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Lord Kingsland: My Lords, this is a rare occasion on which we are going to disagree with the noble Lord, Lord Goodhart, on recklessness. The Minister will recall that the most contentious issue concerning the definition of recklessness was the distinction between subjective and objective recklessness. That matter has now, happily, been resolved. It is generally viewed that the application of subjective recklessness to matters of publication will, in practice, apply only rarely. Almost invariably, a person intends to publish a statement.
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Almost invariably in the criminal law of our country, recklessness is a component part of mens rea. We therefore see, in those circumstances, no good reason for excluding subjective recklessness in this case.
Lord Plant of Highfield: My Lords, as someone who participated in this discussion on Second Reading, and was extremely unhappy with the idea of objective recklessness—against which I hope I mounted a coherent case—I am pleased to welcome the Government's change of mind in favour of subjective recklessness. With the words in the amendment and, in a Pepper v Hart context, the clear statements that the Minister has made about the nature of recklessness embodied in the Bill—that it is a subjective thing—I am now happy to support the Government, largely for the reasons that the noble Lord, Lord Kingsland, mentioned.
Lord Rees-Mogg: My Lords, I am not a lawyer, and am not clear about the difference between subjective and objective recklessness; or, indeed, about the difference between the two amendments from either side. I may well be, however, the only Member of this House who would clearly have been at risk of this clause had this Bill been passed at the time.
In the 1980s, I pursued the trade of an antiquarian bookseller. Amongst other material, we specialised in 20th-century history, particularly that of the Soviet Union. I remember selling a number of books, including the early works of Lenin, which clearly acted—or might have acted—as incitements to commit acts of terrorism. Indeed, Lenin can be regarded as the godfather of terrorism as a political tactic.
In particular, I remember that we had a copy of a book which we dealt in more than once: Moya Zhizn, the autobiography of Trotsky, first published in Berlin in 1931. I had a customer for this particular copy who will be somewhat remembered: Mr Robert Maxwell. I sold him a copy of Trotsky's autobiography, I now think, looking back on it, recklessly. That is to say that Mr Maxwell was widely rumoured to be connected with more than one foreign intelligence agency and was not a man, in general, of good or reliable reputation. So on the one hand I should have had concern about my customer and, on the other, Moya Zhizn is written, as one might expect, in Russian. I cannot read Russian, and I have no knowledge of what inflaming material Trotsky might have put into Mr Maxwell's mind had he read it. Nor did I know whether Mr Maxwell read Russian, although I think it quite likely that he did. What defence would I have had in those circumstances if I had been charged with recklessly selling something that was potentially an encouragement to terrorism without taking whatever safeguards—and I do not know what safeguards they could be—to satisfy myself that there was no more direct risk? Would that have been subjective recklessness or objective recklessness?
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Lord Judd: My Lords, having participated in Committee when we discussed these issues, I join my noble friend Lord Plant—we are both members of the Joint Committee on Human Rights—in saying how glad I am that the Minister fulfilled her undertaking to listen to what was said in those discussions in Committee and how warmly I welcome the inclusion of the concept of intent. Having said that, I hope my noble friend will forgive me if I make two observations because the context in which we discuss what is before us is as important on Report as it is at any other stage of the Bill.
We are debating the Bill at a time when what is regarded as terrorism in the context of the Bill is recognised as contentious. The Government have appointed the noble Lord, Lord Carlile, to produce a report on what is terrorism and what the definition of terrorism should be. Therefore, we would do well in our deliberations to realise that we are moving forward with what should be done by the law about terrorism when we also recognise that there is a debate about what terrorism may, or may not, be. The noble Lord, Lord Goodhart, illustrated the point in what he said about Chechnya. To put it in layman's language, the issue remains unresolved for many people and what may be seen as terrorism by one person may, in a particular context of oppression, be seen as freedom fighting or a liberation movement by somebody else. That is true not just in history; it is true today as well.
I wish to make another observation: while I underline how much I welcome the Government's move on intent, unlike my noble friend Lord Plant I still have a certain uneasiness on recklessness, about which I hope my noble friend will be able to reassure me. I am a layman; I am not a lawyer. Therefore, I am one of the people who must understand what is and what is not law. I am not one of the people who, with all the insight of lawyers' expertise, are making the law. I would have thought that common sense would tell us that sometimes somebody will do something in good faith that subsequently, when he is confronted by all the implications of what he has done, he might, in retrospect, agree was reckless, but was not consciously reckless at the time at which he did it. Therefore, I am uneasy about the concept of recklessness being used without any qualification whatever about the mental attitude, the state of mind and the state of knowledge of the person who committed the offence at the time that it was committed. I hope my noble friend will say something about this and that she may indicate some way in which this point could be made clearer for the layman and the potential culprit.
Baroness Williams of Crosby: My Lords, I follow what has just been said by the noble Lords, Lord Judd and Lord Rees-Mogg, because I think all noble Lords welcome the Government's move on Clause 2 and want to help the Government in any way we can in picking their way through the extremely difficult conflict between freedom of expression and the need to protect ourselves sensibly against terrorism. However, may I echo what the noble Lord, Lord Judd, said about recklessness? I will add another thought to the reasons why what that would catch is still, I am afraid, somewhat unclear.
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4 pm
In a letter sent on 3 January to a number of people who expressed concern about this Bill, particularly among the universities, the Minister of State at the Home Office, Hazel Blears, said:
"As with obscene publications, libraries must act with due care in handling such publications and restricting access to them as they deem proper, in order that proper academic research is possible"—
and I emphasise this next phrase—
With great respect to the Minister of State, who is able and competent, it is almost impossible to see how to interpret that under the general header of recklessness. Is it "reckless" if a library or university teacher behaves without, as in Mrs Blears' expression, "due care"? In almost any university in the land, by definition there are almost bound to be "impressionable people". At their best, that is exactly what students are.
How, then, could a conscientious university teacher or librarian meet, at one and the same time, the rather more narrow explanation of recklessness that the Minister has so helpfully given us here and the implications of Hazel Blears's letter? With the best will in the world—and I wish the Government well in getting this Bill as right as we can—I simply cannot see how one can meet both requirements at the same time. They do not seem fully compatible.
Although this is an extremely important issue, I will not detain the House long. However, I will go back for a moment to what is called the chilling effect. In some cases, the concept of recklessness can be defined in terms of negligence—a failure to take the action that one might in order to meet this Bill's requirements. Once into that, questions are raised about whether, for example, the librarian or academic teacher should attempt to screen his or her students, and we get into the area of whether he or she should have to operate self-censorship in order to avoid any possibility of being found guilty of recklessness. With great respect to the defences laid out, they still leave open the very troubling possibility that a number of people from these two professional groups would find themselves being accused of recklessness and having to defend themselves. Frankly, that is completely unjust to those professions and, even if they are eventually found to be innocent, it is bound to leave a whiff of criminality behind.
The Liberal Democrats have the greatest willingness to behave responsibly because we have all at one time or another, either personally or generally, encountered the terrible consequences of terrorism. We will try if we can, during Report, to make the whole issue of recklessness as precise as possible. In that I echo the questions of my noble friend Lord Goodhart and the noble Lords, Lord Rees-Mogg and Lord Judd.
I conclude by saying that, given the letter from the Minister of State at the Home Office, any help that the Minister can give us, whether via amendments or explanation to the House on how she would narrow and limit the concept of recklessness, would be
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extremely helpful. There is also the importance of being able to respond in good faith to the letter that my noble friend quoted from the United Nations High Commissioner for Human Rights, which indeed throws some doubt on whether, even with the amendments, we have met the requirements in the European convention or in the Council of Europe's covenant.
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