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Terrorism Bill

My Lords, the noble Baroness, Lady Henig, has put one side of the case strongly and eloquently. Let me say to her, because I am sure she accepts this, that none of us can for one moment support the capricious, cruel activities of terrorists that have destroyed the lives of a great many people, and will doubtless destroy the lives of others. The problem the House confronts is, quite straightforwardly, how far we go in destroying the liberties we have enjoyed for centuries in an effort to stop terrorism, and, in doing that, how far we would give the terrorists exactly what they want. The noble Baroness, Lady Scotland, talked about the amount of consultation around this Bill. I believe that the Home Secretary indeed tried to consult, and wanted to create a consensus. That consensus began to come under great strain, however, and colleagues in the House will remember that he spoke in another place about an attempt to reach a compromise on—at that time—the huge issue of 90 days, not long after the Prime Minister effectively indicated in his press conference of 5 August that he did not wish to pursue the issue of consultation further. It would have been immensely helpful if the Prime Minister had thrown his weight behind the arguments for consensus and consultation, but I think any fair-minded person would have to agree that at a certain point he ceased to do so. As for the point about the representations made by the police, of course I agree with the noble Baroness, Lady Henig, that the police are completely free to indicate their views about legislation. As a former Home Office Minister I recall their doing so. I cannot actually recall any previous instance where chief inspectors rang up Members of Parliament personally to advocate the way they should vote on measures before the House. That, to say the least, is very unusual. It crosses a boundary that, on reflection, may not turn out to be absolutely wise. Several of my noble friends and law-makers from elsewhere have talked about Clause 1 and later clauses in the Bill. I want to address Clauses 2 and 3 in particular. They were raised by the noble Baroness, Lady Carnegy of Lour, but deserve a little further investigation. The associations of librarians were not consulted about the Bill. They wrote to the Home Office on 26 and 31 October, pointing out the grave dangers they saw in the proposed legislation. They did not receive a reply at that point. They then sought to reach their own sponsoring department, the Department of Culture, Sport and the Media. The DCMS, addressed by them on 31 October, referred them to the Home Secretary, and did not itself take up the cause. It is only later today that the library associations will meet the Home Secretary. He is a very busy man, but that still does not quite explain why his own department did not go in great detail into the implications of Clauses 2 and 3. Let me spell them out. Those implications are that any librarian and any lecturer in a university might be criminalised. Those are not just the idle thoughts of a spineless Liberal; they are based on very senior legal opinion. Phrases such as ““dissemination””, ““examination”” and ““endorsement”” could be wrapped up with the legislation that already precisely defines the duties of librarians and university librarians and it has not, as far as I know, been repealed. The legislation affecting the British Library, the British Library Act 1972—which I know about because I was much connected with the foundation of that library—places a clear duty on the library to promote knowledge, to give assistance to those who wish to have access to documents, publications and other forms of information. The Act is quite clear and it is further strengthened by the Legal Deposit Libraries Act 2003, which laid on publishers an obligation to provide, and on particular libraries—among which are the British Library and certain university libraries—an absolute obligation to accept, publications which were, by law, required to be given to those libraries. It is not clear from the drafting of the Bill—I am not a lawyer, but I have consulted those who are—whether, for example, receiving, by law, a publication which appears to advocate, sponsor or support terrorism would be treated for these purposes as an examination. It is not clear whether, when the library in question catalogues that publication, this does not constitute endorsement. The drafting of this legislation is terrifyingly weak and terrifyingly far-reaching. It could indeed mean that our universities will be profoundly restricted in their first and overwhelming obligation, which is to find knowledge and pursue truth. I shall give one example of the ways in which other countries have dealt with this matter. I do not think, with respect, that even the strongest supporters of this legislation would be able very easily to deny that the United States has pursued these matters with great determination and firmness. The USA Patriot Act of 2001 precisely indicates that, in the case of the dissemination of publications and legislation affecting universities and others, the First Amendment to the US Constitution stands supreme. Nothing can interfere with it. It is of course the amendment which states that there shall be freedom of speech and that this is a sacred duty. So in the United States, despite all its passionate feelings about terrorism, which it certainly holds as strongly anyone in this House or another place, nothing can affect the freedom of speech and expression. So instead of executing a wide sweep and attempting to restrain and limit what universities can teach and what librarians can disseminate, as we are doing, the United States concentrates entirely on the rights of government to obtain records about their loaning and their reading habits from librarians. The First Amendment is so strong that it is worth quoting. It states that disclosure of communications or customer records to a government entity, unless it is voluntary, is permissible only,"““if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information””." Ironically, earlier today, a Question was asked about the importance of overseas students’ attendance at British universities. If one has a choice between a country whose universities are able to provide publications, are able to give lecturers freedom—subject only to the rights of the FBI to establish whether there have been publications which advocate specific forms of terrorism during the investigation of a terrorist offence—would one be likely to go somewhere else where the restraints are as tight, as vague and as extensive as are parts of this Terrorism Bill? We could destroy our finest institutions if we do not manage to frame this legislation much more tightly, much more specifically and much more closely in ways that would make charges actually stand up. There is one other feature that I want to mention, which I believe to be very serious. Clause 2, as the noble Baroness, Lady Carnegie of Lour, indicated, shifts the balance of proof entirely from the traditional right of someone to be considered innocent until proved guilty. It turns that around by 180 degrees. Guilt is established unless the defendant can show that he or she is not guilty. For a librarian or a lecturer in a university, the defence conditions are virtually impossible to meet. That again is a reflection of serious legal opinion that these defences would be virtually useless in an individual case. I beg noble Lords that, in the interests of putting on the statute book a law which is robust, which is clear, which means what its says, and which both protects our liberties and isolates terrorists in a way that makes our actions against them effective, it is crucial that the House of Lords undertakes the scrutiny, examination and careful inspection that is its birthright and that, with great respect, even, I think, the Prime Minister, despite his unwise threats to us, should surely understand.