Clause 3 — Application of Ss. 1 and 2 to Internet Activity etc.

Terrorism Bill – in the House of Commons at 3:17 pm on 15 February 2006.

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Lords amendment: No. 22, in page 5, line 17, leave out

", in the opinion of the constable giving it,"

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to take Lords amendment No. 23, Government motion to disagree thereto, Lords amendment No. 29, and Government motion to disagree thereto.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

Although I am sure that our debate on these amendments will be somewhat shorter than our debate on the previous group, they are detailed and controversial and I have no doubt that they will be subjected to proper scrutiny this afternoon.

The amendments relate to clause 3, which extends to the internet the offences set in clauses 1 and 2—encouragement to terrorism and dissemination of terrorist publications. I am sure that the House does not disagree with the principle of the clause that knowingly encouraging terrorism through the internet should be a crime. We have all heard about the radical material that is sometimes distributed via the internet and on the worldwide web, and the damage that it can cause. However, in applying the offences in clauses 1 and 2 to the internet, we faced a significant problem relating to knowledge of the offence.

As we all know, it is possible for someone who runs a bulletin board-style website to be unaware of the content posted on it. Clause 3 provides for a notice and take-down procedure to enable the police to notify those who are unaware of offending material of its presence and to request them to remove it from the public view. If they choose not to remove the material, they will be deemed to have endorsed it and they will lose the chance, if they are prosecuted under clauses 1 or 2, to use the defence of non-endorsement set out in those clauses.

The House should bear in mind, first, that refusal to obey the notice and take-down procedure is not an offence in itself. The legal effect of refusing to comply with the notice is merely that the statutory defences in clauses 1 and 2 of non-endorsement are not open to be used by the person in question. Secondly, even if an individual fails to comply with the notice, the prosecution will still have to prove that they intended to encourage terrorism or to make information or assistance available to terrorists, or they were subjectively reckless about that. Those are significant burdens on the prosecution. The clause provides simply that someone who chooses to ignore the notice and take- down procedure will not be able to avail themselves of the simple statutory defence of non-endorsement; the prosecution will still have to prove the offence. The intention behind clause 3 was to provide a method by which webmasters could be made aware of content on their websites, thus ensuring that they could not claim not to have known about it if they were subsequently prosecuted.

The internet is a fast-moving medium. In the field of removal of child pornography, in which the UK is the acknowledged world leader, it is accepted that offensive material can change location several times in one day. Shifts in location can take place between different computer servers, across countries and across continents.

Photo of Tobias Ellwood Tobias Ellwood Opposition Whip (Commons)

The problem to which the right hon. Lady refers is an international problem, but we are prompted to act in this respect because we are trying to deal with a problem of international terrorism. What discussions has she had with ICANN—the Internet Corporation for Assigned Names and Numbers, which is the international organisation responsible for the servers themselves—which would be at the heart of any attempt to solve the problem? If we control what goes out on the internet, we stop the means of communication that terrorists use so freely.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

Personally, I have not had any such discussions, but extensive discussions are under way with internet service providers and the communications industry both in the European Union and internationally to try to ensure that we tackle those problems in relation to terrorism and child pornography. Hon. Members will acknowledge that we have made significant progress in dealing with child pornography in this area. Those discussions are under way, but the hon. Gentleman is right—we face international problems, and the imperative is to maximise international co-operation on these issues.

Locating that material and ensuring that it is removed is sometimes a difficult job, as the hon. Gentleman pointed out. It was therefore proposed and accepted by the House that a police constable could issue a notice to the person responsible for disseminating or publishing content considered capable of prosecution. The amendments made in the other place drastically change the effect of clause 3, and stipulate on the grounds of protection of freedom of speech that a judicial authority, rather than a police officer, should be capable of issuing such a notice. Moreover, they stipulate that the judicial authority should be a circuit judge, a judge of the High Court in England and Wales or an equivalent judge in Scotland and Northern Ireland.

The argument advanced in the other place for such a change is 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. I understand some of the concerns expressed in the other place, but I hope to reassure the House that they are unfounded. First, we are working to produce guidance on the issue of notices under clause 3 with a working group comprising members of the police, the Crown Prosecution Service and other interested parties. It is certain that a clearly stated protocol will be introduced under which notices will be issued. It is therefore not possible for a notice to be issued without serious consideration. Concern was expressed in the other place that a police officer could decide on a whim that material on the web contravened the provision and could issue a notice. However, I can reassure the House that that will not happen.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

I accept the Minister's reassurance but, under the Bill as drafted, it is possible for any constable to issue a notice, whatever protocol is introduced.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

It is appropriate for a police officer to take such a step, but I am seeking to assure the House that that police officer will be an accredited specialist with proper training. I hope that, on the basis of my assurances, the House is comforted that we are trying to build in sufficient safeguards so that the powers are not exercised disproportionately.

Photo of John Redwood John Redwood Conservative, Wokingham

How many cases will come to the attention of the police and result in such an order in a typical year?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I am not in a position to speculate about the effect of the provision because it is a new measure. The police, however, will look at the issue carefully. We all accept that some material circulated internationally on the web could fall foul of clauses 1 and 2, so it is appropriate to introduce a mechanism to request that that information is removed quickly—as I said, the internet is a fast-moving medium.

May I set out the detail of what the special branch officers will do, as it will give the House some reassurance? 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 simply focus 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, and they will provide a guardian and gatekeeper function to minimise the burdens on internet providers so that a huge amount of bureaucracy is not created. At the same time, however, they will ensure that there is access to the information that could help us to tackle such problems.

Photo of Julian Lewis Julian Lewis Shadow Minister (Defence)

The policemen who undertake such work will be specialists, if only in linguistics, because much of the material will probably be in a foreign language. However, what would happen if something were posted on the web that genuinely quoted inflammatory material, perhaps to criticise it? On the other hand, to get round the law, a posting could quote inflammatory material and pretend to criticise it but, in fact, be seeking to propagate it.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

Clearly, those are matters of interpretation of the material posted. Does it fulfil the conditions of the offences in clauses 1 and 2? Does it appear to be material of the kind that could qualify as the offence? The original notice and take-down procedure will be a judgment reached by the specially accredited officers who are properly trained to deal with these matters. It is important to stress that failure to remove the material is not a criminal offence. It simply stops the person availing themselves of the statutory defence that is in place.

That is probably a good balance, so that we can get swift action. Things on the web move very quickly. If we had to go to judicial authority—a High Court judge—simply for the notification procedure, that would build inordinate delay into the process.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I shall finish the information, for the benefit of the House, about the single point of contact officers. When people see the broad statement in the Bill about a police constable being able to take the action described, I understand their concerns and I am seeking to allay them.

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 and offer assurance to 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 they are dealing with.

We are considering the appropriate level for the authorisation of the power. In many areas powers are authorised at superintendent level. We have not reached a final decision about that, but if we read across from the regulation of investigatory powers legislation, that is the appropriate level.

Photo of Julian Lewis Julian Lewis Shadow Minister (Defence)

When service providers are informed about such a notification, will there not be a temptation on their part, assuming that they are just business men and women and non-ideological, to say, "Whenever we get a take-down notice, we will automatically comply. What's in it for us to resist it?", and will not the effect of the policy applied across the board be that all the websites will quickly find internet service providers abroad and the whole issue will become rather nugatory?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I do not accept the hon. Gentleman's premise that because there might be consequences, we should not try to limit the kind of information that is available. If we adopted that as a general approach, we would rarely legislate on anything. If, through the process, we can limit the amount of material that could be used to encourage people to engage in terrorist acts, it is a process worth adopting. I do not believe that the automatic response from providers will be to remove information. They have an interest in making sure that their websites, and access to the web, are relevant and interesting to the people who want to use them.

Photo of John Redwood John Redwood Conservative, Wokingham

It would help the House if the Minister could tell us why she wants the measure. How common is the problem on the web? Have there been cases of terrorist outrages or ones that have fortunately been stopped where web material was important as part of the motivational briefing?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The right hon. Gentleman will be aware that people access material and images from the web. Sometimes people who have been involved in terrorist activity have said that they were influenced by material that they were able to access. The problem is therefore real. It is important that we take every step we can to try and prevent people from being unlawfully drawn into terrorist activity. Clause 1 includes the new offence of indirectly encouraging people to get involved in terrorist activity.

It is important that we seek to use all available means, because in this global world people are increasingly using technology, the internet and methods of communication other than writing a simple statement or making a speech. We have already debated how people communicate, and most people think it appropriate to limit the use of the web where it draws people into such activity.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

The right hon. Lady has said that a specially trained police officer will consider the quality and quantity of the evidence and whether a prosecution could be mounted, but qualified lawyers, such as judges, should control all those things. If her main objection to the Lords amendment is the delay, I suggest the use of circuit judges as well as of High Court judges. Circuit judges in many fields of law are always available at a moment's notice to attend, for example, interlocutory injunctions. The delay is not necessary, because such matters can be dealt with quickly.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

My objection to the Lords amendment is not based simply on the issue of delay, and I shall make a further point in due course.

I hope that I have assured hon. Members that the people in the anti-terrorism branch, which will be the point of contact, will be properly accredited and trained to carry out the work. It is important to point out that the process has been agreed with the internet industry, which did not ask for the Lords amendment in order to protect itself. The internet industry is content with the proposed procedure in the Bill.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I understand the Minister's good intentions on dealing with rogue sites within the United Kingdom. Will she clarify what would happen if a nation such as Iran were to host a website calling on all Muslims to destroy the nation of Israel? In that case, an offence would obviously have been committed under clause 17, but would the Iranian ambassador to the United Kingdom be guilty of an offence while serving here because the site was hosted by their Government?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The hon. Gentleman has set out a complex example, and it is difficult to envisage the controls that we could introduce in those circumstances. As I have said, the impossibility of controlling every single eventuality is not a reason for inaction on other matters—I have encountered that issue in a range of areas.

The police are seeking to take action on internet transactions. It is difficult to implement provisions that affect the whole of Europe, let alone the whole of the world, but we are continuing to work on international agreements to limit illegality on the internet. The issue will become increasingly difficult as more and more information becomes available on the internet, and we are seeking to introduce robust laws to limit the problem. I do not think that we can eradicate radical material from the whole of the internet, but that is no reason not to do the best that we can.

Photo of Martin Horwood Martin Horwood Liberal Democrat, Cheltenham

The Minister has rightly pointed out the complexity of many of the examples, so I shall give her a simpler one. If a newspaper were to carry a photograph of a direct encouragement to terrorism—for example, some of the recent placards—on its website, would that website be indirectly encouraging terrorism? Under the Bill, the encouragement would be indirect, but the judiciary rather than the police should make such fine judgments.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

The hon. Gentleman has not appreciated the two-stage nature of clause 3. The police, who will be properly accredited, will say, "This is on your website and we would like you to take it down." People can properly refuse to remove such material, but it means that they cannot then take advantage of the defence that they did not know about the material and could not therefore endorse it. It does not mean that someone is guilty of an offence, but simply that they cannot take advantage of a defence that is designed to protect people who genuinely and innocently did not know that the material was on their website. It puts them on notice that the material is on their website and that they had better take it down or they may be prosecuted. However, the prosecution would still then have to prove every element of the offences in clauses 1 and 2. The person will have their legal protection, but they will not be able simply to say that they did not know about it, because they will have been put on very clear notice by the police officer concerned.

These amendments have not been asked for by the internet industry, which does not feel that it is rulable as a result of these provisions. We have been in discussions with its trade body—the Internet Service Providers Association. It welcomes the setting out in the provisions of a clear notice-and-take-down model. It had several concerns which we sought to address and which were discussed in the other place. However, at no time did the industry ask for the change that the amendments would make—that is, to bring in judicial oversight.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I appreciate precisely what the Minister is saying. We are dealing not with an offence but a defence, and that defence being abrogated as a result of knowledge of what one is doing. I suspect that it is not that different from a situation in which, were there to be no defence, a member of the special branch or a senior police officer went to the internet provider and said, "This is on your site, and if you don't take it off we're going to prosecute you for it." Let me offer the Minister a thought. The police's ability to do this is undoubtedly an in terrorem measure. May I suggest that we build into the Bill—we still have time— an appeal process whereby, if it wishes, an internet provider that has been warned in this way can go to a judge for that judge to provide, on its appeal, whether proper or improper notice has been served? No delay would be involved. It would be at the internet provider's expense, we would not be in any way penalised by it, and it would assuage many of the problems that many of us have.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I understand my hon. and learned Friend's point. I do not know how many people share the same problems, but I think that the internet industry is content with the provisions as we have set them out and feels that they strike the right balance. It is not looking for extra judicial oversight or for an appeal process. We must get the balance right between being able to take swift action on a very fast-moving medium—the internet—and ensuring that people can still avail themselves of the proper defences to any prosecutions that might be brought but cannot avail themselves of the defence that they did not know about the material if they have been put on notice. That is a sensible and straightforward provision.

As I said, there is also no immediate penalty for failing to comply with a notice. In those terms, there is no need for an appeal process. If we want to prove offences under clause 1, we have to prove intent or subjective recklessness. In addition, there are the provisions on the consent of the Director of Public Prosecutions and the hurdle of the public interest. I talked about hurdles at great length when we debated this legislation in the past. I am concerned to ensure that there are safeguards.

I do not want provisions that lead to arbitrary prosecution, but I think that these provisions are appropriate. The amendments tabled in the other place would make them much less effective. If we are going to say that there needs to be judicial oversight of such material by a High Court judge, as suggested, that would subject the issuing of one notice, which merely notifies and requests the person to take down material, to the same amount of judicial scrutiny as the continuing detention provisions. I genuinely think that in this case we have got the balance right, with a specially trained special branch officer who works with the anti-terrorist unit, and is used to dealing with these issues, going to the service provider and saying, "This material is there, you ought to take it down, and if you don't you can't avail yourself of the defence that says you didn't know." It is a very straightforward issue, and with the greatest respect I think that Members are making heavy weather out of it.

Photo of Julian Lewis Julian Lewis Shadow Minister (Defence)

I am being persistent about the matter because I was one of the first people to issue a writ against an internet service provider for defamatory material. That is analogous to the position that we are discussing. The effect was instantaneous: the material was removed and promptly reappeared on the site of a foreign internet service provider. However, the Minister could consider a positive action—perhaps she has already considered it—that is more than the empty gesture that she is making. What is she doing about search engines? The danger of such material is not so much the people who know which websites to look for because they are already hooked, but those who enter terms into a search engine such as Google, which, as we know, is capable of deciding what it will produce if hit. Action on search engines would be of more practical value than what she is proposing today.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee 4:00, 15 February 2006

My decision to give way to the hon. Gentleman is vindicated. As ever, he has knowledge and experience of such matters and makes a practical suggestion. I do not accept that our proposal is a gesture. I believe that it will have an impact on reducing the available material. However, I should like to investigate whether we could consider action—not necessarily in the Bill—to cover people who perhaps inadvertently go on to such websites and those who positively search for them. The hon. Gentleman makes a fair point.

I am sure that hon. Members want to try to ensure that our law is effective. I do not believe that an appeal process is necessary because providers can simply ignore the notice, in which case they cannot avail themselves of the statutory defence. We all accept the power of the internet today and the fact that it is capable of radicalising young men and women and exposing them to material that none of us wants them to see.

It is important that we disagree with the Lords amendments. They are cumbersome, not at the right level, would lead to delay and make the provisions much less effective.

Photo of Tobias Ellwood Tobias Ellwood Opposition Whip (Commons)

Does the Minister concede that, if the internet played any part in the 7/7 bombings or any of the other international terrorist events, the websites and internet service providers are likely to have emanated from abroad? If we are to tackle international terrorism, the provision may be a step in the right direction but it will hit many innocent organisations that will now have to be careful, while not touching internet service providers and websites that deliberately send messages and are used by terrorists as a form of communication.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I am pleased that the hon. Gentleman accepts that the provisions will have some effect. I do not pretend that they will eradicate every bit of unacceptable material from the whole internet. It would be difficult to draft such provisions without their leading to complaints that they were too draconian and authoritarian. We are trying to get the balance right. We constantly work with our colleagues in the European Union and other nations throughout the world to try to ensure that we bear down on global information that can drag young people into terrorist activity.

Other member states are as concerned as us to try to reduce such internet activity in their countries. We have negotiated some good agreements, especially in the EU, about sharing information and trying to harmonise the retention of communications data. That, too, will help in our fight against terrorism. Hon. Members should rest assured that the Government are not idle. We constantly try to ensure that we maximise our ability to intervene.

Photo of David Taylor David Taylor Labour, North West Leicestershire

I have listened carefully to my right hon. Friend's comments about the attitude of internet service providers in the United Kingdom and elsewhere. Is not it at least possible that internet providers and the Governments of the countries where they are located are not necessarily reluctant for some of the more marginal material to be left on the web because one could thereby track the source and addresses of those who access the sites? Is not that a form of intelligence that could help tackle some of the problems that my right hon. Friend describes?

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I do not necessarily accept the advice that we should allow material that is clearly dangerous to remain on websites to try to get intelligence.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

Those are matters of fine judgment and I do not want to consider the provisions that we discussing in that way. We have some straightforward provisions that would notify providers that material was unacceptable and that they should remove it, 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 about it. The provisions from the other place 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, and I ask the House to disagree with the Lords amendments and to approve the original wording of the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have listened with interest to what the Minister has said on this matter. We share her aims in clause 3. We entirely agree that it should be possible to give a notice to take down internet material that offends under clauses 1 and 2. We have no problem with that. The difficulty is, as the Minister will acknowledge, that the internet service provider is in a different position from the person who has put the material on the web in the first place.

We take the view in this country that the internet is a powerful tool for disseminating information, and that on the whole—although it can be used for bad purposes such as pornography, child pornography and, indeed, terrorism—the balance is in its favour in that it allows the distribution of information around the world. It is therefore in the public interest that the principle of the freedom of the internet should be maintained. Disquiet has been expressed recently that, under pressure from some foreign Governments, internet service providers and search engines have been prepared to reach accommodations with those Governments to withdraw certain material, particularly in China. That is an infringement of the ability to communicate freely. There is a serious public interest in maintaining the right to communicate freely on the internet.

I fully understand how the Government's provision will operate. There will be trained officers to carry out research work and serve the notices. That is all perfectly appropriate, but, as Mr. Marshall-Andrews so rightly said, when a person receives one of those notices, it is in terrorem. They will receive a notice telling them that they risk prosecution unless they remove the material, and that they will not be able to rely on the statutory defence of lack of knowledge. Any internet service provider that is doing its job properly and is respectful of the public policy arguments relating to the maintenance of freedom of speech will have to make a judgment as to whether the police officer is right to serve the notice. There could be instances in which an internet service provider decided that the case was borderline. It would not be the first time in our history that a police officer had made a mistake, however well-intentioned they might be.

In those circumstances, what could be more sensible than to provide a mechanism to reassure the internet service provider that an independent third party had scrutinised the request from the police officer, so as to establish that there was at least a prima facie case to justify the officer's action? That is all that we were talking about, when the other place inserted the judicial scrutiny provision.

I was surprised to hear the Minister say that this would be no different from the scrutiny of control orders. She has failed to understand the nature of the review that a judge would carry out. I would assume that it would be identical to those made on an ex parte application for an injunction. The police officer would simply have to show the material to the judge, and the judge would have to make a swift assessment of whether he thought that it fell foul of clauses 1 and 2. The judge would then give his approval. That would provide the reassurance to the internet service provider that he was taking the right decision in taking the material off the web.

The Minister seemed to say that there was a great need for haste in such cases. I confess that I was a little surprised about that, because when we debated clause 3 it never occurred to me that it, or clauses 1 and 2, would be used as an emergency provision suddenly to remove or prosecute people. Instead, it seemed that it was part of the Government's perfectly commendable plan to ensure that the circulation of material that constituted a direct or indirect encouragement to terrorism could be controlled. The truth, I suspect, is that material of that kind is likely to have been on the web for weeks if not months or years before somebody finally starts taking action against it. That there will be some threat to the public from a delay of 24 hours, which is probably all that would be needed in order to go before a judge—in an emergency, the delay would probably be of a few hours, and the hearing could probably be done in the middle of the night were there some pressing reason—does not therefore seem to be the best point that the Minister has made in the debate, although I acknowledge that I do not take exception to the broad thrust of what the Government are trying to do.

I regret that the Minister has not persuaded me that the amendment was a foolish move by those in the other place to try to improve the Bill. I am a little disappointed not to have seen her telling us cheerfully from the Dispatch Box that it was rather a good idea and a minor improvement to the Bill that should commend itself to the House.

The hon. and learned Member for Medway made the point that the other approach would be to have an appeal procedure. That is another way of doing it. It would provide for some degree of judicial review of the decision taken. Where people are making a decision that interferes with the normal right to exchange information, it seems to me that the cost, which would not be much anyway, could properly fall on the state, at least in providing for this scrutiny measure. To be fair to the Minister, she has not suggested that the scrutiny measure will undermine the provisions of clause 3, as that would be rather far-fetched.

The measure is not of huge importance, but having read it and considered what the other place has done, it seems to be a material improvement to the Bill. When first confronted with the amendment, which did not come from my party, my colleagues in the other place took the view that it helped matters. I am therefore sorry to learn that the Minister is unsympathetic to the amendment. If, as I assume will be the case, the matter is pressed to a vote, Conservative Members will vote for the amendment to be retained, because although it is not of huge importance, it is a minor and sensible improvement to the legislation.

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Home Affairs)

We agree in principle with wanting to take off the net material that would incite or encourage terrorism, on which there is agreement on both sides of the House. However, we want to preserve the protections put in place by my noble Friends in relation to free speech and freedom of information and a certain degree of protection for the police.

The internet is the most extraordinary communication tool. It brings light to some of the darkest places in this world because it circumvents the censorious nature of authoritarian Governments or dictatorships. We laud its freedoms when it suits us, because it brings news and the outside world into those countries where Governments would keep freedom at bay. We object when we see Governments interfere with those freedoms, as we did recently in the early-day motion on China and Google, which I signed.

The Government wish to disagree with my noble Friends' amendment. We believe, however, that free speech is threatened by intervention in what can and cannot be published on the internet. We therefore agree that the safeguards in relation to any removal of material should be strengthened. If the amendment is allowed to stand, the decision to serve a notice will be removed from the constable and will become a matter for judicial oversight. We want to ensure that the mischief that the Government rightly seek to address is confined to that particular mischief.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering 4:15, 15 February 2006

May I give a rather flippant example? We all know of the case of Mr. Walter Wolfgang, who was removed from the Labour party conference under anti-terrorism legislation on the determination of a police officer. Were Mr. Wolfgang to have a website, the Bill would allow a police officer to insist on its removal. We all know that that is a flippant example and that it is unlikely to happen, but under the Bill it is possible.

Photo of Lynne Featherstone Lynne Featherstone Shadow Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Home Affairs)

That is true. A host of cases might be caught, or might not. The point of judicial oversight is to confer an extra level of security to any decision that is made.

If a notice is served, an internet service provider will inevitably remove material that is cited as being unlawfully terrorism-related, because it will not be in the provider's interest to risk the cost, the fight and the possible prosecution for the sake of something about which, ultimately, he may not care very deeply. He might not be caught for non-compliance with the notice, but he would be caught under the provision relating to an endorsement being seen to have been given if the material were not removed within two days, and would be exposed to prosecution. Obviously, service providers would fight shy of that. No wonder they are not complaining to the Minister; I do not think they can. Accepting the notice and removing the material is the line of least resistance.

The judgment on material thought to be unlawfully terrorism-related becomes crucial. The Bill refers to the opinion of a constable. I am impressed by the sudden escalation of the qualifications of that constable to the level of special branch, with authority to give particular guidance; but the Bill uses the word "constable" nevertheless. While I have the greatest respect and admiration for our police officers, the usual remit of the police is to submit those suspected of law-breaking to the judiciary for their decision. Under the Bill, a constable will be the arbiter.

There is a history surrounding the opinions of police officers, particularly in respect of issues of this kind. We know that stops under section 44 of the Terrorism Act 2000 resulted in a 300 per cent. increase in the number of stops after ll September. We know of the disproportionality relating to stop and search and stop and account. To my personal knowledge the Met has worked hard to eradicate such tendencies from its police officers, but that disproportionality persists. But even when a constable's discretion—which is vital to police work—is used, it is used to bring a suspect to justice. The constable is not supposed to act as judge and jury.

Moreover, the likely consequences of making the constable, through his "opinion", the final arbiter over what is unlawfully terrorism-related may expose the police to public criticism or ridicule should the "opinion" be obviously and substantively wrong, and subject them to unwanted publicity. The same would apply if a provider took his case to court and won—although, as I have said, I doubt that that will happen. The police would become vulnerable if required to make a judgment that a police person is not trained to make, and which it is not appropriate for him or her to make. The police have enough to contend with. Their role should be to bring offenders to justice—to submit to a judge those who, in their opinion, deserve a notice to remove material from the web. Judicial oversight would afford some protection to free speech, and to police officers who would otherwise be charged by the Government's edict with an inappropriate power to decide. Accepting the Lords amendment would have merely a time consequence, as Mr. Grieve said. We are talking about a delay of a few hours, not about going to court. The measure is akin to an arrest warrant rather than a court hearing, so the Minister's argument is somewhat specious.

Judicial oversight would lend weight and seriousness to a decision to issue a notice to remove such material, which can only be a good thing; such extra protection has to be a worthy thing. The added benefit is that in referring cases to judges, constables would have more time to weigh the decision being taken; as a result, they would not refer cases so lightly. Constables themselves would consider whether a particular case was worthy of judicial oversight, which provides an extra protection.

We all understand what the Government are trying to do, but we must ensure that we do not in any way become like those authorities and Governments around the world whom we judge so harshly for their censorship and lack of freedoms. The safeguards that we propose are relatively minor, but they are necessary.

Photo of John Redwood John Redwood Conservative, Wokingham

I rise to support my hon. Friend Mr. Grieve and all those who are concerned about this provision. Like the Minister and all sensible people in this House, I wish to see every decent action taken against terrorism to make it less likely, and to curb those who want to participate in it. However, I am very nervous about the Government's proposal, which will leave our police in great difficulties. The use to which such material is put is in the eye of the reader and the mind of the beholder.

I trust that all Members believe in the rule of law, peaceful and legal protest and democratic action, not in violent or terrorist action. It is quite possible for us to read histories of recent or past events, of freedom movements and people who have gone beyond the rule of law in what they thought was a just cause, without them inciting us to do the same. To us, even if the cause was right, the means were wrong, and we read such histories with condemnation in our hearts and minds. It would be quite possible, however, for others to read such histories without that strong framework. One could argue that such histories incited them to do likewise in that cause, or in a cause that they regarded as similar. At what point does legitimate history, comment and reporting end, and incitement and the writing of dangerous material begin?

I would have been much happier to support the Minister this afternoon, had she been able to say how serious a problem this is, what kind of material she does—and does not—have in mind, and how many such instances we might be talking about. If she is saying that she knows of websites that contain outrageous material that is having an impact on a limited number of people, who are then using them to develop a terrorist mentality and to share intelligence with one another, that is one thing, and an argument that I can understand. If, however, she is saying that all manner of websites could be out there that could cause this problem, that is very different. My worry is that the latter is the case, and that the Government are taking a scattergun, very general approach that will place newspapers, opinion-formers, commentators and others in a very difficult position. They will not be sure whether their material could be struck down, or what processes they could use to defend themselves.

The suggestion is very good and because we wish to prevent terrorism by all sensible means, we will not try to prevent the Minister from extending the powers of the state in this way in order to have some control over internet material. However, in order to reassure all those involved in legitimate reportage, history writing or internet communication that they are not being targeted, a senior judicial figure should be involved in such cases. That would also provide an added protection for our constables. The Minister said that we are talking about a very limited number of specially trained people—people who need remarkable language skills and judgment in trying to distinguish between the different types of material that I have sketched out today—but in fact, the Bill states that any constable could deal with such matters. That places too big a burden on constables, and might lead to pressure being put on them by people who see websites that they do not like, and who think that this could be a route to getting them closed down. I therefore urge the Minister to think again.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I shall be brief, but the Minister has just announced the effective expansion of some special branch duties as a way to alleviate Opposition concerns about take-down orders being put in place by a constable. In my time, I have served alongside special branch officers—in the special operations unit SO12 in Northern Ireland—and I know that they are among the best officers in the police force and that they do an extremely good job. However, I also know the practicalities of Government directions such as the Minister's, and I question whether the person placing take-down orders will in fact be the sort of officer about whom she gave the House assurances.

Special branch officers are incredibly overworked and bear a heavy burden. Among their many other jobs they run agents, liaise with intelligence services and implement new legislation. The Bill talks about a "constable", meaning a member of the mainstream special branch, but my experience is that that person will soon be merely a liaison officer attached to special branch, and then an ordinary constable who is asked to assist in a case. Inappropriate allocation of police officers to such tasks can lead to the sort of extreme events that we saw with the Manchester ricin plot. In that case, the wrong type of officer was deployed in the wrong job, and lives were placed in extreme danger.

I hope that the Minister will alleviate some of our concerns, perhaps in writing if she is unable to provide the answers to my questions this afternoon. What will be the cost of the extra training for some officers? Why do the Government believe that the Bill should speak so loosely of a "constable", without offering a closer definition of the expertise required? Why is the Minister not happy with GCHQ, the agency that does the job at the moment? It has linguists, and its intercept knowledge goes far deeper than that of the police force. Does not GCHQ represent the best way to go about these matters, in conjunction with a judicial appeal?

Photo of Julian Lewis Julian Lewis Shadow Minister (Defence)

My hon. Friend's suggestion has the additional practical advantage that it meets the point made by the Labour Back Bencher who spoke about those occasions when the intelligence services will want to track who is accessing sites. As part of the intelligence network, GCHQ will be able to make a balanced decision about when to take a site down and when it might be advantageous to keep it up for intelligence purposes.

Photo of Ben Wallace Ben Wallace Conservative, Lancaster and Wyre

I am grateful to my hon. Friend for pointing that out, and I agree with him. I suspect that Cheltenham will continue to do the job anyway, and that a constable in some police force will get a phone call telling him to go down the road to enact a take-down order. That will not make for good policing, but it will cause police resources to be used up. For example, a terrorist group may want to take an officer off duties involving surveillance or running an agent. All it need do is to put up an inflammatory website, and that officer's time will be taken up with the ensuing take-down order rather than with trying to intercept information or interdict the terrorist organisation.

I hope that when the Minister sums up she will describe the expansion of the special branch role, and give details of the cost implications for the police force of placing on a constable the requirements set out in the Bill. Also, I hope that she will introduce more robust safeguards to ensure that the "constable" referred to by the Bill does not become merely any probationer or officer who happens to be on hand when a take-down order is required.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Defence), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

In all honesty, I cannot understand why the Minister will not accept Lords amendment No. 29. In her opening remarks she said that it seemed rather excessive, in this connection, to use the good offices of a High Court judge, but that is not what the Lords amendment proposes. In the context of England and Wales, it says that an "appropriate judge" means

"a circuit judge or a judge of the High Court", while in Scotland, it would be

"a sheriff or a judge of the High Court of Judiciary".

Although I am sure that it was inadvertent, it was wrong for her to mislead the House in that way.

However, even if we need to give special training to a circuit judge or two, or possibly to a High Court judge, that is all that would be necessary, as we all suspect that these orders will be few and far between in any event.

I speak as a person who is fully supportive of the constabulary. My brother is a Surrey police officer and my late father was also a police officer. I have nothing against the police, but we are now asking police officers to be judge and jury in their own courts. They are highly trained to collect and collate evidence, and then to report to the prosecuting authority, which is, in nine cases out of 10, the Crown Prosecution Service. It is not in their remit to judge that evidence—although it was in days gone by, before the Crown Prosecution Service was introduced. If the Minister is suggesting that a police constable, however well trained, should be able to evaluate whether an offence has been committed—or would be committed if a site remained up—she is asking the impossible of a person who has not been judicially trained. I do not mean that in a snobby way; we all play our various roles in society and a police officer does not play that quasi-judicial role. I am sure that the safeguards in the amendments are reasonable and worthy of proper consideration.

The Minister said that her main objection to the amendments was not related to the possibility of delay, but her speech was constructed around delay and I did not hear any other real reasons why the judiciary should not be involved. In any case, there would be no delay if one had at hand expert judges, available 24 hours a day, as is the case for domestic violence cases in the middle of the night or any other form of criminal or civil jurisdiction. I am sure, given the importance of this issue, somebody would be available to deal with cases without delay. I cannot understand why this extra safeguard is not being considered.

Mr. Marshall-Andrews suggested a brief appellate procedure, in which the constable would decide, but the decision would be passed to a judge to evaluate whether it should stand. It is all very well for the Minister to say that if someone is warned about taking a notice down, they may ignore the notice. It is not that simple, because they then lose the right to that defence. If they refuse to take down a notice, having been told to do so by a constable, the statutory defence relating to knowledge would not be available to them. That is an important step, because it would mean that if any prosecution were brought, they would be bang to rights, on a decision initially made by a police constable. That is not very well thought out. The other place has provided a safeguard and I urge the Minister, who is a reasonable person, to reconsider the Lords amendments on that issue.

Photo of Tobias Ellwood Tobias Ellwood Opposition Whip (Commons) 4:30, 15 February 2006

The purpose of any terrorist attack is to seek attention and create a sense of anxiety and panic among the public, and to provoke an over-reaction by the authorities. My concern about much of this Bill is that it is an over-reaction by the authorities, and that allows the terrorists to win a long time after the actual terrorist attack has come and gone.

I am pleased that we are starting to focus attention on the use of the internet. I am sure that the House will agree that the internet has played a pivotal role in the communication and planning of all the international terrorist attacks that have taken place. However, the examples mentioned in this debate show how much could have been achieved if we had focused more on the internet. In fact, what has been left out is of more concern.

We have talked about the role of the police and about the fact that we should start to police the internet in the UK, but we have not really discussed what happens to material in another language or the consequences when organisations using the internet as a means of communication shift their activities abroad. As I said earlier, a united effort is required and it would be nice to see examples of what is happening on the international platform to combat the use of the internet in terrorist incidents.

Earlier, I mentioned ICANN, which is based in California and is the core for all internet service providers. It has the technical power, although not yet the ability, to put limits on internet service providers throughout the entire world. It does not yet happen, because the internet has advanced at such a pace that nobody has been able to take that step. Examples cited earlier about what is happening in China illustrate that such limitation can be successfully undertaken.

Although the Government initiatives in the UK are welcome, my challenge to them is that if we are to combat international terrorism, we must give robust consideration to the operation of ICANN. We must look at how it functions and determine whether it can better assist us to control a fundamental form of communication used daily between terrorist organisations and to recruit new members to them.

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I remind the right hon. Lady that she needs the leave of the House.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

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.

Photo of David Winnick David Winnick Labour, Walsall North

This may not be a very helpful intervention, I am afraid. I believe that the Opposition much exaggerated the criticism about the glorification provision. I did not accept that criticism and voted with the Government, and I intend to do so again this time. May I tell my right hon. Friend, however, that one of dangers of coming into the Chamber is that we can be persuaded by the argument? It seems to me that the opinion of the constable is not really sufficient—hence the reason why I said that this would not be a very helpful intervention. Despite my right hon. Friend's comments, some judicial oversight would be welcome. I shall not break with the Government on this issue, but I wish that they would consider it further.

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

I am extremely grateful to my hon. Friend for his support on the other issues. I am not at all critical of the fact that he has just arrived in the Chamber—

Photo of Hazel Blears Hazel Blears Minister of State (Home Office) (Policing, Security and Community Safety), Member, Labour Party National Executive Committee

Indeed, I appreciate that, but if my hon. Friend had perhaps heard a little more of the debate, he would know that I am genuinely seeking to get the balance right between ensuring that we have an effective procedure that can tackle the kind of terrorist material that we see on the internet and trying to ensure that the service providers are not disadvantaged.

That is why I went into some detail about the level of qualifications that the officers who are engaged in this work will have. They will be accredited officers, properly trained and act as the single point of contact that currently exists in the anti-terrorism branch. They will not be simply any police constable. We are now working with the Crown Prosecution Service, the police and internet service providers on a proper protocol to ensure that the police officers who make such decisions are skilled, experienced and properly trained so that they have the specialist knowledge. I hope that this reassures my hon. Friend that the need to go to a judge in the middle of the night with such a notice is not the right level of judicial scrutiny in this process.

I hope that I have been able to reassure hon. Members, but I am sure that I have not managed to persuade Mr. Grieve. I genuinely believe that the Government's proposals will make the law effective and will ensure that we tackle the real problem of the use of the internet to draw young people particularly into terrorist activity. That is a widespread and growing problem, and I am absolutely determined that we will use every method at our disposal, through technology, legislation and our law enforcement forces, to make sure that we bear down on terrorism in this country and that we tackle the people who seek to use international means and technology to draw people into terrorism and to create a climate that can increase the possibility of terrorist acts occurring in this country. Tackling such uses of the internet will be an extremely useful part of the range of the efforts that we take to reduce terrorism in this country.

As I have said, I accept entirely that the provision may not eradicate the problem across the world, but that is no reason whatever for us not to do everything that we can in this country to make sure that we reduce the amount of information on terrorism and that we tackle the real danger of the use of the internet in promoting it. I therefore disagree with the amendments from the other place and—

It being four hours after the commencement of proceedings on consideration of Lords amendments, Mr Deputy Speaker pursuant to Order [this day] put forthwith the Question already proposed from the Chair.

The House divided: Ayes 319, Noes 255.

Division number 169 Terrorism Bill — Clause 3 — Application of Ss. 1 and 2 to Internet Activity etc. — Giving notice

Aye: 319 MPs

No: 255 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Absent: 68 MPs

Absent: A-Z by last name

Question accordingly agreed to.

Lords amendment disagreed to.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Lords amendment Nos. 23 and 29 disagreed to.