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Terrorism Bill

I support this amendment. I am afraid that the concession that the Minister has offered on subsection (3) does not satisfy me. I have found it useful to trace the history of Clause 1 as it has developed over the past few months to see what it is the Government are trying to achieve. That is what has caused us so much difficulty today. On 20 July, we were told that there would be three new offences: the preparatory offence, the training offence and the indirect incitement offence. In a letter to Mr David Davies and Mr Oaten, the Home Secretary accepted at that time that direct incitement was already covered by the common law and therefore there was no need for a new offence of direct incitement. The only odd feature is that there has been no attempt, so far as we know, to prosecute any of these so-called loudmouths for direct incitement. The Home Secretary’s letter went on to explain what he meant by indirect incitement. This is perhaps my footnote to the discussion that has been taking place this afternoon. He stated:"““We now want also to cover indirect incitement to terrorism. We intend that the new offence should capture the expression of sentiments which do not amount to direct incitement to perpetrate acts of violence, but which are uttered””," —the following are the important words—"““with the intent that they should encourage others to commit, or attempt to commit, terrorist acts””." So the difference between direct and indirect incitement depends not on a difference of intent—both require the same intent. The difference seems to lie in the strength of language used by the potential defendant. As the noble Lord, Lord Hurd, said at Second Reading, direct incitement will lie with the ““loudmouth”” who shouts from the hilltops. If convicted, he will get a life sentence. Indirect incitement seems to apply to the man whose sentiments are expressed more obliquely or in a more guarded manner. He will get not a life sentence but seven years. But I emphasise that the intention is exactly the same. The defendant would be indicted with two charges, direct incitement and what I shall call indirect incitement. The jury would have no difficulty at all in deciding which of these charges to convict on, if either. So far, so good. I have no difficulty with indirect incitement in that sense. However, we come back to the question of the mental element of that offence. In his Statement on 20 July and in the Home Office press release on 6 October, Mr Clarke, the Home Secretary, made it clear that the offence of indirect incitement would depend on intention. There is no doubt about what he was trying to achieve. That would fit entirely with the Council of Europe convention and the offence of provocation, because—as the noble Baroness will know, given that she quoted part of the definition of public provocation—it goes on to use the same words, that the offence would have to be ““with the intent”” to incite the commission of a terrorist offence. So far there has been no reference to anything of the kind that we now find in Clause 1. What happened was that on the very day the Home Office was saying that it would depend on intent, the Government published the second draft of the Bill and there was no mention of intent anywhere. It said that the offence is committed if the defendant has ““reasonable grounds for believing”” that it would encourage. I remember my astonishment in reading those draft clauses. I was going to be interviewed that night so I had to see if I could find out what they meant. Although the Home Secretary had said that intention was the essence of this, nevertheless, when the Bill was published, there was no reference to intention but to something quite different—reasonable grounds for believing. When the Bill had its Second Reading in the House of Commons, of course Mr David Davis keyed in on that very point—we cannot have reasonable grounds for believing, we must have intention. That is what has been suggested all along. But then something happened which I do not understand. What should have happened is that intention should then have replaced the words ““reasonable grounds for believing”” but for some reasoning intention was coupled with recklessness; and that is the whole problem. ““Recklessness”” simply does not fit into this context at all. You can make a reckless statement in the sense that you are reckless as to whether or not it is true, but to make a reckless statement in the sense that you do not care how it is understood I find extremely difficult to understand. I am sure that a jury would find it equally difficult. Recklessness is notoriously extremely difficult to define to a jury. It is even difficult to define it to judges, because Law Lords have differed about this, as the noble Lord, Lord Thomas of Gresford, will remember when he failed to win the Caldwell case. Yet recklessness has been induced here at this stage, apparently for no other reason than to secure more convictions, and, as the noble Lord, Lord Plant, observed during the Second Reading debate, that is a very weak ground for a new offence. It would be a bad ground because it will not secure any more convictions at all. The Government seem to have the view that they needed to introduce recklessness because of the difficulty in proving intention. But we prove intention day in and day out in the courts. If there were any difficulty in proving intention, the prisons would be only half full instead of overflowing. We can prove intention; the difficulty is in proving recklessness. That is going to cause much more trouble for apparently no real object and will certainly lead to many more appeals. At Second Reading there was very little support, if any, for recklessness as a test. Two very powerful speeches were made against recklessness: by the noble and learned Lord, Lord Morris of Aberavon, who implored the Government to take back recklessness—recklessness, not subsection (3)—and by the noble Lord, Lord Plant, who made, it seemed to me, an unanswerable case against the clause based on recklessness. So I hope that the Government will have second thoughts about this fallback position of recklessness, which will not work, and that the Conservative Opposition will also have second thoughts and support this amendment rather than the one in their own name.