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House of Commons
Session 2009 - 10
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General Committee Debates
Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Mr. David Wilshire
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Borrow, Mr. David S. (South Ribble) (Lab)
Bottomley, Peter (Worthing, West) (Con)
Chaytor, Mr. David (Bury, North) (Lab)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Harris, Mr. Tom (Glasgow, South) (Lab)
Heald, Mr. Oliver (North-East Hertfordshire) (Con)
Howarth, David (Cambridge) (LD)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Kawczynski, Daniel (Shrewsbury and Atcham) (Con)
Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
Simpson, Alan (Nottingham, South) (Lab)
Stewart, Ian (Eccles) (Lab)
Turner, Dr. Desmond (Brighton, Kemptown) (Lab)
Ward, Claire (Parliamentary Under-Secretary of State for Justice)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Mr. E. Wilson, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Tuesday 2 February 2010

[Mr. David Wilshire in the Chair]

Draft Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010
4.30 pm
The Chairman: Before I call the Minister, it might help Committee members if I remind them that this is a narrow piece of legislation. I am sure that the temptation of a wet afternoon waiting for votes might lead somebody to think that it would be possible to have a general debate about hatred against persons on these grounds, but that would not be in order.
The Parliamentary Under-Secretary of State for Justice (Claire Ward): I beg to move,
That the Committee has considered the draft Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010.
I am grateful to you, Mr. Wilshire, for your guidance. You are correct.
The regulations are technical measures relating to the European Union directive on electronic commerce—the e-commerce directive. Making the regulations will facilitate the commencement of the offences relating to stirring up hatred on grounds of sexual orientation in Part 3A of the Public Order Act 1986, which were inserted by the Criminal Justice and Immigration Act 2008. The regulations implement the e-commerce directive in respect of those offences and, for reasons that I shall explain shortly, they also implement the directive in respect of the offences of stirring up religious hatred. The religious hatred offences also appear in Part 3A of the 1986 Act.
The e-commerce directive plays a significant part in the way that Europe ensures free movement of services within the European economic area, so meeting our obligations under the directive is important. The directive deals with information society services, which are broadly speaking commercial activities that take place online. The directive provides for how the providers of such services should be regulated under the laws of member states. Such regulation includes where the criminal law affects providers of information society services. The directive therefore applies to the offences of stirring up hatred on religious grounds and on grounds of sexual orientation. Those offences can cover stirring up such hatred through any medium, so it is possible to commit the offences by providing commercial services online.
The regulations implement the requirements of the directive in the following ways. Regulations 3 and 4 implement the directive’s country of origin rules, which broadly say that a provider of information society services must be regulated by the law of the state in which the provider is established, not the law of the state in which the services are received. That means that where the UK regulates service providers, this must extend to providers established in the UK, even where their services are provided elsewhere in the European economic area. Regulation 3 achieves that by providing that the offences in Part 3A of the 1986 Act apply to England and Wales service providers if, in the course of providing their services, they commit that offence in another European economic area state.
The country of origin principle means that the UK must not restrict the freedom of service providers established in another state to provide their services in the UK unless certain conditions apply. Such providers will generally be regulated by the other state in which they are based. We deal with that issue in regulation 4, the effect of which is that proceedings for an offence committed by a non-UK service provider may not be brought unless specific conditions are satisfied relating to the public interest.
Mr. Oliver Heald (North-East Hertfordshire) (Con): The explanatory memorandum includes the original impact assessment that was made in 2002. Are there any challenges to that as a result of the regulations or will the position remain unchanged?
Claire Ward: Perhaps I can return to that point.
In practice, it is likely that the conditions under regulation 4 would always be met in cases involving the intentional stirring up of hatred on the grounds of religion or sexual orientation.
Regulations 5 to 7 implement the requirements of the directive in relation to intermediary service providers, which are providers who act as “mere conduits” and cache or host information. The directive requires us to limit the liability of such intermediary service providers. Broadly speaking, the provisions protect such providers who unwittingly carry or store unlawful content provided by others in certain circumstances. It is debateable whether conduits, caches and hosts could ever commit the offences of stirring up religious hatred or hatred on the grounds of sexual orientation. The offences require an intention that hatred will be stirred up. It is very unlikely that intermediary service providers would have that intention. But the regulations put the position of such service providers beyond doubt.
The directive was originally implemented by regulations in 2002 that applied to all UK legal requirements existing at that time. So the regulations applied the directive automatically to all offences then existing, but those do not apply to Acts passed after that date. That means that we have to implement the directive for new offences on a case-by-case basis.
The offences relating to stirring up religious hatred were created by the Racial and Religious Hatred Act 2006, which added a new Part 3A into the 1986 Act. The directive was implemented in respect of the religious hatred offences by the Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007. The 2008 Act extended the offences in Part 3A to include stirring up hatred on grounds of sexual orientation. The regulations are therefore necessary to implement the directive in relation to the extended offences in Part 3A.
Claire Ward: I will come to those points in just a moment.
The regulations are made under section 2(2) of the European Communities Act 1972, which provides that regulations made under section 2(2) cannot result in the imposition of a penalty of more than two years’ imprisonment. That produces an unfortunate and undesirable anomaly. The offences in Part 3A of the 1986 Act carry a maximum penalty of seven years’ imprisonment. If the two-year penalty limitation was to be applied to the regulations, it would mean that offences committed by an England and Wales service provider elsewhere in the European economic area would be subject to a maximum penalty of two years, whereas the identical offence committed here would attract a seven-year maximum. To resolve that anomaly, section 143 of the Coroners and Justice Act 2009 disapplies the penalty limit in respect of regulations made to implement the e-commerce directive and the services directive, where the same issue arises. The regulations make use of those provisions, meaning that the penalties available for offences committed under Part 3A are always the same.
At the same time, and to ensure a consistent approach, we are revoking and replacing the previous regulations that covered the religious hatred offence that were made in 2007, so the anomaly referred to above applies to them. The regulations will correct that anomaly. There will therefore be a single set of regulations covering all the offences in Part 3A of the 1986 Act, making it clearer and more helpful for service providers to which the regulations apply.
Making the regulations will enable us to bring into force the offences of stirring up hatred on the grounds of sexual orientation. I will not stray into the further detail of those offences. I think that all Committee members have had an opportunity to consider what those are. We intend to bring those offences into force as soon as possible.
Dr. Harris: Will the Minister say when she thinks that that is likely to be—whether within a month, for example, or whether it is more likely to be six months—and whether anything is waiting, such as guidance, prior to their being brought into force?
Claire Ward: All I can say is that that will be done as soon as possible, but I am more than happy to write to the hon. Gentleman if it becomes clear when we are in a position to do that.
The hon. Member for North-East Hertfordshire asked whether any change is required to the regulatory impact statement. No change is required, essentially because the directive would have a negligible impact on businesses for the reasons given at paragraph 10.1 of the explanatory memorandum.
I trust that that satisfies Committee members and that they will support the regulations.
4.39 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Mr. Wilshire. I declare my interest as barrister.
I am grateful to the Minister for her clear, succinct explanation of these matters. I am glad that she mentioned the Coroners and Justice Act 2009, because the Opposition considered the disapplication point, which I am also glad has been taken on board in this statutory instrument.
As the Minister said, the regulations are essentially a technical measure to ensure that the offences in Part 3A of the 1986Act 1986, as amended by the 2008 Act, are consistent with the directive. There was discussion, as she rightly said—you hinted at it, Mr. Wilshire—and considerable debate about the 2006 Act at the time and substantial debate some years later on similar points in respect of the 2008 Act, which created an offence of stirring up hatred on grounds of sexual orientation. But, as you rightly say, Mr. Wilshire, now is not the time to discuss those matters in any more detail. In our view the legislation is on the statute book and it is important that relevant matters are consistent with the directive, hence the SI that we are discussing.
I should like to ask the Minister two questions. First, the directive covers commercial services on the internet. What is the situation with private or non-commercial services, because with the proliferation of different types of activity on the internet—particularly the development of Youtube, Facebook, etc.—information is exchanged on many private services and websites? I should be grateful if she commented on that.
Secondly, paragraph 4.6 of the explanatory notes covers countries of origin and makes clear what happens within the EU, but what happens with services emanating from outside the EU—for example, from the United States, Russia, South America, or wherever? If offences are committed in that context, who is brought to task? Is it the internet service provider or the individual? Could it be applied to advertisers? There may be problems in that regard. That point is more general to all aspects of the internet, because it is a truly global web and trying to police it in one country will be difficult, because there will always be ways in which people are trying to push particular ideas or services, or whatever, from other countries. If a country where that is happening is outside the EU jurisdiction, there may be problems. Perhaps the Minister will comment on that.
The official Opposition have considered the directive and the SI carefully and we support the Government’s actions, because this is a tidying up and technical exercise that had to take place.
4.43 pm
Dr. Harris: I endorse the comments of the hon. Member for North-West Norfolk. I, too, welcome you to the Chair, Mr. Wilshire.
I thank the Minister for the brief, clear and exemplary way in which she laid out the meaning of the statutory instrument and for explaining the relevant parts. I agree with her that this SI is narrow, and rightly so, because the religious hatred model of offence on which the sexual orientation offence was based, was also narrow. The Committee should note that a vote on the Bill containing that offence was one of the rare occasions on which the Government was defeated to ensure that the provision was narrow enough to protect free speech. Therefore it is appropriate that the likely implications of this measure make it difficult for this offence to be committed, with or without the extra rider, which, to my regret and the Government’s, was agreed to during the recent passage of another Bill.
I do not think that the statutory instrument will cause any dramatic impact on service providers. The offence is narrow enough for us to say that it is appropriate that the sentences are suitable, because this would be an intentional offence involving threatening words or behaviour.
On my point about the regulations coming into force, there is a great deal of concern that the offence, of which the regulations are part, may be over-policed. Therefore, one question to ask is whether, both for these regulations and the offence itself, there will be appropriate guidelines for police and prosecutors. It is not clear to me what the dates are for which the question of the deadline of the guidance will be relevant. If the Minister can write to me to clarify that, I would certainly be grateful. Otherwise, I am happy on behalf of my party to support the regulations.
4.45 pm
Peter Bottomley (Worthing, West) (Con): I shall ask the Minister a series of questions, but if she wants to write to me about some of them, I am happy to wait for the answer. Is there a deadline for enacting the measure? If so, are we within the deadline and does she happen to know whether Northern Ireland and Scotland will also be within the deadline?
Can the Minister perhaps say briefly whether the term religious grounds also includes those who are Jewish and those who are Muslim, where it may be a cultural or race fact, rather than necessarily a practising religion fact. I support what my hon. Friend the Member for North-West Norfolk on the Front Bench said. Assuming that the word “commerce” in the directive means that there must be the prospect of a commercial transaction, either before or as a result of transmission, does that mean everything else is excluded? For example, could Facebook go on having grossly offensive material? We all know that it is very difficult to get hold of Facebook and get it to respond when something disgraceful is being transmitted. In fact, if those who work for Facebook read this debate, I hope they will make it perfectly obvious how people who are responsibly concerned can take things up. I recognise that some of the things that are offensive go beyond the categories of racial hatred and sexual orientation.
Will the Minister say whether service providers have any remaining problems with how the regulations are being enacted? I refer her to regulation 4, which refers to a public interest test in a way I am not used to. I do not follow all the European regulations, but I am used to the idea that, before a prosecution takes place, there is a public interest test. There is a public interest objective written into the regulations, which is the pursuit of public policy, but I do not think that that is exactly the same. I am not a lawyer, but I would be grateful to know whether the measure is intentionally different from what most of us would have expected. Finally, will the Minister say who will be the prosecuting authorities?
4.47 pm
Claire Ward: I will, of course, write to the hon. Member for Worthing, West about anything I do not cover. I will start with the initial points raised by the Opposition spokesperson, the hon. Member for North-West Norfolk, who asked about the terms of cover of the directive. The directive summarises such services as any that are normally provided for remuneration at a distance by means of electronic equipment for the processing, including digital compression, and storage of data at the individual request of the recipient of the service. That covers a wide-range of online activities, including selling goods and services, as well as video on demand, hosting a website or providing web or e-mail access. The directive does not therefore cover private matters, which perhaps relate to some of the issues mentioned.
Peter Bottomley: So, for example, if someone were to object to dead baby jokes, which is one of the things that was of concern, that would not be covered by the measure?
Claire Ward: I am not quite sure how that comes under issues around religious or sexual orientation, but I see the point that the hon. Gentleman is getting at, which essentially relates to the campaign on the Facebook website. I trust that Facebook representatives will take heed of the concerns of hon. Members from all parties about the content of websites.
The hon. Member for North-West Norfolk also asked about a provider outside the UK. Any person who commits the offence in England and Wales is liable, so if the service provider commits the offence in the course of providing their services in England and Wales, they will be guilty like anyone else. The relevant material to meet the threshold of the offence would need to be threatening and intend to stir up hatred on the grounds of religion or sexual orientation.
Because the e-commerce directive prevents the UK from regulating service providers established in other European economic area states, regulation 4 prevents proceedings from being brought for an offence, unless the public interest conditions in that regulation are satisfied. However, it is likely in practice that those conditions will always be met in such cases. Regulation 4 does not affect people based in other countries outside the European economic area who provide services in England and Wales.
The hon. Member for Worthing, West asked whether religious hatred includes other racial groups, for example, Jews. The offence involves hatred against a group of persons defined by reference to religious belief or lack of religious belief, which would include, for example, the Jewish faith. There may, of course, be an overlap between religions and racial groups in some cases.
On the other remaining issues, there is no deadline for the measure to be brought in. However, as I have told the hon. Gentleman, we seek to do so as soon as possible. We will let him and, indeed, all Committee members know about that in due course. Scotland and Northern Ireland are not covered by the regulations. The offences in the 1986 Act therefore apply only to England and Wales. We are not aware of any problems with the regulations from the perspective of service providers. The public policy exemption derives from the directive itself, which is the reason for the language that he might consider to be unusual.
Peter Bottomley: I am not sure from what we have heard that it is terribly satisfactory that Scotland or Northern Ireland might be uncovered. That is perhaps something on which the Minister might like to write to us afterwards.
Question put and agreed to.
Resolved,
That the Committee has considered the Draft Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010.
4.52 pm
Committee rose.
 
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