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Terrorism Bill

I understand the concerns expressed by all noble Lords, but I do not think that their anxiety is merited. I shall explain why that is, and I hope to be able to signal some further changes which may give the noble Lords, Lord Kingsland and Lord Goodhart, along with others, what I hope will be a considerable degree of comfort. I am grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his amendment. Perhaps I may explain why I do not think the amendment is necessary, but say first that I understand that his proposal is probing in nature to enable me better to explain how we seek to deal with these matters. Amendments Nos. 1, 11, 13, 16, 29, 33, 35 and 38 would change the test for assessing whether a statement is captured by the offence in Clause 1. Currently, the test is whether a statement is likely to be understood by members of the public to whom it is published as encouraging terrorism, a point already made by all noble Lords. Under the amendments tabled by the noble and learned Lord, Lord Cameron, the test would be whether a statement could reasonably be expected to be understood by members of the public to whom it is published as encouraging terrorism. We do not believe, technically speaking, that this change would make a great deal of difference. But I do believe that, where possible, legislation should use simple rather than complicated language. I should like to give an example. On the basis of the arguments advanced on Second Reading, I would say that it is likely that we will not reach consensus on all of the measures of the Bill, although I still hope that we will. We could also reasonably be expected not to reach consensus on all of those measures. For the sake of simplicity, I would prefer the shorter expression, provided that it is as accurate as the longer expression; in this instance I believe that it is. I certainly appreciate the good intentions of the noble and learned Lord, Lord Cameron of Lochbroom, but I suggest that the construct that he puts forward is perhaps more legalistic than is necessary and that the current simplicity suffices. By contrast, Amendments Nos. 2, 7, 12, 14, 18 and 34, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, would very substantially change the test used to assess whether statements are captured by the offence in Clause 1. As I explained, currently the test is whether a statement is likely to be understood by the members of the public to whom it is published as encouraging terrorism. Under these amendments, the test would be whether a statement would be understood by the members of the public to whom it is published as encouraging terrorism. This is a significantly higher test and we do not believe that it would be appropriate for it to be adopted. The higher test, included in these amendments, would require a court to come to a definitive view not only about the person making the statement, or about the statement itself, but also about the audience to which the statement is delivered. In the current drafting it is not necessary to reach a definitive view about the audience. I suggest that it is not appropriate to expect the prosecution to prove definitively—which is what this amendment means they would have to do—that a given audience would behave or react in a certain way. After all, the audience is not the subject of the offence. These changes could make the clause unworkable, enabling the defence to argue that even if it was accepted that a statement was likely to be understood as encouraging terrorism, it would not actually be so understood. The offence should, we respectfully suggest, target the individual making the statement and be concerned with the statement itself. The audience is relevant, obviously, but it should not be as directly involved in the offence as would be the case under these amendments. For those reasons I would urge noble Lords not to press the amendments, and I hope that this has been a helpful indication of why they are not necessary. I believe that the existing safeguards are quite sufficient. Finally, I would like to refer briefly to comments I intend to make shortly when we turn to the amendments concerned with intent and recklessness. I would like to signal at this early stage the Government’s intention to make significant changes in these respects. Although I do not want to go into the detail now, I can assure your Lordships that in my view the concerns that have led to the amendments before us now—particularly those relating to the substitution of the ““would”” test for the ““likely”” test—are unnecessary in the context of the offence. I hope that that eventually becomes apparent. I therefore urge the noble Lords who have tabled these amendments not to press them. We will have an opportunity later to discuss whether the subjective or objective test is to be preferred. I am happy to indicate that the Government are currently minded to adopt the subjective as opposed to the objective test.