Counter-Terrorism and Border Security Bill

Debate between Earl Attlee and Lord Davies of Stamford

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I did not take part in the Second Reading debate because I was not able to be at the wind-up, although I heard a great deal of it. I am very concerned, as I believe everybody ought to be, about this matter. I cannot think of anything more important in a free society than freedom of speech, which should be tinkered with or eroded with the very greatest reluctance, if we do it at all.

I am concerned about a number of things in the Bill. One is the issue of recklessness, which has already been debated. To bring recklessness in here seems extremely dangerous. I know that I am about to be told by somebody that recklessness already exists in the criminal law in different contexts, but it exists in such a way that it is easily definable. Reckless driving of a motor car involves driving it too fast or taking no account of the traffic on the road, or not having one’s car checked and so forth. There are specific ways in which you can say that is reckless and define “recklessness” in such a way as to create little difficulty for judges or juries, or indeed for one’s general sense of justice. That is not the case here.

The idea that every word one speaks and every sentence one enunciates might be looked at with a view to whether it could have been reckless is quite alarming. It opens up the prospect which concerns me: that one might say something which happens to agree with something that is in the platform of a proscribed organisation and, as a result, find oneself indicted under the Act, if the Bill becomes one, without having the slightest notion that one had committed any offence, or necessarily that some terrorist or proscribed organisation shared one’s view on a matter. I am really concerned about it.

It seems to me that we should have the good old concept of intention here. Intentionality should automatically form part of the criminal law, except in special circumstances. In strict liability, intentionality does not apply, but intentionality is a principle very much bound up with the criminal law in almost all contexts, and I think that is the right way to go. That is much more specific. We would therefore not be doing violence to the precious principle of free speech if we adopted the intentionality route. I very much agree with those in the debate who have taken that line, and I very strongly disagree with those who have not.

There is another matter which I am very concerned about, and I dare say I shall make myself very unpopular by saying this. I do not for a moment think that we ought to have some privilege for journalists in the matter of free speech. I will not only speak against that but will use any opportunity I can to vote against any such Motion. Freedom of speech belongs to every citizen in a free society. Of course journalists must not do dangerous things, any more than anybody else must not do dangerous things, but the idea that journalists have a special form of free speech which is not available to the rest of us is quite absurd. If there are indeed proscribed terrorist organisations and journalists can legitimately report on what they are saying or what they stand for, it should be equally up to any of us. I am thinking not particularly of parliamentarians. Parliamentarians and other people should be able to report on that and talk about that. A free society consists of people being able to express views or refer to views, however awful they may be, without committing a criminal offence. The suggestion is obnoxious. I understand why it has been made. It has been made for the most honourable and pure reasons, but it would not be a good idea.

I also see some difficulty in definition. Who is a journalist? If a journalist leaves a newspaper or the media channel for which he or she is working, does he or she cease to be a journalist? Does he or she cease to be a journalist after five years or 10 years if he or she ceases to practise that profession? What does “practice that profession” mean? Some of us write articles for the press from time to time. In the old days, in my case it was for money, but not at present. Does that make us journalists? If we create a special right and privilege for so-called journalists, obviously a lot of people would like to define themselves or their activities in such a way as to get the benefit of the franchise that has been created. That is an undesirable development.

[Earl Attlee]

The noble Lord raises an extremely good point about who is a journalist. When I was being briefed by the media, I asked that very question. The answer is that traditionally we do not define who is a journalist, but I am confident that it does not cause a problem in the way my amendment works.

[Lord Davies of Stamford]

I have great affection and respect for the noble Earl, but that is no good at all. The idea of creating a special category of people in the key sensitive matter of free speech is bad enough but if you then say that you do not need to define it—in other words, you do not need to restrict in any way the benefit that is being accorded or the possibilities of its misuse—you are on a hiding to nothing. I do not agree with the noble Earl on that subject.