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Mr. Grieve: Under the test that I am proposing in amendment No. 19, if the people who were listening
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were unreasonable, that would give a perfectly good defence because the speaker would argue that they had no reason to foresee the consequences of their words. It would not be reasonable to expect someone to foresee the consequences where unreasonable people were involved.

Mr. Marshall-Andrews: I profoundly disagree with the hon. Gentleman. I would foresee the consequences on unreasonable people. I would foresee the consequences of what I say on both reasonable and unreasonable people, and on the mad and the halt and the lame and everyone else. I would perceive it to be quite clear that they would be induced in those circumstances. It is to everyone that the statement is being made, and I must be taken to understand that it will have an effect on everyone—reasonable or unreasonable. I hope that that answers the hon. Gentleman's point.

Mr. Heath: The Government are developing a prodigious talent for snatching defeat from the jaws of victory. They undertake a listening exercise, and agree that something is wrong with their Bill and try to find a way to resolve it. They go almost all the way towards securing the support of Members in all parts of the House, then they ruin it by quite extraordinary drafting. That is very regrettable. I would have hoped that last   week's debate, which was perhaps in rather more high-flown terms than we are mustering this evening, might have persuaded the Government that they had to do the job properly. The result of last week's vote might have indicated that were they not to do it properly, the Bill was highly unlikely to survive in this House or another place without further amendment. I   regret that the Minister has come to the House with a rather unacceptable amendment.

I want to return to the origins of what the Government are trying to do, with which I have a number of problems. First, I do not understand why the current incitement offences on the statute book are insufficient to deal with the issue, apart from the fact that they are not prosecuted. Many of us find ourselves increasingly impatient because the police and prosecuting authorities do not use the offences already there to deal with the problem. Undoubtedly, incitement offences could have been used on occasions against prominent individuals who would be caught by the prospective legislation.

Secondly, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) pointed out, incitement is the correct term in the context of such an offence, rather than encouragement. It worries me that such a mild term is used in a way that is open to all sorts of constructions, which we have yet to learn, as the matter has not been before a court. I also worry because we have still not secured—and I do not think that we will do so this evening—an adequate definition of terrorism and terrorist offences. Potentially, therefore, an offence can be drawn from a much wider field.

I do not know whether the Minister intended—or   whether she was simply wilfully reckless in the matter—to bring forward an amendment with a self-contradictory internal structure. As the hon. Member for Beaconsfield (Mr. Grieve) ably set out, it
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applies two conflicting tests—the objective test of recklessness and the subjective test of recklessness—in relation to the same clause. It is recklessness of a high degree to consider what the court has expressly rejected and then to introduce that in new legislation, as though nothing had happened and it had never been considered. That might be part of the Prime Minister's declared policy, as expressed at Prime Minister's questions today—that he would prefer to listen to police officers than Law Lords. I am sure that that will endear him to those who will consider this Bill later. Perhaps he believes that Law Lords simply do not understand law in the same way as police officers do. I must, however, counsel Home Officer Ministers that that is not a sensible way of approaching the issue.

Hazel Blears: Does the hon. Gentleman accept that it is appropriate to have an objective recklessness test in the sexual offences field, and in the Proceeds of Crime Act 2002 relating to money laundering? A range of issues in legislation have an objective recklessness test.

Mr. Heath: There are a number of points to make. First, we are dealing with a constraint on freedom of speech, which does not apply to those other offences. In the sexual offences legislation, we are dealing with a specific issue of an interaction between two people in which the critical issue is consent, and in which one person's word will often be used against another's, and in that instance it is absolutely appropriate for the jury to come to a view on an objective test. I really do not understand how the Minister can come to the Dispatch Box, apparently briefed by her civil servants, to proclaim proudly that what she hopes to enact is that which is within the Caldwell case, which the hon. Member for Beaconsfield has described as something that leads to injustice. The Minister parades case law that has apparently been interpreted as leading to injustice as an argument for including it in the Bill. The House deserves rather better than that.

The hon. Member for Beaconsfield made an interesting point about what a cleric newly arrived in the country might understand the clause to mean. As he said that, it occurred to me that the cleric might be quoting holy scripture. [Interruption.] The hon. Member for Birmingham, Perry Barr (Mr. Mahmood) feigns incredulity, but I could quote a large amount of holy scripture that would fall within the constraints of the clause. That worries me. It also occurred to me to wonder—this too is an aside—what the position of an interpreter would be. Does an interpreter publish the words that he is asked to interpret? At what point does his understanding of what he has been asked to interpret become a potential offence under the clause?

Mr. Grieve: Let us suppose that someone is called in to interpret a speech given in Arabic by a cleric to a British audience. As the translation proceeds, he realises that his action constitutes an incitement to terrorism. He will have to stop. That must be the answer, because otherwise he would commit the offence.

Mr. Heath: I agree that he would have a duty to stop, but that is asking a good deal of someone providing a simultaneous interpretation.
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Lyn Brown (West Ham) (Lab): Someone using a religious script would be fine. The issue is the interpretation of that religious script at a meeting, and whether it might constitute an incitement to terrorism. Unless the hon. Gentleman can give a quotation from any religious book that he chooses which shows that simply reading it would constitute incitement, he should withdraw what he has said. Members of my community, certainly, would be quite offended by it.

Mr. Heath: I am sorry that the hon. Lady feels affronted or insulted. I do not know what her community is, but I   can say that it is fairly easy to identify scriptures in my tradition which, if delivered to   an appropriate audience, might—in terms of an objective test for recklessness rather than clear intent—[Interruption.] For instance, an eye for an eye, a tooth for a tooth. In the context of someone discussing an atrocity elsewhere, that could be interpreted as falling within this definition.

Dr. Evan Harris: That sort of language should not be protected simply because it is in holy scripture if it constitutes indirect incitement according to a narrow intentional or subjective recklessness test. The problem lies not with the fact that it is scripture, but with the width of the law. The fact that it is scripture should not confer on it any protection or any extra liability.

Lyn Brown: Will the hon. Gentleman give way?

Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I   think the hon. Gentleman must first reply to the intervention from the hon. Member for Oxford, West and Abingdon (Dr. Harris). He may then be generous enough to give way to the hon. Lady.

Mr. Heath: I am grateful to you, Mr. Deputy Speaker. I was wondering whether I would be required to give a sedentary response.

My hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) is absolutely right. There are circumstances in which scripture could clearly be used as an incitement to violence, and there are times when that should be prosecutable, but there are also times when, under an objective test of recklessness—when it is not the speaker's intention to incite or encourage such an act in any way—scripture could fall foul of the clause. That is a serious matter.

The Government are keen for there to be a read-across between this part of the Bill and an equivalent part of the Racial and Religious Hatred Bill. We know that that is part of the game-playing, aimed at including an identical definition in two controversial Bills so that they can be used in conjunction with each other.

6.15 pm

We have limited time and I do not want to speak at length to the amendment in my name, but I should point out to the hon. and learned Member for Medway that although I am always encouraged by his arguments and he made a cogent case, I have a serious concern with his amendment, which is the use of the word "reasonable" and the phrase

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By definition, we are dealing with unreasonable members of the public in talking about incitement to terrorism. I appreciate that his test will be whether he, as the speaker of such a statement, would have expected

but I can foresee circumstances in which the effect will be on those who are distinctly unreasonable, in that they are predisposed to committing acts of terrorism. That is a flaw in his definition, but he may disabuse me of that view.

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