 House of Commons |
Session 2007 - 08 Publications on the internet General Committee Debates Counter-terrorism |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeThursday 15 May 2008(Morning)[Mr. Edward O’Hara in the Chair]Counter-Terrorism Bill9
am
The
Chairman:
Welcome back. I trust today will bring a speedy
and satisfactory conclusion to our proceedings.
Clause 68Amendment
of definition of “terrorism”
etc
Question
proposed, That the clause stand part of the
Bill.
Mr.
Dominic Grieve (Beaconsfield) (Con): Regrettably, I do not
think very much of clause 68, and do not understand at all the need to
amend the definition in the way proposed. I cannot conceive of a
circumstance in which a “racial” cause is not already
encompassed within “political, religious or ideological”,
because anybody seeking to carry out terrorism on the back of a racial
motive would already be caught. For us to add yet another unnecessary
category to this growing list seems to me bad legislation, and we
should try to avoid
it.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I agree
with my hon. and learned Friend. In fact, I tabled an
amendment—I can well understand that that is unnecessary,
because we have a stand part debate—to delete the word
“racial”. However, I agree with my hon. and learned
Friend that we should be very cautious about extending the range of
“terrorist offences”. We need to keep in mind that
conviction for a terrorist offence attracts a whole range of penalties
and consequences that go outside the normal range of criminal
law. The Committee has already dealt with freezing orders and
forfeiture orders, and we are conscious that terrorist-aggravated
offences receive higher sentences. Therefore, we should not add to the
classification of “terrorist offences” unless there is a
very compelling
reason.
Moreover, as
the Committee will know, racially-aggravated offences already attract
higher sentences under existing law. We are entitled to ask, as my hon.
and learned Friend has asked, what the word “racial” adds
to that which is already in the definition. My own belief is that its
inclusion is simply for political correctness, and I suspect that there
is absolutely no justification for it. I shall of course listen to the
Minister explain his reasons, but my instinct is to vote against clause
stand
part.
Tom
Brake (Carshalton and Wallington) (LD): I support those
points. The present definition would not include matters of a racial
nature, and therefore we are very suspicious of this change and of the
need for
it.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
Funnily enough, we start
with consensus, in the sense that neither Lord
Carlile nor I argue that the change broadens the
offence. If it adds anything, it is clarity, because where
“religious” is already utilised in our law, it has
increasingly been the case that “racial” has been added
as well. I agree broadly that anything that is racially motivated would
be captured by the original wording. However, Lord Carlile says that
the words are added only for clarity—not political correctness
or any such nonsense—and to bring our definition in line with
European and international ones, given that UN Security Council
resolution 1566, which defines terrorism, includes the word
“racial”, and the Council of Europe convention on the
prevention of terrorism 2003/32 also uses that word. That is the only
reason that the words are
added.
Tom
Brake:
The Minister seems to have said that he would
expect such offences to be covered by the present definition anyway,
and that the change is about adding clarity. Does he not agree that, as
a general principle, shorter legislation is better than longer
legislation?
Mr.
McNulty:
No, not necessarily. As a guiding principle, that
is nonsense. What we seek is clarity: the clearest, most
straightforward legislation possible. We do not legislate by counting
the number of words, for God’s sake. We use the appropriate
number of words and the appropriate phraseology for the Bill. Whenever
we put matters relating to race or religion into law, not least in
relation to aggravated offences as the right hon. and learned Member
for Sleaford and North Hykeham suggests, they are invariably bracketed
together. For that reason, there might be confusion. I am happy to have
a further look at the clause, but I do think that it adds a degree of
clarity in our European and international dimensions
without adding to or broadening the definition. I commend it to the
Committee.
Question
put, That the clause stand part of the Bill:—
The
Committee divided: Ayes 10, Noes
7.
Division
No.
12
]
AYESNOES
Question
accordingly agreed to.
Clause 68 ordered to stand
part of the
Bill.
Clause 69Offences
relating to information about members of armed
forces
Mr.
Grieve:
I beg to move amendment No. 197, in
clause 69, page 49, line 31, leave
out from ‘Forces’ to ‘useful’ in line 32
and insert ‘with the intention that it
is’.
No. 44, in
clause 69, page 49, line 34, at
end insert ‘and
(c) intends that
the information should be useful to a person committing or preparing an
act of
terrorism.’.
No.
198, in
clause 69, page 50, line 12, at
end add—
‘(4) In section 58
of the Terrorism Act 2000 (c.11) (collection of information) in
subsection (1) for “of a kind likely to be” substitute
“with the intention that it
is”’.
No.
235, in
clause 69, page 49, line 36, after
‘prove’, insert
‘—
(a)
’.
No.
236, in
clause 69, page 49, line 36, after
‘action’,
insert—
‘(b) that at the
time of the alleged offence he did not know and had no reason to know
that the information or the disclosure of such information was of a
kind that was likely to be helpful to a person committing or preparing
an act of terrorism;
(c) that
at the time of the alleged offence he believed that disclosure of such
information was in the public
interest.’.
Mr.
Grieve:
The next of these miscellaneous clauses deals with
the creation of a new terrorist offence in relation
to eliciting, publishing or communicating information about members of
the armed forces. If I may say so at the outset, I am perfectly aware
of the nature of the Birmingham plot, and that there has been clear
evidence that individuals have been attempting to obtain such
information for the purpose of doing harm to members of the armed
forces.
My concern is
about the wording of this new offence:
“A person commits an
offence who—
(a) elicits
or attempts to elicit information about a person who is or has been a
member of Her Majesty’s Forces which is of a kind likely to be
useful to a person committing or preparing an act of terrorism,
or
(b) publishes or
communicates information of that
kind.”
A moment’s
pause makes one realise that that is rather broadly drawn. On the face
of it, because we are concentrating on information which is,
“of a kind likely to be
useful”,
the truth is
that almost any information is covered. A perfectly legitimate attempt
by a law firm to write a biographical note giving details about
a serving member of the armed forces might, quite innocently, reveal
material which might be “likely to be useful”.
Indeed, I
recollect, going back to the days of terrorist offences in Northern
Ireland, a number of occasions when individuals were arrested in this
country, with information on them that made the security services and
the police think that a terrorist plot might be attempted. A map of the
area where a Government Minister lived was found. There were details
from telephone directories. There was information—all of which
was publicly obtainable—that, when put together as a package,
clearly indicated the possibility of a malevolent intent. Indeed, a
prosecution was based on that.
On the face of it, the
provision is now so widely drawn that anybody who attempted to elicit
that sort of information might find themselves committing an offence. I
cannot believe that that is an appropriate way in which to draft a
criminal offence with a sanction of 10 years’ imprisonment. I
appreciate that it could be argued that the wording
in amendment No. 197 would
cause another problem, as we would have to show the
intention from all the surrounding circumstances—undoubtedly a
more difficult hurdle for a prosecutor to get over than the
current wording. However, just because something involves an extra
hurdle, it does not justify our creating an offence as widely drawn as
that set out in the Bill.
I know the usual answer given
by Ministers in such circumstances, because I have heard it before: the
Committee should not worry because no one will prosecute a 10 or
11-year-old boy who tries to elicit information about a hero figure who
has come back from Afghanistan; the Director of Public Prosecutions and
the Attorney-General, in their wisdom, would not prosecute such a
person.
On the whole,
the law must maintain an element of certainty so far as it is possible,
and the clause creates an offence that is extraordinarily uncertain in
its scope. Anyone, however innocently, eliciting information for a
legitimate purpose about somebody who is, or has been, a member of the
armed forces could be caught by it. It would be easy to show that that
information might be useful to a person who was preparing an act of
terrorism. If the Minister can come up with an alternative view of the
drafting, I shall listen carefully. New Labour used to say that there
was a third way, but at the moment I do not see it. The clause is much
too widely drafted. It might also worry journalists who want to carry
out legitimate journalism.
Tom
Brake:
Amendments Nos. 44 and 197 are similar. A few
moments ago, the Minister spoke about the need for clarity. The
amendments would clarify in what circumstances the law would be
applied. My hon. Friend the Member for Somerton and Frome
whispered in my ear that someone preparing material for
Jane’s Fighting Ships might fall foul of the clause. Did
the plane spotters in Greece have a reasonable excuse for what they
were doing? Was the fact that they were plane spotters a sufficient
safeguard? I hope that the Minister will go away and look again at the
matter. Under the amendments, it would be necessary to show clear
intent that the information procured will be useful to someone
committing or preparing an act of terrorism. We need that sort of
clarity in the Bill, and I hope that he will take that on
board.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Having read the
clause, we see that a person would have a defence if it were proved
that he had a reasonable excuse for his action. However, proposed new
section 58A will criminalise the collection, making
or possession of a record of information that is likely to be useful to
a person committing or preparing an act of terrorism. It goes further,
using “eliciting”, which means that a person will commit
an offence if they try to obtain information and make no record of it.
Liberty, for example, argues that that might already be covered under
section 1 of the Criminal Attempts Act 1981, which criminalises acts
that are more than merely preparatory to the commission of another
offence. I would be grateful if the Minister could respond to that
point in due
course.
9.15
am
I would like to
raise one other point. Going back to reasonable excuse, which is
important, proposed new section 58A(2) says that if a person charged
can prove
a reasonable excuse then section 118 of the
Terrorism Act 2000 applies. The use of that defence means that, if the
defendant produces evidence sufficient to raise an issue, the duty is
on the prosecution to prove beyond doubt that the issue exists. That
appears to strengthen the defence by placing the burden on the
prosecution. However, there is also a restriction to the defence of
reasonable excuse—that it will not provide protection to those
who act thoughtlessly or carelessly. Would a person who was duped into
eliciting information by others—others with terrorist
intent—be unlikely to have reasonable excuse? My fear is that
that person could thereby be convicted, even if that
person carelessly or thoughtlessly had no idea that information was
being used with that malicious intent. Will the Minister respond to
that point in due
course?
Mr.
Hogg:
I, too, want to express my concern about the clause,
and to speak briefly to my amendments Nos. 235 and
236.
There is already
an offence under section 58 of the Terrorism Act 2000, which is drawn
in pretty broad terms. It
states:
“A
person commits an offence if...he collects or makes a record of
information of a kind likely to be useful to a person committing or
preparing an act of terrorism, or...he possesses a document or
record containing information of that
kind.”
Clause 69 is not
an alternative; it adds to that. My first question is whether clause 69
adds anything to the law as presently stated in section 58 of the
Terrorism
Act.
Mr.
McNulty:
Section 103 of the Terrorism Act 2000 explicitly
refers to members of the armed forces, among others. That has since
been repealed, because it was directed only at Northern Ireland. The
clause simply puts the armed forces focus of section 103 into the
broader section 58. That is the only reason for
it.
Mr.
Hogg:
When the right hon. Gentleman comes to reply more
fully, I would be grateful if he will expand on that. Section 58 seems
to cover the substance of what we would be seeking to cover under
clause 69. The extent to which clause 69 adds to the substance covered
by section 58 is still not clear. That is the first point on which I
would be grateful for greater clarification from the
Minister.
The second
point develops that made by my hon. and learned Friend the Member for
Beaconsfield. It is an anxiety that I had about section 58 itself.
Section 58 seems to me to be drawn in sufficiently wide terms to cover
journalists and whistleblowers. If they identify any defects in our
security system—for example, at an airport—they would be
liable to prosecution, subject to the statutory defence, under section
58. I agree that clause 69 is more narrowly drawn, but there is a
genuine anxiety that whistleblowers and journalists might find
themselves facing prosecution if they have identified faults relating
to members of the armed forces and then sought to publish them. The
point about Jane’s Fighting Ships is rather interesting,
provided that it was specific to individuals, but I can well understand
that, for example, one might identify errors in the procurement
department that resulted in armed servicemen serving in Afghanistan and
Iraq not being provided with adequate equipment, or defects in the
warning systems. If that information were to be published and
personalised, I would have thought that
that would run the risk—a serious
risk—of courting a prosecution under clause 69.
That takes me to my next point.
I do not like reverse burdens of proof, and that is covered in part by
amendment No. 236. Clause 69(2)
states:
“It is
a defence for a person charged with an offence under this section to
prove that they had reasonable excuse for their action.”
Will that impose upon a
possible defendant the persuasive and legal burden, or will it be
merely an evidential burden? The Minister will keep in mind that the
courts have applied a variety of approaches to this. Sometimes a clause
of this kind does no more than impose an evidential burden so that the
defendant has to produce some evidence of reasonable excuse, and it is
then for the Crown to negate the reasonable excuse. That is the
evidential case.
However, there is also a class
of cases—section 91 of the Medicines Act 1968 is an
example—in which the reverse burden of proof, which is actually
couched in almost identical terms to this, constitutes a legal or
persuasive burden. In other words, the defendant has to prove on the
balance of probabilities that he or she comes within the defence
afforded by the section. I do not know whether what is contemplated by
clause 69 is what the courts call the evidential burden, or what they
call a legal and persuasive burden. It is important that the Minister
give us his opinion on that matter, if only for the guidance of the
courts hereafter.
My
next point is whether the persuasive burden is on the
prospective defendant. I want to enlarge the category of the defences
to include those set out in amendment No. 236—in effect, that
the defendant had no actual or constructive knowledge that the
information and/or disclosure of the same was likely to be of
assistance to a terrorist, or alternatively, that at the time of the
alleged offence he thought that the disclosure was in the public
interest.
The public
interest defence that I have incorporated in the amendment is basically
intended to assist whistleblowers and journalists. It is right that in
certain cases, subject to the views of the jury, a defendant should be
allowed to assert, “I thought that there was a public interest
in disclosing this information,” and claim that he thought he
was identifying serious shortcomings in the armed services, of which
the public needed to be aware. That is the explicit purpose of
amendment No. 236. Incidentally, I also agree with amendment No. 197,
tabled by my hon. and learned Friend, which would make it absolutely
plain that the Crown has to prove intent. He is absolutely right to say
that that amendment would make it more difficult for the Crown. Too
bad, I say. We are not in the business of making it easier for
prosecution authorities.
You will remember,
Mr. O’Hara, that I did not have the pleasure of
attending the Committee’s first sitting when it addressed the
Bill. That was because I was involved in a case relating to the
Medicines Act 1968, in which it was clear that the Crown had misused
its powers and there had been a gross abuse of Executive authority. I
fear that precisely that sort of situation could arise in this
case.
Mr.
Crispin Blunt (Reigate) (Con): As I understand it, the way
that my right hon. and learned Friend has drafted his amendment would
require the potential defendant to establish all three points. I cannot
imagine that that is what he is trying to
do.
Mr.
Hogg:
My hon. Friend is right, but if I have done so, it
is the result of poor drafting on my part—I am not a very good
draftsman—as that was certainly not my
intention. These are separate, free-standing defences. There is the
general, reasonable excuse defence, and then I have tried to spell out
alternative, specific free-standing defences. If I have erred, I
apologise, but it was not my
intention.
Mr.
McNulty:
Rather as when we last met, although I cannot
remember which particular clause we were debating, we are collectively
guilty of looking at the amendments to this clause, not simply in
isolation from the rest of the Bill and from the Terrorism Act 2000 in
its full context, but completely in isolation from due process and the
rule of law in this country.
The hon. Member for Meirionnydd
Nant Conwy came closest to what we should be doing by
relating the clause to section 118 and all other matters. The
discussion about whistleblowers and journalists is abject nonsense in
any terms, unless the researcher for Jane’s then tootles
off to a terrorist and gives him the elicited information. That is
simply what the clause is
about.
“elicits or attempts
to elicit information about a person who is or has been a member of Her
Majesty’s Forces which is of a kind likely to be useful to a
person committing or preparing an act of
terrorism.”
The next
paragraph follows “or”. On the face of it, there is no
need to show that somebody has tootled off to talk to a proto-terrorist
at all. The problem is that the offence is made out the moment that
that information has been elicited or attempts have been made to elicit
it.
Mr.
McNulty:
In the context of terrorism; it will be part of
clause 58 of the Terrorism Act, “Collection of
information”. Case law is very clear on the matter too.
Incidentally, the other small point, which I do not think was the
import of any of the amendments, is that this particular offence, which
people recognise the propriety of in terms of what we are trying to do
for our armed forces, will be on a different footing from the broader
issue of collecting information more generally in the Terrorism Act
2000. We will be saying that there is a higher bar, a higher test in
terms of eliciting information about our armed forces than there
is—as the hon. Member for Meirionnydd Nant Conwy pointed
out—in section 58 of the 2000 Act more generally in the
collection of information useful for terrorists. I am pretty sure that
is not the intent behind the amendment, but that will be its
consequence.
Mr.
David Heath (Somerton and Frome) (LD): I must bring the
Minister back to the point that somehow one has to offer or be engaged
in some sort of discourse with a terrorist for this offence to bite,
and that that is shown by its context after section 58 of the Terrorism
Act 2000. Is the right hon. Gentleman saying that this new clause is
qualified by other clauses within
the Terrorism Act? If it is not, and if it is read
as it stands, that is clearly not the case. That is why the amendments,
tabled by the hon. and learned Member for Beaconsfield and my hon.
Friend the Member for Carshalton and Wallington, are so
important.
Mr.
McNulty:
Go away and read the Bill. Section 117 says very
clearly that it is for the DPP to sanction a prosecution in the context
of the Terrorism Act 2000 and all of its import and contexts. Then we
come to the context of section 118 that the hon. Gentleman referred to,
which deals with the reverse burden of proof point and, as the hon.
Gentleman implies, the evidential burden is on the prosecution. If the
defence says, “I was doing it simply for this reason,” as
in our law generally, it is for the prosecution to prove beyond
reasonable doubt that that defence is not a reasonable excuse and
therefore should be put aside. This is why I told the Committee to read
this amendment in the context of both the parent Act and the law more
generally.
Mr.
Llwyd:
May I give an example with reference to the earlier
mention of the likelihood of a person being convicted when he was
duped? Two or three years ago, a constituent of mine, an award-winning
novelist in Wales asked me how many police officers and security people
there are in the House of Commons. He was writing a novel about the
House. Frankly, I ducked the issue. I know that he is not a terrorist,
but let us say that, unbeknown to me, he had malicious intent and I had
passed information on to him. Would I be caught by the
measure?
9.30
am
Mr.
McNulty:
No, not as I understand it, because
there must be a reasonable suspicion that the
information was intended to be used to assist
terrorism.
Mr.
McNulty:
With the greatest respect, we do not start from
year zero. The law has been on the statute book since 2000, and section
58 has amassed a good deal of case law. Section 103 has been utilised
rather sparingly in the context of Northern Ireland. In our business we
do not present a clause and then have a paper trail the size of a
telephone book just to find the propriety and the roots and the other
bits that go around it. That is not how we do business. That is a
simplistic approach to Committee, which ill becomes the hon. Gentleman.
Our business is to look at a new clause and the amendments in the
context of the wider body of law from which it
comes.
To pursue the
point made by the hon. Member for Meirionnydd Nant Conwy, as soon as he
offers up “I had no idea what he was” as a defence, the
burden of proof falls on the prosecution to challenge the excuse that
is being offered with good reason. It is not a reverse burden of proof
either, as the hon. Gentleman himself highlighted in relation to
section 118 of the 2000 Act. Section 117 goes to the provenance of
which prosecutions should be brought under that case, and it
does not have the broad sweep that hon. Members
suggest. In R v. K it was shown that there must be reasonable
suspicion that the information was intended to be used to assist
terrorism. Funnily enough, that is
why that provision is in a terrorism Act. That would apply equally to
new section 58A—the information must be likely to provide
practical assistance to a person committing or preparing terrorism.
Case law has been built up since the Act became
law.
Regarding one of
the other points made by the right hon. and learned Member for Sleaford
and North Hykeham, “communicate” is not covered by
section 58 nor is “attempt to elicit”, because the
provenance of the amendment is specific to section 103 of the 2000 Act,
which was subsequently repealed because of the dismantling of the
security apparatus and legislation in Northern Ireland. New section 58A
will cover a person trying to get information from MOD staff, not to
write another little novel or to elicit where nuclear sites
are—as Duncan Campbell did in the ’80s. Eliciting
information useful to terrorists from MOD staff is not governed by
section 58. MOD staff giving a terrorist information about the armed
forces is covered by new section 58A. On the broader point, there is
only an evidential burden. Crucially, if the defence raises an issue
about the individual’s purpose, the prosecution must disprove
that beyond reasonable doubt. It says here, in my little note, which is
very kindly headed “Welsh guy”, with all due apology
to—
Mr.
McNulty:
I think it means you. It says, “If
duped, that is a reasonable excuse”. Depending
as always on the circumstances of the case, that can be proffered as a
reasonable excuse. There is only an evidential burden on the defence to
prove the defence. It is for the prosecution to prove that he did not
have that appropriate defence. In that context, all the amendments
would undermine what we seek to do with new section 58A in reinforcing
section 58. I do not doubt that there might be a substantive argument
about section 58 and how that is drawn, but that is not for our
deliberations now. Nor do I doubt that there is an argument that
section 103, which related to the armed forces in Northern Ireland
only, should either not have been repealed or should have been
broadened to the UK or left aside totally. In that context, amendments
Nos. 197 and 44 would undermine the effectiveness, or
efficacitÃ(c), of the offence provided for in clause 69. The
insertion of paragraph (b) by amendment No. 236 would add nothing to
the statutory defence already included in the clause in terms of legal
effect or clarity and is therefore unnecessary.
A person who can show that he
did not know and had no reason to know that
information or the disclosure of such information was likely to be
helpful to a person committing or preparing an act of terrorism would
be able to prove that he had a reasonable excuse for his actions. We
should remember that, as the hon. Member for Meirionnydd Nant Conwy
very kindly pointed out, section 118 of the 2000 Act places the burden
on the prosecution to disprove the defence beyond reasonable doubt once
an issue has been raised by the
defence.
The proposed
insertion of paragraph (c) under amendment No. 236 is unacceptable. It
would allow the person in question to assert that
he believed that the information that he communicated or published was
in the public interest, regardless of what it was, regardless
of the damaging effects of publishing such information and regardless of
how reasonable it was for him to hold that belief. The courts are best
placed to assess whether the disclosure was in the overriding public
interest and whether an excuse is reasonable in the circumstances of
the case.
Amendment
No. 198 would undermine section 58 of the 2000 Act for the same
reasons. That section has been in force since 2001. Section 5 of the
2000 Act already caters for preparatory acts that are carried out with
the intention of assisting another to commit terrorist acts. Section 58
of the 2000 Act and clause 69 provide for wider offences aimed at
combating the activities of those whose conduct is likely to assist
terrorists. They do not require the prosecution to prove an intention
to assist those involved in preparing or committing an act of
terrorism. I am advised that the information itself must raise a
reasonable suspicion that it was intended to be used to assist in the
preparation or commission of an act of terrorism and to be of a kind
that is likely to provide practical assistance to terrorist
organisations. As we have discussed, section 58 of the 2000 Act and the
clause include statutory defences to protect those who have a
reasonable excuse for their
actions.
As the hon.
and learned Member for Beaconsfield said at the outset, there is good
reason for clause 69, and we could go through recent cases where,
sadly, members of the armed forces have been targeted. Other hon.
Members will know that recent history is littered with such actions. On
the basis of the operation of section 103 of the 2000 Act in Northern
Ireland, it is perfectly reasonable that this provision is established
as a UK-wide power because of the nature of the threat that we face. As
we have already firmly established in this Committee, Northern Ireland
is part of the UK and it would apply to Northern Ireland as well.
Recent activities have shown that the power is still required in that
context.
I resist the
amendments and urge the Committee to support the
clause.
Mr.
Grieve:
The Minister has been remarkably
emollient during the Bill’s passage, which is uncharacteristic,
but it was noticeable this morning that he has rather ceased to be so.
I do not know whether that is because he has not had his breakfast.
When the emollience goes, one is always left wondering whether it is
because he feels justifiably outraged at the slurs against the
Government in relation to the drafting of the clause, or
whether it is because attack is the only form of defence
open to
him.
However, the
Minister has made some important points, the most important of which
was the clarification of the requirement of the prosecution to disprove
the defence once raised beyond reasonable doubt. I will go away and
reflect on whether there is any better way of approaching the wording
for this offence. As I said in my opening remarks, I entirely accept
that such an offence is almost certainly required. It may well be, as
my right hon. and learned Friend the Member for Sleaford and North
Hykeham mentioned to me, that any necessary corrections should be made
not to the Bill, but to the original section of the Terrorism Act 2000.
For those reasons, I beg to ask leave to withdraw the
amendment.
Mr.
Hogg:
I agree with what my hon. and learned Friend
has just said. The Minister is quite right when he draws attention to
section 118 of the 2000 Act, which makes it plain that the burden is
evidential and not persuasive or legal, and that is very helpful. I
accept that his criticism of paragraph (c) of my amendment No. 236 is
well founded; belief by itself should not constitute a reasonable
excuse. On the other hand, publication in the public interest should
constitute a reasonable excuse. I am referring here to whistleblowers.
The proper way forward, which was outlined by my hon. and learned
Friend, is to consider amending section 58 of the 2000 Act. As the Bill
amends that Act in many respects, it would be within the scope of a
long title to make such an amendment. The best way for people such as
myself to proceed is to consider whether we wish to amend section 58 of
the 2000 Act on Report. At present, I am minded to seek to do
so.
Amendment, by
leave,
withdrawn.
‘( ) Schedule 8A to
this Act contains supplementary provisions relating to the offence
under this
section.’.
The
Chairman:
With this it will be convenient to
discuss the following: Government amendment No.
165.
Government new
schedule 3—Offences relating to information
about members of armed forces: supplementary
provisions.
Mr.
McNulty:
I apologise if I have lost my
emollience. It is absolutely to do with not having had breakfast, not
enough cigarettes and the fact that I had a bloody awful journey
getting here. I did not think that I would get here by 9 o’clock
at all because of the traffic. If there is a remote bit of rain in this
country, the whole world stands still. However, I should not take that
out on the Committee, so I apologise to everyone, including the Welsh
guy. [Interruption.] It is not
about—
Mr.
McNulty:
With respect, even I would not be so churlish as
to blame the hon. Member for Henley (Mr. Johnson) who has
been in post for about 11 days—not yet,
anyway.
Mr.
McNulty:
Another couple of weeks. I agree that although
the Committee has dealt with a range of contentious matters, it has
done so in very good spirits. I apologise most sincerely and I hope to
have my breakfast
soon.
Proposed new
schedule 8A ensures that the proposed provisions in clause 69, which
would insert the additional offence that we have been talking about,
are consistent—this is not offered as a red rag to a bull to any
Member—with the UK’s commitment under the
e-commerce directive 2000/31/EC with regard to
services provided by the internet industry. It is a legal requirement
and not a change of policy. The schedule ensures that the
providers’ information society services that are established in
the UK are covered by the offence, even when they are operating in
other European economic
areas.
Paragraphs
4 to 6 of the new schedule provide limitations of liability for
internet intermediaries, and amendments Nos. 164 and 165 and new
schedule 3 simply reflect that as a matter of legal provision given our
agreement with the directive. It is no more suspicious than that and I
commend it to the Committee.
Amendment agreed
to.
Amendment
made: No. 165, in page 50, line 12, at
end insert—
‘( ) After
Schedule 8 to the Terrorism Act 2000 insert the Schedule set out in
Schedule (Offences relating to information about members of armed
forces: supplementary provisions) to this
Act.’.—[Mr.
McNulty.]
Clause
69, as amended, ordered to stand part of the
Bill.
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