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John Bercow: The atmosphere must have somehow spoiled the right hon. Lady's judgment. Although I do not take it too personally, she upbraids me for failing to   table an amendment on the distinction between a freedom fighter and a terrorist. First, I am content with the very well crafted amendment No. 69 to clause 20, tabled in the name of the right hon. Member for Southampton, Itchen (Mr. Denham), the Chairman of the Home Affairs Committee and, secondly, I identify myself with the sentiments expressed in amendment No.   75 to clause 33. Why does the Minister think that there is something wrong about approving of, or providing succour to, those who favour violent action against an illegitimate state rather than against civilians?

Hazel Blears: I do not accept that the matter is as clear-cut as the hon. Gentleman would like to portray it. He will know that if people seek to attack the apparatus
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of the state, they could well injure innocent civilians in the neighbourhood. If someone attacked a state railway, an innocent person could be involved. From day one, he has sought to portray this as black and white, with very clear distinctions. This is complex legislation in which we are trying to ensure that we deal with complex situations. I respect the hon. Gentleman, who holds these views very strongly, but he will understand that complexity. Simply to say, "Freedom fighter or terrorist?" is an over-simplification of the complex international issues that we find ourselves having to deal with in this modern world, with the modern version of terrorism that we are seeking to combat.

Mr. Kenneth Clarke: The Minister is as close we have got so far to an explanation of why the Cherie Blair remark would not be caught by the Bill. I should make it clear that I am not singling out the Prime Minister's wife. I do not agree with her sentiments, but I would strongly defend her freedom to utter them. The Minister rattled through, perfectly accurately, the six tests that have to be satisfied. Can she indicate which of those would be failed for the purposes of prosecuting the Prime Minister's wife? The Cherie Blair remark seems to satisfy the tests that she trotted off.

Hazel Blears: Not at all. I do not propose to repeat myself; I have enough points to make already. I am surprised that the right hon. and learned Gentleman is at variance with his own Front Benchers, in that he does not support the offence of indirect incitement that they have said would be a useful addition to our law to catch people who make such statements.

John Bercow rose—

Mr. Boris Johnson: Will the Minister give way?

Hazel Blears: No, because I want to talk about intent.

Clause 1 provides in essence that encouragement is committed if a person makes a statement to people who are likely to understand it as an inducement to carry out terrorist acts. A person does that, first, if he knows or believes that the effects of his remarks on his audience are likely to be that they will understand them in that way. I do not think that anybody could object to that;   indeed, I do not think that Opposition Front Benchers object to it. I would say to the hon. Member for Beaconsfield that the phraseology, "knows or believes", embraces the concept of recklessness that features in amendments Nos. 79, 2 and 6. That is absolutely right, because the law on recklessness was reviewed in the case of R v. G last year. There is now a subjective test of whether the defendant knew of the risk and, if he did, nonetheless unreasonably took it. The point about recklessness is covered in the legislation.

Amendment No. 20, which was tabled by the Liberal Democrats, covers similar ground. I hope that they will withdraw it.

The second set of circumstances in which a person can commit the offence—this is subject to more debate—is where he has reasonable grounds for believing that the effect of his remarks on his audience is likely to be that they will understand them as an encouragement to commit acts of terrorism. That imports an objective test
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of his belief. From what Members have said, one could think that this is a completely novel formulation in this Bill, but it is not. In fact, a change was recently introduced in the offence of rape whereby there is an objective assessment of somebody's belief. The person is no longer able to say, "I believed there was consent"; the test is whether he had reasonable grounds for believing in that consent. That is an objective test. There is also precedent in relation to money laundering offences in the Proceeds of Crime Act 2002. Such tests have been introduced in various areas.

I point out to my right hon. Friend the Member for Southampton, Itchen and other Members that I know that there is concern about including intent in the convention offences, and recklessness—it is right to include that and it has support—as well as whether we move further, to the possibility of negligence and whether the offence could be carelessly committed. Some of those points have legitimacy and I want to look at them carefully, but I want an offence where we can prosecute people who create a climate within which people feel that terrorist action is a valid response to their concerns.

I want to look carefully at those points but I am absolutely determined that we ensure that we have an offence on which we can prosecute. For too long, we have not had such provisions on our statute book, which has meant that people can get away with saying the kind of things that we have all heard, and which concern our constituents, without our being able to prosecute.

Mr. Grieve: It took a moment to follow the Minister's argument but, if I understand her, she is conceding that, as drafted, the offence goes beyond recklessness and could be committed negligently. I should be grateful if she would confirm that, as it heightens and crystallises my anxieties about the measure.

Hazel Blears: I am not prepared to say that I think that it goes as far as negligently. It includes recklessness, and clearly includes intent. The provision also includes the objective assessment of "reasonable grounds" for belief, which has precedents in our sexual offences law and other laws, so the formulation is not novel in those terms. I shall not say that it goes as far as negligently but I am prepared to say, especially to my right hon. Friend the Member for Southampton, Itchen, that there are legitimate concerns and I shall continue to discuss the issue with him and people who share those concerns.

Mr. Denham: My right hon. Friend is possibly aware that I had been contemplating voting against the Government for only the second time in 13 years, so   I   am grateful for the indication that she is, if I   understand her, willing to look again at the wording of the clause. That is welcome, but I must tell her in all seriousness that if Members who follow her lead on that today find that we are confronted with exactly the same   wording on Report it would be a somewhat unsatisfactory outcome, given what she has just said.
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3.30 pm

Hazel Blears: I entirely take my right hon. Friend's point. That is not my intention. My intention is to engage constructively and in a proper fashion on those issues.

Mr. Marshall-Andrews: Will my right hon. Friend give way?

Hazel Blears: I have very little time and I want to turn to the amendments proposed by the hon. Member for Oxford, West and Abingdon (Dr. Harris) and his suggestion that there should be an extra requirement that something that caused a danger that a terrorist act or a convention offence would be committed should be an offence. That would place an impossible burden on the prosecution, as it would have to show that a real danger that a terrorist act would be carried out had been caused. That relates to the audience; we should be aiming our legislation at the person making the statements, not at the audience. I ask him to think carefully about that as the amendment would impose a burden.

Mr. Marshall-Andrews: Will the Minister give way?

Hazel Blears: No, I want to make my final point.

The right hon. and learned Member for Rushcliffe said that the clause was absurd and ridiculous. Lord Carlile, the independent reviewer of the legislation, said:

The provision is neither absurd nor ridiculous; it is a genuine attempt to deal with a real mischief in our communities.

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