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22A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3
23 Page 5, line 27, at end insert
"(3A) A notice under subsection (3) shall not be given unless it has been approved by an appropriate judge.
(3B) An appropriate judge shall not grant an application for approval under subsection (3A) unless he is satisfied, on the evidence before him, that the statement or the article or record is one to which subsection (1) applies.
(3C) The Secretary of State may make regulations relating to applications made under subsection (3A).
(3D) Regulations made under subsection (3C)
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(a) may provide for an application to be heard without notice to the relevant person and in his absence;
(b) shall provide that the relevant person and other persons having an interest in the matter may apply to a court for the revocation of the notice.
(3E) The first regulations made under subsection (3C) may not be made unless a draft of the statutory instrument containing the regulations has been laid before and approved by a resolution of each House of Parliament.
(3F) Other regulations made under subsection (3C) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament."
23A Because the Commons do not consider that it is appropriate that approval of a judge be required before a notice can be served under clause 3
29 Page 6, line 37, at end insert
"( ) In this section "appropriate judge" means
(a) in England and Wales, a circuit judge or a judge of the High Court;
(b) in Scotland, a sheriff or a judge of the High Court of Judiciary;
(c) in Northern Ireland, a High Court judge."
Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendments Nos. 22, 23 and 29, to which the Commons have disagreed for their reasons 22A, 23A and 29A. In relation to Motion B, perhaps your Lordships could give me a moment as I know that I must be precise in the terminology that I use in moving this Motion.
Motion B covers the Lords Amendments Nos. 22, 23 and 29. In relation to these amendments, I would invite your Lordships to accept the decision of the other place by accepting its reasons and rejecting those which are lobbied in opposition.
These amendments relate to the body of Clause 3. This clause extends the offences set out in Clauses 1 and 2namely, encouragement to terrorism and dissemination of terrorist publicationsto the Internet. I am sure that the House has no disagreement with the principle of the clause that knowingly encouraging terrorism through the Internet should be a crime. We have heard often of the kind of radical material that might be available through the world wide web. However, in applying the offences in Clauses 1 and 2 to the Internet we had to face one significant problem, which is the knowledge of the offence. It is possible, through certain bulletin-board style websites, to run a website and be totally unaware of the content posted on to it. Clause 3 provides for a notice and take-down procedure which enables the police to notify those previously unaware of the offending material and to request them to remove it from public view. If they choose not to do so, they will be deemed to have endorsed the material and will lose the chance, if prosecuted under Clauses 1 or 2, to use the defence of non-endorsement set out therein.
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There are a number of things that it is prudent for us to remember. First, refusal to obey a notice is not an offence in itself. The legal effect of refusing to comply with a notice is merely to set out that the statutory defences in Clauses 1 and 2 of non-endorsement are not open to them. Secondly, even if an individual fails to comply with a notice, the prosecution will still have to prove that he intended to encourage terrorism, or make information of assistance available to terrorists, or was subjectively reckless about that. Those are significant burdens on the prosecution. I repeat that failure to comply with a notice simply removes one possible defence. The substantive offence, with all of its elements, still has to be proved.
The intention behind Clause 3 was, therefore, to provide a method by which webmasters could be made aware of the content on their websites, while ensuring that they could not claim that they were not aware of it, or did not endorse it, if later prosecuted. The Internet is a fast moving medium. This is a fact of which we are all only too well aware. In the field of removal of child pornography, in which the UK has taken great strides forward in the past five years, it is accepted that offensive material can change location multiple times in one day. Those shifts in location may be across computer servers, but also across countries and continents. Locating that material and ensuring that it is removed is therefore a really difficult job. It was therefore proposedand accepted by another placethat a police constable could be capable of issuing a notice to the person responsible for disseminating or publishing content considered to be capable of prosecution under Clauses 1 or 2.
The amendments that your Lordships made at Third Reading drastically changed the effect of that clause. They stipulated, ostensibly on the grounds of protection of freedom of speech, that only a judicial authority should be capable of issuing such a notice. What is more, they stipulated that the judicial authority should be a circuit judge, or judge of the High Court in England and Wales, or equivalent level judges in Scotland or Northern Ireland.
The argument advanced for such a change was that it would not be in the interest of a service provider or webmaster to ignore a notice, and that a police constable was not an appropriate authority to issue such a notice, given the effect on freedom of speech. Although I can understand some of those concerns, we believe that they are not founded in fact.
First, we reject the suggestion that Internet service providers will simply unthinkingly always comply with a notice, even if it has been inappropriately issued. The noble Lord, Lord Goodhart, has referred to that in the past as the "chilling effect". We do not believe that such notices will be issued in cases where they should not be, but in that unlikely eventuality, we think it does a great disservice to Internet service providers to assume that in such a competitive industry they would be quite so negligent of the interests of their customers.
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Secondly, we are working to produce guidance on the issue of notices under Clause 3 with a working group comprising the police and Crown Prosecution Service, as well as other interested parties. It is certain that a clearly stated protocol will exist under which notices will be issued. It will not, therefore, be possible for a notice to be issued without serious consideration. Notices will not be issued just on the whim of a police constable.
In another place, my right honourable friend Hazel Blears was able to give a little more information on this. The issue of notices under Clause 3 will use the current Special Branch communications data single point of contact (SPoC) procedures. An officer in the anti-terrorism branch of the police service who carries out such duties is known as the single point of contact and deals regularly with Internet service providers and the communications industry. Our relationship with the communications industry does not focus simply on terrorism, and there are a range of issues on which the police must foster good relations.
The accredited single point of contact officers will ensure efficiency and good practice in their management of relationships. They will use only practical and lawful requirements for the acquisition of communications data. They will provide a guardian and gatekeeper function to minimise the burdens on the Internet providers so that a huge amount of bureaucracy is not created. I know that the noble Lord was particularly concerned about that when we discussed this the last time. At the same time, however, they will ensure that there is access to the information that could help us to tackle such problems. This has been agreed by the Internet industry. It is clear that it will not be appropriate for any police constable to issue a notice; notices will be issued by specialised personnel.
The special branch officers who, as I said, are properly accredited, would assess whether it was necessary to get the information from the service providers, and they would try to assure those providers and work with them. I am assured that the officers have all been on a proper course of training. Details of all the accredited individuals are available to the service providers, so that they can be reassured about the person with whom they are dealing. We are considering the appropriate level for the authorisation of the power. In many areas, powers are authorised at superintendent level. We have not taken a final decision about that, but reading across from the regulation of investigatory powers legislation, that appears to us to be the appropriate level of seniority.
Thirdly, as we have previously discussed, these amendments were not advocated by the Internet industry. It has been clear in our discussions with the industry through its trade body, the Internet Service Providers' Association, that it welcomes the setting out of a clear notice and take-down model in this legislation. It has had several concerns which we have sought to address and which were discussed in another place. However, at no time did the Internet industry ask for the changes which these amendments make, as the noble Lord, Lord Goodhart, who has frequently
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prayed in aid the views of the industry at earlier stages of the Bill, has acknowledged; he was unaware of where we were precisely. I say that because it is important that we understand that, in this case, we are all on the same roadat least, I hope that we are.
As I have already highlighted at length, there is also no immediate penalty for failing to comply with a notice issued. Any prosecution of an offence under, for example, Clause 1, which involved the Internet, will require the proof of either an intention to encourage terrorism or a subjective recklessness in publishing a statement that could have that effect. In addition, we have the consent of the DPP. For this reason, we believe it would be wholly inappropriate to seek to involve a judge in the issue of such notices. I am very concerned that to agree with the amendments made by your Lordships would remove all effectiveness from Clauses 1 and 2 in relation to the Internet. That means that an individual would clearly be prosecuted for encouraging terrorism on a street corner, but not for doing so from his computer in his bedsit, from which he can reach a far wider audience of disaffected individuals. A requirement for judicial authorisation would add in time and delay when our aim must surely be to get terrorist-related material removed as soon as possible.
We have some straightforward provisions that would notify providers that material was unacceptable and that they should remove it, and tell them that they could choose to ignore the notice but that, if they did so, they could not avail themselves of the statutory defence that they did not know or endorse it. The Members of the other place took the view that your Lordships' amendments would elevate this matter to too great a level by seeking to have judicial scrutiny of the process. The Internet service providers have not requested that; they are happy with this process and feel that it will help to reduce the amount of such material available. This is a practical and common-sense provision.
Those Lordships who have read the Hansard of another place will have seen that there was a very full and well informed debate on this matter. The points which your Lordships made were fully covered and considered. At the end of the debate, the Members of another place voted not to accept your Lordships' amendments. They did so by the very clear majority of 64a figure which, incidentally, is 64 times the size of the majority by which your Lordships originally passed these amendments.
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