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Mr. Grieve: I was grateful to the Home Secretary when he said that he would amend the original clause 1, because it was very badly drafted, but I have some concerns about the amendments. The definition of "reckless" is completely contrary to the definition of recklessness in the recent case of R v. G and seeks to substitute the recklessness test in Caldwell, which has been discredited by the courts. It is extraordinary that Ministers should adopt a test for recklessness that the courts have said is the wrong test.

Hazel Blears: As I continue, I hope that I will be able to convince the hon. Gentleman that the formulation that we have now covers intent and recklessness. It is important that we have an objective qualification of recklessness, but the words used raise the threshold and reverse the presumptions in the provisions. That series of tests should be sufficient to convince the hon. Gentleman that we have moved away significantly from the negligence test about which he and other hon. Members expressed concern in Committee. I hope to be able to convince him that the present formulation, which includes intent, recklessness and an objective assessment of recklessness, is sufficient to meet his concerns as well of those of the Government that we have a formulation that enables us to have some prosecutions of people who are clearly committing criminal acts.

Mr. Heath: Is not the difficulty that the right hon. Lady is trying to encompass with the same clause both a subjective and an objective test? In legal terms, that seems absurd.

Hazel Blears: No, I hope that as I develop my argument the hon. Gentleman will appreciate that the provisions deal with intent and recklessness, with an   objective assessment of recklessness at a higher threshold. I am really trying to achieve a formulation that will command the support of the whole House. I   was concerned about negligence, and I shared those concerns, so we want a formulation that lifts the threshold but still enables us to prosecute people who,
 
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through their statements, are encouraging others to commit terrorist acts. That should command broad support.

I want to amplify those comments. We cannot allow people who could not reasonably have failed to realise the likely consequences of their actions to get away with that simply by saying that they did not know what effect their actions might have. That would enable people who   have encouraged or glorified terrorism to get away scot-free, without paying the penalty for their actions, by insisting, regardless of all the evidence, that they did not know the possible consequences of their actions. A provision that they should be caught if they could not reasonably have failed to know the consequences of their statements is the right way to avoid that situation.

I think that the hon. Member for Beaconsfield (Mr.   Grieve) said that juries are capable of considering such issues in context, and the provisions deal with the context and circumstances. The court will take all that into account. If we have only a subjective test, people will be able to say that they did not realise what the effect of their actions would be. We would then find it incredibly difficult to prosecute people who genuinely were encouraging other people, indirectly, to commit terrorist acts.

Mr. Grieve: Every day of the week, juries conclude that people are not telling the truth when they claim not to have foreseen a consequence of their acts; otherwise, there would be no convictions at all. Why should the Government tinker with a definition that was approved by the other place? The House of Lords said that the Government's definition of recklessness in the provision is unjust and should not continue.

Hazel Blears: We explored those issues in detail in Committee and, as I told the hon. Gentleman then, if he looks at rape and other sexual offences, he will find that there is an objective test of recklessness. In rape, an offence is committed only if the person carrying out the act does not reasonably believe that the victim consents. A person charged with rape cannot say that they believed they had consent; they have to prove the objective test that their belief was reasonable. There is thus well-established law that it is perfectly proper to   have an objective test of recklessness and that we should not simply believe what a defendant says were the circumstances. The formulation of subsection (1A) moves things up a field, as the hon. Gentleman will acknowledge. We are not saying simply that there should be a reasonable belief, but that the defendant could not reasonably have failed to appreciate the effect of his words. We have genuinely tried to achieve a tight formulation that still enables us to prosecute. That is a   perfectly legitimate objective for the Government and   I hope that the hon. Gentleman will accept it, despite his forensic examination of the legal niceties. That is legitimate, because we are talking about criminal offences, but it is my job to try to ensure that we have law that is practical, effective, workable and takes us away from the negligence provision, which I acknowledge was a concern. I think we have a good formulation.

John Bercow: As a matter of some pride, I state that I   am not a lawyer, but that does not preclude me from having legitimate concerns about the construction that
 
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the Government are proposing. I am unhappy—as I   was   on a previous occasion—about the reference to a statement and how it will appear to, or be interpreted by, "members of the public" to whom it is addressed. The provision does not specify which members of the   public; it does not specify that the statement should be made to a majority of the public, nor does it have the general threshold of right-thinking people. Is there not a danger that it is too wide?

Hazel Blears: As I say, we covered a lot of this ground in Committee, and I have genuinely tried to narrow the provision's ambit while trying to ensure that it is workable. I point out amendments Nos. 35, 41 and 42 to the hon. Gentleman. Again, they make an important clarification to the Bill. They make it clear that, for an offence to be committed, the audience has to understand that what is being said is an inducement for them and no   one else to commit terrorist acts. For example, no offence will be committed if a member of an audience at an academic lecture thinks, "Well, I am not encouraged to commit terrorist acts, but I can quite imagine that, if this sentiment was expressed at a gathering of young Muslim men, it could have an encouraging effect on them." I think that that is implicit in the drafting, but those amendments make it absolutely explicit that the   likely effect must be on the people to whom the statement is addressed. I hope that the hon. Gentleman will appreciate that that is another attempt by the Government to try to narrow the provision's ambit and focus it on the mischief to which this part of the Bill is addressed: those who directly or indirectly incite people to commit acts of terrorism. I hope that he will give us credit for seeking to narrow the ambit of the offence in those terms.

Mr. Robert Marshall-Andrews (Medway) (Lab): Will the Minister address a not-so-hypothetical example that concerns a lot of people? Given the state of the middle east at the moment, if someone—for instance, myself—says, "I can well understand why decent Palestinians become terrorists", they would still fall foul of the test. In making that statement, I must be taken to know that someone may well be encouraged to act because they are mad or highly radicalised. In those circumstances, I   would be reckless according to the Bill. I should very much like the Minister to address that point and, if she   would be good enough later to take another intervention, to ask her about amendment No. 64, which I tabled, and what is wrong with it.

Hazel Blears: Again, we have trawled over this ground to a large extent, but the offence has two limbs: the making of a statement and the likely effect on the   audience. If someone says that they could not reasonably fail to understand or appreciate the effect of a statement on the audience, that is a fair test about the circumstances in which they make that statement.

I think that I went through with my hon. and learned Friend last week the number of hurdles that we would have to overcome to bring a successful prosecution, and the provision will be even tighter now. Someone must have an intention or be reckless, and there is an objective test of recklessness. The statement must be likely to encourage others. There must be a realistic prospect of conviction. The prosecution must be in the public interest and the Director of Public Prosecution's consent is needed.
 
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For my hon. and learned Friend simply to make a statement with which someone could empathise or sympathise without knowing or being reckless in its effect on the audience does not fit the definition and formulation that we propose. With respect, he is stretching the definition and the circumstances to an untenable extent if he examines the current formulation. I know that he does not like the whole principle of the clause, but he is stretching things beyond the bounds if he is saying that he understands why people might find themselves in that kind of mindset. That will not make him fall foul of such a criminal prosecution.

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