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 commercethe 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 directives
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.
Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I follow the
Minister so far. This is obviously a draft instrument and it is not
clear when it will come into
force. Presumably, it cannot come into force until the provisions passed
in the Acts she has just mentioned do so. I should be grateful if she
said when the dates will be in respect of both things coming into force
and whether those dates are different or the
same.
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 bewhether within a month, for example, or whether it
is more likely to be six monthsand 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 saidyou hinted at it, Mr.
Wilshireand 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 internetparticularly 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 EUfor 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 Governments 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
Governments, 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.
Claire
Ward: I am more than happy to try to clarify that, but I
have less confidence in whether I can immediately
extend the provisions to Scotland and Northern Ireland. I hope that I
have, at least in the short term, satisfied the Committee with my
response to the questions raised. I seek the approval of the
Committee for the
regulations.
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.