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Terrorism Bill

moved Amendment No. 6:"Page 1, line 13, leave out from ““(1)”” to end of line 18." The noble Lord said: I am sorry for rising yet again, but this time the issue is one of great importance and the Government will not regard it as strengthening the Bill. The purpose of Clause 6 is to remove the recklessness test and require actual intent. We believe that that would be in line with Article 5 of the Council of Europe’s Convention on the Prevention of Terrorism. We welcomed with faint praise the government amendment in the House of Commons and we welcomed with perhaps slightly stronger praise the Government’s announcement through the Minister this evening that they will accept that the test of recklessness should be subjective rather than objective. That is a considerable improvement. As the Minister said, she will accept the amendment to remove subsection (3) which converts the provision from objective to subjective recklessness, which we support. However, we would prefer to remove recklessness altogether. Recklessness clearly has a part to play in the criminal law. It involves a conscious running of a risk. For example, someone who drives dangerously, not wanting to kill some other user of the road but being aware that his dangerous driving increases the risk that someone else will be killed, is plainly guilty of recklessness. However, it is not easy to transpose the concept of recklessness to the encouragement of terrorism or to anything that my noble friend Lord Lester of Herne Hill described as a speech crime. The problem here is that what creates the crime is not the objective physical result—the causing of death or injury to another—but the effect of the encouragement on the subjective mental state of people who read or hear the statement. That is not always predictable and may, and almost always will, vary among those who hear the statement. If intent on the part of the maker of the statement is necessary then there is no problem. It is always possible for a jury to draw the inference that when the meaning of words is obvious, that is the meaning that the user of those words intended. If the statement is, ““Go out and become suicide bombers””, the intent to encourage terrorism is obvious and the inference is inescapable. If every hearer or reader of the statement is likely to read it as encouraging terrorism, then that inference can hardly be avoided. However, what if the meaning of the statement is not so obvious? Recklessness may involve a very complicated scenario. It involves someone making a statement which is not unequivocally supportive of terrorism but which he realises may be seen or heard by possible recipients of the messages as encouraging them to acts of terrorism. For example, a strong attack on Israeli conduct on the West Bank which does not mention the use of violence against them may nevertheless encourage people who hear that statement to acts of violence. That could help to stir up some who hear or read the statement to become terrorists. The person who made the original statement may well foresee that as a risk, but, if so, there is a real problem, because any strongly worded criticism of an oppressive government may stir up hostility towards that government and may encourage—I will not say directly or indirectly—terrorism. At that point, it becomes an unacceptable interference with the freedom of speech if that was not the intention of the person who made the statement. I accept that intentional encouragement of terrorism should be an offence, but a verbal attack, even if it were a fiery and emotional one, on perceived oppression should not be an offence simply because the maker realises that it might stir up the flames of violence. We cannot silence critics of regimes on the West Bank, in Burma or in Zimbabwe. If recklessness stays in the Bill, there is a real danger that that is what it will do. I note that the Joint Committee was prepared to accept subjective recklessness as a test. I would go somewhat further, but I certainly agree that if recklessness is to be included, there must be a public interest defence so that strong criticism of foreign governments cannot be an offence. If that risk was taken out, then maybe we could go back to recklessness. But, at the moment, I do not think that there is adequate protection for those who express strong feelings, which they are now legitimately entitled to express, about what they see as oppression, breaches of human rights and even genocide in foreign states. Amendment No. 19 is consequential and removes Clause 1(7), which gives a specific defence that a statement was published in ignorance of its contents. That subsection would not be needed if intent was an essential requirement for an offence under Clause 1. I beg to move.