moved Amendment No. 2:
Page 1, line 5, after "by" insert "some or all of the"
My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3. These are both relatively minor amendments and I hope that we shall not have to spend too long debating them. However, before explaining the detail of the amendments, I should like to say a little about the Government's general approach with regard to Clauses 1 and 2.
I hope that all noble Lords will have read the amendments and will be aware of the broad package that we now propose. Our broad aim is now to insert "intent" and "recklessness" into Clause 2. As part of this package we also propose to revise wording in Clauses 1, 3 and 28. I am confident that this package will satisfy the concerns expressed, in particular by my noble friends Lord Eatwell and Lady Warwick but echoed by the noble Baroness, Lady Williams, and a number of other noble Lords. Before we go into the detail of these issues, it is right that I should explain these relatively minor amendments. I hope that we can end this part of the debate quickly.
Amendment No. 2 clarifies that a statement will fall under Clause 1 if it is likely to encourage some or all members of its audience to commit, prepare for or instigate acts of terrorism or convention offences. This amendment is intended to provide greater clarity in the Bill, but does not change the way in which we have all in practice understood this clause.
Amendment No. 3 would remove the redundant expression. I realise that we have discussed this provision previously and I argued that it should be kept. On reflection, however, it became clear that the wording in question does not make any beneficial difference to the offence and can be taken out in the interests of brevity and clarity. I am grateful to the noble Lord, Lord Thomas of Gresford, for bringing this provision to my attention at an earlier stage.
Amendment No. 13 is a technical, consequential amendment, necessitated by government Amendment No. 4. It would not change the meaning of the offence in any substantial way. I therefore urge your Lordships to support these government amendments, crafted so beautifully as they are. I beg to move.
My Lords, I thank the Minister for her introduction, which has helped the Bill to be looked at dispassionately and objectively at Report in the light of the Government's general framework. All the issues which the Minister raised will be considered in detail, line by line, during the afternoon. For those reasons, I do not propose to say anything further at this stage.
My Lords, will the Minister explain a problem I have with the amendment so far as it introduces the words "some or all of" in respect of the members of the public? Subsection (3) of Clause 1 uses the phrase,
"statements that are likely to be understood by members of the public".
Subsection (3)(b) is worded,
"a statement from which those members of the public".
Are "those members of the public" "some or all of the members of the public" or is some different concept in mind? I raise the matter because the phrase "some or all of"—in respect of persons, for instance—appears throughout Clause 2 in relation to what would otherwise be members of the public. Will the Minister explain why the words "some or all of the" are not added to Clause 1(3)?
My Lords, the matter in the amendment to which the noble and learned Lord, Lord Cameron of Lochbroom, referred, and the question of the noble Baroness, are taken up by Amendment No. 68A, proposed by the noble Lord, Lord Elton, who is not in his place. I am loath to go into the detail, but suffice it say that subsection (3) is automatically limited by subsection (1). I hope that helps the noble and learned Lord.
moved Amendment No. 3:
Page 1, line 11, leave out "on his behalf"
On Question, amendment agreed to.
moved Amendment No. 4:
Page 1, line 12, leave out from "he" to end of line 14 and insert "publishes it or causes it to be published, he—
(i) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate acts of terrorism or Convention offences; or
(ii) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to commit, prepare or instigate such acts or offences."
My Lords, these amendments are more comprehensive in nature. In moving the amendment, I shall speak also to Amendments Nos. 5, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, which stand in my name and concern Clauses 1, 2, 3 and 28.
The key changes that these amendments bring forward relate to the opening clauses of the Bill, in particular the new offence of disseminating terrorist publications. This new offence encompasses all those who disseminate extremist material. We have made it clear throughout the passage of this Bill that the offence is intended to target two types of publications: those that may encourage terrorism, and those that may be of use to terrorists, such as training manuals.
We should not ignore the contributory role that radical texts and extremist pamphlets have in radicalisation. They serve to propagate and reinforce the extremist and damaging philosophies which attempt to justify and explain the motivations of terrorists. We should not underestimate the role that such literature can have in radicalising vulnerable and susceptible young people, particularly changing Muslims from law-abiding members of the community to potential terrorists.
Equally, the ability of terrorists to exchange information on techniques and tactics in order to enhance their ability to prepare and commit terrorist acts needs to be disrupted as effectively as possible. We have seen that through the data we have had and discussed during Committee and our debates earlier. While under Section 58 of the Terrorism Act 2000 it is already an offence to create or possess information that is likely to be of use to a person committing or preparing an act of terrorism, it is not currently an offence to disseminate that material. We want to change that situation.
For understandable reasons, many noble Lords on all sides of the House have spoken at length about the potential risk that they believed this offence posed to legitimate activities. While paying due attention to these concerns, we should not allow them to deflect us from the real issues which we need to confront, and which this clause will allow the security and law enforcement agencies to tackle more effectively. There is a real evil that needs to be addressed and this clause will allow us to address it.
At the same time as wanting to prevent extremism in our communities and to provide our law enforcement agencies with the most effective tools to disrupt and combat terrorism, the Government have always been conscious that we need to steer a careful line between these intentions and the freedoms we cherish. Much of the concern expressed in Committee focused on whether the Government have placed that line in the right place. There was not a difference between us as to the need to do it; it was just where that line should be drawn, in particular with reference to the concerns of those in the academic circles and within the UK library community.
It has never been our intention, as noble Lords know, to curb the activities of legitimate booksellers, librarians or academics engaged in the study of terrorism, such as those at the University of St Andrews which was rightly mentioned by the noble Baroness, Lady Carnegy of Lour. As I explained in Committee, we did not believe that the Bill as it stood would have had this effect. We maintain that belief. However, the Government are a listening government, as I hope we have demonstrated on many occasions. I have, in particular, considered deeply the comments of my noble friends Lord Eatwell and Lady Warwick, and those of the noble Baroness, Lady Williams of Crosby, the noble Lord, Lord Goodhart, and noble Lords on all Benches, who have expressed anxiety about the issue. Their contributions have led me to reflect on how we could best meet these proper concerns.
Accordingly, I have tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, which mirror the same tests that exist in Clause 1. I have also tabled amendments to modify the wording of Clause 1. I do not believe that the amendments change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as that in Clause 1, to the extent that that is possible in a different offence. We listened very carefully to the arguments about the synergy between the two and the importance of having consistency, and we have tried to reflect that in the way in which the amendments have been drafted.
The prosecution under the amended Clause 2 will have to prove that a person disseminating a terrorist publication either intended to encourage terrorism or to provide information of use to terrorists, or that the person was reckless to the possibility that someone would be encouraged to commit acts of terrorism or would find the material useful in the commission of acts of terrorism. Those changes are proposed in Amendments Nos. 19 and 20. The changes to Clause 1 to which I have referred are in Amendment No. 4.
The inclusion of intent and recklessness in Clause 2 will, I am confident, be welcomed by my noble friends Lord Eatwell and Lady Warwick of Undercliffe as well, I hope, by both opposition parties. My noble friends and noble Lords in opposition parties can be reassured that whatever concerns they had about the potential impact of the Bill have now been addressed—and, I hope, addressed properly.
I am pleased to see the noble Lords, Lord Kingsland and Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, in their places, representing as they do a spectrum of political positions in this House. They have all tabled amendments—Amendments Nos. 17 and 18—which would have had the same effect as Amendments Nos. 19 and 20. Of course, in view of the fact that the government amendments achieve the same effect but do so in the context of a package of proposed amendments that will ensure that the Bill remains technically effective, I invite and urge noble Lords, especially those I have mentioned, not to press Amendments Nos. 17 and 18 when we come to them and to support the government Amendments Nos. 19 and 20, with related Amendment No. 4, which changes Clause 1.
Before I turn to the amendments in this group that have been tabled by noble Lords opposite, I should explain at a little greater length the other amendments that I have tabled. Many relate to the major changes to Clause 2, which I will now explain. Others are of a more technical nature. I am sure that many noble Lords are anxious to express their support for the amendments, so I shall comment on the relatively minor amendments as briefly as possible.
Amendments Nos. 28 and 29 are technical amendments. Amendment No. 28 seeks to make a particular expression clearer in the context of the wording and structure of the offence as a whole, which we shall seek to introduce. Amendment No. 29 seeks to change an internal reference in the light of a new package of amendments. Neither of those amendments effects any substantial change to the meaning of the offence. Amendment No. 30 inserts into Clause 2 a provision mirroring Clause 1(5)(b); it makes it clear that the offence can be committed whether or not anyone is in fact encouraged to commit acts of terrorism or finds information useful in committing acts of terrorism. That is because we are convinced that when prosecuting someone under this clause, the prosecution should have to demonstrate only the state of mind of the person making the statement, not the audience hearing it. We believe that the provision is entirely reasonable; it also ensures that the offence in Clause 2 can operate on the same principles as the offence in Clause 1, as far as possible.
Amendments Nos. 15, 16, 31, 36 and 40 give effect to changes that I signalled in Committee. Amendment No. 15 generalises the defences in Clause 1 that the person publishing the statement did not endorse it and that it was clear in all the circumstances that he did not, so that it is available to everyone, not just those providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, it is our belief that there is no reason why a defence should be available to those who commit the offence intentionally.
Amendment No. 16 is a technical provision that clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. Amendment No. 36 plays a role similar to that of Amendment No. 15, but in Clause 2. It generalises the defence in Clause 2(9)—that is, that the person disseminating the publication did not endorse those parts that constituted an encouragement of terrorism and that it was clear in all the circumstances that he did not. Therefore, the defence is available to everyone, not just to those providing a service electronically.
Amendment No. 40 removes the defence that was available in relation to the dissemination of material of use to terrorists, because that defence provided that a person had a defence if he did not intend the matter in the publication to be of use to terrorists. That is now unnecessary, as intention is part of the offence. In any case, such material, unless it also fell into the category of material encouraging terrorism, would not be capable of being endorsed. This amendment also restricts the defence relating to material that encourages terrorism to those who commit the offence recklessly.
Clause 31 removes the defence in Clause 2(8), which was originally intended to provide protection for libraries but is now redundant in the light of the generalised defence in Clause 2(9) and the insertion of the notions of intent and recklessness into Clause 2. The final government amendments arising from the changes to Clause 2 are Amendments Nos. 44 and 80. These are purely technical in nature and ensure that internal references will still be correct. For all these reasons, I urge your Lordships to support Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80. I am confident that noble Lords have held all those numbers firmly in their minds.
I turn now to the amendments tabled by members of your Lordships' House who sit opposite or on the Cross Benches. Before I address those that have been tabled with regard to Clause 2, I should like to make some comment on Amendment No. 5. This seeks to remove the notion of recklessness from Clause 1. In a similar vein, Amendment No. 4A seeks to remove the notion of recklessness from government Amendment No. 4. I will try to explain our view as briefly as I can, because I believe that we all understand one another's positions on this point.
I am convinced that it should be an offence to publish a statement that is likely to encourage terrorism, knowing that members of the public to whom it is published could indeed be encouraged to commit acts of terrorism. I do not believe that it should be possible for a terrorist preacher, for example, to argue that they did not actually intend to encourage terrorism when it was perfectly clear that his or her comments would do so. If the person knew that their comments were likely to encourage terrorism but made them anyway, it should be possible to prosecute. Otherwise we will allow a climate to be created in which terrorism is increasingly regarded as acceptable; we do not believe that that would be an acceptable position.
I therefore urge noble Lords who have tabled these amendments to rethink their position and not to move them. It would be difficult to tell citizens of this country, among others, that those who have suffered through terrorism—whose friends or relatives have been killed or injured—believe that it is acceptable to make statements that are likely to encourage terrorism and to know that that will be the effect of the statements. I am pleased to say that the government Benches do not hold that view and would not concur with it. Civil liberties are extremely important to us all, but so is our security and safety. So it is necessary for us to do all that we can to avert those who would foment terrorism in this way.
I turn to the opposition amendments regarding Clause 2. Although we will debate them separately in due course, Amendment No. 17 is relevant to these issues. I must confess that I am left a little confused, as the noble Lord, Lord Goodhart, who has put his name to Amendment No. 17, has also put his name to Amendments Nos. 19A, 20A and 20B, together with the name of the noble Baroness, Lady Williams. I am confused because it seems that those amendments have a very different effect from that of Amendment No. 17. The noble Lord may well have his reasons for contradicting these contradictory amendments. I certainly hope that that will become clearer in due course, not least if he abandons the contradictions, which do not concur with the Government's interpretation. I have indicated why Amendment No. 17 should be withdrawn. Government Amendments Nos. 19 and 20 perform the same job.
I will now concentrate on Amendments Nos. 19A, 20A and 20B, which all seek to remove the word "recklessness" from the Government's amendments that would insert the notions of intent and recklessness into Clause 2. I have already spoken about recklessness a little with regard to Clause 1, so I will try to be brief now. The issue is simple. We do not believe that people should be allowed to encourage terrorism knowingly. I cannot believe that the noble Lords who have tabled these amendments think that people should be allowed to encourage terrorism knowingly. Ultimately, this will be a matter for each of your Lordships to consider.
I am pleased with, and would like to acknowledge, the support of Her Majesty's loyal Opposition for the concept of subjective recklessness. I hope that this means that they feel able to answer no to this question. I hope that only a small minority of Members of this House believe that there has been so little regard for civil liberties that people should be allowed to encourage terrorism knowingly. As long as the Government and Her Majesty's loyal Opposition, together with as many of those Cross-Benchers and others who agree, are committed to maintaining essential civil liberties and not allowing people to encourage terrorism knowingly, I am sure that we will all retain our faith in the process.
I now turn to Amendments Nos. 19A, 20A and 20B. I am finishing very soon. We would strongly invite the noble Lords, particularly the noble Lord, Lord Goodhart, not to pursue these amendments. This would mean supporting the inclusion of intent and recklessness in Clause 2 and in practice supporting government Amendments Nos. 19 and 20. I hope that that will be the position.
In conclusion, I would invite the noble Lords to welcome and support the government amendments. As I have explained, the amendments do what the House wanted us to do, namely to insert intent and recklessness into Clause 2. In this respect they do the same as Amendment No. 17, which we will be debating shortly. They do so in a context of a package of amendments to revise Clause 1 as well as Clause 2. Given that the Government's amendments will achieve much the same effect as Amendment No. 17, I urge your Lordships to support the Government's Amendments Nos. 2, 3, 4, 15, 16, 19, 20, 21, 25, 28, 29, 30, 31, 36, 40, 44 and 80, but I also call on the noble Lords opposite not to move any amendment that contradicts any of those. I beg to move.
My Lords, I should point out that if Amendment No. 4 is agreed to, I will not be able to call Amendments Nos. 5, 6 and 7.
My Lords, perhaps I may raise a procedural point with the noble Baroness. The last version of the grouping that I saw certainly included Amendment No. 20 in the line of amendments further down the page starting with Amendment No. 17. That is because our Amendment No. 17 is about intent and the noble Baroness's Amendment No. 20 is also about intent. As I understand it, the grouping that we are discussing now—I hesitate to refer to "intent" again, but I will—is intended to deal only with recklessness. The matter of intent is to be delayed until later because quite distinct issues arise with the two and, in my submission, it would be unfortunate if the two debates were intermingled. I may have had the wrong pair of glasses on when I looked at the previous list—that is perfectly possible—but I distinctly recall Amendments Nos. 17 and 20 being linked. Indeed, that was an early request on behalf of the Opposition, the Liberal Democrats and the noble and learned Lord, Lord Lloyd of Berwick.
I make this point with due hesitation and respect but I hope that the noble Baroness will understand that, when we come to the grouping beginning with Amendment No. 17, it will be necessary for us to compare the merits of Amendments Nos. 17 and 20. Therefore we would like to reserve any observations that we make on intention until we reach that point.
My Lords, I hear what the noble Lord says and perhaps I can be frank with him in relation to our position. The list was changing as I took my place on the Front Bench to answer Question 1. I understand that negotiations continued while I was on the Front Bench. Those negotiations concluded with the list that I now have, conjoined in the new way, and therefore I responded as I have just done.
My understanding is that the amendments to which I have just spoken were bracketed in a way that was agreed. As I was still on the Front Bench answering Question 4, I had nothing to indicate that what I was given was not in fact the position. But, of course, it is for the House to decide whether to degroup any set of amendments in the way that the noble Lord suggests, even on the Floor, and therefore I will be in the House's hands. I have done what was indicated to me as being what noble Lords opposite were minded to do. I am but a servant of the House.
My Lords, I indicate to the noble Baroness that no one doubted for one moment that that was a fact. I may well have misled myself. If I have—it frequently occurs—perhaps I can invoke logic rather than my own memory and suggest to your Lordships that much the best place to debate intent is in the grouping beginning with Amendment No. 17. Therefore, the issue for this line of amendments should be limited solely to recklessness. I see that the noble and learned Lord, Lord Lloyd, has something to add and so I shall sit down.
My Lords, I support what the noble Lord, Lord Kingsland, has said. It seems to me that Amendments Nos. 17 and 20 go very closely together and should be debated in a separate group.
My Lords, the purpose of this amendment is to remove the recklessness test from the grounds on which someone can be prosecuted under Clauses 1 and 2. I certainly welcome the Government's acceptance of the principle that we should apply an intent test in Clause 2 as well as in Clause 1. My welcome would have been warmer if the conversion had not been so late. These amendments were not released until Friday morning, which gave a wholly inadequate time to consider them and consult either internally within the parties or between the various interested parties—namely, ourselves, the Conservatives, libraries, universities, Internet service providers and others.
However, my main concern about Amendment No. 4 is that the Government are diluting the requirement for intent by adding a test for recklessness. I am aware that I have put my name down to another amendment—Amendment No. 17—as the noble Baroness has pointed out, which would apply the recklessness test. I did so at a time when the Government were, so far as I knew, refusing to apply the intent test. I was aware that the Conservative Party then wanted to have an intent and a recklessness test, as I believe it still does. Therefore, I thought that it was better to back a Conservative amendment that was likely to win rather than to leave the status quo.
Having looked at these government amendments, I am left with very considerable doubts about what is actually meant by "recklessness" in the Bill or, perhaps more important, what the Government think it means. In Committee, we on these Benches made it clear that we wanted a simple test of intent with no recklessness alternative, whether objective or subjective. The Minister raised the case of a firebrand preaching terrorism and said that such people should not be allowed to raise a defence of recklessness. It seems to me that that is irrelevant, because a defendant cannot argue successfully that he did not intend the obvious meaning of the words that he used. He cannot get out of it by saying, "Oh, I said it but I didn't mean it". It seems to me that a preacher in such a case who tries to suggest that he did not mean what he said would be convicted on the basis of obvious intent.
I am particularly concerned by the interaction of the recklessness test with the special defences that the Government want to retain in Clauses 1 and 2. I understand from what the noble Baroness has said—although this had not been explained to me before—that this test would be available to someone who was reckless but who had no intent. So, in spite of being reckless, he would be able to get away with it if he could satisfy the special defences.
Our view is that the recklessness test is the worst of both worlds. In practice, I believe that it would be impossible to get a conviction unless intent is proved, but the recklessness test is alarming enough to lead universities, libraries and the media to withhold legitimate material and to fail to undertake work that would be in the public interest.
I have a number of questions to put to the Minister about the effect of the Bill as the Government see it in certain circumstances. First, a newsagent sells a magazine which contains an article that expressly encourages terrorism, but the newsagent is not aware of the contents of the magazine. It seems to me that the recklessness test is not satisfied, because an essential element of recklessness must be the defendant's knowledge that either publishing or disseminating material may encourage some recipients to acts of terrorism. The special defence, therefore, is irrelevant. Does the Minister agree? If so, is it also clear that Internet service providers, who are not monitoring material transmitted by them, do not commit an offence unless notice is served on them under Clause 3?
Secondly, the BBC carries an interview with a senior member of Hamas who actively supports terrorism in Israel. The interviewer asks forceful questions, but allows the Hamas member to state his case. The programme carries a response from the Israeli Government. The BBC must be aware that some viewers may find Hamas's arguments persuasive and be encouraged to give it assistance. Therefore, it seems that the initial recklessness test would be satisfied and that the BBC would have to rely on the defence that it did not endorse the views of Hamas and made it clear that it did not do so. Does the Minister agree with that?
Thirdly, a newspaper carries an article that is very sympathetic to the political objectives of militants in Kashmir. That article carries emotive reports of Indian violence in Kashmir but does not mention violence committed by the militants. Intent to encourage terrorism cannot be proved. However, it seems that the article could well satisfy the recklessness test because it could indirectly encourage terrorism. The author of the article may raise a special defence, but would fail because obviously the article that he had written represented his views. The newspaper might succeed if it published a disclaimer alongside the article saying that the article did not represent its views. Does the Minister agree and, if so, does that not create a serious anomaly? It shows that two people saying the same thing could be treated differently under the Act not because of what they say but because of what they think. In effect, that is thought crime.
The fourth and final example is this: a student asks a university library for a chemistry text book which could assist someone wanting to make home-made explosives. The librarian knows about the contents of the book, but knows nothing about the student except that he is a student. He proceeds to lend the book. That, too, seems to satisfy the recklessness test. In that case, no special defence is available under the Bill when it incorporates the new government amendments. The librarian seems to be guilty of an offence under Clause 2 even if the student has in fact no connection with terrorism. It seems, therefore, that, in order to avoid prosecution, the library must have some kind of blacklist of books—which would include, no doubt, atlases—which cannot be lent to anyone without positive vetting because otherwise the librarian is at risk of prosecution. Does the Minister agree?
The combination of the very broad definition of terrorism and the inclusion of the recklessness test—even if it is subjective—means that the Bill will make illegal those statements that most of us believe are the legitimate exercise of free speech or at best will force those who are disseminating statements to prove that those statements do not represent their own views. The chilling effect of that is considerable. This is an entirely different situation from recklessness in driving offences. There is no right whatever to drive at excess speed. There is no balancing issue as there is here with questions of freedom of speech. By contrast, most of us believe that it is the legitimate exercise of the right to freedom of speech to support the political objectives of a militant group that is fighting a brutal and oppressive regime. The exercise of that right will, however, be seriously restricted under the Bill.
Many things can be said with no intention of supporting terrorism in the United Kingdom or elsewhere but which could increase support for objectives of terrorists where the objectives are in themselves legitimate. To support independence for Chechnya is in itself as legitimate as to support independence for Scotland. The encouragement of legitimate objectives may encourage at the same time some people to adopt unlawful means of achieving those objects especially where legitimate means are forbidden to them. Most people would understand that, but it means that anyone who publicly supports independence for Chechnya is being reckless, because anything which increases support for the independence of Chechnya may well encourage unknown people to move from peaceful protest to violence.
To make that an offence is an unjustified restriction on freedom of speech. It is not necessary or proportionate, as was made clear by the United Nations High Commissioner for Human Rights, Louise Arbour, in the letters that were sent to the Government on
My Lords, this is a rare occasion on which we are going to disagree with the noble Lord, Lord Goodhart, on recklessness. The Minister will recall that the most contentious issue concerning the definition of recklessness was the distinction between subjective and objective recklessness. That matter has now, happily, been resolved. It is generally viewed that the application of subjective recklessness to matters of publication will, in practice, apply only rarely. Almost invariably, a person intends to publish a statement.
Almost invariably in the criminal law of our country, recklessness is a component part of mens rea. We therefore see, in those circumstances, no good reason for excluding subjective recklessness in this case.
My Lords, as someone who participated in this discussion on Second Reading, and was extremely unhappy with the idea of objective recklessness—against which I hope I mounted a coherent case—I am pleased to welcome the Government's change of mind in favour of subjective recklessness. With the words in the amendment and, in a Pepper v Hart context, the clear statements that the Minister has made about the nature of recklessness embodied in the Bill—that it is a subjective thing—I am now happy to support the Government, largely for the reasons that the noble Lord, Lord Kingsland, mentioned.
My Lords, I am not a lawyer, and am not clear about the difference between subjective and objective recklessness; or, indeed, about the difference between the two amendments from either side. I may well be, however, the only Member of this House who would clearly have been at risk of this clause had this Bill been passed at the time.
In the 1980s, I pursued the trade of an antiquarian bookseller. Amongst other material, we specialised in 20th-century history, particularly that of the Soviet Union. I remember selling a number of books, including the early works of Lenin, which clearly acted—or might have acted—as incitements to commit acts of terrorism. Indeed, Lenin can be regarded as the godfather of terrorism as a political tactic.
In particular, I remember that we had a copy of a book which we dealt in more than once: Moya Zhizn, the autobiography of Trotsky, first published in Berlin in 1931. I had a customer for this particular copy who will be somewhat remembered: Mr Robert Maxwell. I sold him a copy of Trotsky's autobiography, I now think, looking back on it, recklessly. That is to say that Mr Maxwell was widely rumoured to be connected with more than one foreign intelligence agency and was not a man, in general, of good or reliable reputation. So on the one hand I should have had concern about my customer and, on the other, Moya Zhizn is written, as one might expect, in Russian. I cannot read Russian, and I have no knowledge of what inflaming material Trotsky might have put into Mr Maxwell's mind had he read it. Nor did I know whether Mr Maxwell read Russian, although I think it quite likely that he did. What defence would I have had in those circumstances if I had been charged with recklessly selling something that was potentially an encouragement to terrorism without taking whatever safeguards—and I do not know what safeguards they could be—to satisfy myself that there was no more direct risk? Would that have been subjective recklessness or objective recklessness?
My Lords, having participated in Committee when we discussed these issues, I join my noble friend Lord Plant—we are both members of the Joint Committee on Human Rights—in saying how glad I am that the Minister fulfilled her undertaking to listen to what was said in those discussions in Committee and how warmly I welcome the inclusion of the concept of intent. Having said that, I hope my noble friend will forgive me if I make two observations because the context in which we discuss what is before us is as important on Report as it is at any other stage of the Bill.
We are debating the Bill at a time when what is regarded as terrorism in the context of the Bill is recognised as contentious. The Government have appointed the noble Lord, Lord Carlile, to produce a report on what is terrorism and what the definition of terrorism should be. Therefore, we would do well in our deliberations to realise that we are moving forward with what should be done by the law about terrorism when we also recognise that there is a debate about what terrorism may, or may not, be. The noble Lord, Lord Goodhart, illustrated the point in what he said about Chechnya. To put it in layman's language, the issue remains unresolved for many people and what may be seen as terrorism by one person may, in a particular context of oppression, be seen as freedom fighting or a liberation movement by somebody else. That is true not just in history; it is true today as well.
I wish to make another observation: while I underline how much I welcome the Government's move on intent, unlike my noble friend Lord Plant I still have a certain uneasiness on recklessness, about which I hope my noble friend will be able to reassure me. I am a layman; I am not a lawyer. Therefore, I am one of the people who must understand what is and what is not law. I am not one of the people who, with all the insight of lawyers' expertise, are making the law. I would have thought that common sense would tell us that sometimes somebody will do something in good faith that subsequently, when he is confronted by all the implications of what he has done, he might, in retrospect, agree was reckless, but was not consciously reckless at the time at which he did it. Therefore, I am uneasy about the concept of recklessness being used without any qualification whatever about the mental attitude, the state of mind and the state of knowledge of the person who committed the offence at the time that it was committed. I hope my noble friend will say something about this and that she may indicate some way in which this point could be made clearer for the layman and the potential culprit.
My Lords, I follow what has just been said by the noble Lords, Lord Judd and Lord Rees-Mogg, because I think all noble Lords welcome the Government's move on Clause 2 and want to help the Government in any way we can in picking their way through the extremely difficult conflict between freedom of expression and the need to protect ourselves sensibly against terrorism. However, may I echo what the noble Lord, Lord Judd, said about recklessness? I will add another thought to the reasons why what that would catch is still, I am afraid, somewhat unclear.
"As with obscene publications, libraries must act with due care in handling such publications and restricting access to them as they deem proper, in order that proper academic research is possible"— and I emphasise this next phrase—
"whilst not allowing impressionable people to see such publications".
With great respect to the Minister of State, who is able and competent, it is almost impossible to see how to interpret that under the general header of recklessness. Is it "reckless" if a library or university teacher behaves without, as in Mrs Blears' expression, "due care"? In almost any university in the land, by definition there are almost bound to be "impressionable people". At their best, that is exactly what students are.
How, then, could a conscientious university teacher or librarian meet, at one and the same time, the rather more narrow explanation of recklessness that the Minister has so helpfully given us here and the implications of Hazel Blears's letter? With the best will in the world—and I wish the Government well in getting this Bill as right as we can—I simply cannot see how one can meet both requirements at the same time. They do not seem fully compatible.
Although this is an extremely important issue, I will not detain the House long. However, I will go back for a moment to what is called the chilling effect. In some cases, the concept of recklessness can be defined in terms of negligence—a failure to take the action that one might in order to meet this Bill's requirements. Once into that, questions are raised about whether, for example, the librarian or academic teacher should attempt to screen his or her students, and we get into the area of whether he or she should have to operate self-censorship in order to avoid any possibility of being found guilty of recklessness. With great respect to the defences laid out, they still leave open the very troubling possibility that a number of people from these two professional groups would find themselves being accused of recklessness and having to defend themselves. Frankly, that is completely unjust to those professions and, even if they are eventually found to be innocent, it is bound to leave a whiff of criminality behind.
The Liberal Democrats have the greatest willingness to behave responsibly because we have all at one time or another, either personally or generally, encountered the terrible consequences of terrorism. We will try if we can, during Report, to make the whole issue of recklessness as precise as possible. In that I echo the questions of my noble friend Lord Goodhart and the noble Lords, Lord Rees-Mogg and Lord Judd.
I conclude by saying that, given the letter from the Minister of State at the Home Office, any help that the Minister can give us, whether via amendments or explanation to the House on how she would narrow and limit the concept of recklessness, would be extremely helpful. There is also the importance of being able to respond in good faith to the letter that my noble friend quoted from the United Nations High Commissioner for Human Rights, which indeed throws some doubt on whether, even with the amendments, we have met the requirements in the European convention or in the Council of Europe's covenant.
My Lords, I ask the Minister to take due note of the points made by the noble Baroness, Lady Williams. I hope that my noble friend can assure the House that the sentence she quoted from the letter of my right honourable friend Hazel Blears is a mistake because it is indeed chilling. It would require libraries and universities to interrogate the motives of all their readers and all their students—an absolutely impossible task. In many cases, of course, publications would not have the defence under Clause 2(9) of endorsing views. The example given of the chemistry text book is one where that defence would not be available.
I endorse what the noble Baroness, Lady Williams, said with respect to the letter from the Minister of State at the Home Office. I hope my noble friend on the Front Bench can assure the House that it is a mistake.
My Lords, I, too, hope that in her reply the Minister will be able to give some indication of where she feels this concept begins and ends. As at earlier stages of the Bill, I have in mind a library at St Andrews University where much of the material used is issued by terrorists. Its objective is the study of terrorism and the way terrorists behave—and you can only study that if you have examples of how terrorists behave.
If the remark in the Minister of State's letter is not a mistake—if it is intentional—is she saying that impressionable students should have no access to such material? If so, that really would be a limitation on the liberty of people. If the Minister could give a definition of where this concept begins and ends it would be very helpful.
I was not particularly disturbed by the speech from the Opposition Front-Bencher—I thought it was rather loose talk about freedom—but when the noble Baroness, Lady Williams, gave a specific example, it shook me. It clearly shook the noble Lord, Lord Eatwell, who has, since our proceedings began, been thinking a great deal about this on behalf of the British Library.
I look forward to as comforting and clarifying a definition as we can possibly have.
My Lords, having listened to this very interesting debate, it seems to me that there are two strands which need to be sewn together. I am sure the noble Lord, Lord Kingsland, is right when he says that, in reality, there will be very few prosecutions under the "reckless" heading. Equally, it seems absolutely clear that many perfectly innocent and worthy people—and, indeed, the noble Lord, Lord Rees-Mogg, as well—will be led into situations where they have to take, or feel they may have to take, enormous precautions or be subjected to enormous worry in perfectly innocent activities. In those circumstances, if the clause is going to be used extremely seldom, either it needs to go or, at the very least, the Government need to give categorical assurances that it will be used only against people who, in their view, are real terrorist criminals but who might be sheltering behind the slight difference between "intent" and "recklessness"; and that it will not be used against people who cannot take, or do not have time to take, or, as the noble Lord, Lord Judd, said, do not realise that the circumstances require, precautions. This would alleviate the obvious and considerable worry that there is. It cannot be right for people to have that worry and to take all that trouble for a heading which, as the noble Lord, Lord Kingsland, said, will be used very seldom.
My Lords, my primary concern is the definition of "intent" in Clause 2. I will save my fire until we debate Amendment No. 17, but contributions from other noble Lords have prompted me to ask the Minister how "recklessness" is intended to be interpreted in Amendment No. 20, which does not relate to a direct communication between individuals. The offence in Clause 2 is the distribution of publications where they may fall into the hands of people who might use them for terrorist purposes. It is the distance between the action of the librarian and the reaction of the potential recipient that now causes me concern. How, if you have an unrestricted group of potential recipients, can you know whether some may have terrorist leanings? Perhaps I may ask my noble friend, in sharing some of the concerns expressed, to say something about the meaning of "recklessness" in that context.
My Lords, I have two questions. First, I am interested in Clause 2(1)(d), which has to do with providing a service to others, which, in a library, of course, includes access to a computer. I would be astonished if, on the world-wide web, there is not a good deal of information and material that would be useful to a terrorist or would encourage terrorism. Would the librarian be in any way vulnerable for allowing students unrestricted access to a computer?
Secondly, and more specifically, there is a book by Bruce Lawrence, Messages to the World: The Statements of Osama Bin Laden, priced £10.99, newly translated from the Arabic original, and annotated with a critical introduction by Islamic scholar Bruce Lawrence, placing the statements in their religious, historical and political context. Now, let us suppose that a student, on the recommendation of a lecturer, obtained a copy through the library, and committed a terrorist act. If, on investigating, police found a copy of that book in the student's bedroom, would the university, its librarian or its lecturer be at any risk? I ask this question because I think it is so important that these people, who, like me, are not lawyers, and have a job to do, know precisely where they stand.
My Lords, perhaps I may follow that by generalising the case described by the noble Lord, Lord Rees-Mogg. In his case, he had the advantage of knowing who the customer for the autobiography of Trotsky was, which may have made the culpability of the noble Lord greater, as he recognised. The job of a bookseller, generally, is to sell as many books as possible and to make books available to the public. It really is not the task of a bookseller to have to distinguish or discriminate between customers. Yet, the definition of recklessness here appears to make it an offence for the bookseller not to discriminate in that way. How otherwise could the bookseller be sure that customers would not include someone who would either be moved to terrorism or use the book for the purposes of terrorism? I think that, in those circumstances, if I were a bookseller, without the advantage of knowing the identity of my customer, I would be concerned about that.
Similarly, the task of a librarian is to make the books in the library available to students or others who want to use them. It should not be, as I think this amendment implies, the task or duty of librarians to discriminate between borrowers in order to satisfy themselves that those borrowers do not include people who might be moved to terrorism or use the book for the purposes of terrorism. My concern about these amendments is that, as other noble Lords have said, unless greater clarity can be achieved, they will make people in the perfectly honourable and normal businesses of librarianship or bookselling uncertain about whether they are at risk of breaking the law.
My Lords, the debate this afternoon has surely demonstrated that the concept of recklessness is unclear. I listened very carefully to the rather rapid-fire speech with which the Minister introduced the debate. As I recall, she said that we would all agree that those who knew that they were likely to encourage terrorism should be caught by the provisions of the Bill. As I understand it, the noble Baroness was trying to explain what was meant by the concept of recklessness. If that is what she means by recklessness, why not put those words into the Bill rather than the much vaguer word "recklessness"?
This is a very sensitive Bill; it could be interpreted by the courts in very sensitive ways. If the Minister means by "recklessness" that people knew they were likely to encourage terrorism, why not state it in those terms, which are much clearer, more precise and easier for the courts to interpret?
My Lords, the debate about recklessness was in these terms originally. "Objective recklessness" is when a person does not give his mind to what is likely to happen, although a reasonable person would realise that some harm would follow from his act. If a person does something which is harmful without giving his mind to the consequences, and a reasonable person would have realised it would cause harm, that is "objective recklessness". That was the decision in Caldwell, which the Judicial Committee of this House set aside a year or two ago.
"Subjective recklessness" is where a person realises the consequence of his act yet goes on to carry out that act, although he may not intend that those consequences should follow. To put it into this context—and it is a very difficult concept that lawyers have had to struggle with over many years—let us suppose that there were a manual for making a bomb. If a person were to pass that manual to a person who he considered could potentially act upon it and realises that he may be encouraging him to make a bomb, then he would, in one sense, be subjectively reckless, but I am quite sure that he would be held guilty of intending that to happen if he knew that the person had it in mind to act as a terrorist. But let us suppose that it was a book on chemistry. A bookseller, librarian or university lecturer knows that of course it is possible to use a textbook on chemistry to construct a bomb. He has no intention that the person should construct a bomb and certainly does not care whether he constructs a bomb. He obviously would care were that to follow.
The clause sets out a criminal offence, punishable by seven years' imprisonment. It would cover a person who did not actually commit a terrorist act but said something or passed on a terrorist publication such as a book or a pamphlet. Is it right that a person should be guilty of a criminal offence carrying seven years' imprisonment if he does not intend the consequences that may follow? "Recklessness" is a difficult concept, and I cannot see that it is right, as my noble friend has said, for a person to be subjected to a lengthy sentence of imprisonment when he did not intend the consequences that he foresees.
My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for his valiant attempt to differentiate between "subjective" and "objective" recklessness. I will not say that I absolutely agree with that definition but I think it is within the right ball park.
I agree with the explanation of the noble Lord, Lord Kingsland, in relation to recklessness. Quite often "intent" which has a subjective recklessness element is very similar to "intent" simpliciter. In making that more accessible to those Members of your Lordships' House who may need it to be, perhaps I may say simply to the noble Lord, Lord Rees-Mogg, that, notwithstanding the indication of the noble Viscount, Lord Bledisloe, about the way in which he may be treated, I think that he would be not guilty.
I do not think that the circumstances to which the noble Lord, Lord Goodhart, referred cause anxiety. The noble Lord, Lord Thomas of Gresford, is right. The difference between "subjective" and "objective" is this. "Objective" is what a reasonable person would do or expect. A "subjective" test is what this particular person thought or believed at the time, not what any other sane, rational person would have thought. It is what this person thought that makes it subjective.
I confess to a certain degree of naivety. I had hoped that these amendments would give a great deal of pleasure to this House. I thought that I would be met with "hurrahs". Perhaps I may reassure the noble Baroness, Lady Williams, about the letter written by my right honourable friend Hazel Blears. That letter was sent before we tabled the amendments which your Lordships now discuss. We have provided for intent with recklessness and the generalised defence of non-endorsement. The noble Baroness and noble Lords will know that we have been giving anxious and proper consideration to our response to the concerns about Clauses 1 and 2 properly expressed in the House.
My Lords, I thank the noble Baroness for giving way. I fully accept what she says. However, the date of the right honourable lady's letter was
My Lords, there is no criticism of the noble Baroness for raising the matter: it is right that she should do so. I share this with the noble Baroness. I had not had sight of that letter, did not know of its content, and would not otherwise have been aware that that was a concern operating in the minds of the noble Baroness and others. It is right, therefore, that we have an opportunity to address that. Work was ongoing as to the nature of amendments, and when and if they should be laid, up until the time they were laid. I assure the House that we laid those amendments as swiftly as we were able bearing in mind the contemplation.
Everything I said in Committee relating to the need to allow proper academic debate, proper learning, in our institutions stands. I repeat the assurances I gave to the noble Baroness, Lady Carnegy of Lour, that the department of St Andrews which specialises in teaching the nature of terrorism and its effects would not be improperly inhibited from so doing, and I repeat my assurances in relation to the libraries and the booksellers—although not verbatim because I am sure noble Lords do not wish to continue this debate for the six hours it would take me to go through all that I said before.
So all that lays good. These amendments took on board the mischief which noble Lords had identified; the need to have proper debate maintained in our universities, which are of such high quality; the issues raised by my noble friend Lord Desai; and the issues also raised on our Benches by the noble Lord, Lord Parekh, and a number of others. I am very grateful for the endorsement given today by my noble friends Lord Plant and Lord Rea, because noble Lords know that they shared the anxieties of this House. We responded to their anxiety. I mentioned my noble friends Lord Eatwell and Lady Warwick too in relation to those issues. Their concerns galvanised us to think how better we could respond. I make it clear that we do not suggest that the clauses that were previously in the Bill did not deliver what noble Lords wanted—we believe that they did—but noble Lords demanded greater clarity, to put the matter beyond dispute. We believe that the amendments we have now brought forward do that. That is the reassurance that noble Lords wanted and, frankly, that is the reassurance which we were minded to give because we believe that those who have genuinely expressed those concerns are at one with us in our intent. Nobody in this House is subjectively reckless about what we are trying to do. I hope that I have reassured my noble friends and other noble Lords, including the noble Lords, Lord Dearing and Lord Butler, that we have done that which we needed to do to make the matter clear.
My noble friend Lord Judd gave examples, as did the noble Lord, Lord Goodhart. In none of those examples, for the reasons that he identified, did I think that the individuals would be at risk. For the sake of completeness, it may be helpful if I deal with just a few of those examples. The noble Lord, Lord Goodhart, asked about a newsagent who was not aware of the content of a magazine. In that case, he is not being reckless so no offence is committed. What about Internet service providers who do not monitor what goes on? That was part of the question of the noble Lord, Lord Dearing, as well as of that of the noble Lord, Lord Goodhart. They too are not committing an offence. We discussed on the previous occasion what they can do to remove improper material from their websites in a way that is just. The BBC would be able to rely on the non-endorsement defence. A librarian who gives out a chemistry textbook would not be guilty of an offence because a chemistry textbook would not be a terrorist publication under Clause 2(5)(b). For a publication to be a terrorist publication, it has to be material of use to terrorists. It must be clear that the material that was of use to terrorists was included in the publication wholly or mainly for the purpose of being so useful. That is not the case with chemistry textbooks.
I understand your Lordships' anxieties. It is right and proper that they should be explored, but it is also right and proper to say that they have no basis in fact. We have therefore come to a conclusion which I hope will give us a sense of comfort, because those who said that we needed to make sure that the legislation was clear were right. We have now responded to them. I hope that noble Lords will therefore feel able to accept that the position adopted by Her Majesty's Loyal Opposition—that is, supporting these amendments—is the correct and proper position.
My Lords, I am grateful to all the noble Lords who have expressed concern about the recklessness test, and particularly to those who have held senior positions in the universities. The noble Baroness started by saying that my examples do not cause anxiety and went on to discuss them. They continue to cause me anxiety.
In particular, there is something seriously wrong in this in a situation where the BBC broadcast a valuable programme which may have considerable effect in keeping people informed of what is going on in the world, but which may incidentally lead to a smaller number of those people who hear it becoming more active in terrorism. The BBC may in those circumstances, prima facie, be found guilty of an offence. To escape conviction, it has to come to court and at present has the burden of proof on it to satisfy the court that it did not endorse this. No doubt the BBC would not have much difficulty with this, but there are other less well known broadcasters which might find themselves in a different position. In connection with the Hazel Blears letter which showed a great lack of understanding of what the whole of our higher education system is about, it would be plainly desirable for the noble Baroness to say that it was a mistake and does not apply.
The position is that intent is simple but recklessness is a test that is difficult and uncertain. It is unlikely to secure convictions because it is difficult. I remain firmly of the opinion that it will have—indeed already is having, to some extent—an effect which is chilling on freedom of expression. In those circumstances I wish to test the opinion of the House.
moved Amendment No. 8:
Page 1, line 15, leave out subsection (3).
It is helpful to look back on how we got to where we are in relation to this provision. Subsection (3) was originally a separate offence—then Clause 2. It applied to anybody who glorified acts of terrorism, whether past, present or future. Events that occurred more than 20 years ago were exempt, unless they were put on a list to be compiled by the Secretary of State. The origin of that unusual offence was a single sentence in the Labour Party manifesto. However, the manifesto did not explain how you could create a criminal offence out of something so broad, so vague and so nebulous as the idea of glorification without—this is the important point—infringing freedom of speech.
Encouragement of terrorism, whether direct or indirect, was covered—as it now is—by a separate clause, Clause 1. The purpose of that clause, as explained in the Explanatory Notes, was to enable us to comply with Article 5 of the Council of Europe Convention on the Prevention of Terrorism.
There was no definition of indirect encouragement and there was no reference in the original Clause 1 to glorification. Clause 2 attracted a maximum penalty of five years for the glorification offence, and Clause 1, concerning the encouragement offence, a maximum of seven years.
The glorification offence attracted a good deal of what one could call ridicule as soon as it was published. It quickly became apparent that it would be unworkable in practice, and so glorification as a separate offence was then abandoned. Instead, it was tacked on at the end of Clause 1, dealing with the encouragement offence, where we now find it in subsection (3). My argument will be that subsection (3) has all its original vices as a separate offence in that it is much too broad and much too vague, but there is now an additional objection: in its new context it is very difficult to understand at all and almost impossible, one would imagine, for a judge to explain to a jury. So my suggestion is that subsection (3), which was attached to Clause 1 only at a very late stage, should now be detached and confined to what I believe is called the recycle bin, but I hope that it will not be recycled in some other form.
I now turn to views expressed during Second Reading. Almost everyone who dealt with the glorification issue condemned it as being incomprehensible or unworkable or both. I shall never forget the scathing attack—I think that that is the right adjective—advanced by the noble and learned Lord, Lord Morris of Aberavon. Many others spoke to the same effect and I listed them all during the Committee proceedings. Some noble Lords referred to the report of the noble Lord, Lord Carlile, in support of glorification, and I shall, if I may, come back to that a little later. But he did not touch on glorification in his Second Reading speech. Otherwise, there was nothing in favour of glorification, and the Minister did not deal with it at all in her reply.
Between Second Reading and Committee occurred a very important event—the publication by the Joint Committee on Human Rights of its third report of
"The first source of legal uncertainty in the definition of the offence of encouragement of terrorism in clause 1 of the Bill is the inclusion of 'glorification of terrorism' within the encouragement offence. 'Glorification' is defined in the Bill to include 'any form of praise or celebration'. The legal certainty concern is that terms such as glorification, praise and celebration are too vague to form part of a criminal offence which can be committed by speaking".
There could be nothing clearer than that. The committee came back to the same point when it dealt with Clause 21, to which we shall come later—the new clause providing for a new basis of proscription. It said:
"In our view extending the grounds of proscription to cover organisations glorifying acts of terrorism is unlikely to be compatible with the right to freedom of expression in Article 10 [of the convention] or the right to freedom of association in Article 11 . . . for the same reasons as those given above in relation to the proposed new offence of encouraging and glorifying acts of terrorism".
That is exactly what Members of this House were saying in the course of the Second Reading debate.
That is a view expressed by the Human Rights Committee, and it is a view that has been expressed by numerous other bodies. It has been expressed by Liberty and by Justice and in an excellent paper produced by the Mayor of London. I have never known a case in which the commentators have been so united and unanimous in the views that they have expressed about any clause in any Bill before your Lordships' House.
More important than all of that is the letter written by Louise Arbour, a very distinguished Canadian judge and a member of the Canadian High Court. She is now the High Commissioner for Human Rights. The letter was written on
"Clauses 1 and 2 are of concern because they fall short of the requirement of 'actual intent' required to prove guilt for serious criminal offences".
Of course, that has now happily been covered by the amendments put forward at a very late stage.
"The current formulation of clause 2 in particular, suggests that a person could be found guilty of having committed the offence of 'dissemination of terrorist publications' even if s/he had no intention of doing so".
This is the important point for the purposes of this amendment:
"Additionally, the scope of clauses 1 and 2 would appear questionable even in the light of the limitations provided for in Article . . . 10 of the ECHR. The draft offence contained in clause 1 fails to strike a balance between national security considerations and the fundamental right of free expression. Clause 2 fails to demonstrate proportionality between the objective of preventing terrorism and the proposed offence of criminalising the dissemination of any material which terrorists may find useful.
"Clause 21 provides the 'grounds of proscription' of organisations which promote or encourage terrorism. This clause as currently drafted is too broad as relates to the offence of 'glorification'".
I need not read any more.
I now come to the views expressed by the noble Lord, Lord Carlile, to which I said I would return. I have great sympathy for him in having to deal with the question in such extreme haste. I think he would say that this is not a matter on which his particular expertise gives him any great advantage over the rest of us. Ultimately, of course, it is a matter for the courts, as we saw in the Belmarsh case.
Perhaps I may read what he said in paragraph 23. It is right that it should be read, as he is under a self-denying ordinance not to take part in this stage of the proceedings.
"In my view this proposal in its revised form is a proportionate response to the real and present danger of young radically minded people being persuaded towards terrorism by apparently authoritative tracts wrapped in a religious or quasi-religious context. The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible".
If the noble Lord had been aware of the full weight of opinion in favour of the view that the clause is not compatible, he might have reached a different conclusion.
I find it very difficult to say anything in favour of subsection (3). The Minister said that it would be useful in providing what she called "guidance" to the court as to what Parliament has in mind. That is a strange way of creating a brand new criminal offence. My own view is that subsection (3) will have to go, first, because it is unnecessary. We do not need it to meet our international obligations. Cases of provocation, encouragement, or incitement—they all mean exactly the same—are amply covered by our existing law, as is shown all too clearly by the case of Abu Hamza, which is currently before the criminal courts.
Secondly, it will have to go because it is damaging to community relations for all the reasons given on so many occasions by the noble Lord, Lord Ahmed. We should listen very carefully to what he says. So far from adding to our safety—and I do not think it will—it may in the end prove "counter-productive"—the phrase used by the noble Lord, Lord Condon, in another context.
Thirdly, it is quite clearly incompatible with Article 10. With respect to the noble Lord, Lord Carlile, I must say that I cannot envisage our courts holding that the glorification offence is a proportionate response to the threat—everyone accepts that there is a threat—from which we suffer. The courts will ultimately decide. When the first person is convicted under this provision, that conviction is bound to be appealed and will come before the courts. The consequence will be as I have predicted. The provision is incompatible, but Clause 1 can so easily be made compatible by simply omitting subsection (3).
My Lords, the noble and learned Lord has put words into my mouth without my having notice of what he was about to say. Despite the power of his advocacy, my view remains as set out in the report from which he quoted. I have read all the materials, including the letter from Louise Arbour, and I want to put on the record that what the noble and learned Lord has suggested are now my thoughts are not in fact my views. I wanted to correct that assumption.
My Lords, I have nothing to add to what I have already said. The clause can be made compatible in the way that I have suggested by leaving out subsection (3). I hope that the House will agree to that. I beg to move.
My Lords, Amendment No. 9 is in my name and those of my noble friend Lord Henley and the noble Lord, Lord Goodhart. As your Lordships can easily discern, the amendment would also leave out subsection (3), but would in addition include an alternative definition of the offence of indirect encouragement. I will swiftly encapsulate the history of the word glorification, which is at the root of Clause 1(3). As your Lordships will recall, together with condoning, glorification began as a self-standing offence in the Government's manifesto at the May election. By the time the Bill came along, the word "condoning" had been dropped altogether. "Glorification", instead of defining an offence, became a word explaining an offence. The new offence was that of "indirect encouragement" contained in Clause 1(1). The explanation of "indirect encouragement" is in Clause 1(3).
We have no objection whatever to the new offence of "indirect encouragement". We support the Government in that. Our only concern is with the way that it is defined. It is not with "glorification" itself, but the way in which it is defined and is used in subsection (3). I suppose it can be said at the outset of this debate is that our objection to what the Government have done is not one of principle, but one of drafting.
One view that has been ventilated is that the interpretation of an offence of "indirect encouragement" should simply remain with the judge, and that there should be no additional guidance for the judge in the Bill. I respectfully disagree with that, which is why we have tabled Amendment No. 9. We have provided an alternative definition to the Government's definition in subsection (3):
"For the purposes of this section"— that is, Clause 1—
"'indirect encouragement' comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it".
In my respectful submission, that encapsulates exactly what ought to be encapsulated in the notion of an offence of "indirect encouragement".
Why is the Government's draft inadequate? I could not have put it more eloquently than the noble and learned Lord, Lord Lloyd of Berwick. It not only offends Article 10, it also offends Article 7 of the European Convention on Human Rights. Indeed, I respectfully submit that, above all, a contravention of Article 7 is the most damaging and dangerous aspect of subsection (3). Article 7 requires certainty from the legislator. Article 7 requires that when somebody is considering an activity, it should be reasonably clear to that person before he engages in the activity that, if he does so, he will be committing a criminal offence. With great respect to the Government, I do not see how anybody contemplating the text of subsection (3) could know whether he was going to commit an offence or not. That is at the root of the problem that the Government face, and why we have moved Amendment No. 9.
My Lords, I rise to support the noble and learned Lord, Lord Lloyd of Berwick. I am particularly grateful to him for his too kind words. This part of the clause is vague, uncertain, and unnecessary. It would make it extremely difficult in practice for a judge to be able to direct a jury. I bow to the superior wisdom of the noble and learned Lord on this.
I am impressed by the words of the high commissioner, writing to our ambassador on
The issue of "glorification" is set out in Clause 20, where there is the definition subsection:
"'glorification' includes any form of praise or celebration, and cognate expressions are to be construed accordingly".
In the draft Bill, it included the word "exalt", whatever that may mean. That has certainly been dropped, an improvement which I pointed out on Second Reading.
I wrote to the Minister, and she kindly replied that she did not feel it would be appropriate for her to prepare draft directions to a jury or to place any example directions in the Library. That was because any directions would have to be related to specific cases under consideration. I have not sat as a recorder for a few years since the age of 65 when the previous Lord Chancellor declared that that was enough. He may well have been right. All recorders—presumably all judges—are supplied with a book of draft directions which are in general and are applied almost every day by judges across the land. The argument that directions would have to be related to specific cases under consideration does not hold water. The book is available and is used daily when we sit in judgment.
Let me return to a specific case. I shall not delay the House for more than a moment. At Second Reading, I reminded the House of what the Minister in the other place had said. She had commented that the kind of expression she would feel comfortable with was if someone had said, "What a wonderful thing happened on
I again ask that, before we conclude our debates on the Bill, draft directions on the particular case with which the Minister said she was comfortable are produced so that we can examine rationally and objectively whether it would be easy to direct a jury on this vague and uncertain clause.
My Lords, my name is attached to all the amendments in the group and I endorse everything said by the noble and learned Lords, Lord Lloyd of Berwick and Lord Morris of Aberavon, and the noble Lord, Lord Kingsland. Including the glorification of terrorism in the Act is at best useless and at worst could cause serious problems.
It is primarily useless because it seems to me to add nothing whatever. It is not a sensible definition of indirect terrorism and it is only a limited feature of that at best. There is no question that it would not have appeared in the Bill if the Prime Minister had not said last summer that we should legislate against the glorification or condoning of terrorism. Sensibly, the condoning of terrorism was left out, but the glorification of terrorism was left in. Indeed, it found its way into the Labour Party manifesto for the general election. It is entirely pointless here. The definition by the noble Lord, Lord Kingsland, is much better and simpler.
The whole question of glorification is simply going to confuse and trouble the courts. The definition is amazingly wide. As I said in Committee, it is clear that if one is looking at past acts of terrorism within the very wide definition of terrorism in the 2000 Act, the War of American Independence is a terrorist act. When one then looks at glorification, it includes celebration, so that act of terrorism is celebrated every
My Lords, I support the proposal that subsection (3) be excluded. On balance, I also support the proposal by the noble Lord, Lord Kingsland, to substitute a different subsection (3). The noble Lord's subsection (3) is genuinely a definition clause and tells us what indirect encouragement is; on the other hand, the existing subsection (3) merely includes glorification, but leaves anything else available to be included if a court so holds. That is an important difference.
Subsection (3) as it stands is largely unnecessary and, in so far as it is not unnecessary, it is highly undesirable. Many statements which glorify previous acts of terrorism are obviously indirect encouragement of the commission of those offences. If one goes around saying that the destruction of the World Trade Centre in New York and the bombing on the Tube were wonderful events and should be repeated as often as possible, one is glorifying them and indirectly encouraging the commission of like offences. Subsection (3) is not needed to enable a prosecutor to say to a jury, "He said, 'Aren't these people wonderful? They blew up half of America—that's the way to get to heaven'. Surely, members of the jury, that's a fairly obvious encouragement to do the same". That is why subsection (3) is largely unnecessary.
But what subsection (3) actually states is that the statements,
"indirectly encouraging the commission of . . . acts of terrorism . . . include every statement which glorifies".
That means that if one finds a statement that does not encourage terrorism, none the less—by reason of subsection (3)—the judge must direct the jury that, whatever it may think about that statement, if it is a glorification it has to be incitement by indirect encouragement. That must be highly pernicious. That is why subsection (3) is, in many cases, unnecessary and is, in some important cases, positively pernicious since it requires a jury to consider something as indirect encouragement whereas, in reality and common sense, it would not decide it to be so. It is not a result which, on the whole, we should greatly encourage in our criminal courts.
My Lords, I am increasingly puzzled. It seems to me that the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, is precisely what the House needs to accept. However, the more that I look at the amendment from the noble Lord, Lord Kingsland, it seems that it opens up precisely the can of worms which the amendment tabled by the noble and learned Lord seeks to close by removing the subsection altogether.
The more that I look at Amendment No. 9, the more it seems likely to have just as chilling an effect on the teaching of, for instance, almost any period of British history in schools, and still more in universities. Maybe that is because I have in mind that extraordinary form of words in subsection (3),
"whether in the past, the future, or generally".
That goes across the whole range of history. The same would be still truer of the history of every other continent, as the noble Lord, Lord Goodhart, has just made clear. What puzzles me is that that noble Lord supports the amendment of the noble Lord, Lord Kingsland, as well as that of the noble and learned Lord, Lord Lloyd of Berwick. I even wonder whether this is why the statue of Oliver Cromwell is so nearly invisible outside your Lordships' House and the other place today.
There is a wider point, which I will be grateful to have the opportunity to make now to your Lordships. It is, precisely, that there are parts of the world where the whole question of what terrorism is and what it is another generation later, when it is something regarded quite differently, is a much more live issue than in this country with its long history. We are, of course, legislating for this country. Yet it is important at every point in this Bill, much of which I find profoundly questionable, to remember the political, educational and legal influence of our work and its results elsewhere. That is especially so in those Commonwealth countries that significantly share our legal system and its traditions, not least in sub-Saharan Africa, where governments and legislators—and the often fragile and threatened human rights organisations—may each, in their different ways, look to and quote in aid both our existing law and the developing legislation.
We need to be acutely and constantly aware that there are governments, in that part of the world and elsewhere, whose tendencies to oppressive behaviour are as clear today as they have been in the past. We need to ensure that, by bringing in what may be oppressive legislation ourselves, we offer neither assistance to such governments nor great discouragement to fragile human rights organisations in such countries. I look at every proposal from that standpoint, as well as from that of our own country.
My Lords, I agree that subsection (3) must clearly go, for the reasons which have been fully explained. However, I also agree with the noble Lord, Lord Kingsland, that this is no matter of principle but one of drafting. I would strongly support his proposals in Amendment No. 9, as and when we come to it.
My Lords, I want to echo what the right reverend Prelate the Bishop of Winchester said about the extent to which British legislation becomes an instance and, indeed, a model for legislation in many other Commonwealth countries—not least, in countries which are far more threatened with tyranny than ourselves. That is highly striking, as anyone who follows the discussions of the Commonwealth Heads of Government will be well aware. Our legislation is closely copied, particularly in a large number of African countries. We should bear that in mind.
When my grandmother was a young woman she was brought up on the glorification of Garibaldi, so much so that it became the name of a famous biscuit. My grandmother was an extremely respectable and conventional lady but she thought Garibaldi was simply wonderful. When my mother was a young woman she began to admire very greatly those who sought to bring about the franchise for women by putting little firebrands into postboxes. She admired this because years and years of effort to get the women's franchise by every possible moderate method had been relatively unsuccessful. When I was a young woman I was brought up to admire Nelson Mandela because apartheid had been in existence by then for many decades, steadily getting worse, and it was only when, in effect, he adopted a policy of limited violence against property—not against human beings—that the position of the South African government became intolerable. Was my family wrong to glorify each of those people?
My Lords, I too support the efforts of the noble and learned Lord, Lord Lloyd, to remove subsection (3) and I echo what was said by the right reverend Prelate and the noble Baroness, Lady Williams, a moment ago. It is really important that we take account of the great influence that our law has on the rest of the common law world. It is for that reason that it is particularly important that we take account of the letter of Louise Arbour. When the United Nations High Commissioner for Human Rights writes and alerts us to the folly of this part of the legislation, we should give serious consideration to what she says.
As the noble and learned Lord, Lord Lloyd, said, not only is she an eminent lawyer and judge—indeed, she was a member of the Supreme Court for a short time before her appointment as High Commissioner—she was also a very experienced prosecutor who prosecuted at the tribunal in the Hague for a significant time. We should take account of her understanding of human rights and the impact of and follow-on from our legislating in this way. I am concerned that other countries which also feel that they are facing issues of terrorism will take great delight in our passing such legislation and will use it in ways that will alarm us all. I heartily endorse the amendment of the noble and learned Lord, Lord Lloyd.
I too think that there is perhaps some confusion. I urge the noble Lord, Lord Kingsland, a colleague at the Bar, to think again about his amendment because it introduces confusion. In an effort to find a third way—and I know that the Conservative Party has now become rather enthusiastic about the third way—I suggest to the noble Lord that this piece of legislation is not needed. The noble and learned Lord, Lord Lloyd, is right: there is already sufficient legislation to deal with the wickedness with which we are concerned, which is really incitement.
My Lords, is the noble Baroness therefore saying that the Bill should contain no definition of "indirect encouragement"?
My Lords, I agree with what has been said. I salute with joy the speech of the noble and learned Lord, Lord Lloyd. I will be delighted to say goodbye to "glorification", which seems to me to have no home whatever in any Act of Parliament I have ever seen or heard of. I am glad to see that it is going—or at least I hope it will. I am not particularly attracted by the definition proposed by my noble friend. I rather lean towards the remarks made, with great eloquence and persuasion, by the right reverend Prelate. I certainly support the amendment.
My Lords, it is only right that I should declare to the noble Baroness, Lady Williams, that for many years I was brought up to admire her, and I still do.
My Lords, that is absolutely true, because others have done it before me. The amendments in this group fall into two categories. One category of view, expressed and expanded with such great depth and elegance by the noble and learned Lord, Lord Lloyd, is that the Government's amendments are useless, pointless, confusing and make no difference. I adopt the short form, adopted by the noble Lord, Lord Goodhart; I think those words were his way of describing it. A number of noble Lords who have spoken join him in that view. My noble and learned friend Lord Morris of Aberavon, although he said so rather more elegantly, thinks that those words are correct. Others, particularly the noble Lord, Lord Kingsland, who said so with his normal telegraphic style, agree with the substance but not the form. He agrees with the purport behind the drafting and the need to look at this issue, but does not believe that we have drafted the glorification provision in a felicitous way.
I was happy that, just by chance, the noble Lord, Lord Carlile of Berriew, was in his place when the noble and learned Lord, Lord Lloyd, made his remarks in support of this amendment. I think it is very important that we remember the clear advice he gave, accurately read out and to be found in paragraph 23 of his report, where he stated very clearly his view that the proposal the Government are minded to advance is correct because of the real and present danger of radically minded young people being persuaded towards terrorism by apparently authoritative tracts, wrapped in a religious or quasi-religious context.
It is very important that we bear that sound advice in mind when looking at this provision and whether its utility is actually made out. I absolutely understand the concerns of both my noble friend Lady Kennedy and the noble Baroness, Lady Williams, when they say, together with the right reverend Prelate, that others look to how we present these issues in the UK and may seek to emulate what we do here. That position has prevailed for a number of years. I can reassure my noble friend Lady Kennedy and the noble Baroness, Lady Williams, that we are conscious of our responsibility to play our part as members of the international community.
Therefore, we bring forward these provisions with a proper understanding that the constraints imposed by the Human Rights Act and other legislation should bite on this. We bear those in mind, but we come back to the idea of proportionality, of balancing—something that we have been struggling with throughout this Bill. We, of course, come down on different sides. Her Majesty's loyal Opposition say that it is right in principle to address this issue, but wrong in the form taken; others say no.
It is very important that when we consider this issue we look at what the Bill in fact provides, as opposed to what some may think it provides, and look at it in context. If one looks at, for instance, the promotion of
I also think it is right for me to be clear about what the Government are proposing in Clause 1. It will be a criminal offence to glorify terrorist acts in such a way that others could reasonably take it as a direction for them to emulate those acts. Simply showing understanding for why a person commits a terrorist act will not be sufficient to constitute a criminal offence. Simply condoning terrorism will not be sufficient to constitute a criminal offence. Even simply glorifying terrorism will not be sufficient to constitute a criminal offence. It is only when a statement is made that glorifies a terrorist act, to the clear extent that others will reasonably infer that the act is being glorified in order for those persons to emulate that act in existing circumstances, that it will constitute a criminal offence. One has to emphasise the "existing circumstances".
There are a number of elements here. First, the act in question has to be a terrorist act or a convention offence. We do not think that some of the suggestions made at an earlier stage in the debate—Robin Hood, for example—would be a present circumstance that would constitute a terrorist act. Secondly, a statement would need to be made to members of the public. We are not talking about thought crime or private conversations in this regard. Thirdly, the act has to have been glorified. There has been some discussion about what the word means, but it means simply what the Oxford English Dictionary says it means. To glorify is to describe or represent as admirable, especially unjustifiably or undeservedly. We believe that this is clear enough.
Fourthly, the act would need to be glorified in such a way that members of the public could reasonably be expected to infer that the glorified conduct should be emulated by them. This is crucial. The audience to the statement must be able to infer reasonably that they are being asked to emulate a terrorist act. Therefore, we are not talking about the celebrations for Bastille Day or
Fifthly, the public would need to be encouraged to commit that act in existing circumstances. Therefore, the glorification of the American Revolution, for example, is hardly going to be reasonably inferred as encouragement to others to terrorist acts against the British Empire or King George III who, as we all know, is now sadly deceased. The political disagreement in that instance is not, we think, a live issue. Finally, we need to be clear that this offence can be committed only either where someone intends to encourage others to commit a terrorist act, or where they are reckless as to whether or not such a statement is likely to be so understood.
Those provisions are, I respectfully suggest, relatively easy to understand and apply. I therefore hope that noble Lords will reflect that this does what the noble Lord, Lord Kingsland, wants; he says that he agrees in principle. I thank him for that and for the clarity with which he represents his party in this regard, but I say to him that the draftsman has expressed what we need in a way that complies not only with that intent, but with the commitment the Government gave to the people of this country in relation to it.
The amendments rightly point out that there are references to glorification elsewhere. I hope that I have dealt with that. Clause 2(6) makes it clear that in answering questions about how a statement is likely to be understood and what the public can reasonably infer, the court must have regard to the contents of the statement or the publication as a whole and the circumstances of its publication. The test is not quantitative but qualitative: it is whether the surrounding material and context of the statement indicate that the whole statement does not have the effect that a mere extract which may be objectionable would have. That provision is replicated in Clause 1(4).
We believe that, for the reasons I have given, the concerns that were expressed by noble Lords are met by the way in which the provisions have been drafted. Although the noble Lord, Lord Peyton, would like the whole of this subsection removed, in order to protect appropriately the citizens of our country, I regret that even his own party is likely to disappoint him in that regard. I invite noble Lords to say that they are content with the explanation that I have given and are reassured sufficiently to enable us to allow this part of the Bill to remain unamended.
My Lords, I am grateful to the Minister for her reply, which was as careful as always. I am also grateful to those who have spoken in support of the amendment. I want to make it quite clear that my objection is not just to the drafting of subsection (3). My objection is this: we are creating, by subsection (3), a brand new criminal offence which should not be on the statute book. For that reason, I wish to test the opinion of the House.
moved Amendment No. 9:
Page 1, line 15, leave out subsection (3) and insert—
"( ) For the purposes of this section, "indirect encouragement" comprises the making of a statement describing terrorism in such a way that the listener would infer that he should emulate it."
My Lords, the House has already spoken to the amendment. It simply remains for me to move it and to test the opinion of the House. I beg to move.
moved Amendment No. 15:
Page 2, line 22, leave out from "proceedings" to end of line 26 and insert "for an offence under this section against a person in whose case it is not proved that he intended the statement directly or indirectly to encourage or otherwise induce the commission, preparation or instigation of acts of terrorism or Convention offences, it is a defence for him to show-"
As we have discussed, I tabled a number of amendments which insert intent with subjective recklessness into the new offence of disseminating terrorist publications in Clause 2, mirroring the same test as exists in Clause 1. I also tabled amendments to modify the wording of Clause 1. They do not change the effect of Clause 1 in any significant way, but they allow the offence in Clause 2 to operate on the same principles as those in Clause 1, to the extent that this is possible for a different offence.
These amendments relate to the defences in Clauses 1 and 2. I shall quickly summarise how those defences work. Clause 1 creates the offence of encouragement to terrorism. Under it, it will be an offence for a person to publish or cause another person to publish on his behalf a statement when they either intend that it should be understood as an encouragement to terrorism or are reckless as to whether it is likely to be so understood. The clause will use the subjective definition of recklessness as set out in Regina v G.
Clause 2 creates the offence of dissemination of terrorist publications. An individual is considered to have committed an offence if he disseminates a publication intending that those to whom it will become available will be directly or indirectly encouraged to commit, prepare or instigate acts of terrorism or intending that they find the information to be useful in the commission or preparation of terrorist acts; alternatively, the individual who is disseminating the publication is considered to have committed an offence if he is reckless to the possibility that they will be so encouraged or find the information so useful. In deciding whether a publication amounts to a terrorist publication, the court must take into account the context of its dissemination at the time of that conduct and the contents of the publication. It is currently a defence for a person who is charged under Clause 1 to show that he published the statement in respect of which he is charged or caused it to be published only in the course of the provision or use by him of a service electronically; that the statement neither expressed his views nor had his endorsement; and that it was clear in all the circumstances that it neither expressed his views nor had his endorsement.
Amendments Nos. 15 and 16 would give effect to the changes which I signalled in Committee. Amendment No. 15 would generalise the defence in Clause 1—that is, that the person who published the statement did not endorse it and that it was clear in all the circumstances that he did not endorse it—so that it is available to everyone and not just to those who are providing a service electronically. It also restricts it to those who commit the offence recklessly. After all, there is no reason why a defence should be available to those who commit the offence intentionally.
Amendment No. 16 is a technical amendment. It clarifies the provision relating to the assessment of a statement that could fall under Clause 1. It makes it clear that the circumstances that need to be taken into account are those of the statement's publication. The defence in Clause 2(9) is similar to the defence in Clause 1(6). It is currently a defence for a person charged under Clause 2 to show that he engaged in the conduct described in Clause 2(1)—namely, the dissemination of a terrorist publication—only in the course of the provision or use by him of a service electronically; that the publication so far as it encouraged terrorism neither expressed his views nor had his endorsement; that it was clear in all the circumstances that it did not express his views nor had his endorsement; and that any information contained in that publication that may be of assistance to terrorism was not intended by him to be so useful. Again, we have brought forward amendments to widen this defence so that it extends to all those who can prove that material contained in the publication, in so far as it encouraged terrorism, neither expressed their views nor had their endorsement, and that it was clear in all the circumstances that this was so. In the context of including an intent test in Clause 2, we have also brought forward amendments to remove the defence from those who disseminate information of use to terrorists. With the intent test in place, this defence is no longer necessary.
Under Clause 2(8), it is also a defence for a person who is prosecuted under Clause 2 to show that he had not examined the publication in respect of which he had been charged; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that the matter contained in the publication did not have his endorsement. In the light of the inclusion of an intent test in Clause 2, we have brought forward amendments to remove this defence from the Bill.
Clause 3 provides a power for a constable to issue a notice to the effect that the content of an electronic service appears to him to amount to encouragement to terrorism or information of assistance to terrorists. A person who receives such a notice must ensure that the offending material is no longer available to the public within two working days. If a person fails, without reasonable excuse, to comply with the notice, he will be deemed to endorse the material in question and therefore will not be able to take advantage of the defences in Clauses 1 and 2. A person who receives a notice under Clause 3 will be responsible for repeat statements—in other words, statements that are the same as the statement to which the original notice related—unless he can show that he had taken reasonable steps to stop repeat statements appearing. This defence is set out in Clause 3(5). It is not a freestanding defence; it forms an element of the defences in Clauses 1 and 2.
Bearing in mind that Amendment No. 14 of the noble Lord, Lord Goodhart, was not moved, and that other amendments in the group have not yet been moved, I do not propose to deal with any further amendments unless noble Lords indicate that I have somehow misunderstood the way in which we are now dealing with these amendments. I beg to move.
My Lords, I shall clarify the situation. Following the new amendments introduced by the Government, the position is considerably changed. It is not now my intention to move any of the amendments in the group other than Amendment No. 61, to which I shall speak when we reach it in due course.
moved Amendment No. 17:
Page 2, line 45, at end insert—
"( ) A person commits an offence under this section if he disseminates a terrorist publication and either—
(a) he does so with the intention of directly or indirectly encouraging or inducing the commission, preparation or instigation of acts of terrorism, or of providing information with a view to its use in the commission or preparation of such acts, or
(b) he is reckless as to whether the dissemination of that publication will have such an effect."
My Lords, your Lordships will recall that, at the end of the Committee stage, the Liberal Democrats and my own party were pressing the Government to introduce intent into Clause 2. We then tabled Amendment No. 17 to that effect. Last Friday, which was the closing day for amendments, the Government, somewhat to our surprise, although delight, tabled their own amendment on intent to Clause 2. Once again, the differences between us and the Government are not differences of principle; they are differences of drafting. It is in that context that I wish to promote Amendment No. 17.
As your Lordships can see from the Marshalled List, Amendment No. 17 would amend the Bill so that the offence would be to disseminate a terrorist publication,
"with the intention of directly or indirectly encouraging . . . terrorism".
In the Government's recently tabled alternative provision, which flows over two amendments, Amendments Nos. 19 and 20, the definition of intent is,
"an intention that the persons to whom the publication is or will become available . . . should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
In our view, the Government's definition is crucially defective in at least one respect. It is difficult to see, for example, how a librarian in a public library or university could possibly know whether a large pool of potential borrowers includes people who would be so encouraged. The key question for your Lordships to determine is what "should include" means in this context.
I recently received a communication from an organisation called Universities UK, which gave a graphic example of the problems that are likely to confront librarians in this context. Consider the position of the British Library. The books on the shelves are available to everybody who lives in the United Kingdom. We can be certain that there are people in the United Kingdom who could find information in standard chemistry books useful in making bombs. Therefore, by intending to make a standard chemistry book generally available, the librarian would appear to be guilty of the offence as defined by the Government's amendments. Why is that? It is because if the librarian knows this but does nothing about it, he could be said to be reckless as to whether one or more of those who would borrow and read the book would be among those who could be directly or indirectly encouraged to commit acts of terrorism.
That is why, I suspect, the Government have chosen to keep part of Clause 2(9) as a defence for someone so accused. In these circumstances, the individual will not be guilty if he can establish on a balance of probabilities either that he is not aware of what is in the publication or, even if he is aware, that he would not have endorsed it. Yet why should somebody be placed in this position, having to wait until they are prosecuted, then raising a defence on the balance of probabilities that they are innocent? The proper position should be that intent be established by the prosecutor in the first place. I beg to move.
My Lords, like everybody else I was glad and relieved that intention was to be an ingredient in the offence of dissemination. I added my name to this amendment before I saw the government amendment—indeed, before the government amendment had even seen the light of day. Having now seen both amendments, I believe that Amendment No. 17 is the better of the two. Both are designed to ensure that we catch the people we want to catch, and nobody else. The difference is that Amendment No. 17 does so in a fairly simple and straightforward way that we can all understand. Amendment No. 20 is not so simple. The Home Office seems to have a special genius at the moment for unnecessary complication. Why must we talk, as Amendment No. 20 does, about persons who "should include persons", when we can be so much simpler?
Clause 1 of the Bill is intended to catch those who publish statements encouraging terrorism. Clause 2 is intended to catch those who disseminate those statements. Both should surely have the same mental element, which is to encourage terrorism—or the same recklessness, although I do not deal with that now. That is what Amendment No. 17 will ensure. Is there anything which the Minister would wish to see covered in it which is not there? I believe not. Nothing in Amendment No. 17 will leave those who need protection unprotected. If I am right in that, I hope the House will vote for it on the principle of Occam's razor, that words should not be multiplied unnecessarily. Amendment No. 17 is the simpler amendment, and I invite your Lordships to accept it.
I felt a certain regret listening to the noble Lord, Lord Kingsland, open the debate. He was making a good case for getting rid of the concept of recklessness altogether. Unfortunately, he failed to support our amendment to do that when it came up, which would have been the simplest way of dealing with this particular problem.
The language used in the Government's draft is extraordinarily turgid and virtually impossible for anybody who is not fairly expert in the law to read and understand. While I support the objective that they are aiming for, Amendment No. 17 is simpler and much easier to understand and it achieves the Government's aim a good deal better than their own amendment does.
My Lords, I add just one thought as a non-lawyer. Amendment No. 20 is almost impossible to understand. The noble Baroness said, with some feeling, that she had done her best to meet the House, and she must be feeling quite fed up that we are not at the moment praising and celebrating—even glorifying—Amendment No. 20. Without any doubt, she has tried hard to meet the House. The question is why her amendment is so totally obscure.
The noble Baroness used the phrase more than once that she hoped for an amendment that would make Clause 2 a mirror of Clause 1, in the sense of embodying the concept of intent. Yet this is a distorted mirror, or even an old mirror which is cracked in places. This is not a direct mirror image of the amendment to Clause 1, because it refers to this extraordinary business about an intention not to bring about an act of terrorism—not to directly or indirectly encourage an act of terrorism—but to,
"include persons who will be directly or indirectly encouraged or otherwise induced by it to commit, prepare or instigate acts of terrorism".
Why has this strange dog-leg concept suddenly come in here? Would it mean, if I wished to be found guilty, that I would have to scurry round all the more extreme left-wing and right-wing clubs in universities to make sure that there were groups that could be described as wishing to glorify terrorism?
Somebody in another place said on this Bill, effectively, that the nature of law is that it needs to be understood by the citizen in order to be obeyed. Most citizens wish to obey the law, but if they are completely incapable of understanding it, then, even with the best of intentions, it is hard for them to do so. I see no reason why the Government should not embrace Amendment No. 17 rather than try to argue a case for Amendment No. 20. I hope that the House will express its desire that the Government should make that change.
My Lords, the Minister said earlier that she was disappointed that the House was not thanking the Government for the enormous move they had made in bringing the matters of intention and of recklessness into the Bill. This debate does not in any way diminish my gratitude to them for making a big move towards assisting the university and other librarians whom they had put so much on the spot. Having said that, I believe, as an ordinary human being reading the two amendments, that Amendment No. 17 in the name of my noble friend Lord Kingsland is so much clearer and more comprehensible to anybody who reads it that it must be desirable. The Government may find some small fault with it, but I hope that they will accept it, because Amendment No. 20 is extremely difficult to understand. Is it grammatical to say "an intention" that "should include"? Why not to "intentionally include"? That is by the way. I think that Amendment No. 17 is enormously preferable.
My Lords, I, too, start by warmly welcoming the Minister's decision to amend the Bill to include a reference to intent in Clause 2. That is something that Universities UK, in which I declare an interest as chief executive, has been pressing for, alongside the British Library, SCONUL, the AUT and others. I thank the noble Lords, Lord Goodhart and Lord Kingsland, for their dogged pursuit on this issue on behalf of the library and academic communities, and the many noble Lords who have added their voices in support of the need for an intent amendment in Clause 2.
Unfortunately, I too find myself in difficulty with the detail of the Government's amendments. Noble Lords will agree, I am sure, that the amendments have a certain labyrinthine quality, of which someone somewhere can be justly proud. Welcome though they are, I do not believe that the amendments before us, although it has taken me some time to understand and interpret them, solve the problem that this House and others outside it have identified.
When I called at Second Reading for the inclusion of an intent amendment in Clause 2, I was seeking that a person should be guilty of an offence of distributing a terrorist publication only if they intended to provide encouragement or assistance to terrorists. I and others offered that suggestion because the drafting of the clause is otherwise so wide that we could not see how the routine work undertaken by our libraries and academics could go on under the Bill as drafted. We pointed out that the definition of "terrorist publication" depended on the interpretation by a hypothetical, unknown third party of a publication. How could librarians know the motivations of all their potential borrowers? Other noble Lords have referred to that point. Of course, they cannot, especially in the case of public libraries. That being so, the only other option would be to prevent the loan of a very wide variety of books that might, in certain circumstances, be interpreted by certain people as either encouraging or assisting terrorism. That is why this House has argued so powerfully that the result of the Bill as drafted would be either de facto or self-imposed censorship; worse, we argued, academics and librarians would routinely and quite unintentionally fall foul of the offence as drafted. Even if they were never to be prosecuted, we argue that it would be highly unsatisfactory if legislation was so drafted that large numbers of people could not practically comply with it.
I had hoped not to have to rerun those arguments, because the intent amendment would solve the problem. Either a person would intend to encourage or assist terrorists, or they would not; the prosecution would prove this or fail to. And so the offence would work—notwithstanding all the problems of the definitions of "terrorist publication", "indirect encouragement" and "glorification". That was the test that I applied to the Government's amendment: would it catch those who intended to help terrorists and leave those who did not free to do their jobs? I hope that noble Lords will bear with me while I try to articulate the difficulties that I see with these amendments, because I feel that I owe it to my noble friend the Minister, who has put in so much effort to reassure myself and others.
Government Amendment No. 19 makes intention or recklessness a condition of the offence. So far, so good. The offence in question is the distribution of terrorist publications. Amendment No. 20 then defines what is meant by "intention" and "recklessness"—and that is where the difficulty arises. It says that intention means,
"an intention that the persons to whom the publication is or will become available in consequence of that conduct should include persons who will be directly or indirectly encouraged . . . to commit . . . acts of terrorism".
Broadly, the same applies to material that could be useful to terrorists. That means that the offence is,
"to intend to provide the publication to a group of people, including some who will be encouraged or assisted to commit terrorist acts".
But what if the group of people to whom the publication is being lent could potentially include everybody? The public library does not screen its borrowers; the bookshop does not prevent people walking in off the streets to buy its books. Since we know to our cost that there are people in the world who are terrorists, if you make material available to everybody you will necessarily fulfil the condition described in the definition of intent—that the persons to whom the publication is available should include persons who will be encouraged or will find certain material useful.
I join other noble Lords in asking the Minister to clarify, example by example, how the scheme is intended to work. Again, I ask for the indulgence of the House, but what does "should include" mean, in Amendment No. 20? What if the group of people to whom you might lend or sell in the course of your activities included potentially everyone—the general public? How should a public library, for instance, ensure that the group of people to whom it is lending books does not include people who may be encouraged or assisted in committing terrorist acts? Does the Minister envisage some form of screening of borrowers? If a person makes a book available for unrestricted sale or loan, must they be certain that there can be no possible terrorist application for material in that book? If the latter is the case, how is the librarian, bookseller or academic to judge whether there is a terrorist application in the context of subsections (2) to (7)?
Very specific examples have been raised with me and with others, and it is important, if the Minister is to reassure us, that we have specific answers. I shall give just one example. If there is a bookshop on Charing Cross Road open to the public, anyone can walk in off the street. On its shelves are copies of The Anarchist's Cookbook, which, if noble Lords are interested, is also available on Amazon at a price of £29.99. By putting the book on sale Mr Jones, the proprietor, intends that anyone in the world should be able to buy it, notwithstanding the fact that he knows that there are terrorists in the world. One day, Mr Disaffected from Cardiff comes into the bookshop while on holiday in London and buys the book. Mr Disaffected has terrorist sympathies and a keen interest in bomb-making. Mr Jones does not know that, but since he intends that anyone should be able to buy his books, he sells Mr Disaffected The Anarchist's Cookbook. The question is whether Mr Jones commits an offence—and if not, why not? Should Mr Jones not have The Anarchist's Cookbook on his shelves? How should he have known that he should not sell it, or should he have screened his customers and sold the book only to those who were security cleared?
If these amendments help us to answer these questions, I am afraid that I do not see it. I suspect that the best answer available is in government Amendment No. 40, which makes it clear that the statutory defence in subsection (9) is available to those whose intention is not proved. If you need that defence, surely we have not achieved what we set out to do—to place the onus on the prosecution to prove that the lender, bookseller or academic intended to commit the crime. Can the Minister therefore explain how this defence would work and why you might need it if no intent had been proven?
The Minister wrote to the noble Lord, Lord Kingsland, last week to give notice of her intention to amend the Bill, and I was grateful to the noble Lord for sharing a copy of that letter with me. The Minister wrote:
"We have listened very carefully to the strong representations which were made on behalf of the library and academic communities. Accordingly, I have tabled a number of new amendments which insert 'intent' and mirror the same tests that exist in Clause 1".
I have spoken at some length because it does not seem to me that the amendments before us mirror the tests in Clause 1. Amendment No. 17, tabled by the noble Lords, Lord Kingsland and Lord Goodhart, seems a more accurate mirror, and I hope that the Minister will look very carefully at the amendments. She has repeatedly given assurances that she wishes to respond to our concerns. I hope that she can give specific responses, and I would certainly hope to be reassured by what she says, because the Government's intentions in this respect are clearly good. I look forward to the Minister's reply.
My Lords, I thank the noble Baroness for setting out so clearly her continuing concerns. All the concerns she has enumerated are met by these amendments. The purpose of them is to put beyond doubt that the concerns the noble Baroness has outlined are without foundation.
The issue with government Amendment No. 40 was that we were conscious we needed to deal with each and every anxiety that has been expressed. Therefore, not only did we want to make it clear that the offence would not be made out in the way that was worried about, but that even if anyone should think that it might be, which is not admitted, you would have the defence in government Amendment No. 40. This is belt, braces, garters and anything else you need to be assured that this will work.
I shall deal with why we prefer our amendment. Those drafting this Bill were given clear instructions that there had to be clarity and that each amendment had to be consistent with the other so that they fitted. I understand that Amendment No. 17 of the noble Lord, Lord Kingsland, seeks to achieve precisely the same as the Government's amendments. The difference between us is that we maintain that the Government's amendments are internally consistent with the other group of amendments we have drawn up, and, for that reason, need to be preferred.
Let me seek to give the clear assurances that noble Lords seek, before dealing with the difference I say there is between Amendment No. 17 and our amendments. The formulation of the Government's amendments comprising the intent test includes the requirement that the person intended that the audience of the document's dissemination should include those who will be directly or indirectly encouraged. That implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination. The assurance about the specific intent sought by the noble Baroness is there. If a person is to be prosecuted on the basis that they are reckless as to the effect of the publication, they will have the necessary mental element—if it can be shown that they knew the content of the publication, and they were reckless as to whether or not the people in the audience could include persons who would be encouraged to terrorism. If a person knows the content of a publication, or it is so lurid or so notorious that they cannot have failed to realise its content, they will commit the offence recklessly if they supply it and it is reasonable that access to such publications should be restricted.
Libraries take care with pornography, and it is reasonable to expect them to take care with publications that encourage terrorism or are useful to terrorists. Those are specific documents, not the issues the noble Baroness spoke about, such as The Anarchist's Cookbook. I do not know whether she was telling us we should all go out and buy it, because she advertised where we could do so. The example she gave would not be caught by this Bill, as it was not the intention of the person selling the book that there would be terrorists in the audience, and the whole point was that these terrorists would get the book and then use it. That was not the seller's intent, and therefore they would not fall within this construct we have put in.
My Lords, I see that it is not the intent of Mr Jones the bookseller that this book should be read by terrorists, but is he not being reckless because he knows that there are terrorists out there and that one or two of them might come in and buy his book? Why is it therefore not recklessness to have it on sale and not have any checks on who comes in to buy it?
Because, my Lords, the whole purpose of the publication is not to generate terrorism. It is a bit like the noble Lord's example of the chemistry book. We know that chemistry books could be used by terrorists to make bombs. However, the purpose of writing a chemistry book and teaching chemistry is not so that terrorists will go out and create bombs and kill people. Therefore, in the Government's opinion, it is clearly beyond doubt that a chemistry textbook would not be considered as wholly or mainly for the purpose of being useful to terrorists.
I do not know about The Anarchist's Cookbook, but I doubt whether that is wholly or mainly the purpose of the writers of the book that it should be useful to terrorists. That is what is important. The formulation of the Government's amendments comprising intent and recklessness includes the requirement that the person intended that the audience of a document disseminated should include persons who will be encouraged, not that it might include them by a stretch of the imagination. Their intent was that it should include such persons. As I have said, that implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination.
There are those who argue that we have now set this so high that it might be difficult for us to catch those who are producers of publications that are specifically targeted at terrorists and to be used by terrorists, in these circumstances. The way we have structured it, we believe that will not be the case. But we have been conscious of the concerns that were expressed by my noble friend and others during this debate. We have already talked in the earlier debate about subjective recklessness and the need for it to be directly focused.
Amendment No. 17 does not work with all the different sorts of conduct currently set out in Clause 2(1). In particular, the intention and recklessness in that amendment do not make sense where a person has a terrorist publication in his possession with a view to disseminating it. If one looks at, for instance, Clause 2(1)(f), it is impossible for a person to possess something with the intention of encouraging terrorism. That formulation implies that the possession must be capable of doing the encouraging, and of course it is not. The government amendments make it clear that the intention or recklessness relate not to the possession, but to what will happen if the possessed publication reaches, as contemplated, the hands of potential terrorists.
"A person commits an offence"— we have put in our definition of the offence—
"if he disseminates a terrorist publication".
The rest of Clause 2(1) is a definition of what constitutes dissemination, which includes having a publication in your possession with a view to passing it on to someone else.
My Lords, all I can say to the noble Lord is that the way this is raised in our amendment is the clearer, and sits the more easily with the other amendments. I understand that noble Lords say they have had a short period of time to look at this, and they are trying to make an amendment that is consistent. But I respectfully and gently suggest in relation to this matter that we should not have opposition for opposition's sake. We all have the same intent. I know that is not the way noble Lords opposite may traditionally have worked, but we believe the construct we have now fits well and provides us with the clarity we need. We are not in disagreement about the thrust of what we want to achieve; it is just whether we agree on the draftsmanship.
My Lords, I agree completely with the noble Baroness that there is no desire to make politics out of this particular argument. However, can she explain, not least in the light of the forceful intervention by the chief executive of Universities UK, why it is that we cannot move towards the much simpler, more transparent and clearer definition of what we want to do, rather than the complex and obscure wording that has come out of the Home Office? I think we want the same end, but I am still, I must admit, deeply puzzled that the noble Baroness finds it so difficult to accept the clearer formulation.
My Lords, the reason we find it difficult is that we think it is not clearer when one looks at the whole Bill and how it fits together. That is the reason.
The dissemination definition is not entirely relevant, if I may respectfully say so to the noble Lord, Lord Goodhart. In his amendment, dissemination still includes possession. That is where the complexity is. We have looked at this carefully. If I may remind noble Lords, we have really tried to do what the House wanted and what we thought was proper.
I just want to say to the noble Baroness, Lady Carnegy of Lour, that of course I thank her—for her congratulations I was going to say, but really it was gratitude that she expressed to the Government. I think that I have now come to the stage where I recognise that it is unreasonable, unsafe and unsatisfactory ever to expect gratitude for no matter how much work one puts in.
My Lords, I am surprised to hear the noble Baroness say that in her case because the House universally respects the enormous amount of work that she has put in.
My Lords, if sometimes it appears temporarily in vain, the marvellous thing about your Lordships' House is that we always have another chance to put things right.
The Government, in my submission, have had a good chance to compare the two amendments. I believe that the speeches made in support of Amendment No. 17 have proved extremely cogent. With the greatest respect to the Minister, I do not think that she has answered them satisfactorily. That is not, of course, her fault.
She made the point that she was looking for consistency in the Bill. Consistency is important in legislative drafting, but so is simplicity and so is certainty. In my submission, neither of those equally important ingredients apply to the Government's amendments. Therefore, I would like to say to her, although I say it with great regret, that I am compelled to put the issue to your Lordships' House.
moved Amendment No. 21:
Page 3, line 10, leave out from "within" to end of line 21 and insert "subsection (1A), if matter contained in it is likely-
(a) to be understood, by some or all of the persons to whom it is or may become available as a consequence of that conduct, as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism; or
(b) to be useful in the commission or preparation of such acts and to be understood, by some or all of those persons, as contained in the publication, or made available to them, wholly or mainly for the purpose of being so useful to them."
My Lords, I was tempted to say "moved formally" on the basis that noble Lords have heard so much from me this afternoon that they understand the amendment and its purpose and they either agree or disagree with it. I beg to move.
My Lords, I rise to speak to Amendment No. 21A. At the time I tabled the amendment, it appeared that the Government intended to retain Clause 2(3). However, I now see that the Government have removed that subsection and replaced it with Amendment No. 21; so naturally I find myself in some difficulty in pursuing Amendment No. 21A.
However, I just want to observe—the noble Baroness kindly wrote me a letter about this—that the essence of my concern is still outstanding and it relates to the definition of "matter". In my submission, "matter" can mean only two things in Clause 2; and they are summarised very helpfully in Clause 2(7). "Matter" must be either the statement under consideration and how it is likely to be understood or the usefulness mentioned in subsection (5). Subsection (5) deals with the definition of information of assistance in the commission or preparation of such acts.
I am not going to pursue my amendment now but I should be most grateful if the noble Baroness, either today or by means of a further amendment at Third Reading, could confirm that that is the scope of the definition of "matter".
My Lords, I shall be happy to do that. I can certainly write to the noble Lord. I take it from the noble Lord's amendment that Amendment No. 21 is agreed to for reasons that are clear. I do not think that the noble Lord has any reason to be concerned about "matter" but I should be very happy to write in relation to that matter—forgive the pun.
moved Amendments Nos. 28 to 30:
Page 3, line 40, leave out "the context of" and insert "relation to"
Page 3, line 45, leave out paragraphs (a) and (b) and insert "anything mentioned in subsections (1B) to (4)"
Page 3, line 49, at end insert—
"( ) For the purposes of this section it is also irrelevant, in relation to matter contained in any article whether any person—
(a) is in fact encouraged or induced by that matter to commit, prepare or instigate acts of terrorism; or
(b) in fact makes use of it in the commission or preparation of such acts."
On Question, amendments agreed to.
moved Amendment No. 36:
Page 4, line 10, leave out from "proceedings" to "did" in line 20 and insert "for an offence under this section against a person in respect of conduct to which subsection (9A) applies, it is a defence for him to show—
(a) that the matter by reference to which the publication in question was a terrorist publication neither expressed his views nor had his endorsement (whether by virtue of section 3 or otherwise); and
(b) that it was clear, in all the circumstances of the conduct, that that matter"
On Question, amendment agreed to.
[Amendments Nos. 37 to 39 not moved.]
moved Amendment No. 40:
Page 4, line 22, leave out from "endorsement" to end of line 27 and insert—
"(9A) This subsection applies to the conduct of a person to the extent that—
(a) the publication to which his conduct related contained matter by reference to which it was a terrorist publication by virtue of subsection (2)(a); and
(b) that person is not proved to have engaged in that conduct with the intention of making that matter available as mentioned in subsection (1B)(a)."
On Question, amendment agreed to.
My Lords, I am delighted that the amendment has survived our procedure. The amendment is small but very important. I am very surprised that the Government have not embraced it. To put it very straightforwardly, its purpose is to exempt the British Library and the deposit libraries from the curtilage of the Bill. It is extremely important that that is done.
The British Library is a modern heritage. Therefore, in many ways it is a very important part of this country's future. Two very clear duties are laid on it. One is that it is a library of record, which means that every publisher, writer, and so on, in the country, has to deposit with the British Library every publication. In that sense, it is rather like the Library of Congress in the United States. It makes it one of the great libraries of the world. Under the provision of the Legal Deposit Libraries Act 2003, that still holds good. However, the British Library Act 1972, which was passed before the British Library was built, but was planned, laid a very clear responsibility on the library to promote knowledge and education, the pursuit of truth, freedom of expression and many other highly desirable things.
It must be very clear from the discussions that have taken place in the House today and in Committee that there is considerable doubt about the responsibility of a library such as the British Library in terms of this legislation. It was made fairly clear by the noble Baroness, Lady Warwick, that she is not clear what responsibilities rest on university academics and librarians. The British Library is in exactly the same position. It took legal advice before, it must be said, the noble Baroness moved the major changes that are a part of bringing in the concept of intent. However, at that stage—to be honest, it was not much affected by intent—the legal advice was that the British Library might well find itself in very great difficulties with this Bill. It might find that people were up before prosecutors because they were alleged, in some way, to be instigating or encouraging terrorism.
In Committee, this matter was raised by the noble Lord, Lord Eatwell, who is the chairman of the British Library. Pursuant to having a very strong wish not to seem to seek special privileges for the British Library, he went along with the terminology at that time on the grounds that there might be a rogue librarian in the British Library and such a person should not be protected from the normal exigencies of the law. However, the word "person" can be interpreted both as an individual person and in the corporate sense as comprising a corporate person. On the basis of advice that he has received on the British Library being a corporate person, the noble Lord, Lord Eatwell, has specifically asked me to say that he presses very strongly for the amendment that I am now moving because he believes that as a corporate person, the British Library and the deposit libraries, which include the national libraries of Scotland and Wales, should be exempted from the Bill. His reasons are that being under the Bill could be a major obstruction to the development of those libraries.
I am not sure whether all noble Lords are aware of the extent to which the British Library has been at the centre of the building up of a global network, which is increasingly influential and increasingly highly recognised in many parts of the world, not least in the part of the world that the right reverend Prelate the Bishop of Winchester is so closely associated with in Africa and in other parts of the Anglican communion. It would be devastating if the British Library were to find itself stopped in its tracks in developing this network of extraordinary education and information facilities as a result of an incomprehension or misunderstanding of the purport of this Bill. I frankly thought that, by this time, the Government would have adopted the amendment and would have made it quite plain that, while the provision could not protect individuals, it would protect the corporate persona of the British Library and the deposit libraries.
I cannot put this too strongly: it can only be in the interests of this country that we encourage this development of the knowledge economy and knowledge society as a substantial part of where our future lies. I think that all of us recognise the astonishing contribution that the United Kingdom has made to the world of higher academic studies, research and scientific study.
For all those reasons therefore—and I had thought that I was pushing at an open door—I hope that the Government will carefully consider the matter before Third Reading. I am not about to press this amendment to a Division. If they thought about it, it would be clear that they could exempt these libraries from the purport of the Bill and everyone would applaud them for doing so. I speak to this amendment as strongly as I possibly can because the damage that will be done to the United Kingdom if we do not make such an exemption will be profound. Beyond the United Kingdom, the damage that will be done to the whole network of knowledge throughout the world will not be enhanced in any way by encumbering it with a Bill of this kind. I beg to move.
My Lords, I need only say that the noble Baroness's concerns have been registered. Indeed, the noble Baroness was right to make reference to my noble friend Lord Eatwell, who has been vigorous in his pursuit of the interests of the British Library and other universities and libraries. We believe that the amendments that we have now put forward comprehensively put the British Library in a situation where it need fear for nothing in relation to this Bill. We really think that the amendments do that. We have already talked about intent and recklessness in relation to Clause 2. As was requested, it means that libraries will not be caught by the offence. However, we are also seeking to generalise the defence in Clause 2(9). That should demonstrate absolutely that the offence will not damage the interests of copyright libraries or any other libraries. I am confident that that satisfies the concerns of those who have spoken with such passion on behalf of the British Library, which is one of the libraries that should be applauded for the work that it does. I assure the House that, in our view, this amendment is wholly unnecessary.
My Lords, before the Minister sits down, in light of what she has just said and of what the noble Baroness said with such clarity, why would it not be admissible or wise—the Minister spoke earlier about belts, braces and garters and so forth—to put this on the face of the Bill, granted its importance?
My Lords, the terms under which these provisions will bite are clear. The noble Baroness is right to make reference to the British Library and the deposit libraries as being libraries of great excellence. However, in answer to the right reverend Prelate's question, there are many other libraries and universities that we might also have to list as being beyond question. We believe that the universality of these provisions is the best way to protect all those who may be subject to them. This amendment is simply not necessary. They may have been arguable before, but as a result of the significant changes that we have made, no longer necessary.
My Lords, I apologise because the hour is getting late, but I have one further question. Does the Minister agree that the position of the deposit libraries with their specific legal obligations is not the same as that of all the other libraries? I do not wish to do anything other than protect all libraries, as I am sure the Minister does too, but these particular libraries have a legal duty laid upon them which is distinct from that of most other libraries because they are deposit libraries and because specific Acts of Parliament have been passed in their respect which have made specific obligations on them that are not legally shared by all other libraries. That is the only reason why I moved this amendment. Given their exceptional position, might what the right reverend Prelate said be considered a little before we finally conclude on this Bill?
My Lords, as I have indicated from the very beginning, the ability to continue to scrutinise does not cease until this Bill leaves this House. However, it is only right to tell the noble Baroness that we have, in introducing the amendments that we have now placed before the House, considered these issues with great care, not least because we took very seriously the concerns that were so cogently expressed by a number of noble Lords including my noble friends Lord Eatwell and Lady Warwick, and indeed the noble Baroness, who has such experience in this area. It is because we took those comments so seriously that we included the intent and the defences, notwithstanding the fact that we believed that the old construct would suffice to meet the concerns that the libraries had expressed. We think that having done that we should now have assuaged the concerns in the proper way. I do not close the door, but I do not want to excite the noble Baroness's expectation that there is likely to be any further change.
My Lords, in the hope that the Bill will not cease the process of being surveyed by this House completely, in the light of those remarks I will withdraw the amendment but my expectations continue to be relatively lively. I beg leave to withdraw the amendment.
moved Amendment No. 42:
Page 4, line 27, at end insert—
"(9A) Nothing in this section or section 3 applies to the conveyance of signals in the course of, or in connection, with the provision of a common carrier service.
(9B) In this Part "common carrier service" means an electronic communication service within the meaning of section 32 of the Communications Act 2003 (c. 21) (meaning of electronic communications network services) which consists of no more than the conveyance of signals."
My Lords, this is the first of a group of four amendments. Apart from this one, all of them are amendments to Clause 3, and are basically concerned with the problems of Internet service providers and the extent to which they will be affected by this Bill. They divide into four groups because four different issues are involved. The first group, starting with Amendment No. 42, includes one minor government amendment which is concerned with making sure that the arrangements are not unduly oppressive to Internet service providers.
The second group contains a very different set of amendments which are concerned with whether the service of notices to remove something from an Internet service provider's provision can properly be done simply by the decision of a policeman. The third group deals with a particular point of concern to Internet service providers—the Government's provisions here as to repeat statements. Finally, the last group concerns what falls within the definition of terrorist-related material.
On the first group, starting with Amendment No. 42, it is probably fair to say that the Government's acceptance of the principle that there should be an intentional recklessness test to Clause 2 as well as Clause 1 will probably have reduced the concerns of Internet service providers. Unfortunately, owing to the late date at which the amendments were tabled, it has not been possible for me to have any detailed conversations with the representatives of the Internet service providers to see how far their problems have been resolved. However, I will now outline what the problems are.
Internet service providers do not normally monitor or exercise control over the material which they transmit. There are some cases in which some degree of control is exercised; for example, there are a number of ways in which child pornography can be excluded. It would be very difficult, however, to apply those techniques to terrorist material because of the considerable differences in its nature. There are, for instance, going to be no obvious code words which clearly identify a terrorist message. Some degree of protection is given to Internet service providers by Articles 7 to 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implement directive 2000/31/EC. That protection should be preserved to avoid putting an impracticable burden on ISPs.
Amendment No. 42 is slightly different from the rest of this group: it is an amendment to Clause 2 rather than Clause 3. It has been requested by British Telecom, which is a large provider of non-Internet communications services such as telephones. It is plainly wrong, when we are talking about transmission or dissemination of terrorist material, that telephone services, voice or fax, should be subject to the Bill. I hope that the Government will agree to that, because it seems obvious that there is no practical way in which they can do anything about it without imposing wholly unacceptable burdens on the telephone services.
Amendment No. 44A has been requested by LINX, the London Internet Exchange, and the ISPA, the Internet Service Providers' Association. Internet service providers with multinational networks should not be expected to remove material from their network in another country without lawful authority in the jurisdiction where the removal would take place, because the Internet service provider might then have to choose between ignoring the notice served under Clause 3 by the police and facing prosecution in the UK, or complying with the notice and facing legal action, criminal or civil, in another country. That seems inappropriate, and I understand that it is the Government's intention that this should not apply to what is stored overseas. That should be made clear.
The Electronic Commerce (EC Directive) Regulations give protection to three categories of Internet service, as defined in the regulations: first, an ISP which is acting as a mere conduit, covered by Regulation 17; secondly, an Internet service which is caching information, covered by Regulation 18; and thirdly, an Internet service provider which is hosting information, covered by Regulation 19.
Caching and hosting both involve storage for more than a transient period, whereas acting as a mere conduit involves holding information only for a transient period. Under Regulation 17, no criminal penalty can be imposed on an ISP for any transmissions when it is acting as a mere conduit. That is repeated in Amendment No. 58, and would mean that an Internet service provider acting as a mere conduit would effectively be treated as we suggest that a telephone—common carrier—service would.
Under the regulations, ISPs which provide caching or hosting services can be subject to a criminal sanction if they have "actual knowledge" that the material they are storing is unlawful and, upon obtaining that knowledge, do not act expeditiously to remove from the network, or block access to, that material. That is covered by Amendments Nos. 45 and 59. The regulations also apply to Internet service providers acting as mere conduits, but that is covered by Amendment No. 58 which totally excludes them from Clause 3, so there is some overlap here.
The effect of these amendments upon ISPs other than those acting as mere conduits is to limit criminal liability to cases where notice has been served on them under Clause 3(2). Without this, there would be serious practical difficulties in deciding what constitutes "actual knowledge". It would therefore not be appropriate to provide that "actual knowledge", apart from the service of the notice, would in itself amount to an offence.
This is obviously highly technical and rather complex material. I am by no means an Internet expert myself, but I hope that the Government will be able to lay to rest the concerns of the Internet service providers. I beg to move.
My Lords, I absolutely understand that the noble Lord, Lord Goodhart, speaks to his amendments with the assistance of the industry, and has not had an opportunity to discuss these amendments with them. Perhaps I can help by indicating the work that we have done with the industry on these matters. I hope that, if I am able to answer relatively fully, the noble Lord will have the assurances he needs and, therefore, the assurance that the industry needs to be content that we have addressed the problems that they have highlighted through him. I am grateful to the noble Lord for giving us the opportunity to do that.
We believe that the concepts of intent and subjective recklessness in Clause 2 provide further protection to those service providers that simply act as hosts, transmitters and mere conduits of information, both in the fields of Internet service provision and connectivity services. This has been asked for by the Internet industry, and will go some way to alleviating their concerns, as the noble Lord generously indicated that it might.
Amendment No. 42 is not accepted by the Government, because it provides an exemption for those conveying signals while providing common carrier services as defined under Section 32 of the Communications Act 2003. The possibility of issuing a notice, let alone prosecuting a common carrier is remote, but neither connectivity services nor Internet services providers can be totally exempted from liability to prosecution under the Bill. While it is unlikely, there may be circumstances where requiring a common carrier service to remove potentially criminal material might be needed. The Government believe it is reasonable that if a service provider is aware that it is making available a statement that is encouraging others to terrorism, or is making a publication available that encourages terrorism or is of use to terrorists, and either intends others to be encouraged by it or is reckless to the consequences of it remaining public and endorses the views in that statement, they ought to be prosecuted. The Government certainly do not believe that the vast majority of UK Internet or connectivity service providers will ever fall into that category, but we have to cater for the possibility of rogue UK providers being created in the future. We believe that the amendments to Clause 2 will do a great deal to resolve the anxieties of the Internet industry about the effect of that clause.
Government Amendment No. 43 is a simple technical improvement which the Government hope provides greater clarity and certainty to the drafting. It changes Clause 3(1)(a) to ensure that it mirrors Clause 3(1)(b) by adding the words "or in connection with" when referring to services provided electronically. I hope noble Lords will agree that it improves the current drafting.
Amendment No. 44A restricts Clause 3 preventing the issue of a notice under Clause 3 to people overseas who are committing the Clause 1 offence and to those committing conduct contrary to Clause 2 occurring only in the United Kingdom. It is pertinent to note that the Government do not intend to take extra-territorial jurisdiction over Clause 2; that is, where a person abroad commits conduct under Clause 2 and publishes that publication abroad. The United Kingdom does not criminalise that conduct. However, we are taking extra-territorial jurisdiction over Clause 1. This amendment would prevent a notice being issued to someone publishing offending statements overseas, so undermining our ability to enforce the Clause 1 offence. Further, the amendment would prevent a notice being issued to someone resident in Britain who the police knew to be causing another to post inflammatory material on a website hosted in another country. This would lead to a bizarre situation in which extremists and radicals in Britain would simply switch from hosting content in the UK, which few do currently anyway, to hosting it on foreign websites and no notice could be issued, even though it could be clear that the messages being placed on those websites are intended to be seen by Britons. The notice provisions ought to be able to apply to all those resident within the UK and to anyone anywhere who is committing the Clause 1 offence. Anything less would be wholly unsatisfactory and I am sure that the noble Lord can see the force in that.
Amendments Nos. 45, 46 and 59 aim to ensure that Internet service providers do not face a prosecution unless they know about the content. This can only be taken to be the case following issuing the notice. I believe that these amendments tabled in Committee by the noble Lord are in direct response to the concerns raised by the London Internet Exchange Limited and linked to the Internet Service Providers Association, the ISPA. He indicated that today, too. I hope I am right in saying that with the inclusion of intent and recklessness in Clause 2, they are no longer necessary. Indeed, a most eminent and revered Member of this House who sits regularly on the Liberal Democrat Benches said,
"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".—[Hansard, 7/12/05; col. 669.]
I hope that the noble Lord, Lord Goodhart, will not mind me quoting his words back at him. He was quite clearly saying that the way to cure that mischief was to introduce intent into Clause 2. I respectfully agree with him, which is why we have done so.
None the less, I am happy to give the noble Lord the assurance he needs. Both the offences in Clauses 1 and 2 cannot be committed if the service provider is not aware of the statement. The Government fully intend that where offending material is being hosted, the police and prosecutor's first step would be to identify the webmaster hosting that content and serve a notice on him. If that were to prove impractical or impossible, the police would look to serve notice on the Internet service provider, unless there were other circumstances surrounding an individual case; that is, that the provider had prior knowledge which presumably would not occur simply through his provision of the services. This would generally be the first time an Internet service provider could be said to be aware of the content. I should point out that even if the service provider had known of the statement and was deemed reckless as to the consequences of making that statement public, they would still have recourse to the defences in Clauses 1 and 2 that the statement neither expressed its views nor had its endorsement.
Amendment No. 58 makes provision to ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protection in the electronic commerce EC directive regulations 2002 against criminal liability. The Government are aware that Internet service providers in the UK are concerned that provisions on repeat statements may contravene the e-commerce directive which requires that a general obligation to monitor cannot be placed on those service providers which fall within the terms of the directive. I will address this point in relation to government Amendment No. 51 and explain why we do not think that such an amendment is necessary. The Government's view remains the same: that the repeat statement provisions in Clause 3 do not impose a general obligation to monitor if that offends against the directive.
I say to the noble Lord, Lord Goodhart, that no one would know that he was not an absolute expert in this field. I hope that in the light of what I have said on these amendments he will withdraw his amendment.
My Lords, I am grateful to the Minister for her response and for quoting me back at myself. However, I suspect that I made that comment on the basis that it would be a purely intent provision in Clause 2 rather than intent or recklessness. Be that as it may, I shall need to consult further with interested parties in the light of the new provisions in the Bill and of what the Minister has just said. I hope that the ISPs and BT will feel that their complaints have been met, but in case they say that that is not the case and if I feel that their problems have not adequately been solved, I might have to bring this proposal back. In the mean time, I am happy to beg leave to withdraw Amendment No. 42.
moved Amendments Nos. 43 and 44:
Page 5, line 4, after "of" insert ", or in connection with,"
Page 5, line 6, leave out "2(1)(a) to (f)" and insert "2(1A)"
On Question, amendments agreed to.
[Amendments Nos. 44A to 46 not moved.]
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.40 pm.