My Lords, before I address Amendment 33 let me go back to the debate on Monday when we were discussing Amendment 18 and new Section 58B(2). I fear that during the discussions I misunderstood something said by the noble Earl, Lord Howe. I understood him to be saying that the Act produced two different ways of approaching the burden of proof. I have reread Hansard and I misunderstood him—it is entirely my fault—and I objected to that. I would go on objecting to it if that was what he said, but it was not. I have studied the Bill and I find on page 83 that he is right and that the burden of proof in relation to any offence created by Section 58B(2) is in fact on the prosecution. I therefore apologise to the noble Earl—I am sorry that I misunderstood him—and to the extent that I misled the House, I apologise to the House. However, I just add that it would be so much more helpful if Acts of Parliament said what they meant, instead of telling us to look at whatever page it is to find the answer.
I want to add a word, in spite of the difference of view expressed here: we have to be careful about this provision. I am not going to take sides in relation to what may be a very serious offence or a very minor offence, but can we just reflect on this? Every citizen is presumed to know the law; every visitor to this country is presumed to know the law that applies in this country. Of course we do not: look at me, I got new
Section 58B(2) wrong and I am supposed to know the law. The more serious point is that there is a basis and a quid pro quo for this. The quid pro quo is that the criminal law should be clear. I am expected to know the law and to obey the law: it should, at least, be clear what it is I am expected to obey.
We are all supposed to know the law here; every citizen of every country, applying the same presumption, is presumed to know the law in the country of which he is a citizen or to which he is a visitor. There will be occasions—perhaps I need to be less emphatic: there may be occasions—when something is not unlawful in a different country to our own. We have different rules. Bullfighting is unlawful in this country, but would we prosecute a Spanish toreador coming here for breaking what we would regard as our law which is not unlawful under their law? The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country.
Of course terrorism is unlawful—it is unlawful everywhere, you do not need a book of law to tell you that—but there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go.