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The Chairman of Committees (Lord Brabazon of Tara): My Lords, I should point out that if Amendment No. 4 is agreed to, I will not be able to call Amendments Nos. 5, 6 and 7.
Lord Kingsland: My Lords, perhaps I may raise a procedural point with the noble Baroness. The last version of the grouping that I saw certainly included Amendment No. 20 in the line of amendments further down the page starting with Amendment No. 17. That is because our Amendment No. 17 is about intent and the noble Baroness's Amendment No. 20 is also about intent. As I understand it, the grouping that we are discussing now—I hesitate to refer to "intent" again, but I will—is intended to deal only with recklessness. The matter of intent is to be delayed until later because quite distinct issues arise with the two and, in my submission, it would be unfortunate if the two debates were intermingled. I may have had the wrong pair of
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glasses on when I looked at the previous list—that is perfectly possible—but I distinctly recall Amendments Nos. 17 and 20 being linked. Indeed, that was an early request on behalf of the Opposition, the Liberal Democrats and the noble and learned Lord, Lord Lloyd of Berwick.
I make this point with due hesitation and respect but I hope that the noble Baroness will understand that, when we come to the grouping beginning with Amendment No. 17, it will be necessary for us to compare the merits of Amendments Nos. 17 and 20. Therefore we would like to reserve any observations that we make on intention until we reach that point.
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says and perhaps I can be frank with him in relation to our position. The list was changing as I took my place on the Front Bench to answer Question 1. I understand that negotiations continued while I was on the Front Bench. Those negotiations concluded with the list that I now have, conjoined in the new way, and therefore I responded as I have just done.
My understanding is that the amendments to which I have just spoken were bracketed in a way that was agreed. As I was still on the Front Bench answering Question 4, I had nothing to indicate that what I was given was not in fact the position. But, of course, it is for the House to decide whether to degroup any set of amendments in the way that the noble Lord suggests, even on the Floor, and therefore I will be in the House's hands. I have done what was indicated to me as being what noble Lords opposite were minded to do. I am but a servant of the House.
Lord Kingsland: My Lords, I indicate to the noble Baroness that no one doubted for one moment that that was a fact. I may well have misled myself. If I have—it frequently occurs—perhaps I can invoke logic rather than my own memory and suggest to your Lordships that much the best place to debate intent is in the grouping beginning with Amendment No. 17. Therefore, the issue for this line of amendments should be limited solely to recklessness. I see that the noble and learned Lord, Lord Lloyd, has something to add and so I shall sit down.
Lord Lloyd of Berwick: My Lords, I support what the noble Lord, Lord Kingsland, has said. It seems to me that Amendments Nos. 17 and 20 go very closely together and should be debated in a separate group.
Lord Goodhart moved, as an amendment to Amendment No. 4, Amendment No. 4A:
The noble Lord said: My Lords, the purpose of this amendment is to remove the recklessness test from the grounds on which someone can be prosecuted under Clauses 1 and 2. I certainly welcome the Government's acceptance of the principle that we should apply an intent test in Clause 2 as well as in Clause 1. My welcome would have been warmer if the conversion
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had not been so late. These amendments were not released until Friday morning, which gave a wholly inadequate time to consider them and consult either internally within the parties or between the various interested parties—namely, ourselves, the Conservatives, libraries, universities, Internet service providers and others.
However, my main concern about Amendment No. 4 is that the Government are diluting the requirement for intent by adding a test for recklessness. I am aware that I have put my name down to another amendment—Amendment No. 17—as the noble Baroness has pointed out, which would apply the recklessness test. I did so at a time when the Government were, so far as I knew, refusing to apply the intent test. I was aware that the Conservative Party then wanted to have an intent and a recklessness test, as I believe it still does. Therefore, I thought that it was better to back a Conservative amendment that was likely to win rather than to leave the status quo.
Having looked at these government amendments, I am left with very considerable doubts about what is actually meant by "recklessness" in the Bill or, perhaps more important, what the Government think it means. In Committee, we on these Benches made it clear that we wanted a simple test of intent with no recklessness alternative, whether objective or subjective. The Minister raised the case of a firebrand preaching terrorism and said that such people should not be allowed to raise a defence of recklessness. It seems to me that that is irrelevant, because a defendant cannot argue successfully that he did not intend the obvious meaning of the words that he used. He cannot get out of it by saying, "Oh, I said it but I didn't mean it". It seems to me that a preacher in such a case who tries to suggest that he did not mean what he said would be convicted on the basis of obvious intent.
I am particularly concerned by the interaction of the recklessness test with the special defences that the Government want to retain in Clauses 1 and 2. I understand from what the noble Baroness has said—although this had not been explained to me before—that this test would be available to someone who was reckless but who had no intent. So, in spite of being reckless, he would be able to get away with it if he could satisfy the special defences.
Our view is that the recklessness test is the worst of both worlds. In practice, I believe that it would be impossible to get a conviction unless intent is proved, but the recklessness test is alarming enough to lead universities, libraries and the media to withhold legitimate material and to fail to undertake work that would be in the public interest.
I have a number of questions to put to the Minister about the effect of the Bill as the Government see it in certain circumstances. First, a newsagent sells a magazine which contains an article that expressly encourages terrorism, but the newsagent is not aware of the contents of the magazine. It seems to me that the recklessness test is not satisfied, because an essential element of recklessness must be the defendant's knowledge that either publishing or disseminating
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material may encourage some recipients to acts of terrorism. The special defence, therefore, is irrelevant. Does the Minister agree? If so, is it also clear that Internet service providers, who are not monitoring material transmitted by them, do not commit an offence unless notice is served on them under Clause 3?
Secondly, the BBC carries an interview with a senior member of Hamas who actively supports terrorism in Israel. The interviewer asks forceful questions, but allows the Hamas member to state his case. The programme carries a response from the Israeli Government. The BBC must be aware that some viewers may find Hamas's arguments persuasive and be encouraged to give it assistance. Therefore, it seems that the initial recklessness test would be satisfied and that the BBC would have to rely on the defence that it did not endorse the views of Hamas and made it clear that it did not do so. Does the Minister agree with that?
3.45 pm
Thirdly, a newspaper carries an article that is very sympathetic to the political objectives of militants in Kashmir. That article carries emotive reports of Indian violence in Kashmir but does not mention violence committed by the militants. Intent to encourage terrorism cannot be proved. However, it seems that the article could well satisfy the recklessness test because it could indirectly encourage terrorism. The author of the article may raise a special defence, but would fail because obviously the article that he had written represented his views. The newspaper might succeed if it published a disclaimer alongside the article saying that the article did not represent its views. Does the Minister agree and, if so, does that not create a serious anomaly? It shows that two people saying the same thing could be treated differently under the Act not because of what they say but because of what they think. In effect, that is thought crime.
The fourth and final example is this: a student asks a university library for a chemistry text book which could assist someone wanting to make home-made explosives. The librarian knows about the contents of the book, but knows nothing about the student except that he is a student. He proceeds to lend the book. That, too, seems to satisfy the recklessness test. In that case, no special defence is available under the Bill when it incorporates the new government amendments. The librarian seems to be guilty of an offence under Clause 2 even if the student has in fact no connection with terrorism. It seems, therefore, that, in order to avoid prosecution, the library must have some kind of blacklist of books—which would include, no doubt, atlases—which cannot be lent to anyone without positive vetting because otherwise the librarian is at risk of prosecution. Does the Minister agree?
The combination of the very broad definition of terrorism and the inclusion of the recklessness test—even if it is subjective—means that the Bill will make illegal those statements that most of us believe are the legitimate exercise of free speech or at best will force those who are disseminating statements to prove that
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those statements do not represent their own views. The chilling effect of that is considerable. This is an entirely different situation from recklessness in driving offences. There is no right whatever to drive at excess speed. There is no balancing issue as there is here with questions of freedom of speech. By contrast, most of us believe that it is the legitimate exercise of the right to freedom of speech to support the political objectives of a militant group that is fighting a brutal and oppressive regime. The exercise of that right will, however, be seriously restricted under the Bill.
Many things can be said with no intention of supporting terrorism in the United Kingdom or elsewhere but which could increase support for objectives of terrorists where the objectives are in themselves legitimate. To support independence for Chechnya is in itself as legitimate as to support independence for Scotland. The encouragement of legitimate objectives may encourage at the same time some people to adopt unlawful means of achieving those objects especially where legitimate means are forbidden to them. Most people would understand that, but it means that anyone who publicly supports independence for Chechnya is being reckless, because anything which increases support for the independence of Chechnya may well encourage unknown people to move from peaceful protest to violence.
To make that an offence is an unjustified restriction on freedom of speech. It is not necessary or proportionate, as was made clear by the United Nations High Commissioner for Human Rights, Louise Arbour, in the letters that were sent to the Government on 28 November but not disclosed by the Government until 9 January this year. It is inconsistent with Articles 5 and 12 of the Council of Europe's Convention on the Prevention of Terrorism, which provides that incitement to commit a terrorist crime must be an offence, but the offence must be drafted with respect to the rights to freedom of expression and association. It is also inconsistent with the report on the Bill by our own Joint Committee on Human Rights, which states that the provision on the dissemination of terrorist publications is unlikely to be compatible with the right to freedom of speech in the absence of a requirement that such dissemination amounted to incitement to violence being both intended and likely to act as an incitement. To make recklessness a sufficient basis for the offence is an unjustified restriction of freedom of expression and unnecessary in defence of our national security. I beg to move.
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