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Lord Goodhart: My Lords, has the Minister considered the views of the Joint Committee on Human Rights about the vagueness of the word "glorification"?

Baroness Scotland of Asthal: We have considered them, my Lords, but it is clear, from what has been said both in this House before and in the other place, that we do not agree. Consideration yes, agreement no. The alternative expression before us now sends no such clear message.

Thirdly, as it passed through this House, the offence in Clause 1 of the Terrorism Bill included a provision that referred explicitly to glorification. If it does not appear in the final text of the Act, one conclusion is obvious: it will be presumed that the offence was not intended to cover glorification, and we believe that would undermine both the legal effectiveness of the offence and its effectiveness as a deterrent.

Taken together, the three major reasons I have outlined mean that we must not insist on our amendments, but should accept the alternative amendments that the other place has offered in lieu of them. Even now, we should proceed on the basis of consensus.

Lord Clinton-Davis: My Lords, if it is shown in the light of experience that this clause meets with judicial disfavour, would the Government consider a further amendment?

Baroness Scotland of Asthal: My Lords, of course there will be an opportunity for us to do so if that proves to be the case. It has been clearly indicated that we will have an opportunity to consider control orders, the definition of terrorism, and whether there are to be further provisions. We must always bear experience in mind when we come to look at the new provisions. There is bound to be another opportunity fairly soon to look at this issue again.

We have that opportunity in our legislative programme, which we do not always have, because we have jointly indicated that that is something that we collectively—across the parties—believe will be necessary to take into account the outcome of the review currently being undertaken by the noble Lord, Lord Carlile of Berriew, and the work he is doing on our behalf.

Lord Kingsland: My Lords, the Minister has just said something important to the House. In the light of her response to the noble Lord, Lord Clinton-Davis, can I conclude that the Home Secretary's legislative review that is likely to take place in the early months of 2007 will include a consideration of glorification?

Baroness Scotland of Asthal: My Lords, it will and could include such a consideration, because I am
 
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conscious that noble Lords will want to look at the interrelationship between control orders and the other provisions and terrorism. It would be perfectly possible for us to look again at this issue and give consideration to it. We might come to the same conclusion, or a different one. Nothing we do now would prohibit us looking again at this issue.

The Lord Bishop of Oxford: My Lords, I am sorry to interrupt the noble Baroness and thank her for allowing me to intervene. I agree with the noble Lord that the opportunity to revise is important. Does the noble Baroness agree that we are in a muddle over this fundamental disagreement because of the highly unsatisfactory definition of terrorism in the 2000 Act? We need to wait for the noble Lord, Lord Carlile, to bring forward a more satisfactory definition of terrorism. I believe that with a more satisfactory definition we can achieve consensus.

Baroness Scotland of Asthal: My Lords, we have that opportunity. We have to deal with the response to the current Act. The other place has now said clearly on three occasions that it wishes the current provision before the House to be included in this Bill. That must be right for now. But it must also be right that when we look again at the definition of terrorism and the issue of control orders we have an opportunity to consider whether our conclusions continue to hold good for the future.

I have indicated something similar as regards the definition of terrorism. We shall have an opportunity to look clearly at that definition next time around.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Can the noble Baroness help me and the whole House? She indicated that the Government had considered the report of the Joint Committee on Human Rights—we said that the lack of clarity and over-breadth were serious problems—but that the Government did not agree with the Joint Committee's view. She said that the great virtue of the word "glorification" is its clarity. Will the Minister explain to the House how a judge will be able to direct a jury so as to distinguish between acts of glorification and other acts? How can one avoid the risk of political discrimination or manipulation of the criminal justice system? One person's glorification of terrorism would be another person's glorification of historical events regarded as glorious: let us say, after the Easter Rising, in relation to the ANC or other historical events. How will a judge be able to direct a jury without any criteria? How will we be able to avoid the risk of political manipulation leading to a lack of confidence among British Muslims?

Baroness Scotland of Asthal: My Lords, most importantly, we do not look at the issue of glorification in isolation; we have to consider it within Clause 1. It is important that we remind ourselves of the hurdles that we have now put into the Bill which will have to be satisfied by the prosecution if this offence is to be made out. In Clause 1 we have agreed
 
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that the offence should be committed only if the requisite mental tests of intent and subjective recklessness are satisfied. The offence will be committed only if someone encourages terrorism, whether directly or indirectly—including through the glorification of terrorism, because it is a species of the way in which one can commit this act—intending to encourage it, or knowingly taking an unreasonable risk that he will encourage it. In that context, we cannot see why anyone should object to the inclusion of a provision relating to glorification of terrorism. Nor can we see any merit in the halfway house contained in the amendment of the noble and learned Lord, Lord Lloyd of Berwick. We believe, just as with many other words, that the court will be able, in given cases, to explain this issue with a degree of clarity which will enable juries to come to a decision. It will not stand alone; it will sit within that context. It is very important to remind ourselves of that reality.

My right honourable friend the Home Secretary made a commitment in the oral Statement he made in another place on 2 February to publish a draft terrorism Bill for pre-legislative scrutiny in the first half of next year. That is what we have just been talking about. We will have not just the Bill in due course; we will also have that opportunity for pre-legislative scrutiny. The Bill will cover matters that go far wider than the three issues we have discussed and there will an opportunity for us to consider them in greater detail. On the basis of the presence of glorification in the manifesto, the presence in the UN resolution and the way in which the other place has now on three occasions said very clearly that it is not minded to agree with your Lordships' House, I believe this is the moment where we bow to the other place, confident, as we are, that we will have an opportunity to return to this in the way that the right reverend Prelate indicated when we will have the benefit of the advice on definition. We will look again to see whether that definition changes. If it changes—I make it clear that we do not know whether it will and we have talked about the difficulties inherent in that—it may well have an impact on the other provisions, and we would have to look again at them. I beg to move.

Moved, That this House do not insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do agree to Amendments Nos. 34A and 34B proposed by the Commons in lieu.—(Baroness Scotland of Asthal.)

The Chairman of Committees (Lord Brabazon of Tara): My Lords, before calling Motion A1, I have to inform the House that if Motion A1 is agreed to, I cannot call Motions A2 or A3.

Lord Goodhart rose to move, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do disagree with Amendments Nos. 34A and 34B proposed by the Commons in lieu."

The noble Lord said: My Lords, Clause 1(4) of the Bill as it emerged from the House of Commons provided in complex, convoluted language that glorifying terrorist acts should be treated as the
 
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encouragement of terrorism if that glorification is in terms which encourage people to emulate the glorified acts. That provision was removed and replaced by a much simpler and clearer definition of what is meant by "indirect encouragement" in Amendment No. 5, which did not contain the word "glorification".

Amendment No. 5, as I recognise, has defects. They are defects which could have been, and could be, easily corrected by the House of Commons accepting the principle and sending back to us an improved version. The House of Commons has, however, chosen to put back the reference to glorification in Clause 1(4) and, indeed, everywhere else in the Bill. That, I believe, is entirely wrong. I believe it is wrong because the reference to glorification is not only unnecessary but useless. I cannot imagine any case in which a prosecution based on glorification would succeed, but a prosecution based simply on a law treating indirect encouragement as an offence would fail. There is here no loophole that needs to be filled.

The Commons version saddles us with an elaborate, confusing and unnecessary provision. As the Joint Committee on Human Rights pointed out—in my view absolutely rightly—glorification, which is defined in Clause 20 as including any form of praise or celebration, wholly lacks the necessary legal certainty. But this use of the word "glorification" is worse than useless because it causes unnecessary damage to freedom of speech. It will lead to self-censorship. The definition of "terrorism", as the right reverend Prelate the Bishop of Oxford pointed out, is extraordinarily wide. It remains wide and we certainly cannot assume at this stage that it will be narrowed by any future legislation. It may be; it may not be.

3.30 pm

The present position is that someone wanting to write a book, an article, or a film or television script about the Easter Rising in Dublin in 1916, and doing so in a way that was sympathetic to the rising, might fear that that could be regarded as calling for a return of IRA terrorism in Northern Ireland as an uncompleted job. It may of course be unlikely that the Director of Public Prosecutions would give leave to prosecute. It may be unlikely that prosecution would lead—if there was a sensible jury on the case—to conviction. But the fear is there, and it has a chilling effect.

The reference to glorification is also a matter of particular concern to the Muslim community of the United Kingdom and its groups. Many places where terrorist acts are now being carried out are part of the Islamic world; I am thinking in particular of the West Bank and Gaza, Iraq, Chechnya, and Kashmir. I wish to make it clear that I do not in any way support terrorism in any of these places. It is also true that, in some or most of these places, some terrorists have been guilty of actions which are repulsive to decent human beings, but people in this country must be free to debate the issues which give rise to terrorism there. It must not be a criminal offence to argue that at least some of the objectives, if not the methods, of terrorists
 
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in these places are in fact justified. The Government say that it is not the intention of the Bill to stop this argument, but the inclusion of references to glorification will make many people who, for example, support independence for Chechnya or the end of Israeli occupation of the West Bank fearful that in doing so they will be glorifying terrorism and committing an offence. "Glorification" will stifle debate that is not only legitimate but important in this country.

Why is it that the Government are so obsessed with outlawing glorification? The answer can only be described as being to save face—their own and that of the Prime Minister. He said that glorification must be made a crime and it was put into the manifesto, along with condoning terrorism. "Condoning" was rather rapidly dropped and has not since reappeared, for reasons which are pretty obvious. It also became obvious that glorification, as a free-standing offence, would be in itself an absurdity. The definition of terrorism is so wide that it extends to the actions of Robin Hood and his merry men or the War of American Independence. If glorifying these were to be a crime it would make such radical organisations as the Daughters of the American Revolution criminal organisations. The Government therefore backed down half-way and made glorification a sub-species of encouragement instead of an independent species of its own. At that point, the Government should have recognised that all that was needed here was a simple offence of direct or indirect encouragement of terrorism, an offence which we accept as necessary and which we support. But the Government had become so committed to glorification that they had to stick it in.

Your Lordships' House should stick to the decision to remove references to glorification. We now have the worst of both worlds: we have statutory provisions which add nothing to security but which will restrict freedom of speech. Your Lordships are offered three alternatives to the Motion that has been moved by the noble Baroness, Lady Scotland. One is the one in my name; the second is in the name of the noble and learned Lord, Lord Lloyd of Berwick. The differences between us are insignificant. It is only that he would accept the removal of Lords Amendments Nos. 15 and 32 and the inclusion of Commons Amendment No. 34A. Amendments Nos. 15 and 32 do not remove references to glorification, and we do not need to insist on them or to object to House of Commons Amendment No. 34A. That being so, if he wishes to press his Motion A2 to a vote, as I understand he does, I would beg leave to withdraw Motion A1 and support him.

Motion A3 in the name of the noble Lord, Lord Kingsland, is another matter altogether. If it was adopted, it would remove the reference to glorification in Clause 1(4), but retain the references to glorification in Clauses 2(4), 3(9), 20(2) and 21. I cannot see the point of an amendment that would do that. Deleting one reference to glorification would annoy those who think that it should be in the Bill; leaving four other references in the Bill would annoy those who think that
 
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it should not be in the Bill. It appears to me that Motion A3 has no point and, unless the noble Lord, Lord Kingsland, is extremely persuasive, my recommendation to my noble friends would be to abstain if he was to move it following a defeat of an earlier Motion.

In spite of the persuasive arguments of the noble Baroness, Lady Scotland, on this occasion your Lordships' House should send this matter back to the House of Commons for one further consideration, and we should not accept the government amendments that were reintroduced by the House of Commons.

Moved, as an amendment to Motion A, leave out from "House" to end and insert "do insist on its Amendments Nos. 5, 11, 15, 28, 31, 32 and 34; and do disagree with Amendments Nos. 34A and 34B proposed by the Commons in lieu.".—(Lord Goodhart.)

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