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Baroness Scotland of Asthal: My Lords, I thank the noble Baroness for setting out so clearly her continuing concerns. All the concerns she has enumerated are met by these amendments. The purpose of them is to put beyond doubt that the concerns the noble Baroness has outlined are without foundation.

The issue with government Amendment No. 40 was that we were conscious we needed to deal with each and every anxiety that has been expressed. Therefore, not only did we want to make it clear that the offence would not be made out in the way that was worried about, but that even if anyone should think that it might be, which is not admitted, you would have the defence in government Amendment No. 40. This is belt, braces, garters and anything else you need to be assured that this will work.

I shall deal with why we prefer our amendment. Those drafting this Bill were given clear instructions that there had to be clarity and that each amendment had to be consistent with the other so that they fitted. I understand that Amendment No. 17 of the noble Lord, Lord Kingsland, seeks to achieve precisely the same as the Government's amendments. The difference between us is that we maintain that the Government's amendments are internally consistent with the other group of amendments we have drawn up, and, for that reason, need to be preferred.
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Let me seek to give the clear assurances that noble Lords seek, before dealing with the difference I say there is between Amendment No. 17 and our amendments. The formulation of the Government's amendments comprising the intent test includes the requirement that the person intended that the audience of the document's dissemination should include those who will be directly or indirectly encouraged. That implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination. The assurance about the specific intent sought by the noble Baroness is there. If a person is to be prosecuted on the basis that they are reckless as to the effect of the publication, they will have the necessary mental element—if it can be shown that they knew the content of the publication, and they were reckless as to whether or not the people in the audience could include persons who would be encouraged to terrorism. If a person knows the content of a publication, or it is so lurid or so notorious that they cannot have failed to realise its content, they will commit the offence recklessly if they supply it and it is reasonable that access to such publications should be restricted.

Libraries take care with pornography, and it is reasonable to expect them to take care with publications that encourage terrorism or are useful to terrorists. Those are specific documents, not the issues the noble Baroness spoke about, such as The Anarchist's Cookbook. I do not know whether she was telling us we should all go out and buy it, because she advertised where we could do so. The example she gave would not be caught by this Bill, as it was not the intention of the person selling the book that there would be terrorists in the audience, and the whole point was that these terrorists would get the book and then use it. That was not the seller's intent, and therefore they would not fall within this construct we have put in.

Lord Goodhart: My Lords, I see that it is not the intent of Mr Jones the bookseller that this book should be read by terrorists, but is he not being reckless because he knows that there are terrorists out there and that one or two of them might come in and buy his book? Why is it therefore not recklessness to have it on sale and not have any checks on who comes in to buy it?

Baroness Scotland of Asthal: Because, my Lords, the whole purpose of the publication is not to generate terrorism. It is a bit like the noble Lord's example of the chemistry book. We know that chemistry books could be used by terrorists to make bombs. However, the purpose of writing a chemistry book and teaching chemistry is not so that terrorists will go out and create bombs and kill people. Therefore, in the Government's opinion, it is clearly beyond doubt that a chemistry textbook would not be considered as wholly or mainly for the purpose of being useful to terrorists.

I do not know about The Anarchist's Cookbook, but I doubt whether that is wholly or mainly the purpose of the writers of the book that it should be useful to terrorists. That is what is important. The formulation of the Government's amendments comprising intent
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and recklessness includes the requirement that the person intended that the audience of a document disseminated should include persons who will be encouraged, not that it might include them by a stretch of the imagination. Their intent was that it should include such persons. As I have said, that implies a positive intention on behalf of the disseminator that there should be persons who will be encouraged to terrorism by the publication's dissemination.

There are those who argue that we have now set this so high that it might be difficult for us to catch those who are producers of publications that are specifically targeted at terrorists and to be used by terrorists, in these circumstances. The way we have structured it, we believe that will not be the case. But we have been conscious of the concerns that were expressed by my noble friend and others during this debate. We have already talked in the earlier debate about subjective recklessness and the need for it to be directly focused.

Amendment No. 17 does not work with all the different sorts of conduct currently set out in Clause 2(1). In particular, the intention and recklessness in that amendment do not make sense where a person has a terrorist publication in his possession with a view to disseminating it. If one looks at, for instance, Clause 2(1)(f), it is impossible for a person to possess something with the intention of encouraging terrorism. That formulation implies that the possession must be capable of doing the encouraging, and of course it is not. The government amendments make it clear that the intention or recklessness relate not to the possession, but to what will happen if the possessed publication reaches, as contemplated, the hands of potential terrorists.

Lord Goodhart: My Lords, I am sorry to intervene again. I think the Minister is incorrect in suggesting that our amendment does not cover that. In what is now Clause 2(1), where it says:

we have put in our definition of the offence—

The rest of Clause 2(1) is a definition of what constitutes dissemination, which includes having a publication in your possession with a view to passing it on to someone else.

Baroness Scotland of Asthal: My Lords, all I can say to the noble Lord is that the way this is raised in our amendment is the clearer, and sits the more easily with the other amendments. I understand that noble Lords say they have had a short period of time to look at this, and they are trying to make an amendment that is consistent. But I respectfully and gently suggest in relation to this matter that we should not have opposition for opposition's sake. We all have the same intent. I know that is not the way noble Lords opposite may traditionally have worked, but we believe the construct we have now fits well and provides us with the clarity we need. We are not in disagreement about the thrust of what we want to achieve; it is just whether we agree on the draftsmanship.

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Baroness Williams of Crosby: My Lords, I agree completely with the noble Baroness that there is no desire to make politics out of this particular argument. However, can she explain, not least in the light of the forceful intervention by the chief executive of Universities UK, why it is that we cannot move towards the much simpler, more transparent and clearer definition of what we want to do, rather than the complex and obscure wording that has come out of the Home Office? I think we want the same end, but I am still, I must admit, deeply puzzled that the noble Baroness finds it so difficult to accept the clearer formulation.

Baroness Scotland of Asthal: My Lords, the reason we find it difficult is that we think it is not clearer when one looks at the whole Bill and how it fits together. That is the reason.

The dissemination definition is not entirely relevant, if I may respectfully say so to the noble Lord, Lord Goodhart. In his amendment, dissemination still includes possession. That is where the complexity is. We have looked at this carefully. If I may remind noble Lords, we have really tried to do what the House wanted and what we thought was proper.

I just want to say to the noble Baroness, Lady Carnegy of Lour, that of course I thank her—for her congratulations I was going to say, but really it was gratitude that she expressed to the Government. I think that I have now come to the stage where I recognise that it is unreasonable, unsafe and unsatisfactory ever to expect gratitude for no matter how much work one puts in.

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