My Lords, I will speak at rather more length than I do normally. I thought that my amendment was explained clearly in Committee yet I had to table another amendment for today because the problem still exists. Therefore, I will try to explain it carefully, although I am not a lawyer. This issue depends on clear thinking and some common sense.
As I made clear in Committee, I am completely opposed to people encouraging the membership and support of terrorist organisations. I am also deeply opposed to the terrorism bogeyman being used to justify laws that are disproportionate and which undermine the rights of law-abiding citizens without good justification. The Minister did not adequately address my concerns in Committee, which reinforced my view that Clause 1 is currently far too broad, represents an unacceptable breach of human rights and risks
criminalising a range of perfectly innocent speech. Amendments 1 and 2 in my name would make the new criminal offence a reasonable one. I believe that not making significant changes to this clause would be a clear breach of the European Convention on Human Rights. As drafted, the offence is too vague to accord with the law and too broad to be a proportionate way to achieve a legitimate aim.
The Minister confirmed to the Committee that the clause is a direct response to the case of R v Choudary, in which the Court of Appeal considered the existing Section 12 offences. The Explanatory Notes state:
“The Court of Appeal was clear that a central ingredient of the offence was inviting support from third parties for a proscribed organisation and that the offence ‘does not prohibit the holding of opinions or beliefs supportive of a proscribed organisation; or the expression of those opinions or beliefs’ … This clause therefore provides for a new offence which criminalises the expression of an opinion or belief that is supportive of a proscribed organisation”.
I covered the case in some depth in Committee so I will not repeat it in detail here, but the fact that the Government made it clear that the new offence is in response to the difficulties of prosecuting Choudary means that your Lordships’ House must understand Clause 1 in the light of that judgment. Let us not forget that Choudary was found guilty and his conviction was upheld by the Court of Appeal, so it is not as though there is some loophole through which he was able to slip.
I tabled two amendments to Clause 1 with the purpose of tightening this new offence to ensure that only people guilty of some wrongdoing will be guilty of a crime. The purposes of law and justice are not only to convict the guilty but to ensure that the innocent go free. In Committee, it was telling that the Minister, in response to my example of a political activist expressing support for an independent Kurdistan, had only,
“a very high level of confidence that they would not fall foul of the Clause 1 offence”.
Anything short of absolute certainty is proof that the new offence is far too broad and will criminalise perfectly innocent behaviour.
The new subsection is best understood when contrasted against the existing Section 12 offence in the Terrorism Act 2000. There are three key differences between the two offences: there is no requirement to “invite” in the new offence; the expression of an opinion which “is supportive of” rather than “supports”; and the watering down of the guilty mind from intention to recklessness. In my analysis, each of these three changes represents a significant broadening when compared to this existing offence. The proper change is the first: the legal requirement of having to invite support was too tight and allowed people such as Choudary to rigorously support terrorist organisations, as long as they did not invite anyone else to do so. The other two changes make this new offence far too wide, in a way that goes beyond the Government’s stated purpose.
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In Committee, the Government’s response to my amendment, which is now Amendment 1, was a one-line remark:
“I make it clear that none of this analysis would be any different if ‘is supportive of’ were replaced with ‘supports’”.—[Official Report, 29/10/18; cols. 1147-48.]
That was not at all sufficient as an explanation of the change in wording between the existing offence and the Clause 1 offence. In Choudary, the Court of Appeal had to interpret the meaning of the existing Section 12 wording “supports”. It used its normal dictionary definition of providing assistance, encouragement, advocacy and endorsement. As Clause 1 is drafted wholly in response to the Choudary judgment, any difference in wording chosen by the people who drafted the Bill must be deliberate and have a specific intended effect. It is why the new Clause 1 offence omits “invites”, because the intended offence is the very act of expressing an opinion, rather than inviting any specific outcome.
Why, then, does the Bill use “is supportive of”, rather than the now familiar “supports”? What is the intended effect? In Committee, the Minister did not give an explanation for the difference in wording and stated that there was no difference in their effect, but I can almost guarantee that very senior lawyers will soon be in the Supreme Court arguing that Parliament very obviously chose different wording to give a different and much broader meaning. The Oxford English Dictionary definition of “supportive” is indeed broader than “supports”, as is its ordinary usage in the English language. For example, I could say that I am broadly supportive of an organisation, but that I do not necessarily support it. In the context of Clause 1, expressing an opinion that is supportive of an organisation could cast the net very wide, beyond those people who actually intend wrong or harm.
I therefore ask the Minister to make clear what the Government’s intention is with the difference in wording. Was there some deficiency in “supports” that was improved by “is supportive of”, or does the Minister maintain her position that these phrases and words have exactly the same meaning and application in the courts? If this is nothing more than splitting hairs, why does the Minister not adopt my amendment in the name of certainty and consistency so that the question never has to raise its head in the courts? I can see a lot of very expensive lawyers arguing over that.
My Amendment 2 would change the mens rea of the Clause 1 offence from recklessness to intention. The Minister told the Committee that this would effectively nullify the utility of the clause and that we might as well strike it from the Bill. My amendment is not intended to defeat the purpose of Clause 1. The Minister’s remark perhaps mischaracterises its effect. As I set out previously, there are three crucial differences between the existing Section 12 Terrorism Act offence and this new offence. The guilty act is no longer inviting support, but expressing an opinion.
I worry that the Government have been so tenacious in their attempts to fight terrorists they have not stopped to think about how this new offence would risk criminalising other people who have not done anything wrong. I feel that Parliament should not pass a law that leaves perfectly innocent people with even the slightest degree of risk that they might commit a criminal offence. This argument is all the stronger when it comes to freedom of expression, freedom of religion and political speech. This is actually an unprecedented criminal offence. I asked in Committee whether there was a single existing criminal offence
where a person could be found guilty for speaking recklessly. I did not get an answer, so I would like one this afternoon. If we are to create a new criminal offence we have to be clear that that is what is happening.
My final point comes to the Minister’s arguments about the practicalities of proving intention, compared with proving recklessness. She said that, as the first was easier and the second harder, this House should opt for the latter, but that is not a justification. We write the law to criminalise that which is criminal and to protect that which is innocent. I am sure that it would be much more straightforward from a practical perspective if the crime of murder required only recklessness rather than intention, but that would be to redefine what murder means.
These are not just my opinions; I believe that they are mirrored by the Court of Appeal’s judgment in Choudary. When considering whether the existing Section 12 was an unjustifiable breach of human rights, Lady Justice Sharp stated:
“When considering the proportionality of the interference, it is important to emphasise that the section only prohibits inviting support for a proscribed organisation with the requisite intent. It does not prohibit the expression of views or opinions, no matter how offensive, but only the knowing invitation of support from others for the proscribed organisation. To the extent that section 12(l)(a) thereby interferes with the rights protected under article 10 of the Convention, we consider that interference to be fully justified”.
I worry that the Government have a tendency to overreach when it comes to issues such as terrorism—nobody wants to look soft on terrorism. At the same time, we have to protect innocent people. This clause invites criminalisation of innocent people. It is in that light that I seek to amend it. I beg to move.