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Mr. Grieve: My hon. Friend, very properly, muddies the waters even further by illustrating the complexity of the situation. On the face of it, a jury considering this offence will be asked not to decide whether members of the public were influenced but whether it was "likely" that people who heard the speech would have concluded that it was

to commit a terrorist offence. In regard to that, they will, as the clause says further on, have to consider all   the   surrounding circumstances.—[Interruption.] The Minister for Policing, Security and Community Safety says something from a sedentary position, but I   did not quite hear it.

I do not find myself in disagreement with that approach, but it brings me back to the point that I made to my hon. Friend the Member for Buckingham (John   Bercow)—if a jury is to be given such a test, which is not subjective but objective, it becomes very important that we criminalise those who intend to commit the offence, not those who end up doing it by accident. That is the root of my anxiety.

Martin Horwood (Cheltenham) (LD): As the hon. Member for Buckingham (John Bercow) suggested, this might happen inadvertently in less than thoughtful circumstances. Is the hon. Gentleman aware that Universities UK fears that it might happen in extremely thoughtful circumstances, namely in the process of the publication of research and the encouragement of academic debate? It states that the Bill

Mr. Grieve: The hon. Gentleman is absolutely right and anticipates one of the things that I was about to say. The academic world has indeed expressed serious concerns especially, in the context of our debate, about clause 2, to which I hope we may have time to move. It is also right that that anxiety relates to clause 1, because the possibility plainly exists that during robust academic discussion in a tutorial or public seminar views may be expressed that would then be criminalised. We all remember that Sir Thomas More was eventually convicted of treason because when he was incarcerated in the Tower of London he was visited by the then Attorney or Solicitor-General—I cannot remember which—

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): For Wales.
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Mr. Grieve: I am grateful to my right hon. and learned   Friend.

Sir Thomas was visited by the then Attorney-General for Wales who engaged in what was then called making case, which was an academic dialogue about royal supremacy. In the course of that,   Sir Thomas, responding to what he thought was an invitation to academic discussion, succeeded in incriminating himself, having studiously avoided doing so previously. That may appear to be a long time ago.

Chris Bryant (Rhondda) (Lab): It was.

Mr. Grieve: It was a long time ago but the powers of the state have if anything increased since then, and not diminished. It is not for the House to pass legislation that has unintended consequences. One of our problems, which applies to the whole Bill as well as to clause 1, is that we shall, I fear, be given yet again the classic response from the Government that we need not worry too much because the Director of Public Prosecutions will make jolly sure that only the right cases are prosecuted.

John Bercow: That is not reassuring.

Mr. Grieve: It certainly is not, because it is not the business of Parliament to create law that is discretionary in its application.

Mr. Hogg: It is even less reassuring when we contemplate that in respect of overseas terrorism it is the Attorney-General who gives the consent.

Mr. Grieve: My right hon. and learned Friend makes a good point.

Mr. Alex Salmond (Banff and Buchan) (SNP): The hon. Gentleman is making a very good speech. Does he understand why the phraseology in subsection (3) of clause 1 is that the public "will understand a statement" whereas in paragraph (b) of subsection (1) it is that the   public "are likely" to understand a statement? As the hon. Gentleman made a lot of money from such distinctions in a previous life, does he have any idea why the Bill is not even internally consistent?

Mr. Grieve: No, I have not. Furthermore, if the hon. Gentleman were to consult the explanatory notes, he would be none the wiser.

The issue is serious, and I will return in a moment to how we might be able to improve this part of the measure. Before I move on to glorification, I must make this point to the Minister: the Government must explain fully who they intend to be caught by these provisions and in what circumstances, so that the Committee can make a judgment, first, about whether we want the offence to be one of specific intent only—for which there are some powerful arguments, despite the wording of the amendment. Failing that, there may be arguments for providing a recklessness test. Having prosecuted in the past, I am mindful that people may properly escape justice by resorting to fanciful arguments about their motivation, even though it was pretty clear, so I accept that it is a legitimate point of discussion.
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I have to tell the Minister, however, that there is a big   difference between recklessness and negligence. My reading of the provisions is that they provide for the   closest thing to an offence being committed by negligence that I have ever seen, even though the Minister may argue that that is not the intention of the   Bill, but as she is not shaking her head vigorously at me in a negative, I have a fearful suspicion that that may be exactly what the Government were intending.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I   agree entirely with the hon. Gentleman's line of thought, and I remind the Committee that if the recklessness test were included, there is a body of law to explain precisely where we stand on recklessness, thereby making the clause quite simple to operate. Why are the Government including such a nebulous clause, whereby the offence could border on negligence, when the recklessness test could be imposed, as it is for many other offences on the statute book?

Mr. Grieve: I agree with the hon. Gentleman and knowing of his background in practising the law, I can see exactly where he is coming from. I always found the test of recklessness to be readily comprehensible. It is right to say, however, that for reasons that I do not fully understand there has been a tendency, on several occasions before the introduction of the Bill, to drop the use of the word and replace it with the gobbledegook before us. In that respect, the Bill is not a complete novelty, but I am bound to say that I do not like it; the   blurring of the edge between recklessness and negligence is something that successive Governments have attempted in several different fields where it suits them, because they have come to the conclusion that it will facilitate convictions. In some cases, they have done it deliberately, for example, in the offences of reckless driving and dangerous driving—a change that Parliament could assess—but in this context the Government have not explained what they are about.

Mr. Hogg: Is not my hon. Friend being a bit too generous to the Government on this point? My understanding of clause 1 is that a person who writes in laudatory terms about historical terrorism is caught by the clause. It does not matter whether they are negligent, reckless or acting with intent. If they were simply describing in laudatory terms what happened in Cyprus when the EOKA terrorists prevailed, they could be caught by the measure.

Mr. Grieve: Yes, my right hon. and learned Friend is correct and, as I hope I indicated, I want to move on to consider the glorification parts of the clause, which can be looked at separately.

John Bercow: I am grateful to my hon. Friend for generously giving way again.

Surely, the nub of the problem is that there is a difference between asking a jury to discern intent, which is not an unreasonable request, on the one hand, and expecting it accurately to assess likely consequences on the other. That is an extremely dangerous challenge for the jury—in essence, a political challenge—and in fact people are usually much more resistant to propaganda than they are given credit for being.

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