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Terrorism Bill

For the sake of clarity, we do not intend to move government amendments to Clause 1(2)(b); there is no need for them. However, we plan to table amendments to Clause 1(7) and Clause 2(9). I shall explain why. First, I tell the noble Lord, Lord Kingsland, that the whole issue of subjective/objective has exercised us all greatly. I know that it has exercised noble Lords sitting opposite for the same reason that it has exercised us. First, as I think I made plain in our earlier discussions, all Members of this House and indeed those of another place want to address the issue of terrorism with an appropriate degree of vigour. The question between us has been how we should do that and what is the best course to take. There are difficulties in taking a course that is too restrictive; there is also difficulty in taking a course that does not properly address the mischief with which we are now faced. That is and has been the dilemma. When I say that the Government have taken this course and that it is a large concession, that is because we understand how difficult it is to get the balance right. We understand that there is a consequence if the judgment that we collectively make about the subjective test proves to be incorrect or over-optimistic.  That is why we have thought about this so keenly. I signalled earlier and am delighted to confirm that we will accept Amendment No. 9. I am grateful to the noble Lords, Lord Kingsland, Lord Henley and Lord Goodhart, and to the noble and learned Lord, Lord Cameron of Lochbroom. I hope that the noble Lord will be content to withdraw Amendment No. 8, which relates to the issue of objective versus subjective recklessness, in view of our movement on Amendment No. 9. We have particular objections to that amendment. The suggestion that it should be an offence for a person intentionally or knowingly to encourage terrorism only in circumstances known to or foreseen by him is on the face of it reasonable. However, it has an unforeseen side-effect. It means that it would not be an offence for a person intentionally—intentionally—or knowingly to encourage terrorism in circumstances unknown to or not foreseen by him, although that was his purpose and intent. We just ask rhetorically: why should that be the case? Why should someone be allowed intentionally or knowingly to encourage terrorism generally? If he intends to encourage terrorism or knows that his statement may encourage terrorism, the specific circumstances in which his statement may have an effect should not be relevant. The important thing should be to satisfy the test either of intention or of knowingly to have encouraged. Amendments Nos. 24, 25 and 37 would play a similar role to that of Amendment No. 6, which we have already considered, but in Clause 2. That clause makes it an offence to disseminate terrorist publications. The offence does not involve intent. That was quite deliberate. We want to give enforcement agencies the tools that they need to tackle a particular mischief: the dissemination of publications in contexts that mean they will either encourage terrorism or be of use to terrorists in practical ways. If the offence required intent, it would be virtually impossible to use, because booksellers, for example, would easily be able to say that they provided terrorist publications for financial gain. The Government therefore cannot support any move to make intent part of the offence. However, we listened carefully to the concerns expressed by your Lordships in the House and elsewhere. In particular, we listened carefully to my noble friend Lord Eatwell, who has been engaged in this matter very constructively and had some helpful conversations with my right honourable friend the Home Secretary. My noble friend’s concerns were echoed by several other noble Lords who have been intimately involved in academic work and libraries—not least the noble Baroness, Lady Williams, whom I see in her place, and my noble friend Lord Parekh. Issues concerning librarians concerned my noble friend Lord Eatwell and others. He argued strongly for safeguards in regard to that offence and, like other noble Lords, wanted to ensure that appropriate protection was in place. In order to give my noble friends and other Members of the Committee the reassurance that they seek, the Government propose to change that offence in a very important way. The core element of the offence will remain the same, but we will seek to change the defences available to those who may be charged with this offence. At present, Clause 2(8) provides an obvious defence for libraries. It states that it is a defence for a person charged with the offence to show:"““that he had not examined the publication . . . had no reasonable grounds for suspecting that it was a terrorist publication””," and did not endorse the matter in the publication that made it a terrorist publication. I should clarify for the Committee’s benefit that merely collecting publications—as a copyright library must—does not mean that they will be regarded as endorsing the publications. ““Endorse”” in the Bill is to be understood in the commonly accepted sense. I should also stress that the word ““examine”” is to be understood as referring to the sort of exercise that would reveal any reasonable grounds for the purposes of Clause 2(8)(b). However, since many of your Lordships have argued that Clause 2(8) does not provide a sufficient defence for librarians and others, we propose to extend the defence in Clause 2(9). At present, Clause 2(9) is restricted to those who disseminate terrorist publications through an electronic service. We intend to extend that defence so that it can apply to everyone who might otherwise have been liable under that offence. That will mirror the change we intend to make to Clause 1(7), which I have already explained in my earlier general comments. That change will mean that, in the case of publications that encourage terrorism, it will be a defence for a person charged with the offence to show that the publication did not express his views and that it was clear it did not; or, in the case of publications that provide material of use to terrorists, that the person did not provide the material with the intention of it being of use to terrorists. There can be no question but that that defence should be available to all legitimate librarians, academics and booksellers. The defence would be restricted to them. It would not be extended to others seeking to flout the law and encourage or facilitate terrorism. We think that this change will address all the remaining concerns over Clause 2.