learned Lord, Lord Lloyd of Berwick, that Section 44 plays a vital role in combating terrorism. Your Lordships should not be in any doubt about that. Yet it is important that it combats terrorism in a way that does not adversely affect the community from which so many of those who are stopped and searched come. Without the confidence of that community, we are never going to get to grips with the terrorist threat.

What the noble Lord, Lord Thomas, has achieved in this amendment is getting the right balance in both the circumstances of stop and search, and defining the relevant geographical area. One can argue about the exact nature of the text, but we have here, in my view, the best of all possible worlds. I for one, on behalf of the Opposition, intend to support it if the noble Lord presses it to a vote.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I agree with the noble Lord, Lord Kingsland, that although strictly speaking we were not working within the confines of debate at Third Reading, it was a useful exchange and there was value added through the points made. Although we may ultimately disagree, and it seems as though we will have a Division on this, there is a spirit in your Lordships' House which recognises that there is a real and genuine problem, that there is merit in the current way in which the powers work, and an understanding at least of the import of those powers in combating terrorism. There is a shared objective to do exactly that.

We have debated these issues at some length, and it is not my intention to go over so much of the ground. It is plain that we in the Government do not agree with the amendment and that we are satisfied with existing arrangements, but it is worth reminding your Lordships' House of some key points which I think are highly pertinent.

As the noble and learned Lord, Lord Lloyd of Berwick, recognised, stop and search under Section 44 of the Terrorism Act 2000 is an important tool in the ongoing fight against terrorism. It is part of a structured anti-terrorist strategy. The powers help to deter terrorist activity by creating a more difficult environment for would-be terrorists to operate in. An authorisation under Section 44 of the Terrorism Act gives the power to stop and search pedestrians, vehicles, drivers and passengers, in the area specified in the authorisation. An authorisation can only be given if it is expedient for the prevention of acts of terrorism. I do not agree with the point that was made about them being merely rubber stamped. They have to be made by an officer of ACPO rank and must be confirmed by the Secretary of State within 48 hours in order to remain valid after that period. The powers can be authorised in particular locations and for a particular period of time. The noble Lord, Lord Harris of Haringey, made some extremely important points why that might be, in particular with regard to London.

The noble Lord's proposal would amend the grounds for authorisation of the powers from "expedient" to,

"necessary for the prevention of acts of terrorism".

The terrorist threat is, as we all recognise, evolving. It has changed much since the passing of the Terrorism Act 2000. The terrorist threat is now much higher and has changed in its nature, from hostile reconnaissance through to the planning and commission of actual attacks. Applying grounds of necessary for the prevention of acts of terrorism would demand, I argue, an untenable threshold to be reached, and would require a level of intelligence about the specific movements of terrorists that would greatly reduce the police's capacity to deter and disrupt terrorist activity proactively. Intelligence rarely allows such a defined threat to be identified, and the police must be allowed to make informed and evidenced assessments of where the powers are best utilised, based on the information available.

The noble Lord, Lord Thomas of Gresford, made much of the increase—as he put it—of stops and searches since previous legislation. Our point is simply this: Section 44 of the Terrorism Act is the equivalent of previous powers contained in the Prevention of Terrorism (Temporary Provisions) Act 1989, something of which the noble Lord, Lord Kingsland, will no doubt be familiar. Numbers of people stopped and searched under those powers were at a similar level in the late 1990s to the latest published figures under Section 44. It is important to differentiate between arrest and stop-and-search powers. Arrests are not necessarily a measure of the effectiveness of these powers, but they do help to deter, disrupt and detect terrorist activities.

It may help the House if I provide some further statistical information in terms of the section and the way it is operated. In 2003–04, of the vehicle occupants stopped and searched under Section 44(1), 70 per cent of those searched were white, 10 per cent were black, and 12 per cent were Asian. Of the pedestrians stopped under Section 44(2), 72 per cent of those searched were white, 14 per cent Asian and 7 per cent black. Overall, searches of white people increased from 14,429 to 20,632—up 43 per cent. Searches of black people increased from 1,745 to 2,701—admittedly up 55 per cent. Searches of Asian people increased from 2,989 to 3,661—up 22 per cent. Of the total number of stops and searches, 78 per cent took place in the Metropolitan police district and the City of London Police area. It is worth noting that the ethnic breakdown of the populations of those areas is significantly more diverse than the overall figure for England and Wales as a whole.

The figures for the 2003–04 period show that the number of stops and searches has risen across all ethnic groups, but the proportion of Asians stopped and searched has fallen slightly. The noble Lord, Lord Thomas of Gresford, made particular reference to the arrest of Mr Walter Wolfgang. It is the case that the police can use Section 44 in support of a structured counter-terrorist operation. Every senior member of the Government was present at the Labour Party conference, so it is not unnatural that the local police put in place appropriate security arrangements, and rightly so. It has been averred that this is an important factor and feature of conference activity now, and sadly that will probably remain the case for some time. We have always maintained that law enforcement agencies must have appropriate powers, which must be used properly, fairly and consistently. With regard to Mr Walter Wolfgang, my understanding is that the Sussex police rightly apologised to him, and acknowledge that the mention of powers under Section 44 of the Terrorism Act was a genuine mistake in this instance.

The contributions about the rubbing points, if you like, with regard to the use of the powers were important. We must ensure that these powers are used in a way that does not alienate part of our population and make them hostile to the overall effect of the terrorism legislation. Without that policing by consent in this field, the operation of counter-terrorist activities will be made all the more difficult. I entirely agree with that spirit. I do not think that, in the round, powers used under this part of the Terrorism Act do that. The police are extremely conscious of the need to take people with them. My noble friend Lord Harris of Haringey made those points very well, with his experience as chair of the country's largest police authority and his long involvement with policing in London.

The final point I ought to respond to is that made by the noble Lord, Lord Thomas, about the intent of the Act. It envisages that the whole of a force area can be authorised, and it was clearly the intention of Parliament that this option was available to police, in circumstances where it is warranted and justified. The noble Lord, Lord Harris, gave a good explanation of why that might be the case in London. The public would not greatly thank us if the police were not able to exercise their powers in that way, if it was felt there was a major terrorist threat. I argue that these powers will be used proportionately; the powers that have preceded them have been used proportionately, and the British public deserve the protection they afford. We cannot accept these amendments.

6:30 pm
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Lord Thomas of Gresford (Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities; Liberal Democrat)

My Lords, I am most grateful to the Minister for his reply, and to all those who have spoken in this debate. The contribution of the noble Lord, Lord Thomas of Swynnerton, was a wonderful illustration of precisely where Section 44 is not being used properly. I remind your Lordships of something I said at the beginning; that under Section 45 of the Act the power conferred by an authorisation may be exercised only for the purpose of searching for articles of a kind that could be used in connection with terrorism. I fail to understand how, in the circumstances described by the noble Lord, Lord Thomas, the police officer could have thought he was likely to find any articles concerned with terrorism. That is an unpublicised situation. When we deal with the position of Mr Wolfgang or anyone else who is simply a protester, the matter becomes even more absurd.

The purpose of this amendment is not to alter Section 44 in any drastic way. Indeed, I am sure the noble Lord, Lord Harris, would happily accept subsections (1), (2) and (3); it is only the question of publicity that he objects to, and I will deal with that in a moment. The amendment would bring the section back to the purposes for which it was originally designed, as stated by the then Home Secretary, Mr Straw, when he introduced the Bill in 1999.

I said that I would say a word about publicity. It is a fundamental principle that when we are abroad, in England and Wales, we know the law that affects us. We are entitled as citizens to know whether there are any specific provisions that give the police powers in the area where we are. It is incumbent upon the Secretary of State to declare the area to which the special powers apply. No one could be more concerned about the protection of the public than I am, but I do not believe it is helpful, or that it was the intent of this Act when it was passed, for whole areas—and there may be whole cities outside London; we do not know, because they are not declared—to be subject to these special powers permanently, rolling on, 28 days after 28 days, without any obvious consideration being given on a monthly basis to whether they are necessary.

The word I take from the speech of the noble Baroness, Lady Kennedy, whose amendment was the precursor to what I am saying—I am merely a follower in her footsteps—is "alienation", to which the Minister also referred. It is a balance. Everything we have dealt with in the Terrorism Act ultimately turns out to be a balance between the liberty of the people of this country and the need to protect them. I think the Act as originally drafted, in its original intention, struck a reasonable balance, but it has been misused in the way that I have indicated. Therefore, I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 124.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

6:49 pm
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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, it gives me great pleasure to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)

On Question, Bill passed, and returned to the Commons with amendments.