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Terrorism Bill

My Lords, there is much that is worth while in this Bill. I am sure that the whole House appreciates that the Government are struggling with the problem of how to deal with an entirely new situation that threatens the lives of the citizens of this island in a way that has never been experienced. Accordingly, those who oppose the measures in the Bill have a responsibility also to propose; that is, to propose alternative, evidence-based measures that might better achieve the Government’s objectives—objectives that we all share. I hope to impose this discipline on myself in the remarks that follow, but first I must declare an interest as chairman of the board of the British Library, given that it is on library matters in general and the position of the British Library in particular that I propose to focus my remarks. The noble Lord, Lord Clement-Jones, has just referred to some of the items which I also will raise, and I understand that the noble Baroness, Lady Williams of Crosby, spoke on these matters earlier. Unfortunately, I was not here at the time as I was in a meeting with the Home Secretary. I should preface my remarks by informing the House that the British Library has sought the advice of the Treasury Solicitor on the impact of this Bill on the legal standing and, hence, the statutory obligations of the British Library. In so far as my remarks embody legal assertions, they are derived, as best I can, from the advice of the Treasury Solicitor. A key theme of my speech will be the conflict between the provisions of this Bill on the one hand and the obligations imposed on the British Library by statute on the other. The statutory duties of the British Library are defined by the British Library Act 1972 and by the Copyright Act 1911, as amended by the Legal Deposit Libraries Act 2003. I will first deal with the statutory contradiction between Clause 2(1) of this Bill and the copyright/legal deposit issue. Clause 2(1), as is recognised in the Explanatory Notes, refers to the activities of a library: collecting material and making it available to the public. Indeed, this subsection, stripped of any terrorist implication, essentially describes exactly what the British Library does. Clause 2(1)(d) criminalises a person who,"““provides a service to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan””." Clause 2(1)(f) criminalises anyone who,"““has such a publication in his possession with a view to its becoming the subject of conduct falling within any of paragraphs (a) to (e)””;" in this case, any one who performs the functions of the British Library. The British Library is required by legal deposit legislation to receive all materials registered for copyright in the UK, whether produced in print or electronically, or by other means. In this respect, the British Library differs from other copyright libraries and academic libraries that have the right to choose what material they collect. The British Library has no choice. Therefore, it may be said to perform the tasks criminalised by Clauses 2(1)(d) and 2(1)(f) involuntarily. When my noble friend sums up, will she explain how the Government intend to resolve that contradiction between the Copyright Act, the Legal Deposit Libraries Act and this Bill? But the statutory demands on the British Library go much further. Section 1 of the British Library Act 1972 requires that the British Library maintains,"““a comprehensive collection of books, manuscripts, periodicals, films and other recorded matter, whether printed or otherwise””." In other words, it would be failure of the British Library’s statutory obligations if it failed to collect terrorist material, particularly material published in the UK. But I would go further. As chairman of the British Library, I believe that it is the historic responsibility of the British Library to collect terrorist material. In 100 years’ time, anyone trying to understand why my noble friend is putting forward the Bill, will, at the British Library, have access to material that will inform that understanding and, perhaps, evoke sympathy with the Government’s position. Will my noble friend explain the Government’s interpretation of the contradiction between the British Library Act 1972 and the current Bill? Given that the BL is required by statute to infringe Clause 2(1), what defence is possible within the terms of the Bill? Consider the defence offered by Clause 2(8). Given that the BL, when receiving any publication, will certainly catalogue it, will cataloguing, as the noble Lord, Lord Clement-Jones, asked, constitute ““examination”” in terms of the Bill? Similarly, if the BL pursues its statutory duty and collects non-copyright terrorist material, clearly knowing it to be terrorist material, does that selection of such material constitute the term ““endorsement”” as used in Clause 2(9), as the Oxford English Dictionary would confirm? In neither case is the character of the defence clear. I am delighted to inform the House that the Home Secretary has agreed this evening to re-examine these clauses. But I would beg the Government to consider a simple solution to the problems that I have sketched. In Clause 1, a person is deemed to encourage terrorism if he intends to do so. I cannot for the life of me understand why prosecuting authorities are required by Clause 1 to show intent on the part of a person publishing a statement inducing terrorism, when, according to Clause 2, the prosecuting authorities are not required to demonstrate intent on the part of the hapless librarian. Instead, the burden of proof for the librarian is reversed—although the Home Secretary will look at these matters, as I have said. If the Government were only to introduce intent into Clause 2, all the statutory dilemmas to which I have referred would be resolved at a stroke. That would in no way weaken the anti-terrorist power of the Bill. Indeed, should there be by some misfortune, a rogue curator at the British Library who was intent on promoting terrorism by making terrorist publications available, such a person would be liable to prosecution under a new Clause 2 under the concept of intent. Is the Minister prepared to bring forward an amendment incorporating the concept of intent into Clause 2? While it is the statutory obligation of the British Library to collect materials and make them available, it does not do so irresponsibly. We have well-rehearsed procedures for managing sensitive material. Clause 3(2) provides for a two-day ““take down”” window in which a terrorist statement distributed electronically can be removed from a website. Will the Minister explain why this eminently sensible provision does not apply to printed material? The board of the British Library and our staff share the Government’s repugnance at and concern about the very real threat that derives from terrorism. I entirely accept that, as far as the test of intent is concerned, the Home Office does not intend to inhibit in any way the operations of the British Library. The issues that I have raised are the unintended consequences of particular clauses in the Bill. I hope that the Government will agree that the changes I have proposed would eliminate those unintended consequences and strengthen the Bill.