My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.
I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.
Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:
“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.
A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,
“the criminality … lies in inviting support”.
It continued that,
“the expression of views and opinions, no matter how offensive”, should not be criminalised,
“but only the knowing invitation of support from others for the proscribed organisation”,
As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.
Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.
As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.
This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.
I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.