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Baroness Williams of Crosby: My Lords, this is not only a major issue, but it will become more and more important as the Internet extends to more countries and more people in those countries. Members of the House may recall that a couple of years ago the BBC attempted to extend its contract in China to enable it to produce new services for the Chinese people.
The Chinese Government took extreme exception to a harrowing and profoundly disturbing programme, which some noble Lords may have seen, called "The Dying Room", about the deaths of many infant girls in China which were not prevented. In consequence, the Chinese Government made it plain that they were not likely to accept an extension of the BBC's remit. In other words, the principle of censorship was once again made central to the basis upon which a contract might or might not be accepted.
This kind of behaviour is likely to become a greater threat, not only in this country but elsewhere, as my noble friend has indicated, to the freedom of expression at a time when the world badly needs such freedoms. Indeed, the recent willingness of Google to accept certain limitations on the provision of its services to Chinese citizens is profoundly troubling. Similar attitudes have been taken in the past by governments like those of Malaysia, Russia and others.
This matter is of much more than technical importance. It is extraordinary that an issue of such significance, where the example given in this country may well have an extensive influence far beyond its borders, should be able to turn on the opinion of a constable, however serious and conscientious a police officer he may be.
I therefore plead with the Government to consider carefully the position put forward by my noble friend and the noble Lord, Lord Kingsland, because much more than a simple technicality is involved. There is, in this set of minimal and modest-looking amendments, a great deal at stake.
Lord Hylton: My Lords, this group of amendments seems designed to protect not only freedom of expression but also freedom of information. Those freedoms are highly important for the continued existence of democracy and thus, indirectly, for the restraint of terrorism. I am therefore very pleased the support the amendments.
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Lord Bassam of Brighton: My Lords, to use a word much favoured by the noble Lord, Lord Kingsland, I shall be telegraphic in putting the Government's argument. I see no point in prolonging a debate which we have had on two, if not three, occasions.
As ever, we are grateful to the noble Lord, Lord Goodhart, for tabling these amendments because they enable us to get to the point of the issue. We do not have a lot more to add to comments made from these Benches on Report. I will, however, deal with Amendments Nos. 4, 5 and 10, and then Amendments Nos. 6 to 8.
As the noble Lord, Lord Goodhart, has expertly explained, Amendments Nos. 4, 5 and 10 insert a measure of judicial oversight into the notice provisions on the Internet in Clause 3. I understand that this has been principally argued for by the Opposition because they believe that the effect of a notice, when served on an Internet service provider, will be to force it to comply. The Government believe that this is incorrect, and that judicial oversight is unnecessary. First, we do not think that the effect of the notices will be to oblige Internet service providers to comply in all cases. This is the case not just because of the effect of such compliance on their customers and brand reputation, but also because the principal mischief this clause is aimed at is that of those who run websitesthe webmastersnot Internet service providers. We expect very few notices to be served on Internet service providers.
Secondlyas the noble Lord, Lord Goodhart, conceded on Reportthe amendment is not even desired by the UK Internet industry. UK Internet service providers want a process similar to those already in operation for communications data. They want a single point of contact between them and the prosecuting authorities, and clear guidance on what, how and when to deal with notices when received. That is exactly what we aim to deliver.
Thirdly, the inclusion of "intent and recklessness" in Clauses 1 and 2, while not directly dealing with notices, makes it far more likely that an Internet service provideror, indeed, a webmasterwill take issue with the serving of a notice, and refuse. More importantly, we are also worried that the insertion of "judicial involvement," proposed by this amendment, will prove unnecessarily burdensome, especially as the amendment requires a senior judicial level of involvement; that is, the involvement of a High Court judge.
Viscount Bledisloe: My Lords, could the noble Lord explain how he reconciles his two statements: the first being that there will be very few notices; the second
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being that judicial involvement will very burdensome? To my simple mind those two statements seem somewhat difficult to reconcile.
Lord Bassam of Brighton: My Lords, I do not think that they are particularly difficult to reconcile. Clearly, when a notice is served, it will be burdensome to deal with that particular procedure, at that particular time, and in that particular case.
The other argument I take some exception to is that made by the noble Lord, Lord Goodhart, in comparing what we are doing here with what has been happening in China with Google. I think the analogy with China is quite inappropriate. After all, a notice under this clause does not require anyone to remove or censor material. It simply advises an Internet service provider that it will not be able to rely on the defence of non-endorsement. In that sense I cannot see that it is a direct restriction to freedom of speech in the terms used by the noble Lord to describe, and compare with, what is happening in China with Google. In any eventand I have heard the noble Lord say thisfreedom of speech is not exactly an absolute concept with regard to the Internet. For instance, I am sure the noble Lord would accept the point that it is inappropriate and wrong for child pornographers to have access to Internet to publish their appalling material, and that we should seek to limit such access. So, I cannot accept his argument on that.
Turning to Amendments Nos. 6, 7 and 8, again I do not believe that there is much to add. The test of whether some or all of the persons who come into contact with a statement are likely to understand that statement as encouragement exists in Clauses 1 and 2. Under Clause 3, a constable applies the test of whether a statement is capable of being understood as unlawfully terrorism-related when considering issuing a notice. That difference is the root of the difference in the tests. The constable is asked to make a judgment as to whether a statement is capable of being understood as unlawfully terrorism-related. The noble Lord's amendment would require a constable to second-guess whether the court will take the view that an audience is likely to understand the statement as an encouragement. The Government's view is that this is unnecessary and that the police ought to issue a notice saying that they are concerned about the statement's presence as they would under present drafting.
I realise that there is a difference of view on this; I suspect that the noble Lord will not favour the Government's response, but we have to reach a conclusion. I hope that the noble Lord will reflect further upon it; I am asking the noble Lord, Lord Goodhart, to withdraw his amendment, but not with great expectation.
Lord Goodhart: My Lords, I shall be very brief. I am very grateful to all those who have spoken in support of these amendments, and particularly to the noble Viscount, Lord Bledisloe, for his very trenchant intervention during the Minister's response. It is of course true that Internet service providers have not been lobbying for this particular group of
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amendments. That is perfectly understandable. They are commercial organisations concerned with having a procedure which they can understand and comply with. They are not concerned with issues of freedom of speechindeed, that has been shown by the action of some major Internet service providers in other parts of the world.
I have not been asking for uncontrolled access to the Internet. I entirely accept the principle behind thisthat something on the Internet, transmitted in material from a website, which is truly terrorist-related should be removed. It is simply that the police should not have the authority to enable them to go around removing any material which they have the slightest suspicion might possibly be of some interest to somebody for terrorist purposes.
I do not think that something "capable of being" understood and something "likely to be" understood are different in nature; they are simply different degrees of probabilities. Something is capable of being understood if it has maybe a one in 10 chance that it will be understood in that particular way. It is only likely to be understood if it has a 51 per cent chance. I think that the arguments for and against have been fully placed. I therefore seek the opinion of the House.
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