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Terrorism Bill

In response to the suggestion of the noble Lord, Lord Elton, I say that I do not think that there will be any need to reconvene into Committee on Report because I hope that we will be able to go through the Bill very fully now. I am more than happy to explain at this stage the Government’s current thinking, to enable noble Lords to feel a greater degree of ease as we pass from this amendment to those that are to come. I will seek to answer directly some of the questions that were raised. I can tell the noble and learned Lord, Lord Morris of Aberavon, that the burden of proving the effect of the statement would remain with the prosecution. It would be the normal burden of proof in criminal cases of beyond reasonable doubt. I said that inserting ““would”” would become less problematic because, if we were to adopt the suggestion of noble Lords opposite in relation to the subjective test, that issue would become more clear. The noble Lord, Lord Ahmed, asked a question about the Qur’an. We are not seeking to criminalise legitimate use of religious text. As noble Lords know, the offence of encouragement or glorification can be committed only if the statement is made with the intent of inciting others to commit terrorist acts or, once the Bill has been amended, if the person knows that that is the likely result. Mere glorification is not an offence. I thank the noble Lord, Lord Thomas of Gresford, for his encouragement. This is not going to be bad law. I think that even he will be pleased by the indications that I am about to give. As my noble friend Lord Eatwell and the noble Lord, Lord Lucas, raised this matter, and if it is convenient to the House, I shall deal with the way in which we propose to look at Clauses 1, 2 and 6. Much of the debate at Second Reading and today has focused on the possibility that Clauses 1, 2 and 6 might criminalise activity which we all regard as acceptable. My noble friend Lord Eatwell, for example, argued at Second Reading that Clause 2 might capture some activities which certain libraries are bound to perform. Other noble Lords argued that these clauses would capture academic work, including those who teach history and touch on Islamic extremism. For those reasons, we have thought very carefully about where we go from here. We disagreed that the Bill as currently structured criminalises these activities. We are satisfied that it does not. Where those activities are innocent and unlikely to promote terrorism, it will not cause difficulty. However, in view of the concern which has been expressed here and in another place, the Government have given these matters further consideration. We have tried to find ways of giving comfort in relation to them. The question of intent and recklessness in Clause 1 has caused the most anxiety. There is clearly no doubt that intent should be part of the offence. Those who intend to encourage terrorism should find that their activities fall within the parameters of this offence. There is, however, some disagreement over the recklessness element. The question is whether the recklessness test should be objective or subjective. An objective test involves establishing whether the defendant could not reasonably have failed to know what the effect of his statement would be. A subjective test would involve establishing that that defendant in fact knew what the effect of his statement would be. We are satisfied that if a person could not reasonably have failed to know what the effect of his statement would be, he should not be able to escape punishment simply by asserting that he did not actually know what the effect would be. We in the Government, however, have listened to the concerns expressed here and in another place, and I can confirm that the Government will accept a subjective recklessness test in Clause 1, which both Her Majesty’s loyal Opposition and the Liberal Democrats voted for in another place. When we reach Amendment No. 9, tabled by the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and the noble and learned Lord, Lord Cameron of Lochbroom, we in the Government will support it. Similar issues arise elsewhere. This change will mean that the prosecution will have to show not that the defendant could not reasonably have failed to know what the effect of his statement would be, but that he in fact knew what the effect would be. I am satisfied that this change should provide the comfort sought by noble Lords who have had concerns about this offence. The offence will not be committed unless the defendant either intended to encourage terrorism or knew his statement would encourage terrorism. I do not believe that people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism when they know what the effect will be. I also signal that the Government will seek to make a further change to Clause 1. At present, there is a defence in Clause 1(7). The defence has three limbs: first, that the statement was published in the course of providing a service electronically; secondly, that the statement did not express the views of the person publishing it; and, thirdly, that it was clear in all the circumstances that the statement did not express the views of the person publishing it. The Government now propose to extend this defence to everyone, not just those who provide a service electronically. This amendment will extend the scope of the defence considerably. The defence will be available to those who make a statement available to the public in the course of, for example, a news broadcast, if they could show that they did not endorse the statement and the circumstances surrounding the broadcast made that clear. Likewise, academics who passed statements on to their students or who took up arguments that could be construed as encouraging terrorism, but only for the purposes of educating their students, could not be convicted, provided that they could show they did not endorse the statement and it was clear in all the circumstances that they did not. We intend to move an amendment to that effect on Report. Together with the move to subjective recklessness, this change would mean—