Terrorism Bill

– in the House of Lords at 3:11 pm on 7th December 2005.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:11 pm, 7th December 2005

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[ The CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]

Clause 1 [Encouragement of terrorism]:

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

moved Amendment No. 21:

Page 2, line 34, at end insert—

"( ) Nothing in this section is intended to apply to statements made solely for the purposes of academic teaching, study or research in support of such activities."

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

Amendments Nos. 21, 45 and 83 are intended to ensure that the position of academic institutions is made thoroughly safe. This issue will be spoken to primarily by my noble friend Lady Williams of Crosby, who was briefly absent from the Chamber when the amendment was called, but has now returned. In those circumstances, I shall give way to my noble friend. I beg to move.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I apologise that against the breaking wave of Peers leaving the Chamber I was a little slow in reaching my seat.

The purpose of these amendments is to exclude from the sweep of the Bill, which as the Committee will know is a wide and not very clear sweep, academic research related to the pursuit of knowledge and to teaching and education. This is a crucial amendment—and it affects Amendment No. 45. Amendment No. 83 is slightly different because it relates to the sections of the Bill that deal with noxious and other substances. I will come back to that. There are two great problems for those in the academic library and university world.

First, we fully recognise and appreciate the concessions that the Minister outlined in Committee on 5 December. Nevertheless, while she graciously agreed to an extension of the defence against a charge that somebody has been disseminating publications, and in other ways instructing the encouragement of terrorism, the difficulty is that the defence does not deal with the cases that might be brought against an academic or a librarian, given that no question of intent is written into the Bill. We will come back to that in a later group of amendments.

Although there may be an effective defence because the Minister has altered the definition of recklessness to be subjective, not objective, many cases may still arise. Universities and libraries are especially concerned by what they describe as the possible creation of an atmosphere of apprehension and fear. By that they mean that, while it remains somewhat uncertain on what basis a particular instructor or librarian may be prosecuted, the possibility of going to court is a substantial inhibition to free and open expression in instruction, teaching, discussion and debate.

Let me explain what the person concerned may be up against. Initially, they would have to prepare a defence. They may well be engaged in legal expenses to prepare that defence. The very thought of going to a court is itself a considerable inhibition to someone who is genuinely acting as a professional in the university or library world. The real danger of the Bill is what I described on our first day in Committee as the chilling effect. People may deliberately decide not to provide their students with teaching materials or instruct in ways that draw on examples of terrorism or action involving violence. Librarians may be unwilling to loan books that could possibly be described as encouraging terrorism.

The problem here is a direct contradiction. On one side, it is the responsibility of universities and their associated libraries to try to extend the understanding of that terrifying and little-understood phenomenon. In order to teach classes about such matters as the rise of Islamic fundamentalism or terrorism of the past, such as that of the IRA, a teacher may well want to hand out information that could be used by students in analysing and discussing those matters. It is the essence of the freedom of expression and the free pursuit of knowledge that such information can be made available. However, the responsible and thoughtful academic, recognising that that is a crucial part of instructing his students in such matters, would be inhibited by the thought that he might have to go as far as a court to establish a defence. Much the same is true in the case of libraries where, especially in the case of the major university libraries, it is impossible for them to know the full content of the books that they lend and endorse in the sense of accepting and cataloguing them. That presents a major difficulty.

When the Minister of State for Higher Education, Mr Rammell, said in another place that many of those fears were misplaced, it was interesting that he immediately referred to the fact that Clause 1 had now been limited by the inclusion of intent. My noble friend Lord Goodhart and other Members of the Committee will raise that in more detail when we discuss the next group of amendments. In addition to the fact that there are real problems about establishing a defence there is the difficulty that many cases that should not come forward will. That will have the chilling effect that I mentioned earlier.

Let me give another example, which is based on Amendment No. 83. The Bill refers to:

"the making, handling or use of a noxious substance".

That is not a bad description of the discipline of chemistry. What does a chemist teaching his science do when he is aware that even the most basic textbooks in chemistry deal with the use, handling and manufacture of noxious substances? The blighting effect on one of the most important areas of the advancement of knowledge in our country could be very grave. There would not just be the blighting effect on existing academics; it could extend to those whom we wish to recruit to our universities and to students. The Royal Society of Chemistry, in a letter to the Home Secretary, which was mentioned on the first day in Committee, drew attention to the extreme problems that that presents for a science teacher, whether in a university, a further education college or elsewhere.

We suggest, in this important amendment, direct exclusion of those working professionally in those fields and disseminating knowledge or making statements directly related to that professional responsibility. I think that the noble Baroness, Lady Scotland, would agree that, when she put before us the very welcome concessions that she proposed, particularly to Clause 1(7) and Clause 2(9), some of us had a problem ensuring that that covered the area that we are deeply concerned about. Would I be right in putting the following interpretation on what she then said? I do so in a spirit of probing her intentions, not of trying at this stage to criticise them.

First, on Amendment No. 21, under Clause 1, would academic teaching be excluded unless it directly involved the encouragement of terrorism? Will the noble Baroness consider, for example, putting in a clause that indicates the exclusion of people pursuing their professional duties? The insertion of the intent in Clause 1(2)(b) has helped, and so does Amendment No. 79, which removes the reference to suspects. However, does the noble Baroness agree that that does not extend to Clause 2? Would we be right to assume that the noble Baroness proposes to delete the subsection in Clause 1 on recklessness, Clause 1(7)(a), and Clause 2(9)(d)? As such, would I be reasonably right to think that, in the case of recklessness, anyone whose teaching inadvertently encouraged terrorist activities in others would be exonerated, without the reference to intent by the very fact of those deletions?

Would it be correct to assume that there would be a legitimate defence for any teacher in a university, college or other place of education if they could show that in quoting, publishing or making available literature related to terrorist activities, he or she did not endorse the sentiments and was making them available only for the purposes of education, and that that would be no longer a criminal offence? Does the noble Baroness also agree that, even though the test of defence has been extended, the burden of proof still rests on the defendant? That came out fairly clearly in our discussion on the first day in Committee.

Is there any kind of defence on the basis of public interest? The Minister will know that in other broadly analogous legislation, for example, the Obscene Publications Act, if an objection is raised in the case of something that extends science, education or literature, that exemption is recognised. In this case would it be acceptable on the grounds of public interest that there should be a proper defence?

None of that is quite how it ought to be. It would be much better if the second group of amendments concerning intent were written into Clause 2. But short of that, there are very real concerns, which I shall sum up. First, the possibility of criminalising a very wide range of activities remains in the Bill. I think that it was the Joint Committee on Human Rights which specifically said that there should be a definition of the offence requiring intent and likelihood. So far, that has not been met. Secondly, could the defence be mounted on the basis of the professional duties of those concerned? Will the Minister consider that? In particular, will she consider the very grave dangers of the chilling effect of this legislation as it stands? It is still unclear and extremely broad, despite the concessions that the Minister has made or proposes to make. For example, it would be extremely dangerous, because one objection by one student, who might have many motivations for that objection, could put the career of the teacher or lecturer at risk. Amendment No. 83 addresses the position of free discussion of scientific research, which is gravely at risk because of the terminology used so extensively in that clause.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I strongly support the noble Baroness, Lady Williams, who has made a broad sweep of her argument and has put the anxieties of universities extremely well. I want to make a simple point, from a non-lawyer's point of view, about natural justice. As I think that the noble Baroness indicated, so far in Committee the discussion has been about protecting librarians by strengthening the defence that they could deploy should they be charged with a criminal offence. It has been explained—if we did not know already—that if there is a strong defence in the Bill, charges will not be laid because it will not be possible to sustain them. But why should a librarian doing the job that he is employed to do be liable to be charged at all? Why should he have to appear in court on such a charge?

On Second Reading, I spoke specifically about the University of St Andrews, which has an institute for the study of terrorism. In many ways, its situation is no different from any university except that it has a large stock in the library of material about terrorism to support its institute, which not only is useful to researchers, teachers and students, but also could be useful to a terrorist. Suppose a postgraduate student at the University of St Andrews goes to the library and takes out material which he says is to help with a thesis that he is writing. Some time later, a suicide bomber does his worst, say, in London. On searching the terrorists' home, the police find the very collection of material which was taken by the student from the library at St Andrews.

Surely, Parliament should see to it that there is no question in British law that that librarian should be charged with a criminal offence, whether or not he has a strong defence. Clearly, it should be the student who is liable and should be charged. The librarian should be no more than a witness in court. Amendment No. 45, in particular, or something like it, would solve the problem. I realise that the wording may not be absolutely correct, but an amendment to that effect would mean that the librarian and the university governing body could not be held responsible. Such an amendment could be combined with a form to be signed at the university library on which the person taking out the material would say the purposes for which he requires it. That would be essential. I am no professional, but Parliament should ensure that librarians will not be appearing in court or threatened with appearing in court because of their work and the books that are stocked in the library. That is wrong. I support this amendment very strongly.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour 3:30 pm, 7th December 2005

I rise to speak briefly to Amendments Nos. 21, 45 and 83. While I acknowledge that they may have some technical deficiencies, they are supported by the Association of University Teachers and Universities UK, in which I declare an interest as chief executive. Like other speakers, I want to probe the effect of Clauses 1, 2 and 6 on the work of universities and libraries.

Clause 1 has been substantially improved by government amendment to insert the notion of intent. I understand from what my noble friend on the Front Bench said on Monday that we can expect a further improvement to that clause in the form of an amendment to remove subjective recklessness. Clause 6 will be vastly improved if the Committee accepts government Amendment No. 79, which will remove the notion of suspicion. I believe also that what the Minister proposes for Clause 2, widening the defence in subsection (9), will likewise constitute an improvement. I await the text of the government amendments before being able to pass judgment on whether they will solve the problems that have been identified in these clauses, but I am confident that we are moving in the right direction. I thank the Minister for her willingness to consider constructive solutions. So I find myself in the rather odd position of not quite knowing whether the amendments before the Committee are necessary. However, at least they provide us with an opportunity to probe the Government a little further on the improvements my noble friend has indicated that she will make.

The intention behind these amendments is to put beyond doubt the question of whether an academic or a librarian, acting in the normal course of teaching and research, will be protected from the unintended consequences of the Bill. The fear, expressed by many academics and their representative bodies, is that academics and librarians, worried about the consequences of teaching or publishing sensitive material, will effectively engage in self-censorship—what the noble Baroness, Lady Williams, called the "chilling effect". That would be a very unfortunate consequence.

The Minister has already given a helpful general reassurance that teaching, research and associated activities are not intended to be caught by the Bill. However, perhaps I may follow some of the questions put by the noble Baroness, Lady Williams, and ask my noble friend whether she can give a specific reassurance that, for example, an academic teaching political science would safely be able to hand his students a manuscript of a statement made by Osama bin Laden praising the actions of those involved in the World Trade Centre attack if it was his intention to ask his students to consider the rhetorical techniques used by bin Laden to achieve his political ends as part of a course of study. Would it make a difference if the lecturer was aware that the statement in question could have an incentivising effect on some individuals, but that he had no specific knowledge that any member of his lecture group fell into that category, or could he be regarded as "reckless"? Would an academic studying the recent attacks on London be protected from the offence in Clause 1 if he included in a paper a quotation from a radical group praising the actions of the bombers as part of an analysis of those events? Will librarians safely be able to include in their collections books—in one meeting the Anarchist's Cookbook was mentioned in this context—that could be useful to terrorists? How is a librarian to know whether he may include in the collection, or make available for loan, a book which reproduces statements that glorify terrorism? How is a librarian to judge whether such a book contains information that is,

"wholly or mainly for the purpose of being useful to terrorists"?

I realise that the Government may not want to accept the amendments. I shall listen carefully to the arguments put by other noble Lords and to the Minister's response because I would like us all to be certain that the Bill will not tie the hands of those working in our academic and library communities who do so much to help us combat terrorism by enhancing our understanding of its causes, methods and motivations.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am very anxious to give my noble friend Lady Warwick and the noble Baronesses, Lady Williams and Lady Carnegy of Lour, the reassurance they need. I appreciate that the Committee is in difficulty because I do not have at this moment the further amendments we propose to bring forward, which would, I am confident, set at rest the minds of the noble Baronesses. I say that because in drafting the Bill the Government were very clear that there was no intention to catch the ordinary philosophical academic discussion which is so much a part of the academic richness inherent in many of our universities and institutions, and, indeed, of the high-quality academic and other debate that takes place in this country. The furthest from our minds was any intention of providing a "chilling" effect on such appropriate discussion.

The purposes of the Bill as it is, and as it will be when amended, are to ensure that those who act appropriately and professionally in the way discussed by the noble Baronesses will not be criminalised by it. An offence will be committed only by those who know that their pupils or the persons using the literature intend it to be used in the training of terrorists or for other purposes.

I understand the Committee's anxiety and the anxiety of each noble Baroness who has spoken so far and I shall try now to go through some of the issues which are causing such concern. Academic teaching will not constitute an offence under Clause 1 unless there is encouragement to terrorism; it is done with intent or subjective recklessness; and the person is unable to show that he did not endorse the material. In Clause 2 the offence could be committed only if there was dissemination of a terrorist publication and the person was unable to show that he did not endorse the publication and did not intend it to be of use to terrorists.

We have already removed Clause 1(3) from the Bill and, as I have indicated, by making further amendments we will also remove Clause 1(7)(a) and Clause 2(9)(b). Amendment No. 79, to which we will come later, also offers further protection for chemistry teachers.

Photo of Lord Elton Lord Elton Conservative

I am sorry to interrupt the Minister's fairly convincing flow, but how is one expected to show that one has not endorsed something? How do you prove that negative?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It can be proved by the words one uses and by the context. The noble Baroness, Lady Carnegy of Lour, referred to the institution at St Andrews where the whole purport of its course is to discuss terrorism in a philosophical way. In that situation, it is perfectly possible for the academic to demonstrate that that was part of the course he was teaching; that it was promoted as such and that its whole purpose was to promote academic discussion.

It may be simpler if I go through the way in which we put the matter and then, if I have not fully or properly explained our position, we can discuss further changes. I absolutely accept that there is a difficulty because the Committee does not have the final amendments I propose to bring forward. If and when we have them, it will be so much easier for Members of the Committee to be persuaded that the matter is clear.

I see the noble Lord, Lord Kingsland, rising to his feet. I do not know whether he is going to invite me not to say anything more and for us to rest until Report, but I will give way.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I am most grateful to the Minister. She indicated on Monday that she was going to bring forward amendments to this clause and to some degree foreshadowed their content, but without anything like the specificity that one would expect in the text. This issue has become germane to the debate on this line of amendments today. I wonder whether the Minister would consider it appropriate for this clause, when she has decided what the amendments will be, to be recommitted. Given the importance of the issue, the complexity of the existing clause and the surrounding circumstances, the manner in which debate on Report is conducted would not give your Lordships' House sufficient scope to examine the new material which the Government will be bringing forth.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I do not think that that is necessary. We have already had some very detailed debates on the existing provisions and we have heard why the Committee believes that the Bill as it is currently constructed is defective. In the ordinary way, we would have listened to the debate and come forward with amendments in response to it. I will continue to listen to what is said to make sure that the amendments that we bring forward meet concerns. Bearing in mind that we were strongly persuaded by what was said at Second Reading, I thought that this would be an appropriate way to proceed; that is, that I should foreshadow what we intended to do at the earliest possible moment to enable the Committee to have the sort of debate which would enable us to draw the final amendment with the appropriate degree of accuracy. Bearing in mind the time that we have already given to the Bill in Committee and the fullness of debates that we are already having on these provisions, it would not be appropriate to recommit the Bill.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

In that event, and given that considerable restrictions exist at Report stage, will the Minister give us any idea when she is likely to be able to table this most significant group of amendments and whether there will be any opportunity to consult on them before Report?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I will certainly table them as soon as I can. As is my usual practice, if we have time between Committee and Report, I will be more than willing to discuss these issues with interested Members of the Committee to make sure that we have a full opportunity to deal with them satisfactorily.

It would be an advantage if I could now respond to the many questions that I have been asked, because after I have done that, noble Lords will perhaps be less anxious. We will then be able to continue with Committee and decide at the end of this discussion whether further debate is necessary. We are being a little precipitate, if I may respectfully say so. I will of course give way if the noble Lord wishes it.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

The Minister may or may not think that I am being helpful in what I am about to say. The purpose of asking for recommitment was not to delay the Bill for purely expedient reasons; it was to give the Minister the chance to discover a solution which was satisfactory to all sides of the Committee. The danger is that if we move to Report stage with the text of new amendments, with all the constraints that that implies, we may well end up with a vote on a matter which will create the kind of confrontation on the Bill which we all wish to avoid.

Time spent in working one's way through these amendments to find a satisfactory compromise will help the political process enormously, in my submission. It was in that spirit that I made my suggestion. If the Minister were to table amendments a considerable time before Report, if such negotiations that she suggested were able to take place and if there emerged a solution of the sort that I had hoped, it would not be necessary to seek recommitment. However, on behalf of the Opposition, I must say that if a situation arises such that we feel debating these issues on Report would be over-constraining, we shall seek recommitment.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 3:45 pm, 7th December 2005

I quite understand that that is the position. My position is that I have heard very clearly the views of the Committee, expressed by Members whom we all respect. They speak about the academic richness of our country and about things that are proper and real, and we very much want to respond in a positive way that would alleviate those concerns. Therefore, in putting forward the submissions that I am about to put forward, we believe that we are meeting those concerns. Indeed, in our Amendment No. 79, we believe that we go further than Amendment No. 83, and we do so because we acknowledge the force of the concerns that have been expressed. Therefore, there is absolutely nothing between us.

On our Benches, we have the very powerful voices of the noble Lord, Lord Eatwell, on libraries and the noble Baroness, Lady Warwick, on universities; the noble Baroness, Lady Williams, speaks with her usual authority on these issues, as has the noble Baroness, Lady Carnegy of Lour, in advancing the cause of the University of St Andrews. So we are all at one about the issues that need addressing so as to ensure that there is the certainty that we seek.

As I have already said, we already have the indications that I gave on Monday in relation to Clauses 1(7) and 2(9). The concern was about statements or publications being in some circumstances objectionable but in others not so, and that it should therefore be illegal to publish or disseminate them in some circumstances but not in others. The clearest example of when it should not be illegal to use the material would be in purely academic contexts. The changes that I explained on Monday about the defences in Clauses 1(7) and 2(9) should provide sufficient comfort for the academics who are worried about Clauses 1 and 2. I explained the reasons for that at some length so, with the Committee's indulgence, I shall not repeat them in detail now. In summary, the changes that we propose to make mean that it will be a defence for a person to show that he did not endorse a statement, when it was clear in all the circumstances that he did not. In an academic circumstance it would be clear that he did not endorse it, that he did not endorse the publication, or that he did not intend it to be of use to terrorists. That is in Clause 2.

I am confident that those changes will protect all legitimate academic interests. It will protect institutions such as the Centre for the Study of Terrorism and Political Violence at St Andrews University, as mentioned by the noble Baroness, Lady Carnegy of Lour. It will protect history faculties that touch on Islamic extremism, and debating societies and libraries throughout the United Kingdom. Therefore, I urge noble Lords in whose names Amendments Nos. 21 and 45 have been moved or tabled not to press them.

I make a similar point about Amendment No. 83. The change that we intend to make to Clause 6 should be entirely acceptable, we hope, to everyone who has expressed concern about the clause. The Government have tabled Amendment No. 79, which will mean that a person will commit an offence under the clause only if he knows that the person to whom he is giving training intends to use it for terrorist purposes. In other words, if he suspects or believes that the person intends to use the training for terrorist purposes, he will not be committing an offence. Of course, if he does suspect or believe that his student intends to use the training for terrorist purposes, as a good citizen he may want to report the matter to the relevant authorities, but he will not be committing an offence if he continues to provide training—only if he knows.

That means that only those who know that the intention of their pupils is to use the training for terrorist purposes will be caught. We think that is correct. We say that if someone knows that the people they are training are seeking that training for the purpose of terrorism and none the less continues knowingly to train them in order to enable them to do so, of course properly they should be caught. We think this change represents a far better protection than that set out in Amendment No. 83. If an academic provides training knowing that his pupil intends to use it for terrorist purposes, he should be caught by this offence, but not otherwise.

Photo of The Bishop of Chester The Bishop of Chester Bishop

I wonder whether I could press the Minister on this point by asking for some definition of the word "know". Does it mean beyond reasonable doubt, the balance of probabilities or reasonable suspicion? It would be helpful to know a little bit about what the word "know" means in this context.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It means that if he merely suspects or believes that something might be going on, that is not enough. He has to have clear knowledge and clear belief that the training was for terrorist purposes. That is why I say that Amendment No. 79 is an important definition because it does not catch people who are worried, or who suspect, that someone might be using this inappropriately. We think that is a clear distinction.

If you were giving flying lessons, for instance, and your pupils wanted to learn only how to set off but never how to land, that might make you suspicious as to what they were about, and you might think that was something you should report—but you are not committing a criminal offence if you do not do so, because you merely have a suspicion. It is knowledge that will be caught by this offence, and nothing else. We absolutely understand the anxieties of academics, librarians and others. It is right to say that the great majority of our academics and librarians will never have such knowledge or intent in terms of providing, but those who do—

Photo of The Bishop of Chester The Bishop of Chester Bishop

I want to press on an associated matter, picking up on a point made earlier by the noble Baroness, Lady Williams: that while a defence may be mounted, the whole process of investigation and police inquiry, even short of a court case, will have quite a marked effect upon academic institutions in this country. If the Minister is going to deal with the noble Baroness's point, could she comment on that now?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I was going to deal with this point, and I am happy to do so at this stage. All these offences in terms of prosecution will have to have the assent of the Director of Public Prosecutions. This offence will not be prosecuted lightly, and therefore the highest possible level of scrutiny will be given to these offences. By virtue of the amendments we have made to Clause 1 in terms of intent and subjective recklessness, and of those we will make to Clause 2, the offence has a very high bar indeed. It is our intention that the amendments when put together will mean that academics and librarians, if they are doing their job in a professional and proper way, should not fear any prosecution at all.

Photo of Lord Eatwell Lord Eatwell Labour

On the same point, I wonder whether my noble friend can help me. The British Library has received legal advice that private prosecutions would be possible following a terrorist incident. Is that incorrect?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

We understand the concern about private prosecutions. Our intention is that only prosecutions that have had the sanction of the Director of Public Prosecutions under this legislation would be possible. We do not propose that private prosecutions using these provisions will be possible within our jurisdiction. So, there will be no private prosecutions. We will look at this very carefully. If on further scrutiny there is any ambiguity about that, I will seek to ensure that there is appropriate amendment in the Bill to put that beyond doubt.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

I am sorry to disturb the noble Baroness again. However, if she is doing that, could she also ensure that that applies in Scotland, where presumably the prosecutions will be by the Lord Advocate?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It is a United Kingdom-wide jurisdiction. At the moment, as the noble Baroness knows, the position is slightly different because prosecutions have to have the assent of the Lord Advocate and the procurator fiscal. So, they would already have scrutiny of these matters. The position is slightly different in England and Wales. Therefore, we are making it clear that these prosecutions would have to have the assent of the Director of Public Prosecutions before they could be pursued. It is not proposed that these offences should be dealt with lightly; they are serious offences. We do not expect to have many of them. But when we do have them, we believe they are likely to be very important. Because of that importance, the scrutiny of the Director of Public Prosecutions is merited.

I absolutely understand the Committee's anxiety in this regard. However, I was pleased to note that the Royal Society of Chemistry, which I think is the society to which the noble Baroness referred, has welcomed the changes that we have made. In a notice issued on 5 December, its president, Dr Simon Campbell, commented that Amendment No. 79,

"will help to protect those engaged in legitimate scientific teaching and research and will avoid what would otherwise have been some very undesirable and unintended consequences".

He went on to note that the Royal Society of Chemistry still had concerns about the Bill. However, that was before I announced the Government's intention to generalise the defences in Clause 1(7) and Clause 2(9). I am confident that the package we have now proposed should remove all concerns that the Bill will have a damaging impact on the academic community.

I need to be very clear with the Committee that that is our intent. We do not wish librarians and academics in any way to be disadvantaged or to discharge their duties in a significantly different way from what they do now. They do so honourably and to the credit of our country.

I therefore urge the noble Lords who tabled Amendment No. 83 not to press it. I undertake, as I have indicated, to come back as quickly as we can with the drafts. I hope that when noble Lords have the opportunity to see how they fit together they will be satisfied that the assurances I have given hold good.

Photo of Lord Judd Lord Judd Labour

As someone involved in university governance I very much welcome the whole approach that my noble friend has taken to the genuine concerns that exist. I think it would be unwise to pursue the amendments at this stage until we have heard what is being proposed in detail. But there is one other matter which I should like to raise, if I may, that I hope my noble friend will take into account when she comes back to the House with her propositions. She referred several times to the academic community. In that context she mentioned the fine work done by our universities, university teachers and university libraries. But many would argue that very important academic work is being done in further education and in adult education, not least in bodies such as the Workers' Educational Association, and certainly in good sixth forms. I think back to my own sixth-form education, which I value to this day because it provoked me into thinking. As we discuss these matters I see one particular master quoting what a terrorist was advocating and asking, "What is your reaction to that"?

Therefore, when the Government come back to the House it will be very important to be quite clear what we mean by the academic community, and that as long as the work being done is bona fide academic work in a reputable bona fide educational academic institution, it will be covered by the legislation.

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs 4:00 pm, 7th December 2005

The noble Lord, Lord Judd, has just extremely eloquently made one of the two points that I was rising to make, so I will not repeat everything that he has said other than to comment that I have been extremely impressed by the Committee's discussion, which reflected what I call high academia. That is not surprising, but the academic community extends to the grassroots. It extends beyond professional teachers and other professional academics, whether teaching at a high university or in a local community. My noble friend Lady Williams referred to people's professional capacity.

Informal discussion groups and community groups who hold informal discussions constitute a rich tradition in the part of the country in which I live, and that tradition still survives today. Not everyone who leads those discussions or is involved in them is acting in a professional waged capacity; they are simply leading a discussion. As the noble Lord, Lord Judd, said, it is very important that the academic community is taken to be all-encompassing in that sense. It is important that the Government's amendments, which will be very welcome, are seen to apply to everybody, however high or low they may be in the great richness of academic discussion to which the Minister referred.

My second point is that there is also a political dimension to this. I refer to what I do if I get a leaflet through my door from what I consider to be a thoroughly obnoxious organisation, which is likely to be a far-Right organisation—perhaps one of the organisations that operates on the far fringe beyond what might be called mainstream Fascist groups such as the BNP, that might well be taken to be promoting or condoning terrorist acts. My reaction is to collect all such leaflets from my neighbours and, if I do not get enough, to copy some myself and take them to the next meeting of my local political party, or perhaps to an organisation of which I am a member, Pendle United Against Fascism. In doing that I disseminate those leaflets but my purpose is a political one—to get people working to counter the stuff that is being put out in the community. This is all to do with intent and motivation. If the Government's amendments meet the point I for one will be very happy. However, I do not want to be put in court and threatened with seven years in gaol for trying to organise anti-Fascist activities and, as part of that, having distributed some Fascist or Nazi leaflets.

The same applies to local mosques. If Islamic-type terrorist material is being disseminated outside a mosque, at least the mosque committee, and perhaps a wider group, will want to spread it among themselves if they are going to do what the Government are asking them to do and use their influence and authority within the mosque to counter that activity. You cannot counter arguments unless you know what is being put out. It goes beyond academia at a national level; it goes to the local discussion and teaching that the noble Lord, Lord Judd, and I are talking about, and it goes beyond that to political activity. We do not want a situation in which people whose intentions are of the best get caught because of the material that they have in their possession.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

It did not seem to me that the noble Baroness actually said what was wrong with the approach of the noble Baroness, Lady Williams, which is to make those parts of the Bill not apply to certain people. From the point of view of librarians, if that part of the Bill did not apply to them it would be very much less worrying than the way that the Government are planning to do it. What is wrong with doing it that way round, apart from the fact that the Government have gone forward on the notion of laying the burden of proof on, say, the librarian, and strengthening the defence?

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I would like to follow up what the noble Lords, Lord Judd and Lord Greaves, said, because they raised an important point. This is not only about libraries and academia; it is about normal discussion between people. For example, we have—or at least we used to have—trade union branches, and in my experience very vigorous political discussion goes on about all sorts of things in trade union branches. We still have local trade councils, and I assure noble Lords that they were very effective and influential. I do not know whether they still are, because I have been in this House now for 22 years, and I have not had the same contact with trade councils and trade union branches that I used to have when I was a Member of the House of Commons. I believe that they still exist; and where they exist they discuss all sorts of matters. They discuss the Arab-Israeli position, for example, and some of them may say and even publish things that in certain circumstances could be construed as supporting terrorism of one sort or another. This is a dangerous Bill in that it constrains free speech right across the board, and that is what worries me.

I welcome the amendments that have already been put down, and I welcome the amendments that are to come. Unfortunately, we do not know what they are at present. What really worries me is that on an issue of such fundamental importance to our democracy we should have received from the Government and from the Commons a Bill that is so defective that it has to be so amended. I really hope that this will be a lesson to the Government that they have a duty, particularly where our freedoms are at stake, to see that legislation is properly prepared to safeguard the freedoms that we have held for a very long time. The House of Commons should be given adequate time and facilities to consider what the Government have put down, so that the properly elected House also has the opportunity to examine such legislation. It ought not to come to this House in a form where the Minister has to say, "We have not properly considered this Bill, but we will amend it bearing in mind what has been said". Frankly, that is not good enough.

I listened to the Minister with great intent, and she is an extremely able Minister. She should not have been landed in this soup. She should have had a Bill which had been properly thought out, prepared, considered, and considered again before it went to the House of Commons, and was then brought to this House in a proper form so that we did not have to spend so much time amending a bad Bill.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I apologise for arriving slightly late, but I am moved to defend the noble Baroness. She comes forward with amendments, saying that she has listened to the House. I am sure she has. I think that she has not gone far enough. But for her noble friend on the Back Benches to put the boot in and mob her up—

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I used to be the noble Baroness's noble friend, and I am still a personal friend, but I am no longer her political friend.

Photo of The Earl of Onslow The Earl of Onslow Conservative

In that case, her noble acquaintance has put the boot in from the back when she has done nothing apart from not going far enough. We spend our whole time asking the Government to listen, so when they do, let us give them credit. I say this through gritted teeth, but I mean it.

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

I am minded to follow that which the noble Lord, Lord Stoddart, and my noble friend Lord Greaves said a moment ago. There are local historical societies all over Wales. I know that the noble Lord, Lord Judd, has not studied Welsh history, but he may nevertheless have heard of Owain Glyndwr, described by Shakespeare as Owen Glendower. He could have been described as a terrorist; he burnt enough English castles in his day. His exploits and his governance of Wales over a period of 12 years, his setting up of the Welsh Parliament at Machynlleth are revered—one might almost say glorified—in Wales. When, some years ago, people started burning English homes in Wales, what did they call themselves? Meibion Glyndwr—the Sons of Glendower. That shows how the teaching of history may cause people to emulate what has happened in the past.

I can give another example from Ireland. I was once engaged in representing a person charged with setting off a series of bomb attacks in this country, one of them in a hotel close to Buckingham Palace. To try to understand his point of view, I told him I had been reading the speeches of Daniel O'Connell—the great Irishman, as he was known in his day in the 1830s—whose street, O'Connell Street, is the main thoroughfare in Dublin. His response was, "That traitor! Read the speech of Robert Emmet on the gallows in 1797". Suppose that an academic talks about the Irish troubles of 1797 and Robert Emmet going to the gallows. That had an effect because what happened then fuelled the IRA.

I agree with my noble friend Lord Greaves that we should not simply be talking about high flown academics; we should be developing a defence which can apply to anywhere where discussions of history or wider political happenings take place.

Photo of Lord Elton Lord Elton Conservative

The noble Baroness invited me to defer my rather narrow point until a later time, which I think we have reached. I do not want to wait until Report because if we do, it will no doubt be too narrow to discuss. The point is very germane to our discussions, in particular to Amendment No. 45.

Let us say that I am the librarian of a university or college with a department of chemistry. A student wishes to study the nature of unstable compounds—another name for explosives—and I have on the shelves a book which I have ascertained is a reputable manual on the subject. The student goes away, starts tinkering with bombs and is arrested. He then says that he was led into this path by my endorsement; and however invalid that may be, it lies with me, if the finger of suspicion is pointed at me by the police, to prove that I did not give my endorsement. Therefore the definition of "statement" in this case would not apply to Clause 2; this is just normal language. It is a case of the student's word against mine and I am asked to prove a negative, which I thought one did not ask people to do in a court of law.

Photo of Lord Judd Lord Judd Labour 4:15 pm, 7th December 2005

The noble Lord, Lord Thomas of Gresford, is right to draw attention to the wider virtues put forward by the noble Lord, Lord Greaves, and my noble friend Lord Stoddart. The noble Lord, Lord Thomas, was not misguided, but I ask him to accept that the Government will genuinely have a great challenge in defining exactly in what context this kind of activity is possible. One would be naive not to accept that a number of so-called educational institutions claim to have academic status, but that their purpose is far removed from the spirit of education and academic activity that we are discussing.

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

Does the noble Lord agree that the opportunities for discussion should be as wide as possible and that the Bill is so vaguely drafted, particularly in Clause 1, that it may catch all sorts of activities that the Government do not intend to?

Photo of Lord Judd Lord Judd Labour

I think that when we deal with issues that are fundamental to human freedom, clarity and precision is important. I hope our deliberations in Committee can help the Government to ensure that that precision is present, if it is not sufficiently present at the moment. In the end we will have to find some kind of definition which refers to bona fide educational institutions. I regard the kind of institutions to which the noble Lord referred as bona fide educational institutions, but am very worried about institutions that exist, not least in London, that claim the cloak of academic educational work but are in reality propaganda organisations.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I wish to add a further thought to the discussion between my noble friend Lord Thomas of Gresford, the noble Lord, Lord Judd, and, indeed, my noble friend Lord Greaves. As someone who taught for many years in the Workers' Educational Association and the National Council of Labour Colleges, I sympathise deeply with the arguments that have been made. It is difficult to see how the issue could be caught by Amendment No. 21, which addresses itself to academic practice and might be narrowly interpreted. The Minister needs to consider later whether the DPP would wish to be involved in this area because it is huge. I am not suggesting that the DPP should not be involved in other areas, but perhaps there should be some recommendation relating to the public interest. There is great public interest in freedom of speech and freedom of expression and the Minister may, when finalising the amendment, give some thought to whether something of that kind could deal with this area of formal, but extremely important, educational instruction.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

I wish to make a general point before we leave this clause. I am glad that the noble Lord, Lord Thomas of Gresford, raised the place of Owain Glyndwr in history. Indeed, I would regard him as a patriot. Others might regard him as a terrorist—after all, the castles in north Wales were erected as English police stations to keep the Welsh down, and there was a great deal of merit in dealing with those intrusions into our society. But a serious point has been made regarding Meibion Glyndwrthe Sons of Glendower—who, unhappily and very regrettably, burned cottages as recently as in the past 15 years. Even the great and revered poet in the English language, Reverend RS Thomas, writing in English as recently as 1991 said words that might be interpreted as being sympathetic to what the Sons of Glendower were doing, and the remarks of the reverend cleric might be regarded as offensive to certain sections.

My point is that in the last debate, and indeed earlier debates, we had difficulties with the poor drafting of this clause. I made it clear at Second Reading—it was not possible to go into any detail—that as the clause stood I was not with the Government. Unless they come back with further proposals later—as they will be doing on the subject of recklessness—I shall find it very difficult to support the Government on that.

At Second Reading I indicated that I had tried to draft specimen directions to a jury and that I had not found it easy. If the Minister could persuade her learned colleagues to put in the Library a series of draft directions to juries—what juries are supposed to find—that might ease our task in discussing this clause. It is a modest request and it would help me in particular.

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

As I briefly introduced this debate, I think that it falls to me to wind up. The contribution of the noble Lord, Lord Stoddart, raised an interesting idea in my mind—that if someone wrote an article in a magazine or newspaper praising the conduct of Mr Arthur Scargill and the National Union of Mineworkers at Saltley during the 1973 miners' strike and said that it was a model that trade unions should follow in future, arguably that could amount to the encouragement of terrorism. That conduct involved serious violence. Much as I disapprove of what happened at Saltley, I certainly would not wish it to be said to be a terrorist operation; nor would I wish to see the National Union of Mineworkers become a proscribed organisation.

This group of amendments raises issues that have caused enormous concern not only to our universities and libraries but also, as my noble friend Lord Greaves and others have said, to much wider circles. In this country we pride ourselves, rightly, on our universities and our standards of academic freedom, and we are alarmed by any threat to them. The government amendments—I have pleasure in saying this—have to a considerable extent met our concerns on Clause 1 and, in effect, have entirely met our concerns in relation to Clause 6, but they have not done so in relation to Clause 2. In later groups we will come to specific proposals for changes which need to be made to Clause 2.

I recognise that the wording of these amendments is not in a form appropriate for inclusion in the Bill, but they are being brought forward by my noble friend Lady Williams—a former Secretary of State for Education who has had very close involvement with universities on both sides of the Atlantic—as probing amendments. In that way, they have been successful because they have led to a serious and valuable debate.

I hope that the Minister will bring forward amendments to deal with our concerns on Clause 2, but, until we see those amendments, for the purposes of this debate we have to ignore them. We cannot simply take for granted something whose terms we do not know. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2 [Dissemination of terrorist publications]:

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

had given notice of his intention to move Amendment No. 22:

Page 2, line 48, at beginning insert "Unless he is a person to whom section 3(11) applies,"

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

I do not intend to move this amendment at this time, because it is a paving amendment for a larger group of amendments concerned with Clause 3 and would be better discussed at that point.

[Amendment No. 22 not moved.]

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

moved Amendment No. 23:

Page 2, line 48, at end insert "knowingly"

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

Amendments are coming up that deal with the point with which this amendment is concerned, the concept of guilty intent, which should be brought into this clause. Since what is proposed later on is far more elegant in securing what the bludgeon of this amendment was designed to bring before the Committee I did not intend to move it.

Amendment No. 40 is in this group and adds "or" to Clause 2(8)(a). The matter was dealt with by the Minister when speaking to Amendment No. 20. I refer to col. 501 of Hansard of 5 December, when she explained that all three limbs of the subsection have to be satisfied to establish the defence. I am prepared to accept that and, therefore, when we come to Amendment No. 40, I shall not move it. I beg to move.

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

As these amendments have been spoken to, I must take it that this amendment is moved, in case other noble Lords wish to speak. If the noble Lord now wishes to seek leave to withdraw, he is able to do so.

Amendment, by leave, withdrawn.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

Amendment No. 24 is the first amendment in a line of amendments that cover two issues. The first issue is intent in relation to the offences described in Clause 2 and the second is what subsection 3 adds to Clause 2 that is not already in Clause 1(1). Amendment No. 25A is a probing amendment to tease that out. I apologise to the Committee for the fact that our original amendment, Amendment No. 25, has been adjusted in Amendment No. 25A, which merely substitutes "terrorist publication" for "statement" in what would be Clause 2(1A)(a).

I can deal briefly with the first amendment, which refers to Clause 2(1)(f). The subsection reads as follows:

"A person commits an offence if he", and then there are five examples of how the offence can be committed. The sixth example, in paragraph (f), states:

"has such a publication in his possession with a view to its becoming the subject of conduct falling within any of the paragraphs (a) to (e)".

It is important to make it absolutely clear here that the reason an accused person has a publication in his possession is because he wishes subsequently to distribute it. Plainly, a number of people will have publications in their possession which have been distributed to them. In our view, therefore, "a view" should be substituted by "intend", to make it absolutely clear that the reason somebody has such a terrorist publication in their possession is because they wish subsequently to disseminate it. That is a purely drafting point.

Amendment No. 25A, however, raises an important point of substance. Unlike Clause 1, there is no intent provision in Clause 2—that is, no intent provision with respect to the act of dissemination. Amendment No. 25A seeks to insert such an intent requirement. Indeed, it goes further than intent; it mimics Clause 1(1) by requiring that the act of disseminating a terrorist publication has either to be intended or to be committed recklessly—recklessly in the subjective sense of the word.

It is important that the Bill reflects that the intention to disseminate involves two separate acts in order to be an offence under the Bill. First, there has to be an intention to perform the physical act of dissemination; and, secondly, there has to be an intention that the publication that is disseminated is a terrorist publication. Both intents have to be proved by the prosecution according to the usual standard, although they are not expressed separately but as a single intent—that is, the intent to disseminate a terrorist publication or to disseminate it recklessly. That is all I need to say about Amendment No. 25A. If the Committee accepts my Amendment No. 25A, the defences in Clause 2(8) and (9) become otiose.

I now turn to the second issue these amendments raise, that of Clause 2(3). Amendment No. 27 simply seeks to eradicate the subsection altogether. But it is at this stage a probing amendment, because I have not yet heard the noble Baroness's reaction. Subsection (3) seeks to clarify what "matter" constitutes. What does "matter" mean and does the clause add anything to what is already in Clause 1(1)?

"Matter" is defined in Clause 2(2), and it constitutes two ingredients—first, in Clause 2(2)(a),

"a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism"; and, secondly, in Clause 2(2)(b),

"information of assistance in the commission or preparation of such acts".

I have no difficulty whatever in accepting that "matter" is necessary to incorporate what constitutes Clause 2(2)(b), but I am in some difficulty in understanding why the expression is necessary when we are dealing with Clause 2(2)(a).

What is covered by "matter" in subsection (2)(a) that is not covered by subsection (5), which elaborates subsection (2)(b), other than a statement? What can matter be in subsection (2)(a) other than a statement? If I am right in reaching that conclusion, why do we need subsection (3) at all? All we need is for subsection (2)(a) to read, "a statement to which subsection (1) of Clause 1 applies". In sum, I submit that "matter" in Clause 2 can only mean either a statement, in which case it is covered by Clause 1(1) and no additional definition is needed, or constitute what is described in subsection (2) (b) as,

"information of assistance in the commission or preparation of such acts".

In tabling this probing amendment, I am not seeking to reduce the obligations on any potential disseminator of information. Nor am I seeking to reduce in any way the powers of the Government concerning dissemination. I am seeking to see whether a singularly opaque subsection—subsection (3)—can be expunged altogether from the Bill to achieve greater certainty, something for which we are all desperately seeking in this Committee. I beg to move.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat 4:30 pm, 7th December 2005

In supporting the argument of the noble Lord, Lord Kingsland, I adduce two other points that it is important for the Committee to have before it. The first of those is the extremely interesting report of the Joint Committee on Human Rights. Without delaying the Committee, I shall briefly remind it of the Committee's conclusions. Referring to Clause 2 and dissemination, it stated:

"In our view the proposed new offence suffers from some of the same compatibility problems as those identified in relation to the proposed encouragement offence"— in Clause 1—

"including the lack of connection to incitement to violence, and the absence of any requirement that such incitement be either intended, carried out with reckless indifference, or likely".

I confess that I remain completely puzzled by the Government's position on the issue. The Minister, Mr Rammell, in trying to quieten the fears of academics when speaking in the other place, specifically said that intent meant that those fears were misplaced. He cited the Government's amendment to Clause 1.

I do not understand why the Government feel unable to add intent to Clause 2, rather than the heavily complicated system of defence that they have adduced, because it would be so much simpler to add intent to the position of people affected by Clause 2. One would then be able to show whether any intent could be demonstrated. If not, the matter would not be prosecuted. There would be no need to bring in the Director of Public Prosecutions—or anyone else, for that matter. The reassurance given to the large groups of whom we are speaking would be immediate, widely understood and transparent, rather than opaque.

I do not understand that because when the Government moved a very similar amendment to Clause 1, as the noble Lord, Lord Kingsland, pointed out, they immediately won over a substantial part of opinion to the Bill. It was felt that that had dramatically narrowed down the area of possible offence and that that would be very appropriate. We now find that in Clause 2, the Government are not so far willing to support that.

Among other things, that leaves the anomaly that has been pointed out by several university briefings and others: that you might be perfectly covered by making a statement that could in some circumstances be interpreted as encouraging terrorism because you had no intent to do so; but if you disseminate that same speech by handing it around to your class or to a journal to publish, you would immediately become liable for an offence under Clause 2.

That is a curious disjunction; it does not make a great deal of sense. In the light of the fact that there is also a question about whether without intent Clause 2 would satisfy the requirements of the Council of Europe covenant, it is exceedingly puzzling, to me at least, that the Government, given their willingness to listen to this Committee and to another place, have not reconsidered whether intent should be added to this clause.

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

My name is attached to Amendments Nos. 30, 36 and 39, to which I wish to speak. They are not probing in nature; they are serious amendments which, if necessary, we are prepared to pursue.

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

I am grateful to the noble Lord, Lord Kingsland, for that. Probing amendments may well be serious but the implication is that they will not be pursued as such. Unless satisfactory improvements come out through further government amendments to Clause 2, we will pursue our amendments.

The amendments extend the requirement of intention to offences under Clause 2. Amendment No. 25A requires either intention or subjective recklessness as a basis. We prefer intention alone, for reasons given in the debate on Amendment No. 6 last Monday, which I shall not repeat. It is essential that the same degree of intent be required for Clause 2 as is required for Clause 1. My noble friend Lady Williams has pointed out one obvious anomaly: under Clause 1, intent is required for the initial publication of a statement, but no such intent is required for the subsequent dissemination of it.

The definition of a terrorist publication in Clause 2 is very wide, partly because it depends on the context. It is especially wide in relation to the publication of a document that could be of assistance in the commission of an act of terrorism. As pointed out, that definition could include a map of the London Underground. That makes it even more important to ensure that only people who intend to encourage or assist terrorism are caught by Clause 2. But the Government in their drafting of Clause 2 have come up with, and continue to defend, an extraordinary proposal: the criminal liability of the defendant who disseminates the publication depends not on what his intention was in doing that but on the reaction to the publication of hypothetical people of whose existence and purpose the defendant is necessarily unaware. That stands on its head the ancient principle of mens rea.

Leaving aside the special defences under subsections (8) and (9), that means that the basic definition of crime does not require the defendant to know anything about the contents of the publication or about who may be interested in it. The Bill includes the special defences but they are totally inadequate. Subsection (8) requires the defendant to prove cumulatively, under paragraph (a), that he does not know what is in the publication; under paragraph (b), that he has no reasonable grounds for suspecting it to be a terrorist publication, a question that depends on its context, part of which may not have been known to the defendant; and, under paragraph (c), that the contents of the publication do not have his endorsement, a wholly irrelevant factor if he does not know what is in the publication to begin with. I emphasise that all those matters must be proved by the defendant. Similar problems arise in relation to subsection (9). I will not go into detail about them because subsection (8) presents those problems most obviously and most seriously.

In the debate on the first group, Members on all sides of the Committee spoke about the problems that Clause 2 presents to teaching, universities, libraries and a much wider group. I am satisfied that as Clause 2 stands, it presents a threat to freedom of expression and to academic freedom. It goes far beyond what is needed in a democratic society—to refer to Article 10 of the European Convention on Human Rights, which deals with freedom of expression. It is therefore essential to put into Clause 2 the same test for intention that was agreed, largely, for Clause 1. Amendments Nos. 30 to 36 effectively do that. I recognise that they do not include recklessness, but that is not central to this.

Amendment No. 39 removes the special defences in subsections (8) and (9) on the grounds that, as the noble Lord, Lord Kingsland, said, they are otiose if there is an intention as part of the mens rea. The Joint Committee on Human Rights has pointed out, first, that the offence should involve incitement to violence; secondly, that the offence must require an intention or reckless indifference; and, thirdly, that there must be a public interest offence. None of those conditions pointed out by the Joint Committee is satisfied.

Clause 2 is a threat to the principle of freedom of expression, not so much because we expect many prosecutions to occur under it, but because of its obvious chilling effect and the self-censorship to which it will lead. I believe that that is as important as the length of detention without charge, which has attracted perhaps a great deal more publicity. Clause 2 requires major surgery before it is in an acceptable form. I am afraid that there is a great deal of work to be done. Unless the Government answer all the points that I have raised, we will have to come back to this in a very serious way.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee) 4:45 pm, 7th December 2005

I support Amendment No. 30, which has my name attached to it. I very much agree with the noble Baroness, Lady Williams. Once intent was introduced to Clause 1 as a necessary ingredient in that offence, it is wholly illogical that it should not be introduced as a necessary ingredient in the Clause 2 offence. There still seems to be some belief, on which I touched on Monday, that intent is difficult to prove. It is not. It is proved every day in criminal courts. Judges are used to summing up how juries should approach questions of intent. There is no difficulty in it. We must introduce the concept of intent as a necessary ingredient in the Clause 2 offence. I lend all the support that I can to this amendment.

Photo of Lord Eatwell Lord Eatwell Labour

As the noble Baroness has acknowledged, she has placed the Committee at a considerable disadvantage. We are attempting to discuss a clause, the structure of which we do not yet know, as the noble Baroness has said that she will be amending it. I have listened carefully to what she has had to say. Perhaps I may quote exactly what she said on this issue. There would be a defence for an individual if he was able to show that he "did not endorse" and "did not intend". Was my noble friend indicating that she is going to incorporate intent into this clause? If I heard her correctly, she said that if someone could show that he did not intend an action, he would have an adequate defence in respect of the mischief expressed in Clause 2(1) and (2).

I am not a lawyer so perhaps the issue that I do not understand is that of the burden of proof. Is my noble friend saying that the notion of intent will be a defence and that the defendant would have to prove that he did not intend, or, when she says that someone "did not endorse" and "did not intend", that it would be the task of the prosecution to demonstrate that the individual did have such an intent?

On Monday, I pointed out the anomaly that intent already exists in Clause 2(9)(d) but does not appear in Clause 2(9)(b), on which we have been asked to focus our attention, but I am still puzzled, when she has used the words "did not intend" and has drawn our attention to the notion of intent in subsection (9)(d), that she appears to resist the concept of intent. Maybe we have all misunderstood the amendments she intends to bring forward and she does intend to introduce intent.

Photo of Lord Greaves Lord Greaves Spokesperson in the Lords, Environment, Food & Rural Affairs

I decided to pay closer attention to the Bill than I have done so far, particularly to Clause 2, when I inadvertently sat in on the discussions held on Monday afternoon and heard what was being said about librarians and booksellers. I should declare an interest as a rather part-time book dealer in mainly political material. When I go home this weekend, I had better look through my stock to see whether anything might fall foul of the Bill. I believe that there is a serious problem here for bookshops and booksellers unless we get it right. To that end, I was very interested in what the noble Lord, Lord Ahmed, had to say on the subject on Monday.

Like other noble Lords, I am encouraged by what the Minister has said about her proposals to make changes to the Bill and I have read carefully the proceedings for Monday in Hansard. I do not want to repeat the fundamental point about the need for book dealers and booksellers to be offered reasonable protection from inadvertently being caught by this legislation. However, I shall make a few points that the Government may want to look at in the light of their new proposals to be brought forward on Report. These points indicate what I shall be looking for in deciding whether their proposals meet what I consider to be reasonable.

A lot of people who buy and sell books and other printed material are not the big booksellers. The bookselling chains are the main players in the market and I expect that they have a pretty good idea of what they are selling. They employ people to read their books and so forth. Local bookshops operate ordering services, usually very efficient ones. I can ring the bookshop in Colne, give the title I want and by the next morning, the shop will have it for me. That is a brilliant service, but I do not expect the staff to know what is in the book I am buying. Therefore the whole question of intent and not being implicated if you do not actually support what you are selling is very important.

For the second-hand book trade, in which I am involved, it is even more important because you get large quantities of material; you get cartons and boxes full of stuff. In many cases, a second-hand book shop will put such material in a storeroom and it might be there for several years before it is sorted out, put on shelves, thrown away, given to Oxfam or whatever. That is the way in which the second-hand book trade works. It is not a high-powered organisation. Very often it is people operating out of their own attics or small shops, and to expect them to know and understand exactly what they are selling is not reasonable. So there is the question of stock but, in many cases, you cannot define it by the customers you are going to get because you have no idea who they will be for this material in the future. You just hope that one day you might find some.

The second point I want to make relates to the question of customers. It is impossible to know all the people you are selling things to. From time to time I sell some fairly nasty stuff. Some of it is from the far Left, some of it is from the far Right—it is a small proportion of what I sell—and I have quite a lot of Fascist material. I go out of my way to be careful about who I am selling it to. For example, the last time I sold a copy of Mein Kampf it was to a prominent Jewish member of the Liberal Democrats. I was fairly sure he would not be corrupted by what he would read.

It is impossible to know all your customers. Even with people you have known for several years, who may specialise in collecting this material, you do not know what, underneath it all, their motivation might be. You try to filter out people you have suspicions about but it is very important that booksellers in this position should not have to vouch for the bona fides of all their customers and the effect such material might have on them.

My third point concerns the definition of "booksellers". On Monday, the Minister said:

"it will be a defence for a person charged with the offence to show that the publication did not express his views and that it was clear it did not", and,

"that the person did not provide the material with the intention of it being of use to terrorists".

That sounds very reassuring. I have listened to some of the legal arguments on Monday and today but I do not understand them all. There are some very eminent lawyers in the Committee and I shall have to leave those arguments to them.

But when the Minister went on to say,

"There can be no question but that that defence should be available to all legitimate librarians, academics and booksellers",

I began to wonder what the word "legitimate" means in this sense. All sorts of people operate in the second-hand book trade—some on a very small scale, some on a medium scale and some on a big scale—so how do you become a "legitimate" book dealer? Certainly many people who deal nowadays—especially with eBay and so on—are not registered or members of associations.

The Minister continued—this is what worries me most—that,

"The defence would be restricted to them"— that is, librarians, academics and booksellers—

"It would not be extended to others seeking to flout the law and encourage or facilitate terrorism".—[Hansard, 5/12/05; col. 465.]

That is fine—I have no wish to extend it to such people—but what about all the people in between? Quite a lot of people do not come under the categories of academics, librarians and booksellers.

A great deal of material consists of pamphlets, leaflets and posters—material that people in the trade describe as "ephemera"—which is bought and sold by many people. Some are booksellers and some trade in such material specifically and I am concerned that the defence may be restricted only to booksellers. Perhaps the Minister will look at that point.

As I have said, because of the way in which material is bought—in job lots, through house clearances and so on—you have no idea what you are buying. Substantial amounts of material are bought at auction. You will go there, you will see three or four boxes full of stuff, containing two or three things that you want, and you will bid for that material. But goodness knows what is underneath it all. You might end up, quite inadvertently, as the owner of some pretty nasty stuff.

All these matters need to be taken into consideration if the concerns that are beginning to be felt by booksellers, and by second-hand book dealers in particular, are to be alleviated. I look forward to studying carefully the wording of the Minister's amendments on Report and to an assurance that these people, who are all engaging in perfectly legitimate trade, will not be inadvertently caught by a Bill which is nothing to do with them whatever.

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour 5:00 pm, 7th December 2005

I add my support to Amendments Nos. 30 and 36. Many of the concerns expressed by the academic and library communities, and advanced by noble Lords on all sides of the Committee, have been addressed by the Government's amendments. We understand that further amendments will offer even greater reassurance. The Minister has gone out of her way today to reinforce that degree of reassurance.

However, from what I understand about what the Government intend in relation to Clause 2—unless the interpretation of my noble friend Lord Eatwell is correct—there remains the issue on which we clearly appear to continue to disagree. The Government have introduced the notion of intent into Clause 1, so that a person must have the intention of encouraging terrorism to fall foul of the offence of publishing a statement glorifying terrorism or must be reckless of the consequences of his actions. That is enormously welcome.

However, in the spirit of what the Minister said about listening to all our concerns, I need to set out my concerns about Clause 2. As has already been said, the protection offered in Clause 1 is not extended to those who disseminate publications by selling, giving, lending or making available for loan material. The Minister has said that the intention defence in Clause 2 (9) will be extended to all categories of person, and not just to those who provide electronic services, but as other noble Lords have pointed out, that intention defence applies only to material that could be useful to terrorists, and not to statements encouraging terrorism. This creates the interesting anomaly to which other speakers have referred. A person might publish a statement glorifying terrorism—let us say, as part of a study illustrating propagandist techniques relating to the war on terror—having no intention that that statement should be understood as an encouragement to terrorists. A librarian who makes that study available for loan might be prosecuted, because his intention would be no defence.

A further problem is the fact that the burden of proof will rest with the defence, whereas, as I understand it, the proving of intention in Clause 1 would be the task of the prosecution. The library community has pointed out that the drafting of the clause makes it very difficult to see how a librarian would know which publications he should not lend. The Bill makes it clear that the material must be,

"wholly or mainly for the purpose of being . . . useful", to a terrorist. But what does that mean? I understand that an AZ London would not be included on those grounds, but I referred earlier to The Anarchist's Cookbook. Would that be included? What about historical treatises, which were at the time when they were written intended to fuel and encourage acts of terrorism? Several noble Lords have referred to them. They might conceivably incentivise or be of assistance to violent political activists who apply tried and tested methods to new circumstances. How might a librarian be able to judge whether material fell into the category of,

"wholly or mainly for terrorist purposes", when its original purpose was wholly or mainly terrorist but when it was included in the collection because of its historical or academic interest?

The Government have said that their intention is simply to catch extremist literature, but I am not sure that that is a definition with which we can be satisfied. There are sound reasons for arguing that our libraries should be able to collect and make available for loan extremist literature, if only to further the study of the motivation of such groups. But there is a difference between what might be defined as extremist and what might encourage or assist the commission of terrorist acts. We should not be banning the former, while I see the argument for very careful handling of the latter.

I do not believe that the Director of Public Prosecutions will spend a lot of time prosecuting librarians. My fear is, rather, one to which we referred in a previous debate—that librarians will restrict the material that they make available for loan because of their fear of prosecution, which would be detrimental not only to our great libraries and our academic community but to the nation as a whole. Amendments Nos. 30 and 36 would achieve what the Government seek to do while removing the potential unintended consequences. While introducing "intent" into Clause 2, in parallel with Clause 1, the person would commit an offence only if they made material available for loan with the intention of assisting a terrorist. I believe that the library community would be content with that change, as it would address its concerns about the shift in the burden of proof in Clause 2(8). I hope that the Minister will give a favourable response to these concerns.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I thank all noble Lords who have spoken. I have listened carefully to the concerns that have been expressed, especially in relation to the issues arising out of the defences contained in Clause 2(9) in particular and the relationship that has to Clause 1. We covered to a large extent similar issues when debating other amendments earlier today, so I shall try to be brief.

I signalled clearly the major changes that we have either accepted or proposed to make to the offences in Clauses 1 and 2. I shall not repeat those, and I thank Members of the Committee who have expressed gratitude for the changes that the Government intend to make. On the specific issue before us now, the offence in Clause 2 does not involve intent and, as I explained, that is deliberately so. The Government want to give law enforcement agencies the tools they need to tackle a particular mischief—namely, the dissemination of publications in context, which mean that they will either encourage terrorism or be of use to terrorists in practical ways. The Committee will not need reminding of the statements made during debate of the effect of disseminating such material, not least the effect of disseminating the al-Qaeda materials—manuals and matters of that sort—which have enabled and encouraged those who wished to commit acts of terror to do so.

We originally drafted the offence to focus on preventing that mischief. Together with the related power in Clause 27, the measure provided the law enforcement agencies with a tool to do that. We considered the safeguards in relation to Clause 2, and our initial view was that they were sufficient and that terrorist publications had to be defined by reference to their context. There was a defence specifically for libraries in Clause 2(8), and prosecutions requiring the consent of the DPP. As I have said, we listened carefully and looked at the further defence provided in Clause 9, which originally had a very limited purview. We thought it right, having listened carefully to the Committee's concerns, to extend those defences generally to everyone. I shall just deal with the question of what "to everyone" means.

During the debate that we had earlier, I concentrated particularly on the universities, booksellers and others about which noble Lords had spoken, but I made it clear that the provisions were to cover academics generally and those who teach and purvey information for philosophical and other debate. It is absolutely clear from those discussions, in response to the concerns of the noble Lord, Lord Greaves, about his collection of materials, which he wished to disseminate to those who wished to fight fascism and terrorism, that they would not be caught by the provisions. Indeed, no matter how offensive we find the far-right statements of the BNP and others, as far as we are aware they still do not fall within the "terrorist" category to which these provisions primarily relate, although one has to look carefully at whether some of their publications do so. From the description given by the noble Lord, Lord Greaves, however, it was clear that he was not going to discuss those issues for the purposes of generating or encouraging acts of terrorism, but quite the reverse. I think, therefore, that he can rest easy in his bed.

Because of the concerns expressed in this House and elsewhere, we are proposing to expand the defence in Clause 2(9) so that it will apply to everyone. We are satisfied that this will still leave the offence in a workable form, but will also give those concerned about libraries, for example, the comfort they require. I need to emphasise, however, that there is still a mischief we have identified that needs to be addressed. I will explain why we are content with the new drafting we propose, but would rather not change the offence in the way suggested by these amendments.

We suggest that the mischief of disseminating terrorist publications has two elements: the act of disseminating the publications, which we want to prevent and discourage, and the question of culpability on the part of the person doing the disseminating. We all understand that some people who disseminate publications that may encourage terrorism or be of use to terrorists should be regarded as culpable, but that others—for example, those whose jobs require them to disseminate such publications—should not be so regarded. That is a clear line that, I think, we all agree should be drawn.

We are content that the current drafting, together with the power in Clause 27, allows us to target the act of disseminating terrorist publications, and satisfied that it allows the offence to capture those who are really culpable. Most importantly, we are also satisfied that it would not capture those who are not culpable, in the sense that they are not trying to do something we would all regard as wrong. Such people would avoid suffering under the offence itself, because they would avail themselves of the defence under Clause 2(9). Thus the offence, together with Clause 27, is still part of a package that can successfully prevent the unacceptable dissemination of terrorist publications, but will not capture those who should not be properly caught.

My noble friend Lady Warwick of Undercliffe explained the concerns that have been expressed in connection with the interrelationship between paragraphs (b), (c) and (d) of Clause 2(9). I accept, as my noble friend Lord Eatwell said, that it is more difficult for Members of the Committee to consider the amendments while not having all the provisions before them. I will therefore do what I can to ensure that the position is clear.

I remind the House that paragraphs (b) and (c) are to be read together. The reason for that is that paragraph (b) provides that,

"the publication to which the conduct related, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(a), neither expressed his views nor had his endorsement".

The reason the "and" should then be included to refer to subsection (c) is that it provides that:

"it was clear in all the circumstances that the publication, so far as it contained such matter, did not express his views and (apart from the possibility of his having been given and failed to comply with a notice under subsection (3) of that section) did not have his endorsement".

That covers the situation. I will take librarians as an example.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 5:15 pm, 7th December 2005

Subsection (9), like provisions elsewhere in the Bill, refers to the "views" of a person. In what circumstances is it permissible to take into account somebody's opinions on something unless they are actually expressed?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

That is why I say that paragraph (c) helps us. Let us take a concrete example involving someone who is a librarian in the British Library. Part of his duty is to collate material of all different types and then, on proper inquiry, to give it to those who apply. That is a clear professional duty. If one looks at the publication and the context in which it was given, it is clear that the librarian in those circumstances does not endorse, whether directly or indirectly, the content in the publication but, in the circumstances in which he is providing the material, is simply discharging a duty. So, contextually, under Clause 2(9)(b) and (c), the librarian could say, "I did not endorse it. I was simply discharging my professional duty and providing a copy, as is my duty, to the person who made proper inquiry".

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

I am sorry to interfere again. Under subsection (9)(b) and (c), he has to prove that the publication,

"neither expressed his views nor had his endorsement".

It could be said that someone who was acting in accordance with his profession or duties did not endorse it, but nevertheless it might represent his views. Is that something that would prevent him taking advantage of this defence? It looks like it. But it would be very strange indeed if it did.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I am seeking to demonstrate how these two issues would operate together. The noble Lord presses the point in one way, but the noble Baroness, Lady Williams, says, "It is all part of a professional duty. You have to look at the circumstances". These are circumstances of fact. I am saying very clearly that this would provide for librarians and others a perfectly proper defence of which they could avail themselves without difficulty. If we struck out "and" and replaced it with "or", one would be covered by either the first two provisions or by Clause 2(9)(d). The intent to which I referred is the one set out in paragraph (d). It states that,

"the conduct in relation to that publication, so far as it contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(b), was not intended by him to provide or make available assistance to any person in the commission or preparation of acts of terrorism".

So when I spoke of intent, I spoke of it in terms of Clause 2(9)(d).

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

I am not happy with this question being dealt with as part of a defence. I think that this is possibly the point which the noble Lord, Lord Eatwell, was worried about. Why is it not possible to catch those whom the Minister refers to as culpable by inserting in the substantive part of the clause, and not as part of the defence, the mental element of intention? That would enable you to catch those who are culpable and would let off those who are not. Why does it have to be done by way of a defence?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It is because of the way in which these issues have arisen. Having been intimately involved in reading the documents produced by the various committees of this House and the information we have from the reports of the noble Lord, Lord Carlile of Berriew, the noble and learned Lord is all too familiar with the fact that a lot of material is being disseminated and that a lot of it is terrorist material. A lot of that material has the ability to encourage others to commit and to help others to commit acts of terror. That is a mischief to which we have to address ourselves.

Once that material has been disseminated and those who are responsible on our behalf for dealing with this matter in the criminal justice system have those items in their possession, it is proper for them to make inquiry in the way that we have provided. We think it is appropriate for there to be a defence in relation to this to distinguish those who legitimately have this material for the purpose of academic and other study and those who do not—who want to use it to encourage others to commit acts of terror. That is a mischief to which the Government have been very clear they want to direct their attention, have been very clear that they want to stop and have been very clear that they want to do it in a proportionate way. That is to enable those who are not culpable to have proper defences, but just as importantly to enable those who are culpable to be caught—it is part of our job. If I can turn—

Photo of Lord Eatwell Lord Eatwell Labour

I am terribly sorry but I really do not understand the content of the noble Baroness's answer to the noble and learned Lord, Lord Lloyd. Perhaps the following question will help. Is it the will of the Government that persons should be prosecuted who commit the offences listed in Clause 2 unintentionally?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Clearly it is not. That is why we have set out the defences in Clause 2, as I have just indicated. That is why we have listened. That is why I propose to make amendments. That is why we are amending Clause 2(9). We have already referred to further amendments because we do not intend to catch those who should not be deemed to be culpable in this regard.

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

With the greatest respect to the Minister, the question of the noble Lord, Lord Eatwell, was whether the people concerned should be prosecuted. The defence does not arise until they are prosecuted. Does a person have to go through the prosecution process, and when the prosecution case has been made out produce his defence? Surely not. That is the whole point of including intent as an ingredient of the offence and not leaving it until late in the case.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I know, because the noble Lord is still in practice, that he is very conversant with the way in which these issues are now prosecuted. The noble Lord will know that before a charge of any seriousness is made the CPS has to look at the evidence, the nature of what is said and the possibility of charging or not charging. In those circumstances one looks at all the circumstances of the case. So it will be perfectly possible for the Director of Public Prosecutions to decide which cases should or should not be charged and which cases should or should not be prosecuted. The totality of the offence and the defences are looked at before charge.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I wish to follow up what I think is a very important point that has been made by the noble Lord, Lord Thomas of Gresford. Of course, in undertaking this analysis, the CPS would have to consider, on the basis of this offence, only the actus reus of the offence. It would not have to consider the mens rea because there is no requirement for a mens rea under Clause 2. So the point of the noble Lord, Lord Thomas of Gresford, is indeed extremely important. The fact of the matter is that a wide range of people could be prosecuted simply because they had committed the actus reus but not a mens rea, and they would have to fall back on a statutory defence in court. Why should they be in court in the first place if they did not intend the offence of dissemination?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Let us be absolutely clear about this. In relation to prosecutions it is the duty of those who prosecute to look at all the facts of the case. The changes that we have made in the past year mean that once the police have collected all the material and the circumstances are known, the CPS has to look at those circumstances and at the totality of the information and decide whether to charge. We have made it plain—I have made it plain repeatedly from this Dispatch Box—that it will be the duty of the Director of Public Prosecutions to consider which cases should or should not be prosecuted. That onerous duty—and I know that each person who has held that post has discharged it with integrity and honour—is to see whether all the circumstances justify a prosecution. We have all agreed that such prosecutions would be few and far between and will be looked at with great care. Those circumstances should be known before a charge is laid and it will be possible to look at those issues properly. It is simply not right to suggest that this would not be an appropriate way to deal with this.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

Will the noble Baroness please look at this again, because there may be two misunderstandings? The first question that has been at issue in this extremely important debate is whether the prosecution should have to prove intent in these circumstances. In my opinion they should have to do that and nothing that the noble Baroness has said has indicated why it should be left to the librarian or other person to prove their innocence. If she has a good explanation, no doubt she will give it.

The second point, which I have heard several times in debates on this and other criminal justice matters, is that because such a case can be brought only with the consent of the Director of Public Prosecutions, the Government seem under the impression that the DPP will personally look at these cases. That is not what those words mean. If a Bill or Act of Parliament states that such a case must be brought only with the consent of the DPP, it means that it must be prosecuted by the Crown Prosecution Service. That is not the same as saying that it must have the consent of the Attorney-General, when one would expect him or the Solicitor General to be personally involved. It would, I hope and expect, be a fairly senior Crown prosecutor, and in any very serious case I would hope that the director would apply his mind, but it is not what those words in the Bill actually mean.

It is important that unless the Government can show why there will be special circumstances exonerating the librarian or academic or whoever, the intent must be proved by the Crown. Having listened carefully to the noble Baroness, who is always enormously courteous and helpful, I have not heard that reasoning explained.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The defendant, if he is charged and the matter comes before the court, would have to prove his defence on the balance of probabilities, and the Crown would have to prove beyond reasonable doubt that the offence was carried out. The noble and learned Lord, Lord Lyell, is correct to say that the Director of Public Prosecutions would not deal with each and every case, but the noble and learned Lord knows that due to the special difficulty and nature of certain offences, those matters are dealt with not only by very senior members of the Crown Prosecution Service. Often the director will look at the matter himself when it is delicate and/or specialist. I can hazard a guess—I am sure that the noble and learned Lord, Lord Lyell, will agree—that it would be unusual for offences of this nature, which we all recognise will be few and far between, not to receive the attention not only of a very senior CPS lawyer, but of the director himself. These cases are very rare and their importance is never underestimated. I am therefore confident that these sorts of cases will receive the highest quality attention that the CPS and, indeed, the director is likely to have.

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

Does the Minister accept that the real danger is not so much wrongful prosecutions, which probably would be few and far between, but the general chilling effect that this Bill will have, not only on libraries and universities but on all sorts of organisations, in the knowledge that they face the risk of a charge and may be prosecuted if the DPP decides to go ahead?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 5:30 pm, 7th December 2005

I sincerely hope not. I hope that, not only from what I have said but from what will be in the Bill, it will be absolutely clear that those who do not wish to encourage terrorism and those who do not wish to facilitate matters of this sort will be absolutely safe. That is what the Government certainly intend to happen and it is how we believe these clauses should be properly identified. I made it clear that the Government's view is that that is already possible without the amendments that we are now suggesting. Because of concerns that are genuinely held in this House and elsewhere, we have sought to go even further to ensure that that is put beyond any doubt. The Government's case is that the fears currently being expressed, although genuinely held, are ill founded, and we wish to do all that we can to ensure that those concerns are laid to rest.

I think that in essence I have dealt with Amendments Nos. 24, 25A, 30, 36 and 37, and I turn to Amendment No. 39. Given the importance of the approach that we have adopted, we obviously cannot support this amendment, which would withdraw the defences from Clause 2. Such a change would make sense if the offence could be committed only through intent, but not if intent is not part of the central offence. Given that it cannot be, we believe that we must retain the defences. These are the means by which activity that would be illegal in one context is legal in another, but they still allow the offence to be effective. In other words, they are the means to allow the offence and its associated powers to be effective in tackling both the mindset of the disseminator and the act of dissemination. Therefore, we invite noble Lords not to pursue those amendments.

The noble Lord, Lord Kingsland, referred to Amendment No. 27, with which I have not dealt. It relates to Clause 2, which we have discussed at some length. The amendment would remove subsection (3) from the Bill in its entirety. We do not see the merit of so doing. We believe that subsection (3) provides important safeguards. It clarifies what constitutes direct or indirect encouragement in the context of the offence of disseminating terrorist publications. In particular, it provides that the offence can be committed only if the publication in question is likely to be understood by those to whom it is made available as an encouragement to commit terrorist acts.

As we have already indicated, there are plenty of other defences and safeguards to ensure that those who pursue legitimate scholarly, academic or other pursuits will not be committing the offence in Clause 2. In particular, we are widening the defence of non-endorsement, so all such people will be able to benefit from it. Nevertheless, we can see no reason to remove the additional protection provided by Clause 2(3). I understand that the noble Lord, Lord Kingsland, said that this is a probing amendment. We have looked at the subsection again and we think that it is a helpful, as opposed to unhelpful, clarification and that it is necessary.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I do not want to make a speech or prolong this debate but perhaps what the noble Baroness said about the burden of proof can be made absolutely plain. As I understand what she said, if the police believe that an offence has been committed under this part of the Bill, they will submit evidence to the Director of Public Prosecutions, who will then decide whether to prosecute. If he does so decide, it rests with the prosecution to prove that the man or woman is guilty and it does not lie with the defendant to prove that he or she is innocent. That is an important distinction, and I should like to have it on the record that I am correct in believing that the burden of proof will be on the prosecution.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The burden will be on the prosecution to prove the offence. The burden placed on the defendant in relation to a defence is to prove that defence on the balance of probability. But the overall burden remains on the prosecution.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I thank the noble Baroness for her comprehensive reply to this group of amendments. So far as concerns Amendments Nos. 24, 25A, 30, 36, 37 and 39—that is, the amendments which deal with intention—I do not think that the noble Baroness can be in any doubt whatever about the feelings of this Committee. I do not recall any of your Lordships intervening for any other purpose than to support one or other or all of these amendments. I hope that I speak for all noble Lords who have participated in this phase of the Committee debate when I say that it is certain that all these amendments will reappear on Report, despite the valiant efforts of the noble Baroness to reassure us that they are wholly unnecessary.

In particular, I am not at all reassured by the idea that the discretion of the DPP is a satisfactory substitute for the mens rea of a crime. It is a novel proposition. In fact, in my experience that assertion has never before been made in your Lordships' House by a Minister. I hope that by the time we reach Report, the noble Baroness will have seen the compelling force of all the arguments made in support of our amendments this afternoon. I propose to say no more about that issue, even though it is crucial.

I would, however, like to say something about Amendment No. 27, which the noble Baroness addressed at the end of her remarks. I repeat my question to the Minister. What in Clause 2(3) adds anything to the Bill that is not already covered in Clause 1(1)? Clause 2(3) refers to "matter"; but in my submission the only matter that could possibly be covered by Clause 2(3) is a statement of the sort included in Clause 1(1). Why does the noble Baroness think that anything other than a statement could be covered by Clause 2(3)? I accept that in Clause 2(2)(b), which states,

"information of assistance in the commission or preparation of such acts", is matter in addition to a statement; but apart from what is in subsection (2)(b), what matter other than a statement can be included in Clause 2(3)?

In support of my argument, I refer the noble Baroness to Clause 2(7), which states:

"It is irrelevant for the purposes of this section whether—

(a) the statement or how it is likely to be understood, or

(b) the usefulness mentioned in subsection (5)"— that is the definition contained in Clause 2(2)(b)—

"is in relation to the commission, preparation or instigation of one or more particular acts of terrorism, of acts of terrorism of a particular description or of acts of terrorism generally".

If there is matter in addition to what appears in subsection (5) and a statement, why is that additional matter not contained in Clause 2(7)? Perhaps I could leave the noble Baroness to say when I sit down that she will write a letter to me on this matter since, from the expression in her eyes, I think that I am unlikely to hear her again on this topic at this stage of Committee.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I do not think that it will be necessary for the noble Baroness to write at length. I think that, once the point is clear, a very short letter will be sufficient. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 25A to 42 not moved.]

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

moved Amendment No. 43:

Page 4, line 30, at end insert—

"(e) that the publication to which the conduct related was received by a library in consequence of its obligations under the British Library Act 1972 (c. 54) or the Legal Deposit Libraries Act 2003 (c. 28)."

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I am delighted to move an amendment that moves away from the issues we have been discussing in such detail and at such considerable length and I hope that the Government will find the first amendment to which I shall speak easy to accept.

There are moments in life when details can throw an extraordinary shaft of light on issues much bigger than themselves. Anybody who reads the British Library Act 1972 will see that we were living in a world that was very different from the one in which we are living after 9/11. The Act is full of the ideal of creating a knowledge society, giving access to people globally to learn about huge ranges of information, wisdom, writings and publications from which they would benefit. It is a world that sets out huge, exciting ambitions for the British Library as one of the great sources, one of the beacons, of that world of knowledge, equalled only by the Library of Congress in America and one or two other libraries in the world. The Act has inspired the British Library not only to collect a huge number of publications from all sorts of sources globally, but also—this is not yet as well known, but it soon will be—to establish a fantastic network throughout the world for access to information, publications and the other things that are part of what a great education ought to be. I recommend to noble Lords who are working their way out of the detail of this somewhat depressing Bill that they spend a minute or two in the library reminding themselves of the world that we were trying to build in 1972, at least as far as education and libraries were concerned.

We have come a long way from that to Amendment No. 43 which protects the British Library and that ambition by excluding the British Library from the provisions of the Bill as regards the dissemination of publications. Many noble Lords, not least the noble Lord, Lord Eatwell, who I am sure will speak briefly in this short debate on these two amendments, will be well aware that the law lays upon the British Library, and the other deposit libraries within universities—for example, the Bodleian, Cambridge University Library and Edinburgh University Library—the duty to acquire everything that is published and to catalogue it, care for it, make it available and archive it. It is typical of the British Library that it is already trying to set up archives about some of the astonishing events of our time; for example, the recent terrorist actions of 7 July 2005. It is the job of the British Library to make sure that the great events, and even the small events, of our lives are catalogued, cared for, made available and eventually archived so that we look after the history of our country and that of many other parts of the world as well.

That responsibility is particularly embodied in the Legal Deposit Libraries Act 2003, which was rather surprisingly passed some time after the first few terrorist outrages but still stuck closely to the ambitions that I outlined quickly by accounting for some 1.5 million new publications every year. An astonishing sea of information and knowledge is coming in to the British Library and is protected by it for the benefit of the whole of mankind. Those two Acts of Parliament, both carefully considered and enthusiastically passed, comprise a heavy duty upon the British Library and its fellow deposit libraries, which they carry out to the best of their ability. Indeed, it is fair to say that the library system in the United Kingdom is, if not the finest, among the finest, in the world. We owe it to our heritage and to posterity and it is of vital importance if we are to build a knowledge society. It is something that we have to protect. This legislation—unwittingly, I suspect—could very well seriously damage it.

Therefore, we believe that this simple amendment would protect the deposit libraries from finding themselves in a statutory tug-of-war in which it would be impossible for them to satisfy all the obligations laid upon them by statutes passed by Parliament. It is completely unsatisfactory to leave the situation as it is with libraries simply unable to do both the things that they are called upon to do—unless we can better clarify the obligations under Clause 2. The purpose of the amendment is cleanly and straightforwardly to exempt deposit libraries from the effects of this legislation. Of course, it would not cover any proposal to intend an act of terrorism or anything of that kind, which would be highly unlikely but, in the extreme case, could just be possible. I commend the amendment to the House.

Before I sit down, I shall speak briefly to Amendment No. 44, which concerns a different issue; that of the maximum penalty attracted by offences under Clause 2. I commend to the House the proposal that the maximum penalty should be sharply reduced from seven to three years. It is already clear from the debates we have had that a lot of people who had no intention of being involved in a terrorist offence could still be caught. That is the nature of the fears that many of us have been expressing, including my noble friend Lord Goodhart and the noble Lord, Lord Kingsland. Therefore, it is swingeing to have a maximum penalty of seven years in a group of offences so unclearly stated and, in some cases, so difficult to understand how to avoid. I shall not pursue the amendment at this hour of the Committee's deliberations, but commend it to the House. If we withdraw the amendment, we shall bring it back at a later stage because we think that these sentences are wholly disproportionate. I shall add that the clear advice of the Joint Committee on Human Rights is that disproportionate offences carrying disproportionate penalties would not satisfy the European Convention on Human Rights and it is very questionable whether this penalty would. I beg to move.

Photo of Lord Eatwell Lord Eatwell Labour 5:45 pm, 7th December 2005

As chairman of the British Library, I thank the noble Baroness, Lady Williams of Crosby, for her kind words about the character and work of the library. In addressing this amendment, I would first like to point out that it refers only to the British Library. By its terms, it excludes the other legal deposit libraries. Only the British Library has a legal obligation to collect everything, whereas the other legal deposit libraries have the right to collect material but do not have to. In other words, they can choose from copyrighted material what they collect. So this amendment refers only to the BL.

However, I am in a dilemma because the British Library, as I pointed out at Second Reading, and its staff are entirely behind the Government in their attempt to attack the causes of terrorism and the encouragement of terrorism. We therefore do not seek any form of special treatment. I acknowledged at Second Reading that there might possibly be a rogue ill-intentioned individual working at the British Library who should be prosecuted under the terms of the Bill for disseminating material or whatever it might be—the offences listed in Clause 2(1). But, of course in what I said, once again the Government's inability to provide any coherent answer whatever to the questions that have been raised on the issue of intent—other than they want to ensure that those who are culpable should be caught, which surely is not an answer unless they can show that incorporating intent would allow those who are culpable to escape—leads us to table amendments which would exempt institutions like the British Library from the terms of the Bill.

I am afraid that the issue of intent undermines this clause time and time again and is the reason I am sure that the noble Baroness has been so kind as to suppose that the activities of the British Library should be exempted from the terms of the Bill; but, as its chairman, I recognise that it should not.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

I welcome everything that the noble Baroness said on the amendment. I noted that she spoke of the extent to which the British Library engaged with and was influential among the network of library and library services across the world especially, I suspect, within the Commonwealth. That therefore gives me an opportunity to make an observation, which needs to colour a lot of our consideration of the Bill, and needs to be in the back of our minds. The Bill of course relates to behaviour in this country. But, particularly across the Commonwealth, we have a responsibility for all kinds of influence, even example, and in a range of states in which we exert much influence, there are significant threats to freedoms of all sorts, including intellectual and academic freedoms.

Among my concerns about the Bill, at this point and at a number of others, is that the potential influence of the British Government and of British institutions may be weakened if our own legislation goes down illiberal routes in this, as in other matters. We need to keep our eye on how this and other parts of the legislation are likely to be quoted abroad.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am grateful to the noble Baroness, Lady Williams, the noble Lord, Lord Eatwell, and the right relevant Prelate for their contributions in the debate, which has usefully focused on the important work undertaken by the British Library and deposit libraries generally. There is nothing in the Bill, so far as the Government are concerned, that would want in any way to undermine the importance of the work that those libraries undertake, the value of the collections they put together and the way they do their work.

We fully appreciate the intentions behind the suggested drafting. I listened carefully to what my noble friend Lord Eatwell said, in particular about the wish and the will of those who work for the British Library not to be exempted from the effects of the terrorism legislation because of the important part that it plays in countering terrorism generally.

I intend to be brief because many of the arguments that have been rehearsed this afternoon relate as much to this amendment as they do to previous amendments. The Government recognise the very special position of copyright and deposit libraries and we entirely appreciate the way that those libraries have lobbied us on this issues. The Government have listened to those arguments advanced in your Lordships' House. We have listened to the arguments made in another place and outside the Chambers of Parliament. I know that my noble friend Lord Eatwell has had a lengthy discussion with the Home Secretary on these issues. We felt that the original wording of Clause 2 was appropriate, but we in government have, as has been made plain on many occasions by my noble friend Lady Scotland, decided to make further changes to provide comfort to those who do not share our view on how we see the legislation working.

We propose to generalise the defence in Clause 2(9) so that it, like the defence in Clause 2(8), will potentially be available to everyone, not just to those who provide a service electronically. This would give libraries the protection which it has been argued they need, while also allowing for the possibility that there may indeed be, as the noble Lord, Lord Eatwell, said, a rogue librarian—a remote possibility I think we all accept—who might abuse his position.

We are convinced that this is a far better means of protecting the libraries than that which is set out in Amendment No. 43. It could be argued that although Amendment No. 43 is similar to Amendments Nos. 21, 45 and 83, which have already been discussed, in that it is clearly well intentioned, we think that it might not serve the function which I suspect my noble friend Lord Eatwell and the noble Baroness, Lady Williams, intend, and that if we revise the defence as we have argued in the past, we think it should be unnecessary.

I should also like to point out that the implication of the clause is that the mere stocking of a book by a deposit library is an offence. I would like to correct that. The possession of such publications is only an offence if it is held with a view to being disseminated as a terrorist publication. In addition, Amendment No. 43 could be positively misleading. It might suggest that libraries other than those referred to might not enjoy the defences in the clause which they should be able rigorously to deploy.

The Government's proposed changes—and I appreciate these changes are not before the Committee this afternoon—would avoid that pitfall. So, for those reasons I hope that the noble Baroness and my noble friend Lord Eatwell will be able to accept that we have met, or certainly are strongly committed to meeting, the intention behind their amendment and afford in particular the British Library, which is one of the greatest institutions of its kind in the world, the necessary protection it seeks. Having said that, I hope the noble Baroness will feel able to withdraw her amendment today.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I thank the Minister for his remarks, but I am rather disappointed. It is an issue to which we shall have to return for the reasons set out, I think very cogently, by the noble Lord, Lord Eatwell. As he pointed out, if intent were in the clause we would not be pressing the amendment. But it is not and we need to protect the British Library.

Let me just express my—how can I put it?—disappointment with one thing that the otherwise dogged and, I think, highly loyal defence of the Bill put up by the Minister and the noble Baroness, Lady Scotland. We are not seeking comfort; we are seeking a major protection for the freedom of speech and expression in this country. If it were merely comfort, none of us would be sitting here hour after hour debating this Bill. It is not about comfort, it is about freedom. That needs to be said very loudly and clearly.

It is also about not discouraging the great library experiment to continue to build in the way that it is already trying to do. The noble Lord, Lord Kingsland, and my noble friend Lord Goodhart could not have made clearer that one of the great problems that we confront at every stage of the Bill is what we have described over and over again as the chilling effect. It is not that librarians would not want to do everything that they could to support the Government in the battle against terrorism; it is that if they face the possibility of up to seven years in prison because they may not have taken every last step that they can to ensure that something does not happen, that has a terrifying curbing effect. We cannot pretend that that is not so. As I mentioned at Second Reading—I will not go on about it—those of us who lived through McCarthyism in universities in the United States saw it happen. We saw how career after career, ambition after ambition, aspiration after aspiration simply curled up and died in the face of the massive punishments that were given to people, a great many of whom later turned out to have been wholly innocent.

I will withdraw the amendment, with every intention to bring it back if the Government cannot see their way to embody intent in Clause 2. Again, I do so not for reasons of comfort, but because the whole House needs to take a stand to defend some of our finest heritage and liberties. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45 and 46 not moved.]

Clause 2 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 6:00 pm, 7th December 2005

moved Amendment No. 46:

After Clause 2, insert the following new clause—

"DEFINITION OF TERRORISM

(1) For the purposes of sections 1 and 2, "terrorism" means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) endangers a person's life, other than that of the person committing the action, or

(c) creates a serious risk to the health or safety of the public or a section of the public.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) "action" includes action outside the United Kingdom,

(b) a reference to any person is a reference to any person wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom.

(5) In this section a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."

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

The purpose of the amendment is to define terrorism for the purposes of offences under Clauses 1 and 2 more narrowly than in the Terrorism Act 2000. The amendment repeats the definition of terrorism in that Act, with the omission of the references to violence against property and cyber-terrorism. I should point out that that definition is intended to apply only to offences under Clauses 1 and 2, not to the obviously more serious offences under Clauses 5 and 6 or, indeed, the other offences under the Bill.

We are moving the amendment because, to begin with, any direct incitement to terrorism against property will be caught by existing legislation and we believe that there is no need to extend the new offences to terrorism that is directed against property unless it also involves a threat to life or health. That distinction is justified because Clause 1 and, in particular Clause 2, involve serious interferences with freedom of expression that may well be justifiable under Article 10 of the European convention where there is incitement to or encouragement of serious violence against individuals or acts that may put the health and safety of the public at risk, but it is not a proportionate response and is unjustifiable for less harmful kinds of threat.

The amendment would go some way to meet the criticisms of the Bill provided by the Joint Committee on Human Rights. That restriction would improve the Bill without causing any damage to the purposes that it seeks to achieve. I beg to move.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am intrigued by the amendment, because although its objective is to produce a new definition of terrorism for the purposes of the Bill, as I understood it, the Government have asked the noble Lord, Lord Carlile, to look at precisely the definition of terrorism. Is it not rather premature, given that many of the Bill's provisions will have to come back in a year's time because of sunset clauses, to be doing that in advance of the noble Lord's report, which I am sure that we are all looking forward to with enormous interest? Why does the noble Lord feel that that is necessary or sensible? Is it not a weird vote of confidence in his noble friend to suggest that we should prejudge his work?

Secondly, from what he said, I heard that he would exclude cyber-terrorism from this definition of terrorism. Although I accept that much cyber-terrorism appears to be an attack on property, if the consequence of cyber-terrorism is that the emergency services cannot operate their telecommunication or computer systems, or if its effect is that the public utilities or food distribution system cannot operate, surely—

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

I am grateful to the noble Lord for giving way. Perhaps this is something that we should be dealing with at the end, but it is a self-contained point that may be simpler to deal with now. If what was being encouraged was terrorism of the kind that the noble Lord has in mind, which involves the prevention of the emergency services acting properly, it would plainly be covered as something that creates a serious risk to the health or safety of the public—a definition retained under Clause 1.

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am grateful to the noble Lord for that intervention and I understand his point. I dwelt on it because I sometimes feel that issues around cyber-terrorism are considered as less serious, whereas I suspect that, as we move forward, the consequences of cyber-terrorism may be as serious as terrorism conducted by explosives or other more traditional methods. My point remains that I wonder why the amendment is before us today, given the work that the noble Lord, Lord Carlile, has been asked to carry out.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I am very grateful to the noble Lord. Will he address one of the greatest difficulties that the Committee faces, which my noble friends are attempting to meet? That is that we are discussing legislation which, among other things, encompasses substantial penalties on our fellow citizens, before we have a definition of terrorism. My noble friend Lord Carlile, whose intellectual capacities I do not doubt for a moment, may well come up in a year with a brilliant definition of terrorism. However, as, with respect, the Government have not come up with any definition of terrorism, we are in the ludicrous position of imposing penalties on people for a crime that has not been properly defined, except in terms of itself. It is not that a real problem?

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

I am not convinced that it is. We have a definition of terrorism in the 2000 Act. Talking to the experts on counter-terrorism in the Metropolitan Police, as I do on a regular basis as a member of the Metropolitan Police Authority, I am aware that they feel that we are facing the greatest threat that we have ever faced from terrorists. It is therefore a matter of some urgency that we have on the statute book a number of the provisions in the Bill to enable the police to be effective in tackling that threat. Therefore, with all due respect, I am sure that it is not really sensible for us to wait a year, six months, or however long it will take the noble Lord, Lord Carlile, to produce his definition. We should work with what we have.

I fail to understand why we should attempt an amendment to what we have today, when we have asked for a thorough review of all that goes into the definition to be brought before us at an early opportunity. I intervened in the debate to ask the specific question: why we are proposing this now?

Photo of Lord Elton Lord Elton Conservative

Would the noble Lord, Lord Harris, be satisfied if the definition of terrorism in the 2000 Act were imported into the Bill?

Photo of Lord Harris of Haringey Lord Harris of Haringey Labour

My understanding was that the definition of terrorism in the 2000 Act would prevail.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

That is correct. I am very grateful to the noble Lord, Lord Goodhart, for tabling these amendments because it gives the Committee the chance to discuss the issue, which attracted a lot of interest when the Bill was going through the other place. The definition of terrorism is important. As, I hope, noble Lords are now aware, the Bill adopts the existing definition in Section 1 of the Terrorism Act 2000. Clause 33 makes a minor change to that definition to cover international organisations such as the UN, but that is not really the point in issue.

The definition that we have is tried and tested, and the Government do not believe that it can be easily improved upon. Nevertheless, the noble Lord, Lord Goodhart, has had a go at making such improvement for the purposes of the offences in Clauses 1 and 2. For the most part, the noble Lord has drawn from the existing definition but with two quite important omissions: serious attacks on property and attacks on electronic networks. I suppose that it is for that reason that my noble friend Lord Harris mentioned cyber-crime. Serious attacks on property can clearly amount to terrorism. Anyone who witnessed the devastation caused by, for example, the attacks on the City of London in the 1990s could be in no doubt on that. Those attacks caused major economic loss, and the damage to London's prestigious financial centre cannot be quantified. I am sure that many noble Lords will also remember how terrifying it was for the people who witnessed and were troubled by it.

Exactly the same arguments would apply to an attack on an electronic system. An attack on the national grid or the national air traffic control system would have profound consequences for the nation. But if we agree that such acts constitute terrorism, so should the encouragement, incitement and, I dare say, glorification of such acts. If I may respectfully suggest, it does not make sense to have one definition for terrorist acts and another for incitement of terrorist acts.

Accordingly, we cannot accept the amendment. Furthermore, we suggest that the difficulties with them, which I have outlined, neatly illustrate the difficulty of coming up with a better definition of terrorism than the one that we have. The noble Baroness, Lady Williams, is right to say that we must discuss those issues, but all our parties agreed that we needed this Act, and quickly. We are very cognisant of the likelihood that we will have another Bill in which we will be able to look at those issues again, but all the parties felt that we needed to do now the work that we have undertaken. I acknowledged that at Second Reading and we all committed ourselves to it. We are now dealing with the provisions that are not consensual, but we should not forget that the majority are consensual.

I indicated at Second Reading that we had invited the noble Lord, Lord Carlile, our independent reviewer of the legislation, to carry out a review of the definition of terrorism. It will be important that, when the noble Lord carries out that review, he has the benefit of the views and assistance of any noble Lords who think that something has been left out or could be improved. That will be our moment to look together at what we submit to him regarding any new definition. We are very grateful to him for agreeing to take that on. He has indicated that he will consult widely and we know that he will honour that commitment.

It seems that the best way to proceed is to use the definition that we have, with the minor amendment indicated. I appreciate all the concerns of the noble Lord, Lord Goodhart, but it would be better to progress with the work that we have now, await the review of the noble Lord, Lord Carlile, and consider then what the definition should be, rather than act precipitously now, before the genuine debate on whether we should improve the definition of terrorism and whether it is possible to do so. I therefore invite the noble Lord to withdraw his amendment.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 6:15 pm, 7th December 2005

The noble Lord, Lord Harris, said that we did not need to deal with the definition now because the noble Lord, Lord Carlile, would report on it in a year's time. He may or may not recommend that Clauses 1 and 2 should include a more limited definition of terrorism than appears in the Terrorism Act 2000. The Government may or may not accept his recommendation if he makes it. Even if they do, we may have to wait a considerable time to get a legislative slot. Meanwhile, we are left with what I certainly believe is too wide a definition for the specific purposes of the offence of encouragement created by Clauses 1 and 2.

I do not dispute for a moment that attacks against property should be treated more generally as terrorist offences where they are inspired by terrorist motives. Of course serious attacks of that kind constitute offences such as criminal damage, which are quite distinct from terrorism and are offences in themselves. Incitement to such offences is also capable of prosecution under existing law irrespective of the law about terrorism. But we are talking about something at a lower level than incitement: encouragement. It seems right to distinguish between incitement and encouragement in certain respects, particularly where there is a lower level of harm to the public. Certainly any deliberate encouragement of anything causing violence likely to cause death or do great damage to public health and safety should remain an offence, but encouragement of what I might call the somewhat lesser forms of terrorism should not also be a criminal offence. After all, I see no prospect of any organisation linked with al-Qaeda advocating terrorism that is limited to damage to property or to electronic mechanisms and does not involve also the death of civilians or others as a necessary consequence. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Clause 3 raises a number of important issues involving the Internet. There is no doubt that the Internet can be used to spread terrorist propaganda. There are 24 amendments to Clause 3. In all but one my name is the lead name. It is impracticable to deal with them in a single group. Before I get on to this group, I should like to explain how the amendments are divided and, broadly, the topic of each group. Clause 3 extends offences under Clauses 1 and 2 to Internet service providers, which may not be aware of what they are transmitting, by an artificial extension of the concept of endorsement.

There is no definition in the Bill anywhere of what is meant by endorsement. For example, is it purely internal or is it external? Can you do endorsement privately—if you agree with something, are you treated as endorsing it? Or, if you express to other people your agreement with a document, how do you provide evidence of that extension? To begin with, the concept of endorsement is very unsuitable for this Bill. Except to a limited extent under Clause 2(9), endorsement is not mentioned in Clauses 1 and 2; nor is it, in itself, a criminal offence. Here we have a wholly artificial definition: if you do not comply with the notice, you will be deemed to endorse the material mentioned in the notice.

The first group of amendments gets rid of the concept of endorsement and turns Clause 3 into a freestanding offence of failure to comply with a notice to stop transmitting material specified in the notice. The second group, starting with Clause 49, deals with a number of technical problems envisaged by Internet service providers and is based on briefings that I, and other Members of your Lordships' House no doubt, have received from the Internet Service Providers' Association and other concerned bodies. The third group—Amendments Nos. 53, 56 and 58—deals with the absence of any checks on the police power to decide what should be contained in the notice given under subsection (2). The final group—Amendments Nos. 62 and 64—deals with wording that we believe is unsatisfactory.

Let me go back to the first group, which involves the artificial concept of endorsement. Internet service providers largely do not and cannot monitor the material which they transmit on behalf of the users of their services. The Government may identify electronic material which encourages or assists terrorism. If they can find the people who put that material on the Internet, they can charge them under Clauses 1 or 2 without reference to Clause 3. But, of course, they may not be able to get at the source, especially if the material comes from abroad. They can therefore tell the Internet service provider which is transmitting the material in the UK to block that material or the whole of the website from which it comes.

Subsections (2) and (3) of Clause 3 provide a mechanism by which the notice can be served on the Internet service provider to tell it to stop transmitting the offending material. It does that by saying, "If you don't stop transmitting this, you will be treated as endorsing this material and therefore guilty of an offence under Clauses 1 and 2". That is highly artificial and leads to unnecessarily complex drafting. It would surely be simpler and better to treat non-compliance with the notice as a freestanding offence. The amendments in this group are intended to achieve that result. Since non-compliance with the notice is a less serious offence than the original publication of the material, Amendment No. 66 provides for a maximum three-year sentence instead of the seven-year maximum for offences under Clauses 1 and 2.

It is of course possible for an Internet service provider which receives a notice to say that the notice is invalid because what it is transmitting is not a terrorist publication. In practice, it will not do that because it has no real interest in doing so. An Internet service provider is not concerned with the content of what it is transmitting, it simply transmits it. Undoubtedly service of a notice effectively blocks the material that is mentioned in the notice. I spoke of that earlier. The Minister wrote to me pointing out that that was incorrect, which, strictly speaking, it is. The effect of the service of the notice will almost inevitably be to induce the service provider to block the material and not transmit it any further.

Rather than having this highly artificial concept, we should say that where there is a terrorist publication—I have removed any reference to the belief of the police—and a notice is served, it should be dealt with as a separate offence and not as an offence under Clauses 1 and 2. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I thank the noble Lord for explaining how he believes this provision could or should work. Perhaps I may explain why I do not think that his amendment is necessary. To do that, I will have to clarify the purpose and effect of Clause 3, which I hope will help to make things clearer. I am grateful to the noble Lord, Lord Goodhart, for accepting that international terrorists use the Internet to disseminate and exchange information. Internet sites are used by radical groups advocating terrorism. They play a major role in the radicalisation of young and impressionable persons. Indeed, there is significant evidence to suggest that those responsible for the attacks in London in July were influenced by extremist messages that they found on the Internet.

Clause 3 is designed to enable the police to address that problem. The clause provides a means by which the police can serve notices on those who host information on websites, requiring them to remove or to modify statements which the police reasonably believe constitute something that encourages terrorism or is useful to the commission or preparation of terrorists.

However, it is important to recognise what this clause does not do. It does not create a new offence and we do not wish it to. Nor does it give the police the power to force people to remove material from Internet sites. It provides that if a person fails to comply with a notice which has been served he will no longer be able to argue that material on a website does not have his endorsement and, therefore, will not be able to take advantage of the defences in Clauses 1(7), 2(8) and/or 2(9).

We think that is right. The notice is not intended to be a notice to a person not to commit an offence; it is a notice that there is a statement that possibly comes within those offences. The person can comply or not. If that person does not think that the statement constitutes an offence under Clause 1 or Clause 2, the person can simply ignore the notice. The only sanction for not complying is that, if subsequently prosecuted, the person would not have the right to claim that he did not endorse the statement.

The noble Lord, Lord Goodhart, is right to point out that many providers post information on their sites, but have no idea about the content. Quite often they are appalled when that content is brought to their attention. It is right to note that in those circumstances, a number of providers have recorded shock and alarm. So this is a way of identifying for them that there may be material on their sites which falls into that category.

The effect of the amendments would be to convert Clause 3 into a separate, stand-alone offence. We are not sure that that is either desirable or necessary. In providing a notification procedure under Clause 3, we simply recognise the fundamental point that those who control websites can be totally unaware of the content placed on their sites by others. The amendments tabled by the noble Lord would create a stand-alone offence for what we think would be no apparent gain. We are not trying to catch people who unknowingly have allowed their facilities to be used; we want to give them notice so that they can act if they deem it appropriate to do so because they do not agree with the posted content.

Under the current drafting, if a person thinks that a notice that has been issued requires the removal of information which the person does not consider constitutes an offence under Clauses 1 or 2—I remind noble Lords that conduct which does constitute an offence under those clauses is of a very serious nature indeed—they need only to ignore the notice. Nothing else flows from it. If, however, they do think that the material constitutes an offence, they ought either to remove it or to amend it. If the statement is not removed and the police think that it constitutes an offence, the police can then prosecute. That is what is required under the present drafting. We cannot see what this amendment would add.

I should also like to point out that in our constructive discussions with representatives of the Internet industry, there has been no desire on their part to alter Clause 3 to make it into an offence. I see no apparent gain in accepting the amendments. The industry is perfectly content to assist us with this. It is comfortable with the phrasing of the provision. For those reasons, I hope that the noble Lord will feel able to withdraw the amendment.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 6:30 pm, 7th December 2005

I am grateful to the noble Baroness for her explanation. I should say that I have been given some indication by certain Internet service providers that they would prefer the stand-alone offence. For that reason, I thought it appropriate to raise the matter for debate. However, I do not regard this as one of the more important groups of amendments. That being so, and having heard the explanation given by the noble Baroness, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

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

moved Amendment No. 49:

Page 5, line 7, at end insert "other than where the publication or the conduct, as the case may be, has taken place outside the United Kingdom"

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

In moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 52, 54, 59, 60, 67 and 69. This large group of amendments raises a number of different issues, the link being that all of them are of concern to Internet service providers. However, I shall take them together because it would be inappropriate to hold a separate discussion on each one. I regret to have to admit that I am not an expert in the field and wish that I had more knowledge than I do of these very detailed issues.

Amendment No. 49 was suggested by Internet service providers, but having looked at it, I think that its consequences are in fact undesirable and I would not wish to encourage it. I therefore move on to Amendment No. 50, which is a paving provision for Amendment No. 69. If the previous group of amendments had been accepted, this would be unnecessary because the offence would arise only if there was a refusal to comply with the notice. But since the amendments were not accepted, Internet service providers may face a prosecution even without a notice being given.

The London Internet Exchange Limited, LINX, and the Internet Service Providers Association drafted Amendments Nos. 50 and 69, and we have adopted them. Their purpose is to ensure that Internet service providers do not face a prosecution for material forwarded by them but which they knew nothing about. This covers three specific situations where the role of the Internet service provider is as "a mere conduit", "the hosting of an information service", and where it provides "an Internet caching service". Those are all terms of art, the meanings of which are summarised in Amendment No. 69.

I should say that this is no longer necessary in relation to Clause 1 since the introduction of the intention test means that an Internet service provider in one of the specified categories plainly will not have the relevant intention. But so long as there is no intention test in Clause 2, we still need to ensure that Internet service providers are not subject to prosecution for the activities listed in Amendment No. 69. I recognise that this may be a defence specific to Internet service providers under Clause 2(9), but once again they should not be forced to rely on raising a defence to what otherwise would be a criminal offence.

In practice, Internet service providers cannot be expected to monitor these specified services and should not have to prove their innocence. These amendments would give effect to Regulations 17 to 19 of the Electronic Commerce (EC Directive) Regulations 2002 implementing the Electronic Commerce Directive (00/31/EC) of the European Communities. If the burden of proof is placed on a defendant to show that it falls within Regulations 17 to 19, Regulation 21 requires that it should be an evidential burden of proof only, and so far this fact has not been recognised in the Bill.

The next sub-group comprises Amendments Nos. 52 and 54. I understand that LINX and the ISPA are satisfied by the alteration to two working days and I shall not press the point further. Amendment No. 57, however, is one of some significance. It relates to repeat statements; that is, statements which are in the same form or to the same effect as a statement which was originally the subject of a notice and has been removed after the service of the notice. It is easy for a statement which has been blocked following a notice under Clause 3(2) to reappear as a repeat statement, perhaps from a new website. If it goes through the same Internet service provider it is treated as being covered by the original notice. No new notice is needed and the Internet service provider's only way out is to prove a defence under subsections (5) or (7).

I understand from LINX and the ISPA briefing that it is technologically impossible to monitor a network for a statement which may be "to the same effect". Further, imposing a requirement to carry out a general monitoring operation would be contrary to Article 15 of the directive. We therefore propose that subsections (4) and (5) should be deleted. We leave it to the Government to propose alternative solutions which recognise the serious practical problems that ISPs have in complying with subsections (4) and (5) as they now stand.

Given the speed with which the legislation has been introduced, one of the problems that has arisen is that it was impossible to have adequate prior consultation. In the ordinary course of events, if the Government had produced and published a draft Bill, it would have been possible for the ISPs to make their representations to the Government before it was published as a Bill. I hope that the Government are now discussing these issues with the ISPs and that they will be prepared to revise Clause 3 on the basis of those discussions.

Amendments Nos. 59 and 61 concern the actions which are needed by an Internet services provider to bring itself within the defences to prosecution provided by subsections (5) and (7). These are available only if the defendant has,

"taken every step he reasonably could".

We propose that that should be reduced to "reasonable steps". It may appear that there is no real difference, but there is. The difference is that as the Bill now stands a court would have to have evidence about all the steps which could possibly have been taken and then consider whether, in the case of any possible step, it was reasonable not to take it. Our formula would mean that the steps taken must be reviewed as a whole, and if in the circumstances these amount to "reasonable steps", it is not necessary to consider whether some other steps which were not taken might also have been reasonable. This would reduce the burden on the Internet service providers. It would not damage the effectiveness of the Bill because there is little doubt that people who are determined to do so will gain access to terrorist websites anyway.

Amendment No. 60 deals with a problem created by subsection (6). This provides exemption from the monitoring of transmissions as a reasonable step if the Internet service provider does not exercise any selection or editorial control over the contents of what is transmitted. A number of Internet service providers exercise a limited degree of editorial control over their transmissions. Some systems make it possible to exercise partial control over transmissions in certain contexts—for instance, child pornography—but these involve automatic monitoring with little demand on human time within the ISP. I am not aware of any programs presently available which would identify and make it possible to exclude terrorist material, and it would be very difficult indeed to create one. Until that happens, it is unreasonable to exclude ISPs which exercise limited control over transmissions from the exemption under subsection (6).

Finally, I have received draft amendments from BT. These raise concerns related to those of the ISPA—indeed, BT is a member of the ISPA—but which differ in detail because BT has somewhat different functions from the specialist Internet service providers. Unfortunately the amendments arrived late yesterday afternoon—too late to be tabled for debate today—but I am informing the Government now that they have been received and, if it appears necessary to do so, they may have to be debated at Report. I apologise for going into some rather technical details but that is unavoidable in Committee. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 6:45 pm, 7th December 2005

I thank the noble Lord for his careful exposition of his amendments and the way in which he has brought them forward. I plan to deal with the amendments in the following order: first, with Amendment No. 49; then with Amendments Nos. 50, 60, 67 and 69 as a group; then with Amendments Nos. 52 and 54 together; then with Amendment No. 57 alone; and then with Amendments Nos. 59 and 61 together. They fit more easily that way.

The effect of Amendment No. 49 is to limit the take down notice system to publications and conduct caught under Clause 2 occurring within the United Kingdom. I remind the Committee that the Clause 2 offence does not have extra-territorial effect, in any event, by virtue of Clause 17. The amendment is unnecessary in so far as it relates to conduct criminalised by Clause 2.

As to the publishing of terrorism-related statements, limiting an offence that targets terrorist publications on the world wide web to the United Kingdom is a seriously retrograde step which effectively undermines the entire regime. If the amendment stems from the belief that service providers served with notices outside the United Kingdom may not be able to comply with the notices by virtue of the law of the third country in which they operate—which might, for example, prohibit take down in the absence of specified governmental permissions—I can assure the Committee that Clause 3 already deals with this by providing any person who is served with a notice a get out if they have a reasonable excuse. Plainly any service provider who was prevented from complying with a Clause 3 notice by the law of the country in which it operates would have such an excuse.

Amendments Nos. 50, 60, 67 and 69 all appear to have as their basis the desire to ensure that the provisions of the Bill are consistent with the e-commerce directive and the Electronic Commerce (EC Directive) Regulations 2002 as they affect certain providers. The Government's position is that the offences in Clauses 1 and 2 are clear: where someone is merely providing an electronic service and does not endorse the offending statements they will not normally be caught by any offence unless they do not comply with a notice. Given this, we see no reason why service providers to whom the Electronic Commerce (EC Directive) Regulations 2002 apply should not be covered by the offences in Clauses 1 and 2 and the notice provisions in Clause 3. The 2002 regulations in no way preclude this. For this reason I cannot accept Amendments Nos. 22, 50, 67 and 69, tabled by the noble Lord, Lord Goodhart.

Amendment No. 67 is also technically deficient in that it is not the transmission but the provider who benefits from the exemption from criminal liability under Regulation 17 of the 2002 regulations. It is true that Internet service providers in the United Kingdom were concerned that our provisions on repeat statements might contravene the e-commerce directive, which requires that a general obligation to monitor cannot be placed on those Internet service providers who fall within its terms. They are right about that. We were not of the view that the Bill placed such an obligation on such providers, but we brought forward an amendment in the other place to put that matter beyond doubt because we understood that they were worried. That amendment inserted subsection (6) into Clause 3, which will ensure that where Internet service providers only transmit or store information, and have no involvement in selecting the information, the reasonable steps that the provider is required to take by subsection (5) to prevent repeat statements should not be taken to include any general monitoring.

I suspect that Amendment No. 60 is an attempt to ensure that an Internet service provider does not lose the protection of subsection (6) merely because it employs editing or selecting programmes to block serious forms of pornography. However, the noble Lord's amendment goes way beyond that to cover not just pornography but other material not related to terrorism. This would effectively render subsection (6) worthless, resulting in a much greater degree of protection than even the directive requires for those Internet service providers which are covered by it. More importantly, it would permit terrorist website administrators easily to circumvent the repeat statement provisions with the serious consequences that I have already outlined.

While Amendment No. 60 is not acceptable for the reasons that I have described, the noble Lord, Lord Goodhart, is right that we would normally have had more time in which to discuss it. Following further conversations with the industry, we are considering further amendments arising out of concerns that they have expressed about Clause 3(6). That subsection may go further than we had intended by adversely affecting Internet service providers which block content in response to specific cases of, for example, child pornography. We will bring those amendments forward on Report.

I think that the noble Lord indicated that he would not press Amendments Nos. 52 and 54 because they have been resolved. I see him nodding, so I will not trouble the Committee with those matters. I must say that Amendment No. 57 would have a seriously limiting effect on the practical application of Clause 3. Subsections (4) to (7) of that clause are designed to prevent circumvention of the provisions by requiring that where a notice has been served and a statement taken down, the recipient of the notice must also take reasonable steps to prevent the same statement appearing again. The type of steps that a web host could take would be, for example, blocking the access of certain users to its website, closing parts of the website and other measures of that kind. If these provisions are removed, as the amendment proposes, the police would have to apply to a judge each time the statement appeared. That would be unworkable as it would effectively mean that offending statements would be able to remain online virtually permanently, thereby rendering the clause useless. The amendment is also technically defective as it would leave in place subsections (6) and (7), which are meaningless without subsections (4) and (5).

Amendments Nos. 59 and 61 would amend the repeat statement provisions. They would change the current drafting from,

"every step that he reasonably could", to "reasonable steps". I would like to persuade the noble Lord that that is quite a significant change. The amendments would probably serve only to draw attention to what such steps would be rather than make any difference. Moreover, "reasonable steps" creates problems that do not exist in the current drafting. The present drafting makes clear that the person would have to take every step that he reasonably could to prevent a repeat statement appearing. "Reasonable steps" alone could be interpreted as some of the steps that the person could take but not all of them. The person could offer the defence that he had taken reasonable steps in accordance with the legislation, but had still not taken every step that he could have taken. For those reasons, in particular that Clause 3 does not create a new offence or give the police the power to close websites, I hope that the noble Lord will be content to withdraw his amendment. As I have said, we are continuing to talk to the industry about the problems and consequences that have been highlighted by Amendment No. 60.

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

My Lords, I am grateful to the Minister for her reply. I am pleased to hear that discussions are continuing with the profession and that it is likely that further amendments will be made to meet what certainly seemed to be legitimate concerns on its part. I have some difficulty in making a further response because it clearly depends on what further briefings I may get from the ISPA between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 to 52 not moved.]

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

This group of amendments raises an important issue which has been insufficiently discussed. Clause 3(2) would allow a constable of technically any rank, although it would no doubt be a constable of at least moderate seniority, to give a notice to an Internet service provider requiring it to block the transmission of something which the constable in question thinks is terrorism-related. As I have said previously, it is not the notice which blocks the transmission but the action of the Internet service provider.

Blocking an Internet transmission is self-evidently a serious interference with freedom of communication. As we all know, the Internet is an unparalleled method of transmitting information and opinions around the world. A number of countries with oppressive regimes therefore try to control Internet services to block what we would regard as legitimate and, in many cases, even highly desirable transmissions. Those countries are known to include China and Saudi Arabia, and, no doubt, a number of others as well. We must therefore be very careful about going down that particular path. We recognise that some power to ensure that terrorist websites are blocked is needed but, to ensure that this is limited to what is necessary, the police should have to get leave from a judge to serve a notice.

I am not suggesting that there should be a hearing on that application—or anything in the nature of a full hearing—or that the ISP to which the notice is intended to be delivered should be notified in advance, so there would be no significant delay. But the judge should have the power to tell the police that they have not shown a prima facie case and cannot serve the notice. The police may therefore think twice about asking leave to serve a notice when there is real doubt about whether the message in question really is a terrorist message. Those issues are covered by Amendment No. 53, which makes the test whether the message is a terrorist message objective rather than the view of the constable by removing any reference to the "opinion of the constable". Amendments Nos. 56 and 68 lay down rules about applications for leave to serve the notice and the judges who can give that leave.

One reason—and it is an important one—for providing judicial involvement in the process is simply that an ISP is not likely to challenge the notice because it has little or no interest in doing so. When the notice has been given, rightly or wrongly, no one else is likely to intervene. Therefore, as the Bill now stands, it puts into the hands of the police a powerful weapon that could be abused without there being any real prospect of any remedy being given. It is different from questions such as the blocking of obscene publications, when the involvement of a judge is not obviously necessary, because the concerns with freedom of expression are nowhere near as significant.

The Committee should recognise that this power raises some very sensitive issues around freedom of expression and community relationships, and I believe that this is one of the most important issues in the Bill. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team) 7:00 pm, 7th December 2005

Our names are added to the amendment and we wholly endorse what the noble Lord, Lord Goodhart, said in support of it. The text as it stands could be a serious interference with the freedom of speech, particularly as there are no stipulations about what knowledge or status the police officer would have. A constable is mentioned, and that is that. It is very hard to see how someone of that status, however competently they fulfilled their role, could possibly have the expertise to make the judgment that they would be asked to make. So I respectfully submit that the amendment is essential to make Clause 3 compliant with what we would expect of a clause respecting the freedom of speech.

Photo of Baroness Williams of Crosby Baroness Williams of Crosby Liberal Democrat

I make a very small point in support of my noble friend's amendment, but it is an important one. Increasingly, the relationship of the police to the Internet relates to certain areas of crime, and we are all very much aware that some of the crimes to which it relates are ones about which the public feel very strongly. I refer to stalking and paedophilia, for example, and to other areas with regard to which only recently, in the past few years, the police have inevitably had to include the Internet as a crucial source of information about people who may be prosecuting particularly disagreeable and horrible crimes. They have very much less relationship to the Internet in what one might call its beneficial aspects, which relate to education and the extension of information about other countries—sometimes of the most innocent kind, such as information about family histories.

Will the Minister bear in mind in considering my noble friend's arguments and those of the noble Lord, Lord Kingsland, the culture of the constable who may deal with these issues? That is all the more necessary because, if he is someone with a good deal of knowledge of the Internet, that is almost certainly the area in which he would have been working before he began to deal with issues that might impinge on terrorism. Quite often, the background that someone's culture gives them can be a substantial influence on how they regard a case that falls on the margins. Therefore, without wishing to delay the Committee further, I ask the Minister when she considers this matter to look closely at whether it would not be more appropriate to have someone of a more detached status in that position, which would be met by my noble friend's suggestion that these decisions should be in the hands of a judge rather than a constable.

Photo of Lord Cameron of Lochbroom Lord Cameron of Lochbroom Crossbench

I have a certain problem with the proposals. The interpolation of judicial authority relates to a notice that is declaratory that, as Clause 3(3)(a) says,

"the statement or the article or record is unlawfully"— observe the word—

"terrorism-related".

My concern is whether it is appropriate that in a matter of this kind the court should be involved, and my concern becomes the greater when I turn to Amendment No. 68, which deals with the definition of an "appropriate judge". The amendment says that in Scotland that will be,

"a sheriff or a judge of the Court of Session".

In Scotland the Court of Session is a civil court; it is the High Court of Justiciary that is the criminal court. It might be said that what is involved here is properly a criminal matter and not a civil one and would therefore fall properly within the criminal jurisdiction, which in Scotland is exercised by the High Court of Justiciary. I hasten to add that that problem does not arise in England because the High Court has both criminal and civil jurisdiction.

In parenthesis, I point out that my Amendment No. 125, which is related to the definition of "senior judge", where that appears in Clause 23(9), in so far as it concerns the extension of the period of detention of terrorist suspects, which is again a criminal and not a civil matter, is directed to the same point. Perhaps out of courtesy I can give that information to the Minister now. I also point out that even in this Bill, by contrast, forfeiture proceedings in Schedule 2 are declared by paragraph 7 to be civil proceedings and are therefore appropriately to be instituted in Scotland either in the Court of Session or in the sheriff court, which exercises a civil and a criminal jurisdiction.

For those reasons, at this stage I would want to be convinced that it was appropriate in the first place to bring in any judicial authority to the issue of a notice. How it might be done otherwise is another matter; but if you have a declarator that something is a terrorism-related publication and thereafter there is the opportunity, it may be, for further proceedings if the notice is not obeyed, it might be difficult to argue that in fact—whatever the opinion of the judge—it was not something that was struck at by the Act.

With regard to Amendment No. 68, I simply express concern that if there is to be an appropriate judge, as defined, it should be one who exercises criminal jurisdiction.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I agree with the noble and learned Lord's caution for the reasons he gives. Of course, the notice we are talking about, contrary to the nature of the amendments moved earlier by the noble Lord, Lord Goodhart, is not an offence; it is a precursor to the commencement of proceedings. If the notice is complied with, nothing flows therefrom. If the notice is not complied with—either because the individual, having looked at the material, does not agree with the assessment that has been made about the nature of the content, or because they agree with the content—the only thing that flows from that, as we discussed earlier in Committee, is that they would not thereafter be able to claim either that they were not aware or that they did not endorse the statements that were made.

Further, the noble and learned Lord is right to say that if a judge had made a declaratory endorsement of the publishing of that notice, it would be difficult for anyone thereafter to suggest that the notice was in fact incorrect in its declaration that the matters complained of were indeed of a terrorist content. We do not think it necessary or appropriate for judicial oversight for the reasons given by the noble and learned Lord, Lord Cameron, but also because, if one looks at the structure, it would be too burdensome.

The effect of these amendments would be to introduce judicial oversight with regard to all notices, and in this instance a notice is issued only if a judge is satisfied that the notice relates to statements or conduct specified in Clause 3(1), requiring the police to satisfy a court that there is evidence to suggest that the conduct in question is an offence. If the construct of the noble Lord, Lord Goodhart, was that we were in fact creating an offence, I can see that that might be appropriate, but, since we are not, we do not think it necessary. By its nature, it is a far more burdensome process than the one we have provided for in the Bill as it stands.

As the noble Lord has already accepted, the Internet is a fast-moving world. There would have to be good reason for introducing delay in the clause. We assume the intention behind the amendment, by requiring the police to satisfy a court that there is evidence to suggest that the conduct in question is an offence, is that the Bill would provide greater protection to the individual than currently—but this is what is provided under the existing clauses.

As I have made clear, if the website host does not comply with a notice, the police will have to choose. They have to elect whether to prosecute under Clauses 1 and 2, providing a full evidence case that satisfies a court, just as would be required under the amendment to Clause 3. Requiring the police to go to a judge before issuing a notice slows down the process at the cost of increasing the risk that the statement, article or record will have a negative effect on those seeing it and delays the speed at which a notice can be issued to a person who may or not be aware of the presence of such material and enable them to remove that material. The net result of this does not provide any more protection of the individual than they already have under the current drafting.

Amendment No. 56 also makes provision for the Secretary of State to make regulations to,

"provide for an application to be heard without notice to the relevant person and in his absence", so that the person on whom a notice is served,

"may apply to a court for the revocation of the notice".

Again, we can see no real benefit to that process. First, as I have said, we do not think the police ought to have to go court before issuing the notice. Secondly, for a person to be able to revoke a notice seems unnecessary.

The notice is not intended to be a notice to a person not to commit an offence; it is a notice that there is a statement that possibly comes within those offences, and the person can choose to comply or not. If that person does not think that the statement constitutes an offence under Clause 1 or 2, that person can simply ignore the notice. The only sanction for them not complying is that the person, if prosecuted, does not have the right to claim that he did not endorse the statement. We see no useful role for the revocation process. The amendments are, I suggest with the utmost respect, not necessary.

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 7:15 pm, 7th December 2005

Is this not one step away from an ASBO issued by a policeman on his own opinion and judgment? As my noble friend said when he introduced the amendments, one does not know what the policeman's experience is, or what his views or opinions are. By requiring the police to go to, shall we say, a circuit judge, the matter is not delayed by more than maybe half a day. I do not see that it is so vital to remove offending material immediately that an application to the court to have some judicial involvement is not justified.

This is just another example of the way in which the Government seek to issue notices to people so that they will commit offences by not obeying those notices. Here it is just one remove from saying, "We may prosecute you, and you will not have a defence".

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team)

I am going to make a slightly different point from the noble Lord, Lord Thomas of Gresford, but it is within the same sphere of interest. It is true, as the Minister says, that, as a consequence of the issue of the notice, the person to whom it was issued need not comply; but that puts a severe onus on that person. If that person does not comply, and carries on because he thinks that what is in the statement is perfectly innocent, he deprives himself of the defences under Clause 1(7), as the Minister said earlier in a slightly different context. Who is going to be prepared to take that risk—especially in circumstances where the overall responsibility for deciding whether prosecutions are made lies in the hands of the DPP?

I respectfully submit that this is a wholly appropriate situation where a judge should be engaged before a notice is issued. The Minister said that this would delay the process, but that is true wherever a judge is involved, whether in matters of the Internet or general criminal procedure. The fact that going to the judge delays matters is, in my submission, neither here nor there. The question is whether a judge should be involved, and in our view—I share entirely the opinion of the noble Lord, Lord Goodhart—a judge must be involved.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I want to deal with the issue of culture, which was raised by the noble Baroness, Lady Williams. I apologise to her, as I had written "culture" in my notes, but I did not come to it. I take on board what she said about culture, and she is right. The majority of those who have had to deal with the Internet from the police side are dealing with the more pernicious element. That is important, and must be considered.

Additionally, one must consider that those who will be tasked with terrorism issues will have that specialist knowledge too, so they will be looking at material in which the terrorist element, with regard to the way terrorism is promoted and propagated, is the nature of the material they will be seeking to remove. It is right that I say that, because it is not culture but specialisation. One of the things we have had to consider seriously is the effect that promulgation of terrorist material has had on the radicalisation of our youth and the impact it can have, very quickly, on those who are susceptible to it.

So the fact that the specialists will be operating this is actually not a matter that should cause us great concern. I think it is a matter that should be of great reassurance. Many of us are not scandalised but upset by things which perhaps are not as familiar. For example, I had the dubious privilege of representing local authorities and parties involved in quite serious paedophilia cases. That means that one's eye is trained to the distinction which one must draw between inappropriate behaviour and serious behaviour that is culpable. One is therefore more attuned to looking at that which is seriously pernicious. I think that that is the nature of the work that the police will do.

One also has to understand—and the noble Baroness is right about this too—that the Internet is a very powerful instrument. It is a powerful instrument for good and it is also a powerful instrument for evil. Making that decision is difficult. The noble Lord, Lord Thomas of Gresford, says, "Isn't it absolutely proper, therefore, to say that you should go to a judge on every occasion?". We come back to the point made by the noble Lord, Lord Goodhart, in an earlier amendment, that many Internet service providers have no idea about the content of the material that is put on their sites. Many of them have welcomed the fact that we have, in working with them, been able to identify the parts of the material that are unlawful for various purposes and are pernicious in nature. They have been anxious to remove inappropriate material from their sites and we have been able to express welcome and gratitude for that.

The issue then is what to do about the notice. We have an opportunity to notify the Internet service providers of material that is inappropriate. They then have a choice to make: the decision is whether to take it down. There has been no suggestion that the police or others in the areas in which we have worked have behaved inappropriately in the matters they have so notified. We do not believe that there will be a significant difference here either.

It is a two-stage process because after the notice has been given the police will then have to consider the nature of the material, whether they wish to prosecute, and then produce material that will go before the judge. We think that that is the appropriate time. We do not think that it would be appropriate to bring the judge in at this stage for the reasons properly given by the noble and learned Lord, Lord Cameron of Lochbroom. The noble and learned Lord makes an important point. It is right to say that if a judge has adjudicated on the content of this notice which is declaratory, it would be very difficult for an individual thereafter to claim that they disagreed with the definition of that content.

We think that the most appropriate system is the one that we are advancing. We do not agree with the noble Lord, Lord Kingsland, that, once someone has a notice, they suspend all independent assessment and then simply comply. There has been compliance on the notices that have been issued in other circumstances, but I certainly cannot say that that compliance has been 100 per cent. People have issued and made their own judgments about it. We allow for that eventuality here too.

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

I begin by accepting entirely the remarks of the noble and learned Lord, Lord Cameron of Lochbroom, that the amendment should refer to the High Court of Justiciary rather than the Court of Session.

Moving on to the substance of this matter, of course I accept that it will be open to a service provider who receives a notice to argue that the material it is transmitting is not terrorist material and that no offence is committed. The problem really is that no service provider is ever conceivably going to challenge that. The loss from complying with the notice is minimal whereas the potential cost of objecting to it is enormous. There will be the prosecution, the legal costs and everything of that kind, which will run potentially into tens of thousands of pounds.

I think that one has to accept that in the special circumstances of what one is dealing with here, if there is no judicial intervention there is absolutely no realistic check whatever on an abuse of power by the police. I understand the reason why judges may not wish to get involved in this, but who else can? It seems to me that judges are far and away the most appropriate people to take that decision. There will not be a hearing. All the police will have to do is to provide what is basically prima facie evidence to show that there is a good case for taking the material off the website. One would expect that as a rule that would be acceptable. But we need a check for the occasional case where it is an abuse of power.

The judicial role here as I envisage it is not a hearing. It is not a trial, and nothing that the judge says will predetermine the result of any decision of the court in the unlikely event that the Internet service provider does refuse to comply with the notice. What I envisage here is something that is more appropriately the kind of decision taken by a judge when authorising the issue of a warrant than an actual decision at a trial. So it is not, I think, an enormous burden on a judge. It is not an enormous burden on the police to make out their case. But we need in these circumstances a check on abuse of power by the police. The Government have not come up with an argument that persuades me either that this is unnecessary or that there is an alternative to the proposals in our amendments. This is plainly one of the issues to which we will wish to return at later stages of the Bill. But, for the present, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 to 61 not moved.]

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House do now resume. In moving the Motion, may I suggest that the Committee stage begin again not before 8.30 pm? For the benefit of the House, I ought perhaps to point out that the timing on the Unstarred Question for Back-Bench contributions is stated as nine minutes. If that were to be followed through and all noble Lords were to use the maximum and the opening and winding speeches were to the maximum as well, we would be running well over the 60 minutes permitted. So may I suggest to noble Lords that they use eight minutes, which will take us fractionally over the hour?

Moved accordingly, and, on Question, Motion agreed to.

House resumed.