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Terrorism Bill

8.40 pm

Consideration of amendments on Report resumed.

Lord Goodhart moved Amendment No. 47:

Page 5, line 17, leave out ", in the opinion of the constable giving it,"

The noble Lord said: My Lords, Amendment No. 47 is the first of a group of amendments, including Amendments Nos. 48 and 60, which are a very important group and which are of a quite different nature from the other amendments to Clause 3, which are mostly concerned with the problems potentially facing Internet service providers. This is an entirely different problem; it is not of any concern to Internet service providers but it is of concern to us, because we see it as a potential threat to freedom of speech.

The effect of Clause 3 is that a constable can, on the basis of his own opinion of the contents of a statement, give notice to the Internet service provider that carries that statement that it is a terrorist statement. The Internet service provider then has to block that statement within two days, or commits an offence—or potentially commits an offence. As the Minister pointed out in Committee—and of course I was aware of that—it is not an offence simply to refuse to comply with the notice; but the service of the notice exposes Internet service providers to prosecution under Clauses 1 or 2.

The ISP can of course challenge the opinion of the constable and say that the statement is not a terrorist statement. The problem is that no ISP is going to do that. The ISP has no direct interest in the context of the
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material that is transmitted, and it has no incentive whatever to fight on an issue at the risk of spending a great deal of money and, what is worse, of a conviction if it loses that fight. In practice, therefore, the effect of the service of the notice will be that the statement will be withdrawn by the ISP.

The Internet is now an extremely important method of communication. Around the world oppressive regimes—and I refer in this context specifically to China and Saudi Arabia—require ISPs operating in their territory to block websites and transmissions that they do not like. I believe that in China there is a system by which any message that includes the word "democracy" automatically gets blocked. Therefore, we believe that the power to block a website is a serious threat to freedom of speech and, while it might be unlikely that it could have that effect in this country, it does have that effect in a number of other countries.

I realise that when the Bill refers to a constable it is not likely to be the ordinary bobby on the beat who takes that decision; it will be someone higher up the hierarchy; but it will still be a policeman. Because of the potential threat to freedom of speech, we believe it is essential that any power to block a website, or to cause material to be taken off the storage of an Internet service provider, ought to be monitored by the judiciary. It cannot be left to the police.

8.45 pm

For the reasons given, the ISPs will not fight the notices given under Clause 3. I am not criticising them at all—I quite understand why they will not do so—but it means that they will not defend freedom of speech. It is essential, therefore, that any notice given under Clause 2 should have prior clearance from a fairly senior judge: it would be a circuit or High Court judge in England, and a corresponding judge in Scotland or Northern Ireland. I accept that this cannot be a "trial" in the ordinary sense of the word. The application will have to be made ex parte, as it used to be called in the days when lawyers were still allowed to use Latin expressions. It will be one-sided, and the judge will have to act on the basis of the evidence put before him or her by the police. Even so, that provides what we believe is a significant check to abuse of this power, and it would certainly make the police think twice before they decided to apply for a notice in relation to something that was, in practical effect, harmless. We believe, therefore, that there is a real threat here to freedom of speech, and that these amendments are necessary in order to prevent or limit that threat as much as possible. I beg to move.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords—

Lord Kingsland: My Lords, I rise only very briefly to reaffirm my support for this amendment. I do not think I need to add anything to what the noble Lord, Lord Goodhart, has already said.

Baroness Scotland of Asthal: My Lords, I apologise to the noble Lord for being precipitous in rising. I rather anticipated that he might say what he did.
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The effect of this amendment would mean that we had judicial scrutiny of each and every notice that was served under this provision. Noble Lords will know that we already have something similar with regard to pornographic material that is identified and taken down, and I hope noble Lords will accept that the way in which that is policed by those enforcement agents who are responsible for it is proportionate, reasonable and appropriate. We would expect exactly the same approach to be taken in relation to these matters too.

The noble Lord, Lord Goodhart, says the effect on service providers will make them not question the way the notice has been given. He is far too pessimistic, not least because service providers have an interest in making a service available to their customers in a commercial world. It will be necessary for those service providers to respond to the commercial interest, if no other, in making sure that they meet the proper demands of the market, and proportionate use and exercise of this opportunity would be available to them.

The effect of these amendments and the introduction of the judicial oversight in the way the noble Lord proposes would, in effect, make these provisions totally unusable. I shall explain why that is so. It is implicit in inserting judicial involvement that this is a more burdensome process than that we have provided for in the Bill as it stands. If such an additional burden is being placed within the process, there must therefore be a good reason for it and that reason becomes more pertinent in the fast-moving world of the Internet. The delay cannot simply be glossed over as if it does not matter. In relation to the Internet, it does.

The reason for amending the Bill in this way would have to be for providing greater protection to the individual than is currently the case. With the insertion of intent and recklessness into Clause 2, I do not understand how the amendment provides any more protection.

Under the existing clauses, if the website host does not comply with a notice, the police will have to choose to prosecute under Clauses 1 or 2, providing a full, evidenced case, which satisfies a court just as required under amended Clause 3. The prosecution would have to prove intent or recklessness and they would have to prove that the person in question did not endorse the statement, if the person availed themselves of that defence.

Several noble Lords in Committee were concerned that no one would fail to comply with a notice because of the effects of being considered to endorse the statement. That concern is substantially weaker now that it is for the prosecution to prove intent, or recklessness.

There was also some concern about those who would be issuing notices. In our discussions with the Internet industry over implementation, we have committed to working with them to solve the practicalities of the notice scheme, modelled on the similar arrangements that already exist and have worked well. I can assure the House that appropriate
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police personnel would be making decisions about when and whether to issue a notice. I will add to these comments in relation to government Amendments Nos. 51 and 58, when we reach them.

Requiring the police to go to a judge before issuing a notice slows down the process at the cost of increasing the risk that a statement or article record has a negative effect on those seeing it and delays the speed at which a notice can be issued to a person—who may or may not be aware of the presence of such material—enabling them to remove that material. The net result of this does not provide any more protection for the individual than they already have under the drafting as it is.

Amendment No. 48 makes provision for the Secretary of State to make regulations to provide for an application to be heard without notice to the relevant person and in his absence, and for the person on whom the notice is served to apply to the court for the revocation of the notice.

Again, we simply cannot see the benefit in that. First, we do not think that the police ought to go to court before issuing a notice. Secondly, providing for a person to be able to revoke a notice seems unnecessarily burdensome.

As the noble Lord rightly accepted, the notice is not intended to be a notice to a person not to commit an offence. It is a notice that there is a statement there that possibly comes within those offences and the person can comply or not. If that person does not think that that statement constitutes an offence under Clauses 1 or 2, then that person can ignore that notice. The only sanction for not complying is that the person does not have the right to claim, if prosecuted—I emphasise if prosecuted—that he did not endorse the statement.

We see no useful role for a revocation process. As I said, the concern that people have no choice but to comply is substantially reduced with the amendments that we have made to Clause 2.

I should also say that one of the advantages, but also the disadvantages, of the Internet is that one can take down a site in one minute and put back an almost identical site in another. If someone wanted to play cat and mouse with this, they would just wait until someone went to court to get the order, they would have the order in their hand, then they would take down the site and put up the next. You would have this going backwards and forwards all the time. We do not think that that is helpful. We certainly do not think that that is something that the noble Lord would want.

These amendments slow down the time that it would take to ensure that an offending statement—one that could be of use to terrorists or encourage terrorism—is removed from the Internet, with all the consequent damage that such a delay could cause. In the light of what I said, I would invite the noble Lords to withdraw those amendments.

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