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Terrorism Bill

I am grateful to the noble Lord, Lord Kingsland, for that. Probing amendments may well be serious but the implication is that they will not be pursued as such. Unless satisfactory improvements come out through further government amendments to Clause 2, we will pursue our amendments. The amendments extend the requirement of intention to offences under Clause 2. Amendment No. 25A requires either intention or subjective recklessness as a basis. We prefer intention alone, for reasons given in the debate on Amendment No. 6 last Monday, which I shall not repeat. It is essential that the same degree of intent be required for Clause 2 as is required for Clause 1. My noble friend Lady Williams has pointed out one obvious anomaly: under Clause 1, intent is required for the initial publication of a statement, but no such intent is required for the subsequent dissemination of it. The definition of a terrorist publication in Clause 2 is very wide, partly because it depends on the context. It is especially wide in relation to the publication of a document that could be of assistance in the commission of an act of terrorism. As pointed out, that definition could include a map of the London Underground. That makes it even more important to ensure that only people who intend to encourage or assist terrorism are caught by Clause 2. But the Government in their drafting of Clause 2 have come up with, and continue to defend, an extraordinary proposal: the criminal liability of the defendant who disseminates the publication depends not on what his intention was in doing that but on the reaction to the publication of hypothetical people of whose existence and purpose the defendant is necessarily unaware. That stands on its head the ancient principle of mens rea. Leaving aside the special defences under subsections (8) and (9), that means that the basic definition of crime does not require the defendant to know anything about the contents of the publication or about who may be interested in it. The Bill includes the special defences but they are totally inadequate. Subsection (8) requires the defendant to prove cumulatively, under paragraph (a), that he does not know what is in the publication; under paragraph (b), that he has no reasonable grounds for suspecting it to be a terrorist publication, a question that depends on its context, part of which may not have been known to the defendant; and, under paragraph (c), that the contents of the publication do not have his endorsement, a wholly irrelevant factor if he does not know what is in the publication to begin with. I emphasise that all those matters must be proved by the defendant. Similar problems arise in relation to subsection (9). I will not go into detail about them because subsection (8) presents those problems most obviously and most seriously. In the debate on the first group, Members on all sides of the Committee spoke about the problems that Clause 2 presents to teaching, universities, libraries and a much wider group. I am satisfied that as Clause 2 stands, it presents a threat to freedom of expression and to academic freedom. It goes far beyond what is needed in a democratic society—to refer to Article 10 of the European Convention on Human Rights, which deals with freedom of expression. It is therefore essential to put into Clause 2 the same test for intention that was agreed, largely, for Clause 1. Amendments Nos. 30 to 36 effectively do that. I recognise that they do not include recklessness, but that is not central to this. Amendment No. 39 removes the special defences in subsections (8) and (9) on the grounds that, as the noble Lord, Lord Kingsland, said, they are otiose if there is an intention as part of the mens rea. The Joint Committee on Human Rights has pointed out, first, that the offence should involve incitement to violence; secondly, that the offence must require an intention or reckless indifference; and, thirdly, that there must be a public interest offence. None of those conditions pointed out by the Joint Committee is satisfied. Clause 2 is a threat to the principle of freedom of expression, not so much because we expect many prosecutions to occur under it, but because of its obvious chilling effect and the self-censorship to which it will lead. I believe that that is as important as the length of detention without charge, which has attracted perhaps a great deal more publicity. Clause 2 requires major surgery before it is in an acceptable form. I am afraid that there is a great deal of work to be done. Unless the Government answer all the points that I have raised, we will have to come back to this in a very serious way.