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Terrorism Bill

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 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 In practice, therefore, the effect of the service of the notice will be that the statement will be withdrawn by the ISP.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. 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.