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Mr. Marshall-Andrews:
I appreciate precisely what the Minister is saying. We are dealing not with an offence but a defence, and that defence being abrogated as a result of knowledge of what one is doing. I suspect that it is not that different from a situation in which, were there to be no defence, a member of the special branch or a senior police officer went to the internet provider and said, "This is on your site, and if you don't take it off we're going to prosecute you for it." Let me offer the Minister a thought. The police's ability to do this is undoubtedly an in terrorem measure. May I suggest that we build into the Bill—we still have time—
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an appeal process whereby, if it wishes, an internet provider that has been warned in this way can go to a judge for that judge to provide, on its appeal, whether proper or improper notice has been served? No delay would be involved. It would be at the internet provider's expense, we would not be in any way penalised by it, and it would assuage many of the problems that many of us have.
Hazel Blears: I understand my hon. and learned Friend's point. I do not know how many people share the same problems, but I think that the internet industry is content with the provisions as we have set them out and feels that they strike the right balance. It is not looking for extra judicial oversight or for an appeal process. We must get the balance right between being able to take swift action on a very fast-moving medium—the internet—and ensuring that people can still avail themselves of the proper defences to any prosecutions that might be brought but cannot avail themselves of the defence that they did not know about the material if they have been put on notice. That is a sensible and straightforward provision.
As I said, there is also no immediate penalty for failing to comply with a notice. In those terms, there is no need for an appeal process. If we want to prove offences under clause 1, we have to prove intent or subjective recklessness. In addition, there are the provisions on the consent of the Director of Public Prosecutions and the hurdle of the public interest. I talked about hurdles at great length when we debated this legislation in the past. I am concerned to ensure that there are safeguards.
I do not want provisions that lead to arbitrary prosecution, but I think that these provisions are appropriate. The amendments tabled in the other place would make them much less effective. If we are going to say that there needs to be judicial oversight of such material by a High Court judge, as suggested, that would subject the issuing of one notice, which merely notifies and requests the person to take down material, to the same amount of judicial scrutiny as the continuing detention provisions. I genuinely think that in this case we have got the balance right, with a specially trained special branch officer who works with the anti-terrorist unit, and is used to dealing with these issues, going to the service provider and saying, "This material is there, you ought to take it down, and if you don't you can't avail yourself of the defence that says you didn't know." It is a very straightforward issue, and with the greatest respect I think that Members are making heavy weather out of it.
Hazel Blears: However, I always respect the views of the hon. Gentleman, so I give way.
Dr. Lewis:
I am being persistent about the matter because I was one of the first people to issue a writ against an internet service provider for defamatory material. That is analogous to the position that we are discussing. The effect was instantaneous: the material was removed and promptly reappeared on the site of a foreign internet service provider. However, the Minister
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could consider a positive action—perhaps she has already considered it—that is more than the empty gesture that she is making. What is she doing about search engines? The danger of such material is not so much the people who know which websites to look for because they are already hooked, but those who enter terms into a search engine such as Google, which, as we know, is capable of deciding what it will produce if hit. Action on search engines would be of more practical value than what she is proposing today.
4 pm
Hazel Blears: My decision to give way to the hon. Gentleman is vindicated. As ever, he has knowledge and experience of such matters and makes a practical suggestion. I do not accept that our proposal is a gesture. I believe that it will have an impact on reducing the available material. However, I should like to investigate whether we could consider action—not necessarily in the Bill—to cover people who perhaps inadvertently go on to such websites and those who positively search for them. The hon. Gentleman makes a fair point.
I am sure that hon. Members want to try to ensure that our law is effective. I do not believe that an appeal process is necessary because providers can simply ignore the notice, in which case they cannot avail themselves of the statutory defence. We all accept the power of the internet today and the fact that it is capable of radicalising young men and women and exposing them to material that none of us wants them to see.
It is important that we disagree with the Lords amendments. They are cumbersome, not at the right level, would lead to delay and make the provisions much less effective.
Mr. Ellwood: Does the Minister concede that, if the internet played any part in the 7/7 bombings or any of the other international terrorist events, the websites and internet service providers are likely to have emanated from abroad? If we are to tackle international terrorism, the provision may be a step in the right direction but it will hit many innocent organisations that will now have to be careful, while not touching internet service providers and websites that deliberately send messages and are used by terrorists as a form of communication.
Hazel Blears: I am pleased that the hon. Gentleman accepts that the provisions will have some effect. I do not pretend that they will eradicate every bit of unacceptable material from the whole internet. It would be difficult to draft such provisions without their leading to complaints that they were too draconian and authoritarian. We are trying to get the balance right. We constantly work with our colleagues in the European Union and other nations throughout the world to try to ensure that we bear down on global information that can drag young people into terrorist activity.
Other member states are as concerned as us to try to reduce such internet activity in their countries. We have negotiated some good agreements, especially in the EU, about sharing information and trying to harmonise the retention of communications data. That, too, will help in our fight against terrorism. Hon. Members should
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rest assured that the Government are not idle. We constantly try to ensure that we maximise our ability to intervene.
David Taylor (North-West Leicestershire) (Lab/Co-op): I have listened carefully to my right hon. Friend's comments about the attitude of internet service providers in the United Kingdom and elsewhere. Is not it at least possible that internet providers and the Governments of the countries where they are located are not necessarily reluctant for some of the more marginal material to be left on the web because one could thereby track the source and addresses of those who access the sites? Is not that a form of intelligence that could help tackle some of the problems that my right hon. Friend describes?
Hazel Blears: I do not necessarily accept the advice that we should allow material that is clearly dangerous to remain on websites to try to get intelligence.
David Taylor: Marginal material.
Hazel Blears: Those are matters of fine judgment and I do not want to consider the provisions that we discussing in that way. We have some straightforward provisions that would notify providers that material was unacceptable and that they should remove it, tell them that they could choose to ignore the notice but that, if they did so, they could not avail themselves of the statutory defence that they did not know about it. The provisions from the other place would elevate this matter to too great a level by seeking to have judicial scrutiny of the process. The internet service providers have not requested that; they are happy with this process and feel that it will help to reduce the amount of such material available. This is a practical and common-sense provision, and I ask the House to disagree with the Lords amendments and to approve the original wording of the Bill.
Mr. Grieve: I have listened with interest to what the Minister has said on this matter. We share her aims in clause 3. We entirely agree that it should be possible to give a notice to take down internet material that offends under clauses 1 and 2. We have no problem with that. The difficulty is, as the Minister will acknowledge, that the internet service provider is in a different position from the person who has put the material on the web in the first place.
We take the view in this country that the internet is a powerful tool for disseminating information, and that on the whole—although it can be used for bad purposes such as pornography, child pornography and, indeed, terrorism—the balance is in its favour in that it allows the distribution of information around the world. It is therefore in the public interest that the principle of the freedom of the internet should be maintained. Disquiet has been expressed recently that, under pressure from some foreign Governments, internet service providers and search engines have been prepared to reach accommodations with those Governments to withdraw certain material, particularly in China. That is an infringement of the ability to communicate freely. There is a serious public interest in maintaining the right to communicate freely on the internet.
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I fully understand how the Government's provision will operate. There will be trained officers to carry out research work and serve the notices. That is all perfectly appropriate, but, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) so rightly said, when a person receives one of those notices, it is in terrorem. They will receive a notice telling them that they risk prosecution unless they remove the material, and that they will not be able to rely on the statutory defence of lack of knowledge. Any internet service provider that is doing its job properly and is respectful of the public policy arguments relating to the maintenance of freedom of speech will have to make a judgment as to whether the police officer is right to serve the notice. There could be instances in which an internet service provider decided that the case was borderline. It would not be the first time in our history that a police officer had made a mistake, however well-intentioned they might be.
In those circumstances, what could be more sensible than to provide a mechanism to reassure the internet service provider that an independent third party had scrutinised the request from the police officer, so as to establish that there was at least a prima facie case to justify the officer's action? That is all that we were talking about, when the other place inserted the judicial scrutiny provision.
I was surprised to hear the Minister say that this would be no different from the scrutiny of control orders. She has failed to understand the nature of the review that a judge would carry out. I would assume that it would be identical to those made on an ex parte application for an injunction. The police officer would simply have to show the material to the judge, and the judge would have to make a swift assessment of whether he thought that it fell foul of clauses 1 and 2. The judge would then give his approval. That would provide the reassurance to the internet service provider that he was taking the right decision in taking the material off the web.
The Minister seemed to say that there was a great need for haste in such cases. I confess that I was a little surprised about that, because when we debated clause 3 it never occurred to me that it, or clauses 1 and 2, would be used as an emergency provision suddenly to remove or prosecute people. Instead, it seemed that it was part of the Government's perfectly commendable plan to ensure that the circulation of material that constituted a direct or indirect encouragement to terrorism could be controlled. The truth, I suspect, is that material of that kind is likely to have been on the web for weeks if not months or years before somebody finally starts taking action against it. That there will be some threat to the public from a delay of 24 hours, which is probably all that would be needed in order to go before a judge—in an emergency, the delay would probably be of a few hours, and the hearing could probably be done in the middle of the night were there some pressing reason—does not therefore seem to be the best point that the Minister has made in the debate, although I acknowledge that I do not take exception to the broad thrust of what the Government are trying to do.
I regret that the Minister has not persuaded me that the amendment was a foolish move by those in the other place to try to improve the Bill. I am a little disappointed
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not to have seen her telling us cheerfully from the Dispatch Box that it was rather a good idea and a minor improvement to the Bill that should commend itself to the House.
The hon. and learned Member for Medway made the point that the other approach would be to have an appeal procedure. That is another way of doing it. It would provide for some degree of judicial review of the decision taken. Where people are making a decision that interferes with the normal right to exchange information, it seems to me that the cost, which would not be much anyway, could properly fall on the state, at least in providing for this scrutiny measure. To be fair to the Minister, she has not suggested that the scrutiny measure will undermine the provisions of clause 3, as that would be rather far-fetched.
The measure is not of huge importance, but having read it and considered what the other place has done, it seems to be a material improvement to the Bill. When first confronted with the amendment, which did not come from my party, my colleagues in the other place took the view that it helped matters. I am therefore sorry to learn that the Minister is unsympathetic to the amendment. If, as I assume will be the case, the matter is pressed to a vote, Conservative Members will vote for the amendment to be retained, because although it is not of huge importance, it is a minor and sensible improvement to the legislation.
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