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Mr. Mike Hancock (Portsmouth, South) (LD): I am grateful to the Minister for that explanation. However, bearing in mind the criteria that she has laid down for a prosecution to be brought, does she agree that a prosecution could only ever be successful if the prosecutors could deliver before a jury witnesses who had been influenced by what had been said?

Hazel Blears: I am glad that the hon. Gentleman appreciates that the formulation that we propose for the clause is fairly tightly drafted and does not cast the net too wide. Clearly, the individual circumstances are important. I have been asked on many occasions to speculate on what kind of phrases might make people fall foul of the provision. The only example that I have felt comfortable giving is where someone says, "Wasn't it a fantastic thing that happened on 7 July?" knowing that the likely effect is to encourage their audience to engage in acts of terrorism. We are genuinely trying to   aim this legislation at that kind of formulation, not at all the wider examples. Sometimes, the offence has been stretched beyond the realms of possibility, and we have genuinely tried to narrow it down to the mischief that we are trying to target. The amendments narrow the provisions on the audience itself. The likely effect on the   audience is the second limb of the offence, so there is a consideration of what is done and the likely effect of that on the audience.

5.30 pm

Mr. Marshall-Andrews: I hope that I can be constructive on this point. The Minister will be aware that I have tabled amendment No. 64. It would add to the recklessness test a determination of whether a person

an encouragement or an inducement—

That measure would deal precisely with the problem, because if I said something that I thought that a reasonable member of the public might take to be an   inducement, I would be guilty—I could understand that. The problem that we all have at present is that if I   say something that I know that a very unreasonable member of the public might take to be an inducement, I   would undoubtedly be caught.

Hazel Blears: I refer my hon. and learned Friend to amendments Nos. 35, 41 and 42, which address the effect on the audience to which a person was speaking. We have narrowed down the provision so that we are   not considering mythical people who might be
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radicalised or mentally unstable, such as those in the examples that he gives, but the audience that is being addressed.

John Bercow: I do not think that that deals with the issue. I acknowledge that the Minister has worked hard to try to improve the Bill. I am happy to concede her good intent, but that does not mean that the result is satisfactory. I repeat the point that was implicit in what   the hon. and learned Member for Medway (Mr.   Marshall-Andrews) said. When a statement is published, its audience is necessarily wider and larger than that for a statement that is not published. Unless a more reasonable amendment is agreed to, surely we could be considering a mad, neurotic, or frankly hypersensitive individual who could be influenced to behave in a particular way, although that individual might well have behaved in that way anyway. The provision is too broad and an amendment such as that which the hon. and learned Gentleman has in mind would narrow it substantially.

Hazel Blears: I do not propose to narrow the offence to the point at which it would become impossible to prosecute. As I have said on several occasions, there is a real problem with people making statements that they know will encourage others to undertake terrorist acts. We need legislation that is focused on such mischief and able to deal with it. The hon. Gentleman might wish to narrow the offence even further, but I think that our formulation will address people's genuine concerns. He raises the prospect of one person who might take a statement in such a completely unreasonable way. I have set out the fact that there will be seven hurdles before there is a prosecution, so the likelihood of a prosecution for a criminal offence in such circumstances would be infinitesimal. It is not the business of the House to make legislation in such terms. There is a broad and reasonable case for our formulation. I have gone this far, but I am afraid that I shall go no further, not even for the hon. Gentleman.

Ms Sally Keeble (Northampton, North) (Lab): Does my right hon. Friend agree that the formulation of some of the Government's proposals is similar to that of race relations legislation, in which there is a consideration of intent, recklessness and the impact on an audience, which is a crucial aspect of making such legislation work   properly and ensuring that its implementation is reasonable?

Hazel Blears: My hon. Friend is right. She takes an approach that I hope that the whole House will adopt. She takes a practical approach to our legislation by trying to ensure that it works, but that it does not have unintended consequences, such as those raised in Committee regarding the negligence test, which I have tried to address today.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): In response to an amendment that I tabled in Committee, I think that the Minister indicated that there was a problem with specifying the qualification that there must be a danger of a terrorist offence being
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committed. Would not adopting such a provision, which is in the Council of Europe convention on the prevention of terrorism, deal with the problem that has been identified regarding one person who hears a statement? If there had to be such a danger, it would deal with the argument on prosecutions that she is trying to address.

Hazel Blears: I remember our discussion in Committee. I think that the response that I gave to the hon. Gentleman then still stands. If an actual danger had to be proved, it would set the threshold too high and the prosecution would find it difficult to bring a case. We are trying to get the balance right so that we can use the legislation to prosecute people who are causing a real problem in this country, yet ensure that we do not inadvertently bring people into the net who quite properly should be allowed to say the things that they want to say. That is at the heart of the Bill—we are trying to get the right balance between the correct security measures and the protection of liberty and freedom of speech. I am trying to draw that balance correctly without erring in favour of either priority. I do not want the Bill to be a piece of legislation under which people can still say those things with impunity because they are clever enough to formulate their words knowing that they will have an effect on other people but   that they will escape prosecution themselves. It is   not in the interests of anyone in this country to allow   that situation to continue. Most of the remaining   Government amendments in this group are consequential, as the meat of the argument is contained in Government amendment No. 34. We have found a formulation that works, and I hope that it will be accepted by all hon. Members.

Amendments Nos. 19, 14, 2 and 21 would all have the same effect. Instead of allowing a recklessness test that would cover individuals who could not reasonably have failed to realise the likely effect of their actions, they limit the offence to people who intend or can be shown to have known the likely effect of their actions. As I said, that recklessness test is subjective, as opposed to objective. I have received advice that the formulation in subsection (1A) of amendment No. 34 is drafted to reflect the Caldwell case. The hon. Member for Beaconsfield (Mr. Grieve) will know more about that than I do, but it is right to include such a test. If we simply used a subjective test, individuals who brazenly encourage terrorism would be able to argue, despite the fact that they could not reasonably have failed to understand the likely effect of their comments, that they did not foresee the risk that members of their audience would be encouraged to commit acts of terrorism. The difference between that subjective test and the test in the   Government amendments is crucial to the success of the legislation. Without an objective test, people could simply say that they did not intend their words to have a particular effect on their audience, and that they did not have any idea what would happen. We all know of individuals who have made such statements, but we have found it impossible to prosecute them. We want to make sure, however, that we can do so in future.

We have tightened the provisions in clause 1 considerably, but we have preserved the integrity of the   offence so that the measure is effective. Briefly, Government amendments Nos. 49 and 50 deal with a
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minor but important matter. Clause 18 provides that, if a corporate body is guilty of an offence under part 1, a senior officer of that body is also guilty. Originally, his connivance, consent or neglect was required, but hon.   Members expressed concerns about an offence committed by negligence. As a result, the Government amendments tighten the provision and remove the neglect limb, so I hope that they will be welcomed by Members on both sides of the House.

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