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Baroness Scotland of Asthal: My Lords, I absolutely understand that the noble Lord, Lord Goodhart, speaks to his amendments with the assistance of the industry, and has not had an opportunity to discuss these amendments with them. Perhaps I can help by indicating the work that we have done with the industry on these matters. I hope that, if I am able to answer relatively fully, the noble Lord will have the assurances he needs and, therefore, the assurance that the industry needs to be content that we have addressed the problems that they have highlighted through him. I am grateful to the noble Lord for giving us the opportunity to do that.

We believe that the concepts of intent and subjective recklessness in Clause 2 provide further protection to those service providers that simply act as hosts, transmitters and mere conduits of information, both in the fields of Internet service provision and connectivity services. This has been asked for by the Internet industry, and will go some way to alleviating their concerns, as the noble Lord generously indicated that it might.
 
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Amendment No. 42 is not accepted by the Government, because it provides an exemption for those conveying signals while providing common carrier services as defined under Section 32 of the Communications Act 2003. The possibility of issuing a notice, let alone prosecuting a common carrier is remote, but neither connectivity services nor Internet services providers can be totally exempted from liability to prosecution under the Bill. While it is unlikely, there may be circumstances where requiring a common carrier service to remove potentially criminal material might be needed. The Government believe it is reasonable that if a service provider is aware that it is making available a statement that is encouraging others to terrorism, or is making a publication available that encourages terrorism or is of use to terrorists, and either intends others to be encouraged by it or is reckless to the consequences of it remaining public and endorses the views in that statement, they ought to be prosecuted. The Government certainly do not believe that the vast majority of UK Internet or connectivity service providers will ever fall into that category, but we have to cater for the possibility of rogue UK providers being created in the future. We believe that the amendments to Clause 2 will do a great deal to resolve the anxieties of the Internet industry about the effect of that clause.

Government Amendment No. 43 is a simple technical improvement which the Government hope provides greater clarity and certainty to the drafting. It changes Clause 3(1)(a) to ensure that it mirrors Clause 3(1)(b) by adding the words "or in connection with" when referring to services provided electronically. I hope noble Lords will agree that it improves the current drafting.

Amendment No. 44A restricts Clause 3 preventing the issue of a notice under Clause 3 to people overseas who are committing the Clause 1 offence and to those committing conduct contrary to Clause 2 occurring only in the United Kingdom. It is pertinent to note that the Government do not intend to take extra-territorial jurisdiction over Clause 2; that is, where a person abroad commits conduct under Clause 2 and publishes that publication abroad. The United Kingdom does not criminalise that conduct. However, we are taking extra-territorial jurisdiction over Clause 1. This amendment would prevent a notice being issued to someone publishing offending statements overseas, so undermining our ability to enforce the Clause 1 offence. Further, the amendment would prevent a notice being issued to someone resident in Britain who the police knew to be causing another to post inflammatory material on a website hosted in another country. This would lead to a bizarre situation in which extremists and radicals in Britain would simply switch from hosting content in the UK, which few do currently anyway, to hosting it on foreign websites and no notice could be issued, even though it could be clear that the messages being placed on those websites are intended to be seen by Britons. The notice provisions ought to be able to apply to all those resident within the UK and to anyone anywhere who is committing
 
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the Clause 1 offence. Anything less would be wholly unsatisfactory and I am sure that the noble Lord can see the force in that.

Amendments Nos. 45, 46 and 59 aim to ensure that Internet service providers do not face a prosecution unless they know about the content. This can only be taken to be the case following issuing the notice. I believe that these amendments tabled in Committee by the noble Lord are in direct response to the concerns raised by the London Internet Exchange Limited and linked to the Internet Service Providers Association, the ISPA. He indicated that today, too. I hope I am right in saying that with the inclusion of intent and recklessness in Clause 2, they are no longer necessary. Indeed, a most eminent and revered Member of this House who sits regularly on the Liberal Democrat Benches said,

I hope that the noble Lord, Lord Goodhart, will not mind me quoting his words back at him. He was quite clearly saying that the way to cure that mischief was to introduce intent into Clause 2. I respectfully agree with him, which is why we have done so.

None the less, I am happy to give the noble Lord the assurance he needs. Both the offences in Clauses 1 and 2 cannot be committed if the service provider is not aware of the statement. The Government fully intend that where offending material is being hosted, the police and prosecutor's first step would be to identify the webmaster hosting that content and serve a notice on him. If that were to prove impractical or impossible, the police would look to serve notice on the Internet service provider, unless there were other circumstances surrounding an individual case; that is, that the provider had prior knowledge which presumably would not occur simply through his provision of the services. This would generally be the first time an Internet service provider could be said to be aware of the content. I should point out that even if the service provider had known of the statement and was deemed reckless as to the consequences of making that statement public, they would still have recourse to the defences in Clauses 1 and 2 that the statement neither expressed its views nor had its endorsement.

Amendment No. 58 makes provision to ensure that service providers who fall within the definition of "mere conduits" are able to avail themselves of the protection in the electronic commerce EC directive regulations 2002 against criminal liability. The Government are aware that Internet service providers in the UK are concerned that provisions on repeat statements may contravene the e-commerce directive which requires that a general obligation to monitor cannot be placed on those service providers which fall within the terms of the directive. I will address this point in relation to government Amendment No. 51 and explain why we do not think that such an amendment is necessary. The Government's view remains the same: that the repeat statement provisions in Clause 3 do not impose a general obligation to monitor if that offends against the directive.
 
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I say to the noble Lord, Lord Goodhart, that no one would know that he was not an absolute expert in this field. I hope that in the light of what I have said on these amendments he will withdraw his amendment.

Lord Goodhart: My Lords, I am grateful to the Minister for her response and for quoting me back at myself. However, I suspect that I made that comment on the basis that it would be a purely intent provision in Clause 2 rather than intent or recklessness. Be that as it may, I shall need to consult further with interested parties in the light of the new provisions in the Bill and of what the Minister has just said. I hope that the ISPs and BT will feel that their complaints have been met, but in case they say that that is not the case and if I feel that their problems have not adequately been solved, I might have to bring this proposal back. In the mean time, I am happy to beg leave to withdraw Amendment No. 42.

Amendment, by leave, withdrawn.

Clause 3 [Application of ss. 1 and 2 to internet activity etc.]:

Baroness Scotland of Asthal moved Amendments Nos. 43 and 44:

On Question, amendments agreed to.

[Amendments Nos. 44A to 46 not moved.]

Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

Council Housing

7.39 pm

Baroness Scott of Needham Market rose to ask Her Majesty's Government what plans they have for the future of council housing.


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