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Terrorism Bill

I thank the noble Lord for his careful exposition of his amendments and the way in which he has brought them forward. I plan to deal with the amendments in the following order: first, with Amendment No. 49; then with Amendments Nos. 50, 60, 67 and 69 as a group; then with Amendments Nos. 52 and 54 together; then with Amendment No. 57 alone; and then with Amendments Nos. 59 and 61 together. They fit more easily that way. The effect of Amendment No. 49 is to limit the take down notice system to publications and conduct caught under Clause 2 occurring within the United Kingdom. I remind the Committee that the Clause 2 offence does not have extra-territorial effect, in any event, by virtue of Clause 17. The amendment is unnecessary in so far as it relates to conduct criminalised by Clause 2. As to the publishing of terrorism-related statements, limiting an offence that targets terrorist publications on the world wide web to the United Kingdom is a seriously retrograde step which effectively undermines the entire regime. If the amendment stems from the belief that service providers served with notices outside the United Kingdom may not be able to comply with the notices by virtue of the law of the third country in which they operate—which might, for example, prohibit take down in the absence of specified governmental permissions—I can assure the Committee that Clause 3 already deals with this by providing any person who is served with a notice a get out if they have a reasonable excuse. Plainly any service provider who was prevented from complying with a Clause 3 notice by the law of the country in which it operates would have such an excuse. Amendments Nos. 50, 60, 67 and 69 all appear to have as their basis the desire to ensure that the provisions of the Bill are consistent with the e-commerce directive and the Electronic Commerce (EC Directive) Regulations 2002 as they affect certain providers. The Government’s position is that the offences in Clauses 1 and 2 are clear: where someone is merely providing an electronic service and does not endorse the offending statements they will not normally be caught by any offence unless they do not comply with a notice. Given this, we see no reason why service providers to whom the Electronic Commerce (EC Directive) Regulations 2002 apply should not be covered by the offences in Clauses 1 and 2 and the notice provisions in Clause 3. The 2002 regulations in no way preclude this. For this reason I cannot accept Amendments Nos. 22, 50, 67 and 69, tabled by the noble Lord, Lord Goodhart. Amendment No. 67 is also technically deficient in that it is not the transmission but the provider who benefits from the exemption from criminal liability under Regulation 17 of the 2002 regulations. It is true that Internet service providers in the United Kingdom were concerned that our provisions on repeat statements might contravene the e-commerce directive, which requires that a general obligation to monitor cannot be placed on those Internet service providers who fall within its terms. They are right about that. We were not of the view that the Bill placed such an obligation on such providers, but we brought forward an amendment in the other place to put that matter beyond doubt because we understood that they were worried. That amendment inserted subsection (6) into Clause 3, which will ensure that where Internet service providers only transmit or store information, and have no involvement in selecting the information, the reasonable steps that the provider is required to take by subsection (5) to prevent repeat statements should not be taken to include any general monitoring. I suspect that Amendment No. 60 is an attempt to ensure that an Internet service provider does not lose the protection of subsection (6) merely because it employs editing or selecting programmes to block serious forms of pornography. However, the noble Lord’s amendment goes way beyond that to cover not just pornography but other material not related to terrorism. This would effectively render subsection (6) worthless, resulting in a much greater degree of protection than even the directive requires for those Internet service providers which are covered by it. More importantly, it would permit terrorist website administrators easily to circumvent the repeat statement provisions with the serious consequences that I have already outlined. While Amendment No. 60 is not acceptable for the reasons that I have described, the noble Lord, Lord Goodhart, is right that we would normally have had more time in which to discuss it. Following further conversations with the industry, we are considering further amendments arising out of concerns that they have expressed about Clause 3(6). That subsection may go further than we had intended by adversely affecting Internet service providers which block content in response to specific cases of, for example, child pornography. We will bring those amendments forward on Report. I think that the noble Lord indicated that he would not press Amendments Nos. 52 and 54 because they have been resolved. I see him nodding, so I will not trouble the Committee with those matters. I must say that Amendment No. 57 would have a seriously limiting effect on the practical application of Clause 3. Subsections (4) to (7) of that clause are designed to prevent circumvention of the provisions by requiring that where a notice has been served and a statement taken down, the recipient of the notice must also take reasonable steps to prevent the same statement appearing again. The type of steps that a web host could take would be, for example, blocking the access of certain users to its website, closing parts of the website and other measures of that kind. If these provisions are removed, as the amendment proposes, the police would have to apply to a judge each time the statement appeared. That would be unworkable as it would effectively mean that offending statements would be able to remain online virtually permanently, thereby rendering the clause useless. The amendment is also technically defective as it would leave in place subsections (6) and (7), which are meaningless without subsections (4) and (5). Amendments Nos. 59 and 61 would amend the repeat statement provisions. They would change the current drafting from,"““every step that he reasonably could””," to ““reasonable steps””. I would like to persuade the noble Lord that that is quite a significant change. The amendments would probably serve only to draw attention to what such steps would be rather than make any difference. Moreover, ““reasonable steps”” creates problems that do not exist in the current drafting. The present drafting makes clear that the person would have to take every step that he reasonably could to prevent a repeat statement appearing. ““Reasonable steps”” alone could be interpreted as some of the steps that the person could take but not all of them. The person could offer the defence that he had taken reasonable steps in accordance with the legislation, but had still not taken every step that he could have taken. For those reasons, in particular that Clause 3 does not create a new offence or give the police the power to close websites, I hope that the noble Lord will be content to withdraw his amendment. As I have said, we are continuing to talk to the industry about the problems and consequences that have been highlighted by Amendment No. 60.