Clause 3 — Application of Ss. 1 and 2 to Internet Activity etc.
Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)
With leave of the House, Mr. Deputy Speaker, I shall respond to the useful points that have been made.
Mr. Ellwood made various points about international service providers. I have already indicated that regulating the international aspects of internet provision is not the easiest thing to do and that our measures broadly apply to UK service providers. We would not issue notices directly on international service providers, but would try to use our relationships with other Governments and our international partners in law enforcement to take action.
If a foreign Government implacably refused to take action, we might try to serve a notice on an international service provider, but that would not be our normal route, as enforcement would be difficult. Although it is theoretically possible, a prosecution would be unlikely to follow. The notice and take-down procedure is a precursor to prosecution, not an act in itself; the process prevents the provider from relying on the statutory defence that they did not know the content of their site. It is a preliminary step to subsequent prosecution, so if prosecution would be unlikely, due to international jurisdiction, it would be difficult to issue the initial notice.
The hon. Gentleman raised some important points about how we can develop our policies and procedures to maximise international co-operation on such issues. As I said earlier, we have a good record on such co-operation, especially in dealing with child pornography, where we are among the leaders in Europe and people are studying our organisation. We have invested a huge amount. We have specialist police officers and a specialist centre to deal with such issues, so we have good experience in tackling damaging information and images on the internet, but we can always learn from other people and we would be interested in doing so.
Mr. Wallace obviously has experience in that field and asked whether it would be appropriate for GCHQ rather than police officers to issue the notices. The service of the notice is very much an operational task and is not the type of thing that would normally be undertaken by GCHQ, but that is not to say that on many occasions the officers involved would not be advised by GCHQ about the appropriate steps to take.
It is important that all our law-enforcement institutions involved in tackling terrorism—whether special branch, GCHQ or the Security Service—work together. Our machinery must be focused on trying to use every tool that we can to bear down on terrorism. Hon. Members have acknowledged that the tools of the internet and international communications are increasingly used by terrorists and those who want to encourage people to get involved in terrorism. Therefore, the hon. Gentleman makes a good point: if we need GCHQ's advice, operational police officers should be so advised.
Mr. Llwyd has expressed his belief that judicial scrutiny is the appropriate mechanism to reassure people in these circumstances. Although I have made the valid argument about the risk of delay, I have also said that we need to find the right balance of judicial scrutiny; otherwise, every step that we take in trying to tackle terrorism could be subject to lengthy and serious judicial scrutiny. I hope that the hon. Gentleman, with his legal background, agrees that, as with everything we do in this respect, we must ensure that the judicial scrutiny is proportionate. This is a precursor process, not an offence. By saying that people cannot rely on the statutory defence if such things are not taken down from the internet, we do not require the same level of judicial scrutiny as that required if such an action constituted an offence in and of itself.
I ask the hon. Gentleman to think seriously about this matter. A company hosting such a site will not find that it is found guilty. We are saying, "We have notified you. Therefore, you cannot take advantage of the defence that says, 'I did not know.'" That seems to be a straightforward corollary: the company has been notified, so it cannot say that it did not know. That does not mean that it is guilty of the offence. If a prosecution were to ensue, every element that relates to indirect encouragement in circumstances likely to encourage people to emulate the act, and taking account of the phrases "in existing circumstances" and "in the context", would need to be proven.
Although I understand the hon. Gentleman's principle about judicial scrutiny, the prospect of going to a judge in the middle of the night simply to obtain a notice that only prevents the company from taking advantage of the defence that it did not know is perhaps a little beyond the balance of judicial scrutiny appropriate in these circumstances. I ask him to think about that very carefully indeed—I know that he does consider such matters properly and in detail.
I reiterate that the companies have not asked for judicial scrutiny, and they are content with the form of words that the Government have proposed and the procedure under which the police officers give the notice in the first place. The companies also want the process to be speedy, thus ensuring that it is as effective as possible. Our relationships and co-operation with internet service providers are extremely good. The companies are highly responsible, and they want to be involved in the fight against terrorism. They want to help us wherever they can. I would not be standing at the Dispatch Box making proposals that try to avoid being in direct contravention of the companies' interests if that were not the case.