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Terrorism Bill

Of course I understand the purport of the opposition of the noble and learned Lord, Lord Lloyd, and the way in which it is put by the noble Lords, Lord Goodhart and Lord Thomas. To make it clear, we believe that one has to look at the way in which this Bill has been framed. In framing the Bill we have had to try to fulfil two obligations. The first is our obligation to our partner countries in the Council of Europe, to which we have already alluded, and, in order to ratify the Council of Europe Convention on the Prevention of Terrorism, we needed to create an offence of incitement to terrorism, whether that incitement is direct or indirect. Noble Lords know that Clause 1 purports to satisfy that end and create this offence. Noble Lords are right to have said that there is already an offence in our law directly to incite a person to commit a specific act of terrorism. We do not seek to interfere with the common law in the way in which the noble and learned Lord, Lord Lloyd, set out in advancing his remarks on this amendment. It is not an offence, as we have already discussed in our debate on the previous amendment, to incite people to engage in terrorist activities generally, or to incite them obliquely by creating the climate in which they may come to believe that terrorist acts are acceptable. That is the gap that we want to close, both to enable us to fulfil our international obligations and because we believe that it is desirable in its own right. I remind the Committee of the powerful speeches made, particularly on Second Reading, not least by noble Lords on Benches opposite, the noble Baronesses, Lady Park of Monmouth and Lady Ramsay of Cartvale, and other noble Lords who have great experience of that. We are living in a different context. The second obligation is, of course, to the electorate. The manifesto on which the Labour Party fought, and won, the 2005 general election contained a clear commitment to create a new offence of glorification. The offence in Clause 1 allows the Government to meet their obligations to the electorate. Having outlined the intentions behind Clause 1 in broad terms, I should also like to stress what it is not intended to do. The Government have no intention of outlawing legitimate activities that do not encourage or help terrorists. The emphasis on context and the defences provided in Clause 1 are designed to ensure that teachers, lecturers and writers can all go about their business freely. I am satisfied that the Bill does not pose a danger to such people. I am, however, conscious—and we have debated this both on Second Reading and today—that many noble Lords have expressed concerns that the activities of such people will be criminalised by this clause. That was raised by the noble and learned Lord, Lord Lloyd of Berwick, and is exciting the attention of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. That is why I made my earlier comments on our proposed amendments. The most important amendment which we are now considering, Amendment No. 6, means that the offence in Clause 1 would be committed only—I emphasise this—if the person making the statement intends to encourage terrorism. There would be no provision relating to recklessness at all if the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, had their part. There has been much debate about the objective and subjective elements. They were considered extensively both in the other place and on Second Reading. The provision that the offence should be committed if the person making a statement intends to encourage terrorism clearly needs no further justification. I think we are all agreed—as was clear from the statements of the noble and learned Lord, Lord Lloyd of Berwick—that people who make statements which they intend to encourage terrorism should be committing an offence. We are in total agreement, ad idem. I am also absolutely satisfied that a recklessness limb is justified. People who knowingly make statements that will encourage their audience to commit acts of terrorism should be covered by this offence. Indeed, the very idea of a defendant arguing that he knew his statement would encourage terrorism, but that he did not intend that it should do so, shows how difficult the amendment is. It is verging, if I may respectfully say so, on the absurd. Would we really want defendants going scot-free who quite brazenly say that they knew what the effect of their statements would be, but made them anyway? Before even considering the changes the Government now propose to make, I would therefore urge noble Lords to withdraw their amendments, bearing in mind the clear change that I have signalled that the Government are minded to make. In order to explain our change, I perhaps need to say a little more. The detail of what the recklessness limb should be is, of course, complicated. In order that the Committee should fully understand the implications of Amendment No. 6, I need to explain what the Government propose to do to the recklessness limb which this amendment would remove. Although this anticipates matters that will be debated further at a later stage, it is necessary in order that your Lordships should know what they would be rejecting, if they were to support this amendment, which comes first. As the Committee will be aware, much of the debate on recklessness focused on subjectivity and objectivity. 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 by simply asserting that he did not know what the effect would be. However, we understand the difficulties that poses, the arguments extended about Caldwell, and the arguments about where the law now is in relation to R v G. That is why I signalled today, on behalf of the Government, that we are prepared to move to the subjective test of recklessness in Clause 1 of this Bill, which both the Her Majesty’s loyal Opposition and the Liberal Democrats voted for in another place. On that basis, we will support 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. As I understand it, the noble Lord, Lord Goodhart, is indicating that he would prefer the removal of ““recklessness”” in its entirety. If ““recklessness”” should remain—he does not admit that—he would prefer the subjective, as opposed to the objective, test. The effect of this change, if we adopt the position of Amendment No. 9, will be 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 did in fact know what the effect would be. I think this amendment would provide the comfort that many on this Committee said that they needed in order to assuage their concern over this offence. If that construct is accepted and adopted by us all, there will then be no circumstances under which this offence could be committed if the defendant did not either intend to encourage terrorism or know that his statement would encourage terrorism. Speaking entirely for myself, I can see no reason why people should be allowed to encourage terrorism intentionally, or to make statements that encourage terrorism recklessly, when they know what the effect will be. It would be unfortunate indeed if we were to allow people the opportunity to abuse our citizens in a way which would have such potentially horrific consequences, and if we did nothing to prevent it. In view of the change to a subjective recklessness test, which the Government will seek to introduce on Report, I invite the noble Lord to indicate that he is content to withdraw the amendment. There are still more reasons why he should do so—