---

Lord Kingsland: My Lords, like all noble Lords, we are extremely grateful to the noble Baroness for considering this matter again, following the debate in Committee. As one who took part in that debate, I can tell the House that the amendment now before your Lordships is a considerable improvement on the amendment tabled at the earlier stage. As the noble Lord, Lord Goodhart, has pointed out, the nature of the obligation on the Attorney-General has been changed. In Committee, it was a condition before consenting to prosecution that the items set out in the amendment were satisfied. Now the Attorney-General is obliged only to have regard to them. I confess, however, that I still have reservations about the expression "grave breaches of human rights". The noble Lord, Lord Goodhart, knows such reservations well. I believe that it is too vague an expression to find a place in the legislation.

The point of the amendment reveals the problem that we face. The reason why the noble Baroness and her colleagues have tabled this amendment is that we do not have a satisfactory definition of terrorism. If we had a satisfactory definition of terrorism, there would be no need for this amendment. It is because this definition of terrorism is so wide, and because people who speak out against genocidal acts of totalitarian governments can be prosecuted in this country under this definition of terrorism, that the noble Baroness has found it mandatory to bring the amendment forward. That is the dilemma.

When the Attorney-General exercises his discretion, it is essential that he take these factors, and perhaps others, into account before he takes his decision. The issue is whether these factors should appear on the face of the Bill or whether the Government can give us some other guarantees that are sufficiently satisfactory to allow us to leave this amendment aside. Essentially, in the amendment, the noble Baroness is defining what terrorism is and what it is not—it is no more and no less than that.
 
25 Jan 2006 : Column 1192
 

I would like to ask the Minister how she sees the Attorney-General exercising his discretion when faced with an individual who has spoken out against an evil regime abroad. What guarantees can the Minister give the House that the Attorney-General will abide by rules for exercising his discretion, albeit not on the face of the Bill?

I must confess to having hesitations about those criteria being in the Bill. Under this amendment, the Attorney-General is required to have regard to these factors; but what about other factors that may be equally relevant which do not appear in this list? An Attorney-General may take the view that what is on the face of this amendment is the maximum rather than the minimum necessary. We do not know. The Attorney-General's discretion is too wide. I would be most grateful if the noble Baroness in her reply would be kind enough to address these points.

Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Williams, for expressing her support for these amendments in such a clear and proportionate way. I need to say to her and to my noble friend Lord Judd, the noble Earl, Lord Onslow, and the right reverend Prelate the Bishop of Oxford that the Government very much understand the basis and the main thrust of their argument, for the reasons given by the noble Lord, Lord Kingsland.

Although the amendments have been redrawn by the noble Lord, Lord Goodhart, with his usual ingenuity, there regrettably remain similar flaws to those which existed in the amendment we discussed in Committee, very much for the reasons given by the noble Lord, Lord Kingsland, in terms of the breadth of the amendment. Noble Lords are right to emphasise that the noble and learned Lord the Attorney-General and his successors in title, if this was to remain, has a very broad discretion. It is also right that at the moment we are all of a view that the definition of terrorism would benefit from further scrutiny. It is for that reason that we have entrusted the development of those issues into the hands of the noble Lord, Lord Carlile of Berriew. We are all anxious to see the suggestions that he may make and look forward to an opportunity to debate them with appropriate vigour.

I should like to say one or two things about why the amendment proposed by the noble Lord, Lord Goodhart, does not quite meet the point. As your Lordships know, there is a wide spectrum of belief about who would or would not fall within such a categorisation. I recall very clearly that, the last time we were talking about this, the noble Baroness, Lady Williams, tried to make it clear that America would not be included. But we have had debates about Guantanamo Bay and comments by the noble Lord, Lord Goodhart, about the approach taken by various states in the US. There are those on the Liberal Benches who spoke out very powerfully about the propriety of the last US election and whether that was a model which should be covered. So we know that this route is riddled with difficulties and problems.
 
25 Jan 2006 : Column 1193
 

Noble Lords should know that in deciding where the public interest lies, the Attorney and the Advocate Generals will doubtless need to consider the nature of the alleged crimes as well as the circumstances of those crimes. They may need to look at the nature of the country in which any terrorist act took place. So we can be confident that they will discharge their duty with honour.

Lord Goodhart: My Lords, I am grateful to the noble Baroness for giving way. She said that these are factors that an Attorney-General may well take into account. Would she be prepared to go one step further and say that these are factors which any Attorney-General acting properly would have to take into account, along with other factors?

Baroness Scotland of Asthal: My Lords, I understand why the noble Lord tempts me down that line but it is right that in exercising his or her discretion, the Attorney-General should be able to take into consideration those matters which are pertinent at the time. One of those matters would have to be the circumstances of the alleged offence and the countries in which those acts or omissions take place. I do not think that it would be right for me to go further than that. I have very much in mind that in this country—the noble Baroness, Lady Williams, alluded to it—we have been blessed with some rigorous and robust holders of that office. To name but a few, the noble and learned Lord, Lord Mayhew of Twysden, discharged his duty with a great deal of distinction; we were blessed with the noble and learned Lord, Lord Lyell, and my noble and learned friend Lord Morris of Aberavon. We are blessed at present with a particularly distinguished Attorney-General. We can be confident that those who have been appointed to that post will continue to discharge their duties with honour.

I repeat that it is important for us to look at the bigger picture. The implication of the amendments is that there may be certain circumstances when acts of terrorism may be more acceptable than in others. In Committee, the noble Baroness, Lady Williams of Crosby, referred to South Africa under apartheid, Greece under the colonels, Rwanda and Serbia. She also talked about countries where there is no other channel of legitimate opposition—very much the theme of those who have spoken today. All of that ties into the wider debate on whether it is possible to draw a distinction between terrorists and freedom fighters and the definition of terrorism. As we have discussed previously, the Government do not believe that it will necessarily be possible to come up with a better definition of terrorism than the one we have already in our legislation. However, as I have indicated, we need carefully to consider the issue. We shall do so when the noble Lord, Lord Carlile, concludes his review.

I am grateful to the noble Baroness and the noble Lord, Lord Goodhart, because this and the next group of amendments give us an opportunity to explore what
 
25 Jan 2006 : Column 1194
 
we know to be a delicate and difficult area. But I invite the noble Baroness and the noble Lord not to press the amendment.

Baroness Williams of Crosby: My Lords, the Minister has responded—

Lord Kingsland: My Lords, before the Minister sits down, perhaps I may press her a little on how the Attorney-General would exercise his discretion. For example, let us suppose that there is evidence of genocide, or evidence of a crime against humanity; would she agree with me that the Attorney-General would be bound to take that into account before prosecuting?

Baroness Scotland of Asthal: My Lords, I have already said that it would be essential for any Attorney-General to take into account considerations that were proper. I do not disagree with the noble Lord that that would be a matter to be taken into account. I am willing to say that I shall take this matter away and see whether, after proper discussion between myself and the appropriate Law Officers, we can come up with something which may give the House a greater assurance in that regard. I do not know whether I shall be able to say anything more. I am conscious, as I know is the noble Lord, Lord Kingsland, that we should not in any way improperly restrict the exercise of discretion. However, I am happy to consider whether we can come up with a form of words which might be of assistance. I cannot guarantee that I shall be able to do so, but I am happy to discuss whether that would be possible.

3.45 pm

---