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Baroness Scotland of Asthal: My Lords, I understand the proper concerns of the noble Baroness and the noble Lord, Lord Goodhart, but I really feel in this instance that they are not well founded. The Special Branch officers who have been entrusted with this work have already been doing it with the Internet industry in a challenging area, and I dispute what the noble Lord saysthat the service
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providers' being content with this demonstrates why they cannot be trusted. With respect, that is a perverse argument because of what in fact has happened.
We can take pornography as an example. As noble Lords know, there are pornographic and other sites where one has to differentiate between the legitimate pornographyif that is not a contradiction in termsand what is illegitimate and unlawful, and remove the latter from the net, particularly with paedophilic material. We have demonstrated that the delicate balance between what is lawful and permissible and what is not has had to be carefully policed in that area, so we know that the Special Branch officers who are entrusted with this work are trusted to make those judgments by the Internet industry, too. It is not something that is done injudiciously or in a cavalier manner; it is done carefully by those who are trained and who develop an appropriate level of expertise.
I have never stinted for one minute in giving my total admiration to the judiciary, but a practitioner who deals with material on a day-to-day basis may have a little more experience than a judge who will deal with this from time to time. If we are asking someone to chase things around the Internet rapidly, it is unrealistic and unfair to expect the judicial overseer to be able to do it with the acuity that a honed practitioner does on a daily basis.
There are other opportunities, but this is simply not a practical way forward. We understand everything that people have said about freedom of speech. It is absolutely importantthat goes into the training and into the balancebut the protocols we have put forward meet the needs of the case. I invite noble Lords to agree with the Commons, and reject the amendments now advocated and which went to the other place before.
Lord Avebury: My Lords, the noble Baroness spoke of "chasing around" the Internet. Does that imply that this legislation has effect over foreign service providers? If not, does anything in the Bill prevent someone who is at present posting illegal material on a UK-hosted site moving it as soon as he gets the notice to quit?
Baroness Scotland of Asthal: My Lords, that is precisely why we have to work so hard on international co-operation. As I indicated in my initial remarks, what often happens is that people remove things from one site and post them on another. We have had to be fleet of foot in relation to paedophilic material that is moved from place to place, but working in concert with other agencies, noble Lords will be aware that we have been able to capture some pernicious and evil people who have promulgated evil material, using the Internet as their vehicle. We have stopped them and we think it appropriate, where material is likely to do great damage to the democracies we hold dear, to remove it as well.
Lord Goodhart: My Lords, this debate has been brief and I accept that the issue is not as important as the previous one, which kept us going for two hours, but
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it is an issue whose importance has been seriously underrated by most people who have been considering the effect of this Bill.
First, the noble Baroness takes what is perhaps an unduly optimistic view of the willingness of ISPs to challenge the notices served upon them. If I was running an ISP, my reaction would certainly be to say, "If you are served a notice, don't mess about, just follow it". That is understandable and I put no blame on the providers. They are not doing anything wrong in taking that attitude. It makes commercial sense and they are not the protectors of human rights.
Secondly, to leave this to the police is undesirable. The police are altogether too deeply involved in these matters. They will have a strong belief in the justification for the service of the notice they propose, will not look at it independently and will not have the broader picture in mind. It is therefore wholly appropriate to introduce a very limited judicial intervention. As I said, this would not be a hearing, but simply something analogous to the issue of an arrest warrant. That would be an appropriate role for a judge to play, as well as a highly desirable one. If that were not so, one wonders why it would ever be necessary for the police to get an arrest warrant. It is for exactly the same reason: there are of course recognised circumstances in which the police are allowed to make an immediate arrest without going first to a judge, but where an arrest warrant is required, that is so because some degree of judicial oversight is necessary to prevent the over-exercise of powers and abuse. In those circumstances, it is my wish to test the opinion of the House.
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