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Lord Lloyd of Berwick: My Lords, like everybody else I was glad and relieved that intention was to be an ingredient in the offence of dissemination. I added my name to this amendment before I saw the government amendment—indeed, before the government amendment had even seen the light of day. Having now seen both amendments, I believe that
 
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Amendment No. 17 is the better of the two. Both are designed to ensure that we catch the people we want to catch, and nobody else. The difference is that Amendment No. 17 does so in a fairly simple and straightforward way that we can all understand. Amendment No. 20 is not so simple. The Home Office seems to have a special genius at the moment for unnecessary complication. Why must we talk, as Amendment No. 20 does, about persons who "should include persons", when we can be so much simpler?

Clause 1 of the Bill is intended to catch those who publish statements encouraging terrorism. Clause 2 is intended to catch those who disseminate those statements. Both should surely have the same mental element, which is to encourage terrorism—or the same recklessness, although I do not deal with that now. That is what Amendment No. 17 will ensure. Is there anything which the Minister would wish to see covered in it which is not there? I believe not. Nothing in Amendment No. 17 will leave those who need protection unprotected. If I am right in that, I hope the House will vote for it on the principle of Occam's razor, that words should not be multiplied unnecessarily. Amendment No. 17 is the simpler amendment, and I invite your Lordships to accept it.

6.15 pm

Lord Goodhart: My Lords, my name, too, is on this amendment, and I support everything that the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lloyd, have said.

I felt a certain regret listening to the noble Lord, Lord Kingsland, open the debate. He was making a good case for getting rid of the concept of recklessness altogether. Unfortunately, he failed to support our amendment to do that when it came up, which would have been the simplest way of dealing with this particular problem.

The language used in the Government's draft is extraordinarily turgid and virtually impossible for anybody who is not fairly expert in the law to read and understand. While I support the objective that they are aiming for, Amendment No. 17 is simpler and much easier to understand and it achieves the Government's aim a good deal better than their own amendment does.

Baroness Williams of Crosby: My Lords, I add just one thought as a non-lawyer. Amendment No. 20 is almost impossible to understand. The noble Baroness said, with some feeling, that she had done her best to meet the House, and she must be feeling quite fed up that we are not at the moment praising and celebrating—even glorifying—Amendment No. 20. Without any doubt, she has tried hard to meet the House. The question is why her amendment is so totally obscure.

The noble Baroness used the phrase more than once that she hoped for an amendment that would make Clause 2 a mirror of Clause 1, in the sense of embodying the concept of intent. Yet this is a distorted mirror, or even an old mirror which is cracked in
 
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places. This is not a direct mirror image of the amendment to Clause 1, because it refers to this extraordinary business about an intention not to bring about an act of terrorism—not to directly or indirectly encourage an act of terrorism—but to,

Why has this strange dog-leg concept suddenly come in here? Would it mean, if I wished to be found guilty, that I would have to scurry round all the more extreme left-wing and right-wing clubs in universities to make sure that there were groups that could be described as wishing to glorify terrorism?

Somebody in another place said on this Bill, effectively, that the nature of law is that it needs to be understood by the citizen in order to be obeyed. Most citizens wish to obey the law, but if they are completely incapable of understanding it, then, even with the best of intentions, it is hard for them to do so. I see no reason why the Government should not embrace Amendment No. 17 rather than try to argue a case for Amendment No. 20. I hope that the House will express its desire that the Government should make that change.

Baroness Carnegy of Lour: My Lords, the Minister said earlier that she was disappointed that the House was not thanking the Government for the enormous move they had made in bringing the matters of intention and of recklessness into the Bill. This debate does not in any way diminish my gratitude to them for making a big move towards assisting the university and other librarians whom they had put so much on the spot. Having said that, I believe, as an ordinary human being reading the two amendments, that Amendment No. 17 in the name of my noble friend Lord Kingsland is so much clearer and more comprehensible to anybody who reads it that it must be desirable. The Government may find some small fault with it, but I hope that they will accept it, because Amendment No. 20 is extremely difficult to understand. Is it grammatical to say "an intention" that "should include"? Why not to "intentionally include"? That is by the way. I think that Amendment No. 17 is enormously preferable.

Baroness Warwick of Undercliffe: My Lords, I, too, start by warmly welcoming the Minister's decision to amend the Bill to include a reference to intent in Clause 2. That is something that Universities UK, in which I declare an interest as chief executive, has been pressing for, alongside the British Library, SCONUL, the AUT and others. I thank the noble Lords, Lord Goodhart and Lord Kingsland, for their dogged pursuit on this issue on behalf of the library and academic communities, and the many noble Lords who have added their voices in support of the need for an intent amendment in Clause 2.

Unfortunately, I too find myself in difficulty with the detail of the Government's amendments. Noble Lords will agree, I am sure, that the amendments have
 
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a certain labyrinthine quality, of which someone somewhere can be justly proud. Welcome though they are, I do not believe that the amendments before us, although it has taken me some time to understand and interpret them, solve the problem that this House and others outside it have identified.

When I called at Second Reading for the inclusion of an intent amendment in Clause 2, I was seeking that a person should be guilty of an offence of distributing a terrorist publication only if they intended to provide encouragement or assistance to terrorists. I and others offered that suggestion because the drafting of the clause is otherwise so wide that we could not see how the routine work undertaken by our libraries and academics could go on under the Bill as drafted. We pointed out that the definition of "terrorist publication" depended on the interpretation by a hypothetical, unknown third party of a publication. How could librarians know the motivations of all their potential borrowers? Other noble Lords have referred to that point. Of course, they cannot, especially in the case of public libraries. That being so, the only other option would be to prevent the loan of a very wide variety of books that might, in certain circumstances, be interpreted by certain people as either encouraging or assisting terrorism. That is why this House has argued so powerfully that the result of the Bill as drafted would be either de facto or self-imposed censorship; worse, we argued, academics and librarians would routinely and quite unintentionally fall foul of the offence as drafted. Even if they were never to be prosecuted, we argue that it would be highly unsatisfactory if legislation was so drafted that large numbers of people could not practically comply with it.

I had hoped not to have to rerun those arguments, because the intent amendment would solve the problem. Either a person would intend to encourage or assist terrorists, or they would not; the prosecution would prove this or fail to. And so the offence would work—notwithstanding all the problems of the definitions of "terrorist publication", "indirect encouragement" and "glorification". That was the test that I applied to the Government's amendment: would it catch those who intended to help terrorists and leave those who did not free to do their jobs? I hope that noble Lords will bear with me while I try to articulate the difficulties that I see with these amendments, because I feel that I owe it to my noble friend the Minister, who has put in so much effort to reassure myself and others.

Government Amendment No. 19 makes intention or recklessness a condition of the offence. So far, so good. The offence in question is the distribution of terrorist publications. Amendment No. 20 then defines what is meant by "intention" and "recklessness"—and that is where the difficulty arises. It says that intention means,


 
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Broadly, the same applies to material that could be useful to terrorists. That means that the offence is,

But what if the group of people to whom the publication is being lent could potentially include everybody? The public library does not screen its borrowers; the bookshop does not prevent people walking in off the streets to buy its books. Since we know to our cost that there are people in the world who are terrorists, if you make material available to everybody you will necessarily fulfil the condition described in the definition of intent—that the persons to whom the publication is available should include persons who will be encouraged or will find certain material useful.

I join other noble Lords in asking the Minister to clarify, example by example, how the scheme is intended to work. Again, I ask for the indulgence of the House, but what does "should include" mean, in Amendment No. 20? What if the group of people to whom you might lend or sell in the course of your activities included potentially everyone—the general public? How should a public library, for instance, ensure that the group of people to whom it is lending books does not include people who may be encouraged or assisted in committing terrorist acts? Does the Minister envisage some form of screening of borrowers? If a person makes a book available for unrestricted sale or loan, must they be certain that there can be no possible terrorist application for material in that book? If the latter is the case, how is the librarian, bookseller or academic to judge whether there is a terrorist application in the context of subsections (2) to (7)?

Very specific examples have been raised with me and with others, and it is important, if the Minister is to reassure us, that we have specific answers. I shall give just one example. If there is a bookshop on Charing Cross Road open to the public, anyone can walk in off the street. On its shelves are copies of The Anarchist's Cookbook, which, if noble Lords are interested, is also available on Amazon at a price of £29.99. By putting the book on sale Mr Jones, the proprietor, intends that anyone in the world should be able to buy it, notwithstanding the fact that he knows that there are terrorists in the world. One day, Mr Disaffected from Cardiff comes into the bookshop while on holiday in London and buys the book. Mr Disaffected has terrorist sympathies and a keen interest in bomb-making. Mr Jones does not know that, but since he intends that anyone should be able to buy his books, he sells Mr Disaffected The Anarchist's Cookbook. The question is whether Mr Jones commits an offence—and if not, why not? Should Mr Jones not have The Anarchist's Cookbook on his shelves? How should he have known that he should not sell it, or should he have screened his customers and sold the book only to those who were security cleared?

If these amendments help us to answer these questions, I am afraid that I do not see it. I suspect that the best answer available is in government
 
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Amendment No. 40, which makes it clear that the statutory defence in subsection (9) is available to those whose intention is not proved. If you need that defence, surely we have not achieved what we set out to do—to place the onus on the prosecution to prove that the lender, bookseller or academic intended to commit the crime. Can the Minister therefore explain how this defence would work and why you might need it if no intent had been proven?

The Minister wrote to the noble Lord, Lord Kingsland, last week to give notice of her intention to amend the Bill, and I was grateful to the noble Lord for sharing a copy of that letter with me. The Minister wrote:

I have spoken at some length because it does not seem to me that the amendments before us mirror the tests in Clause 1. Amendment No. 17, tabled by the noble Lords, Lord Kingsland and Lord Goodhart, seems a more accurate mirror, and I hope that the Minister will look very carefully at the amendments. She has repeatedly given assurances that she wishes to respond to our concerns. I hope that she can give specific responses, and I would certainly hope to be reassured by what she says, because the Government's intentions in this respect are clearly good. I look forward to the Minister's reply.

6.30 pm


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