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Terrorism Bill

moved Amendment No. 20:"Page 2, line 30, leave out ““and”” and insert ““or””" The noble Lord said: In speaking to Amendment No. 20, I shall speak to Amendments Nos. 41 and 42 as well. All three amendments refer to special defences where certain conditions are imposed. They are cumulative, in the sense that each of several conditions has to be satisfied to obtain the benefit of the defence. The provisions are Clauses 1(7) and 2(8) and (9). The position on these has been altered by the Government’s statement that they intend to remove paragraphs (a) from Clauses 1(7) and 2(9). This paragraph limits the availability of the defences to cases against Internet providers. Clause 1(7) will therefore now require the satisfaction of both the remaining paragraphs. Paragraph (b) requires that the statement neither expresses the views of the defendant nor has his endorsement, while paragraph (c) requires that it is clear that it does not express his views and have his endorsement. It is not clear to me why both paragraphs are needed, since they seem to say much the same thing. Perhaps the Minister can explain. Under the Government’s concession on objective recklessness, the prosecution must prove that the defendant had the necessary intention or subjective recklessness. It would be inconsistent with that concession to require the defendant to prove that the statement did not express his views, since it is up to the prosecution to prove that it did. Paragraph (b) should therefore go. By the same reasoning, paragraph (c) should also go. If the prosecution fails to prove intent or recklessness, it is surely not open to it to say, ““We can still convict you because you did not make it clear that the statement did not reflect your views””. The logical conclusion of both concessions, taken together, is that Clause 1(7) is inconsistent with them and must go in its entirety. That reasoning does not apply to the subsections of Clause 2, since the Government have not so far accepted the need to introduce an intention test into Clause 2. Clause 2(8) requires three conditions to be fulfilled for the defence to be available: that the defendant has not examined the publication; that he had no reasonable grounds for suspecting that it was a terrorist publication; and that objectionable parts of the statement did not have his ““endorsement””. The only one of these that matters is the second condition. Given that whether the publication is a terrorist publication depends, at least in part, on the context, it is clearly possible that the defendant could have examined the document and still have no reasonable grounds for suspecting that it was a terrorist publication. If the defendant had no reasonable grounds for suspecting that it was a terrorist publication then it seems to me to be wholly irrelevant whether or not he endorsed any part of it. Here, the second is the only test that needs to be satisfied and the other two, in paragraphs (a) and (c), should be removed. Later amendments will press for the inclusion of an intention test for offences under Clause 2, and if those are incorporated into the Bill, then subsections (8) and (9) of Clause 2 will become otiose. I beg to move.