New
Schedule
3
Offences
relating to information about members of armed forces: supplementary
provisions
The following Schedule is
inserted after Schedule 8 to the Terrorism Act 2000
(c. 11)—
Offence
under section 58A: supplementary
provisions
Introduction
1
(1) This Schedule makes supplementary provision relating to the
offence in section 58A (eliciting, publishing or communicating
information about members of the armed
forces).
(2) The purpose of
this Schedule is to comply with Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic
commerce, in the Internal Market (“the E-Commerce
Directive”).
Domestic
service providers: extension of
liability
2 (1) This
paragraph applies where a service provider is established in the United
Kingdom (a “domestic service
provider”).
(2) Section
58A applies to a domestic service provider
who—
(a) commits any of
the acts specified in subsection (1) of that section in an EEA state
other than the United Kingdom,
and
(b) does so in the course
of providing information society
services,
as it applies to a
person who commits such an act in the United
Kingdom.
(3) In such a
case—
(a) proceedings
for the offence may be taken at any place in the United Kingdom,
and
(b) the offence may for all
incidental purposes be treated as having been committed at any such
place.
Non-UK service
providers: restriction on
proceedings
3 (1) This
paragraph applies where a service provider is established in an EEA
state other than the United Kingdom (a “non-UK service
provider”).
(2)
Proceedings for an offence under section 58A must not be brought
against a non-UK service provider in respect of anything done in the
course of the provision of information society services unless the
following conditions are
met.
(3) The conditions
are—
(a) that the bringing of proceedings is necessary
for one of the following
reasons—
(i) public
policy,
(ii) public security,
including the safeguarding of national security and
defence;
(b)
that the proceedings are brought against an
information society service that prejudices the objectives referred to
in paragraph (a) or presents a serious and grave risk of prejudice to
those objectives;
(c) that the
bringing of the proceedings is proportionate to those
objectives.
Exceptions for
mere conduits
4 (1)
A service provider is not guilty of an offence under
section 58A in respect of anything done in the course of providing so
much of an information society service as consists
in—
(a) the provision of
access to a communication network,
or
(b) the transmission in a
communication network of information provided by a recipient of the
service,
if the following
condition is satisfied.
(2) The
condition is that the service provider does
not—
(a) initiate the
transmission,
(b) select the
recipient of the transmission,
or
(c) select or modify the
information contained in the
transmission.
(3) For the
purposes of sub-paragraph
(1)—
(a) the provision
of access to a communication network,
and
(b) the transmission of
information in a communication
network,
includes the
automatic, intermediate and transient storage of the information
transmitted so far as the storage is solely for the purpose of carrying
out the transmission in the
network.
(4) Sub-paragraph (3)
does not apply if the information is stored for longer than is
reasonably necessary for the
transmission.
Exception for
caching
5 (1) This
paragraph applies where an information society service consists in the
transmission in a communication network of information provided by a
recipient of the service.
(2)
The service provider is not guilty of an offence under section 58A in
respect of the automatic, intermediate and temporary storage of
information so provided,
if—
(a) the storage of
the information is solely for the purpose of making more efficient the
onward transmission of the information to other recipients of the
service at their request,
and
(b) the following
conditions are satisfied.
(3)
The first condition is that the service provider does not modify the
information.
(4) The second
condition is that the service provider complies with any conditions
attached to having access to the
information.
(5) The third
condition is that if the service provider obtains actual knowledge
that—
(a) the
information at the initial source of the transmission has been removed
from the network,
(b) access to
it has been disabled, or
(c) a
court or administrative authority has ordered the removal from the
network of, or the disablement of access to, the
information.
the service
provider expeditiously removes the information or disables access to
it.
Exception for
hosting
6 (1) A service
provider is not guilty of an offence under section 58A in respect of
anything done in the course of providing so much of an information
society service as consists
in the storage of information provided by a recipient of the service, if
the condition is met. (2) The
condition is that—
(a)
the service provider had no actual knowledge when the information was
provided that it contained offending material,
or
(b) on obtaining actual
knowledge that the information contained offending material, the
service provider expeditiously removed the information or disabled
access to it.
(3)
“Offending material” means 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.
(4) This paragraph
does not apply if the recipient of the service is acting under the
authority or control of the service
provider.
Interpretation
7
(1) In this
Schedule—
“information
society
services”—
(a)
has the meaning given in Article 2(a) of the E-Commerce Directive
(which refers to Article 1(2) of Directive 98/34/EC of the European
Parliament and of the Council of 22 June 1998 laying down a procedure
for the provision of information in the field of technical standards
and regulations), and
(b) is
summarised in recital 17 of the E-Commerce Directive as covering
“any service normally provided for remuneration, at a distance,
by means of electronic equipment for the processing (including digital
compression) and storage of data, and at the individual request of a
recipient of a
service”;
“recipient”,
in relation to a service, means any person who, for professional ends
or otherwise, uses an information society service, in particular for
the purposes of seeking information or making it
accessible;
“service
provider” means a person providing an information society
service.
(2) For the purposes
of this Schedule whether a service provider is established in the
United Kingdom, or in some other EEA state, shall be determined in
accordance with the following
provisions—
(a) a
service provider is established in the United Kingdom, or in a
particular EEA state, if the service
provider—
(i)
effectively pursues an economic activity using a fixed establishment in
the United Kingdom, or that EEA state, for an indefinite period,
and
(ii) is a national of an
EEA state or a company or firm mentioned in Article 48 of the EEC
Treaty;
(b) the presence or use
in a particular place of equipment or other technical means of
providing an information society service does not, of itself,
constitute the establishment of a service
provider;
(c) where it cannot
be determined from which of a number of establishments a given
information society service is provided, that service is to be regarded
as provided from the establishment at the centre of the service
provider’s activities relating to that
service.”—[Mr.
McNulty.]
Brought
up, read the First and Second time, and added to the
Bill.
Mr.
McNulty:
I beg to move, That certain written evidence
already reported to the House be appended to the proceedings of the
Committee.
That is
another contentious move, but it gives me the opportunity to thank you,
Mr. O’Hara, for your time
as Chair. Your patience and indulgence—not
least of me as the Minister—have been very well received, and I
am very grateful for them. May we, through you, send our best wishes to
our other Chairman, Mr. Bercow, who, when he was with us,
was just as excellent? I am sure that the entire Committee would
endorse that fully, especially the hon. Member for Reigate. We also
wish Mr. Bercow well because, on the days when you have been
chairing our proceedings, he has been enjoying paternity leave with the
third addition to his family, and we wish him the very best with
that. I apologise again
to the Committee for my little breakfast tantrum, because the hon. and
learned Member for Beaconsfield was entirely right. Despite the import,
substance and, sometimes, contention of our proceedings, they have been
carried out in a very temperate and well-mannered fashion, for which I
am enormously grateful to everybody. The hon. Member for Somerton and
Frome has shown that he is a deadly loss to the Liberal Democrat Front
Bench. He has done a very good imitation of a Front Bencher and a Back
Bencher during our deliberations, while his hon. Friend the Member for
Carshalton and Wallington has done a very good imitation of a no
Bencher, since he has not been with us for much of the
deliberation.
[Interruption.]
The
Chairman:
Order. The Minister is trying to be
nice.
Mr.
McNulty:
That was perfectly deliberate and nothing to do
with the absence at lunch at all, and I stand by that remark
entirely.
I am grateful
to the Welsh guy, as he shall now be known, for his short, pithy,
good-humoured and overwhelmingly productive contributions. It is a
great credit to his
micro-party—[
Interruption.
] I do not mean
on local government in Wales.
During our deliberations, the
most significant role that the hon. Member for Gravesham played was as
a Tory splitter. He defied the Whip and decided that the future of
British politics lies with the right hon. and learned Member for
Sleaford and North Hykeham, rather than with his Front Bench, and I
wish him well in that judgment. It was such a memorable and significant
split that I cannot remember what the headlines were, but I remember
the no vote. I thank the hon. Gentleman for his subsequent no
vote—I am sure that that pregnant pause between the
“no” and the “vote” will not be reflected
in Hansard as meaning quite what it did to the
Committee.
I thank the
other two ex-soldiers, who are not with us today—the hon.
Members for Lancaster and Wyre and for Newark—for colouring our
deliberations with their contributions. Perhaps unusually for
politicians on Committees, they made significant contributions when
they could and shut up when they had nothing to say, which we were
grateful for—the first point, not the second. That was good of
them.
The rather
strange contributions made every now and then by the hon. Member for
Monmouth were entertaining, although not as informative as those of his
Welsh confrère. We now understand that the Tory policy, at least
in Monmouth, is to have a Taser in every household and compulsory
target practice for the
under-60s, or something of that order. I am not
entirely sure, but maybe he was making a bid to replace the outgoing
right hon. Member for Maidstone and The Weald (Miss Widdecombe) with
regard to toughening up the law and order team on the Conservative
Front Bench. I wish him well in that endeavour, because the notion that
he might adorn the Conservative Front Bench as a law and order and Home
Office spokesman cheers us up enormously. The sooner that can happen,
the better. Let me say
to the Conservative Front Bench that things have been done in an
overwhelmingly effective and efficient fashion through the usual
channels. The hon. and learned Member for Beaconsfield has given an
excellent display, once again, of his knowledge, good manners,
astuteness, erudition, and of course his efficacitÃ(c) as a member
of the Conservative Front Bench. I thank him for his courtesy and
kindness. It is always a pleasure to appear opposite
him.
Although the
Under-Secretary of State for the Home Department, my hon. Friend the
hon. Member for Gedling was not called upon much, I am grateful in many
different ways that he was here, because it helps enormously. It almost
helped this morning, and perhaps it should have done, given my fit of
temper. I am grateful that he was here to be called upon should the
necessity arise. When someone asked me why there were two Ministers on
the Committee, I said rather unkindly that it was better than being
fitted with a catheter, and that is at least part of the
reason—nature calls at the most inappropriate times, although
not terribly much in this case. I am also grateful to him for all his
background work on the Bill before it came to Committee.
I am grateful
to all my hon. Friends for their contributions, not least during the
evidence sessions. The questioning of witnesses was done well by
everyone concerned, and it collectively gave us a good deal of
information, for which I am enormously grateful. With as much grace and
courtesy as I can, I thank everyone on the Committee for their
contributions and deliberations. I hope that we stay as courteous, and
move towards consensus—which I certainly remain convinced should
not escape us—in terms of every single aspect of the
Bill.
My last point is
quite deliberately left to the end. I thank very much my hon. Friend
the Whip—if I do not, he will kill
me—who has kept us in order and has done it very well and in
substantial fashion. Apparently—this is getting like a wedding
now—I am supposed to thank the
photographers—[Inter
r
uption.] I thank my
officials, and I will thank them in another way once they get the whole
Bill through—not now. I thank the police, Hansard and
everybody else who has helped us with our
deliberations.
3.15
pm
Mr.
Grieve:
I am happy to support the motion and I shall not
dwell on it at any length at all. I echo the Minister’s
appreciation of yourself, Mr. O’Hara, and also of
Mr. Bercow, for chairing our Committee proceedings. I also
echo the Minister’s thanks to all the officials and the Clerk of
the Committee, who have helped to make these proceedings so easy. This
is the first time that I have served on a Committee with
evidence-taking sessions, and the first time that I can recall having
had departmental briefing sessions during
the Bill’s passage. All those seemed to me to
be useful and productive, and also provided an opportunity for the
involvement of all members of the Committee in its proceedings, which
has not always happened in the
past.
I would also like
to thank the military contingent who have backed me
up from the Back Benches in the course of these proceedings—my
hon. Friends the Members for Gravesham, for Newark and for Lancaster
and Wyre, who came on to this Committee precisely because they wished
to provide their specific experience—particularly in security
matters—for which I am very grateful.
I am also grateful to my hon.
Friend the Member for Monmouth. I remind the Minister that there was
once a time when, for the security of the realm, particularly in
counties such as Monmouthshire where Welsh archery originated, it was
compulsory to practise at the butts with one’s bows and
arrows—so substituting Tasers may only be a technological
development, and nothing more. They started them
young.
I also thank my
right hon. and learned Friend the Member for Sleaford and North
Hykeham, who has brought his legal expertise and long experience as a
Member of this House to bear on the proceedings of this Committee, and
my hon. Friend the Member for Reigate, for helping facilitate the
proceedings.
I hope I
will be forgiven if I do not do a round. I am grateful to the Liberal
Democrats and to the hon. Member for Meirionnydd Nant Conwy for his
input. I was greatly cheered during the course of the
proceedings when the hon. Member for Nottingham, East, of whom I have
long experience as the silent person in Committee when he was a Whip,
succeeded in showing us that being deprogrammed from being a Whip is a
very difficult thing, when his instinctive reaction to the suggestion
that anybody might be voting aye to an amendment was to object to it
automatically, thereby showing that his ability to keep abreast of the
proceedings and to intervene at the right moment before something
terrible happened has not been lost at all on his return to the Back
Benches. With those remarks, Mr. O’Hara, and again
with thanks to yourself, I am happy to support the motion moved by the
Minister.
Tom
Brake:
I would of course like to support the
Minister’s motion, which we are debating in a
round-about way. I would like to thank you, Mr.
O’Hara, and Mr. Bercow, for your roles in ensuring
that our proceedings have been conducted in a fair and considered
manner. I also welcome the fact that it is possible for Mr.
Bercow to go on paternity leave: that is a positive development in
itself.
The Minister
has dispatched the Bill with efficacitÃ(c)—an oft-used
word—and he has displayed some emollience, although there was a
lapse this morning followed by another this afternoon, which I thought
uncharacteristic of
him.
I have a word of
advice for the Under-Secretary of State for the Home Department, the
hon. Member for Gedling, who has played a supporting role. If my
children are getting tetchy after a long day at school, a chocolate
biscuit and a drink usually do the job, so I recommend that he comes
armed with those in future. [
Interruption.
]
He should ensure that he has those on his person in
future.
I have watched with admiration
the Labour Whip, who has managed to contain any
Back-Bench rebellions with such ease. It was
clearly a real struggle. There was no hand-picking of the Back Benchers
who sat on this
Committee.
A consensus
has emerged on certain issues, such as post-charge
questioning and intercept evidence. However, it is very clear that we
will have to return to the issue of pre-charge detention because no
common ground has been identified. We will organise in support of the
official Opposition, other parties and Labour Members who are not
represented here to ensure that the right thing is done on the argument
of 28 versus 42 days.
I
am very pleased with how our proceedings have been conducted,
Mr. O’Hara, and that we have finished on
time.
Mr.
Llwyd:
Briefly, on behalf of my micro-party, which is in
government in Cardiff, I congratulate you,
Mr. O’Hara, and thank you for
shepherding the Committee through the last couple of weeks. I also
express gratitude to Mr.
Bercow.
On the
Minister’s profuse apology for his alleged behaviour this
morning, I tell him that I have seen far worse. I
once had a colleague who was very badly affected by lack of food on
occasion, such that he ended up with the unfortunate nickname of
Nosebag. I caution the Minister against making any public utterances
about that again.
Our
debates have been informed and both sides have consistently tried to
engage constructively. That is not always the case in Public Bill
Committees. Despite the vehement differences of opinion on various
provisions of the Bill, they were expressed in good part, with good
humour and hon. Members were genuinely respectful of other
people’s views. This has been a worthwhile experience, which is
often not the case in such
Committees.
The
Chairman:
In making my remarks from this end
of the floor, may I say that my co-Chairman,
Mr. Bercow, has taken a major share of the chairmanship
duties in terms of time and the difficulty of the business, a
distribution of duties that was entirely dictated by his happy family
circumstances, and I will pass on the remarks that have been made to
him.
Starting
at this end of the Floor, I thank Hansard, which I am sure has
kept a correct record of the occasional spoonerisms that Chairmen
commit. I thank the Clerks at my elbow for their constant assistance.
On my right, those who are seen but not heard have conducted themselves
with exceptional dignity and propriety in this Committee, unlike in
other Committees
sometimes.
In referring
to the members of the Committee, I run out of complimentary adjectives.
This has been a very impressive Committee to chair in terms of the
general mastery of the briefs on both sides—disciplined,
restrained, with an avoidance of repetition, succinct, constructive,
courteous, respectful, with give and take, and constant good humour.
That has led to a high level of debate, as befits the seriousness of
the subject matter before us, and has made it easy for me to conduct
the efficient dispatch of our
business.
Question
put and agreed
to.
Bill, as
amended, to be
reported.
Committee
rose at twenty-six minutes past Three
o’clock.
| 
