The Government welcomes Lord Carlile's review and hopes that the JCHR now accepts the comprehensive and effective definition of terrorism that has been approved for use in the offence in section 1 following extensive debate in Parliament.

In our earlier report on the Terrorism Bill, we considered that the mental element for the offence of encouragement of terrorism should be confined to intention or, if it was to extend to recklessness, it should be subjective recklessness (that is, knowing or being aware of but indifferent to the likelihood that one's statement would be understood as an encouragement to terrorism) rather than objective recklessness. At one point the Bill contained an objective test for recklessness, but this was removed during the course of the Bill's passage. We are therefore satisfied that the mental element for the offence of encouragement is now either specific intention or subjective recklessness, which we do not consider to be inconsistent with Article 5 of the Convention. (paragraph 34)

The Government welcomes the JCHR's approval of this approach.

We remain of the view in our previous report that the lack of any requirement on the prosecution to show that the statement in question causes a danger that a terrorist act may be committed is an omission of an important safeguard which is intended to restrict the potential scope of the offence and so to reduce its inhibiting effect on freedom of expression. (paragraph 37)

In the previous submission to the JCHR on the Terrorism Bill, the Government stated that section 1 of the 2006 Act, does not impinge on legitimate freedom of expression. It would not be appropriate for the prosecution to have to prove that a statement which gave rise to a prosecution under section 1 actually created a danger that a terrorist act would be committed. Such a requirement would involve proving the state of mind of the members of the statement's audience, when what is relevant is the state of mind of the person publishing the statement. To this can be added the fact that the offence in section 1 does require that the statement is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to the commission, preparation or instigation of acts of terrorism or Convention offences. Under section 1(4) this issue must be determined having regard both to the contents of the statement as a whole and the circumstances and manner of its publication. The Government considers that this sets a suitable and appropriate threshold.

This was debated and agreed by both Houses of Parliament.

The Government has fulfilled the obligation in Article 5 of the Convention to the full and a lack of any requirement on the part of the prosecution to show that the statement in question causes a danger that a terrorist act may be committed does not preclude ratification of the Convention.

We remain of the view expressed in our earlier report on the Terrorism Bill that the difficulty caused by the inclusion of the concept of glorification is the inherent vagueness of the concept, and in particular the genuine difficulty of distinguishing between expressions of understanding, explanation or commemoration on the one hand, and encouragement on the other. (paragraph 39)

The Government maintains that the inclusion of glorification, as defined in section 1, as an element of indirect encouragement is appropriate and sufficiently certain. The Government reiterates that glorification alone is not enough to amount to the offence. Statements that glorify terrorism constitute an indirect encouragement to terrorism or Convention offences but only if the statements are of a type that the audience may reasonably infer that the conduct is being glorified as conduct that should be emulated in existing circumstances. This is a deliberate and important qualification of the concept of glorification. It has two parts:

i. The audience must reasonably understand that they should emulate the conduct, in other words, that they should do something similar.

ii. The concept of "in existing circumstances" means that it must be possible for them to emulate the conduct glorified in this day and age. This means that the glorification of distant historical events is unlikely to be caught.

Futhermore, in Lord Carlile's report on the definition of terrorism he notes that the offence of encouragement contained in section 1 of the 2006 Act has been sufficiently amended during the passage of the Bill, as to satisfy concerns presented to him during his review:

"On preaching and glorification, I agree with the view that mere preaching and glorification should not be capable of being regarded as terrorist offences. …amendments made to the 2006 Act during its passage through Parliament need to be read carefully: they do not criminalise mere preaching and glorification, as subsections 2 and 3 illustrate. No prosecutions have yet been brought under the section, and it is of course to be hoped that none will be needed. For the time being at least, I see no need to amend the existing law in that regard." (paragraph 72 of Lord Carlile's report)

The Government accepts that the JCHR maintains its position with regards to the inclusion of glorification in the 2006 Act. For reasons given earlier, this does not stop the UK from ratifying the Convention.

We also see the force in Liberty's observation that there is an inherent difficulty in trying to assess whether the existence of an offence has inhibited freedom of expression. A "chilling effect", by its very nature, prevents people from saying something they might otherwise say. While in theory individuals might come forward to give evidence that they have been inhibited from saying or reporting something, in practice if they have been so inhibited they are unlikely to want to identify themselves as individuals who might be at risk of prosecution for the new offence.

We think it is likely that the creation of the offence of encouragement of terrorism in its current form will have an inhibiting effect on legitimate freedom of expression and will therefore lead to disproportionate interferences with free speech. (paragraphs 46 and 47)

The offence in section 1 has been enacted with full consideration of the ability to do so under Article 10(2) of the ECHR. As explained in relation to paragraph 10 of the JCHR's report it is considered that section 1 does engage Article 10 but any interference is proportionate and justified.

The Government considers that it has managed to achieve the appropriate balance between the measures necessary to deal with the very real threat to national security posed by terrorism and the need to protect rights and freedoms including the right to freedom of expression.

All of the UK's anti-terrorism measures have to be set in the context of the Government's general commitment to human rights and the protection of individual freedoms.

While reiterating in this Report the position of the Committee in previous Reports, we wish in our conclusion to emphasise our view that the combination of the breadth of the definition of "terrorism", the vagueness of "glorification", and the lack of a requirement that there be at least a danger that an act of terrorism will result, makes the encouragement of terrorism offence in section 1 of the Terrorism Act 2006 incompatible with the requirement in Article 12 of the Convention that the establishment of any new offence of public provocation to commit a terrorist offence be compatible with the right to freedom of expression, and proportionate to the legitimate aim pursued. In our view the offence as defined in section 1 is likely to have a disproportionate impact on freedom of expression, contrary to the express requirement in Article 12.)

We therefore conclude that, on the current state of the law, the Government cannot and should not ratify the Convention because our domestic law is not compatible with it. We draw this matter to the attention of each House.

We shall in due course be producing a report containing our recommendations as to what the definition of "terrorism" should be. (paragraphs 50, 51 and 52)

On 27th July 2007, Bulgaria became the 8th Party to the Council of Europe Convention on the Prevention of Terrorism. The Convention entered into force on 1st June 2007. The Government signed the Convention on 16th May 2005 and see this as a powerful instrument in the counter terrorism strategy. The Government is committed to ratifying the Convention and is proud to be at the forefront of promoting international conventions and treaties that tackle terrorism.

Parliament has previously debated at great length the definition of terrorism and section 1 offence in the 2006 Act. Both Houses have voted in favour of the legislation.

There will be further opportunities for the JCHR and Parliament to debate the definitions of terrorism in the forthcoming Counter Terrorism Bill.

The EU Commission is currently looking at updating the EU Framework Decision on Combating Terrorism 2002 to include some provisions that are similar to the Convention. This reflects the importance the international community holds to the principles contained in the Convention. It is seen as an important instrument to encourage nations to enact legislation that combats terrorism whilst safeguarding human rights.

It is the Government's view that ratification of the Convention can and should proceed.