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Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for his valiant attempt to differentiate between "subjective" and "objective" recklessness. I will not say that I absolutely agree with that definition but I think it is within the right ball park.

I agree with the explanation of the noble Lord, Lord Kingsland, in relation to recklessness. Quite often "intent" which has a subjective recklessness element is very similar to "intent" simpliciter. In making that more accessible to those Members of your Lordships' House who may need it to be, perhaps I may say simply to the noble Lord, Lord Rees-Mogg, that, notwithstanding the indication of the noble Viscount, Lord Bledisloe, about the way in which he may be treated, I think that he would be not guilty.

I do not think that the circumstances to which the noble Lord, Lord Goodhart, referred cause anxiety. The noble Lord, Lord Thomas of Gresford, is right. The difference between "subjective" and "objective" is this. "Objective" is what a reasonable person would do or expect. A "subjective" test is what this particular
 
17 Jan 2006 : Column 568
 
person thought or believed at the time, not what any other sane, rational person would have thought. It is what this person thought that makes it subjective.

I confess to a certain degree of naivety. I had hoped that these amendments would give a great deal of pleasure to this House. I thought that I would be met with "hurrahs". Perhaps I may reassure the noble Baroness, Lady Williams, about the letter written by my right honourable friend Hazel Blears. That letter was sent before we tabled the amendments which your Lordships now discuss. We have provided for intent with recklessness and the generalised defence of non-endorsement. The noble Baroness and noble Lords will know that we have been giving anxious and proper consideration to our response to the concerns about Clauses 1 and 2 properly expressed in the House.

Baroness Williams of Crosby: My Lords, I thank the noble Baroness for giving way. I fully accept what she says. However, the date of the right honourable lady's letter was 3 January. We were aware that the Government had been tabling amendments which were known within the departments, although not to the Opposition, before Christmas. So it was not unreasonable for me to assume that the letter from the right honourable lady still held good dated, as it was, 3 January.

Baroness Scotland of Asthal: My Lords, there is no criticism of the noble Baroness for raising the matter: it is right that she should do so. I share this with the noble Baroness. I had not had sight of that letter, did not know of its content, and would not otherwise have been aware that that was a concern operating in the minds of the noble Baroness and others. It is right, therefore, that we have an opportunity to address that. Work was ongoing as to the nature of amendments, and when and if they should be laid, up until the time they were laid. I assure the House that we laid those amendments as swiftly as we were able bearing in mind the contemplation.

Everything I said in Committee relating to the need to allow proper academic debate, proper learning, in our institutions stands. I repeat the assurances I gave to the noble Baroness, Lady Carnegy of Lour, that the department of St Andrews which specialises in teaching the nature of terrorism and its effects would not be improperly inhibited from so doing, and I repeat my assurances in relation to the libraries and the booksellers—although not verbatim because I am sure noble Lords do not wish to continue this debate for the six hours it would take me to go through all that I said before.

So all that lays good. These amendments took on board the mischief which noble Lords had identified; the need to have proper debate maintained in our universities, which are of such high quality; the issues raised by my noble friend Lord Desai; and the issues also raised on our Benches by the noble Lord, Lord Parekh, and a number of others. I am very grateful for the endorsement given today by my noble friends Lord Plant and Lord Rea, because noble Lords know that they shared the anxieties of this House. We responded
 
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to their anxiety. I mentioned my noble friends Lord Eatwell and Lady Warwick too in relation to those issues. Their concerns galvanised us to think how better we could respond. I make it clear that we do not suggest that the clauses that were previously in the Bill did not deliver what noble Lords wanted—we believe that they did—but noble Lords demanded greater clarity, to put the matter beyond dispute. We believe that the amendments we have now brought forward do that. That is the reassurance that noble Lords wanted and, frankly, that is the reassurance which we were minded to give because we believe that those who have genuinely expressed those concerns are at one with us in our intent. Nobody in this House is subjectively reckless about what we are trying to do. I hope that I have reassured my noble friends and other noble Lords, including the noble Lords, Lord Dearing and Lord Butler, that we have done that which we needed to do to make the matter clear.

My noble friend Lord Judd gave examples, as did the noble Lord, Lord Goodhart. In none of those examples, for the reasons that he identified, did I think that the individuals would be at risk. For the sake of completeness, it may be helpful if I deal with just a few of those examples. The noble Lord, Lord Goodhart, asked about a newsagent who was not aware of the content of a magazine. In that case, he is not being reckless so no offence is committed. What about Internet service providers who do not monitor what goes on? That was part of the question of the noble Lord, Lord Dearing, as well as of that of the noble Lord, Lord Goodhart. They too are not committing an offence. We discussed on the previous occasion what they can do to remove improper material from their websites in a way that is just. The BBC would be able to rely on the non-endorsement defence. A librarian who gives out a chemistry textbook would not be guilty of an offence because a chemistry textbook would not be a terrorist publication under Clause 2(5)(b). For a publication to be a terrorist publication, it has to be material of use to terrorists. It must be clear that the material that was of use to terrorists was included in the publication wholly or mainly for the purpose of being so useful. That is not the case with chemistry textbooks.

I understand your Lordships' anxieties. It is right and proper that they should be explored, but it is also right and proper to say that they have no basis in fact. We have therefore come to a conclusion which I hope will give us a sense of comfort, because those who said that we needed to make sure that the legislation was clear were right. We have now responded to them. I hope that noble Lords will therefore feel able to accept that the position adopted by Her Majesty's Loyal Opposition—that is, supporting these amendments—is the correct and proper position.

4.30 pm

Lord Goodhart: My Lords, I am grateful to all the noble Lords who have expressed concern about the recklessness test, and particularly to those who have held senior positions in the universities. The noble
 
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Baroness started by saying that my examples do not cause anxiety and went on to discuss them. They continue to cause me anxiety.

In particular, there is something seriously wrong in this in a situation where the BBC broadcast a valuable programme which may have considerable effect in keeping people informed of what is going on in the world, but which may incidentally lead to a smaller number of those people who hear it becoming more active in terrorism. The BBC may in those circumstances, prima facie, be found guilty of an offence. To escape conviction, it has to come to court and at present has the burden of proof on it to satisfy the court that it did not endorse this. No doubt the BBC would not have much difficulty with this, but there are other less well known broadcasters which might find themselves in a different position. In connection with the Hazel Blears letter which showed a great lack of understanding of what the whole of our higher education system is about, it would be plainly desirable for the noble Baroness to say that it was a mistake and does not apply.

The position is that intent is simple but recklessness is a test that is difficult and uncertain. It is unlikely to secure convictions because it is difficult. I remain firmly of the opinion that it will have—indeed already is having, to some extent—an effect which is chilling on freedom of expression. In those circumstances I wish to test the opinion of the House.

4.33 pm

On Question, Whether the said amendment (No. 4A) shall be agreed to?

Their Lordships divided: Contents, 86; Not-Contents, 190.


Division No. 1


CONTENTS

Addington, L.
Ahmed, L.
Alderdice, L.
Allenby of Megiddo, V.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bramall, L.
Butler of Brockwell, L.
Chester, Bp.
Chidgey, L.
Colville of Culross, V.
Dholakia, L.
Dykes, L.
Ezra, L.
Falkner of Margravine, B.
Fearn, L.
Garden, L.
Glasgow, E.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Holme of Cheltenham, L.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, Bp.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E. [Teller]
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Monson, L.
Montgomery of Alamein, V.
Neuberger, B.
Newby, L.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Phillips of Sudbury, L.
Prashar, B.
Quinton, L.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Rix, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Sandwich, E.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tonge, B.
Tope, L.
Tordoff, L.
Turner of Ecchinswell, L.
Tyler, L.
Valentine, B.
Vallance of Tummel, L.
Vincent of Coleshill, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Watson of Richmond, L.
Williams of Crosby, B.
Wilson of Tillyorn, L.
Winchester, Bp.

NOT-CONTENTS

Ackner, L.
Adonis, L.
Alton of Liverpool, L.
Amos, B. [Lord President]
Ampthill, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Bilston, L.
Bledisloe, V.
Blood, B.
Boothroyd, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Cameron of Dillington, L.
Cameron of Lochbroom, L.
Campbell-Savours, L.
Carnegy of Lour, B.
Carter, L.
Chandos, V.
Chorley, L.
Christopher, L.
Clark of Calton, B.
Clark of Windermere, L.
Clinton-Davis, L.
Cobbold, L.
Condon, L.
Corbett of Castle Vale, L.
Cox, B.
Craigavon, V.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Oldham, L. [Teller]
Dearing, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goodlad, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Grabiner, L.
Grantchester, L.
Greenway, L.
Griffiths, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Hanningfield, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Henig, B.
Henley, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Imbert, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsland, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marsh, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Moser, L.
Moynihan, L.
Murphy, B.
O'Cathain, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel, L.
Paul, L.
Pendry, L.
Peston, L.
Peyton of Yeovil, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Powell of Bayswater, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Rooker, L.
Rosser, L.
Rotherwick, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
St John of Fawsley, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Slim, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Snape, L.
Soley, L.
Strabolgi, L.
Strathclyde, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilcox, B.
Williams of Elvel, L.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.


Resolved in the negative, and amendment disagreed to accordingly.


 
17 Jan 2006 : Column 572
 
4.47 pm

On Question, Amendment No. 4 agreed to.

[Amendments Nos. 5 to 7 not moved.]


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