New Schedule 3

Counter-Terrorism Bill – in a Public Bill Committee at 3:00 pm on 15th May 2008.

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Offences relating to information about members of armed forces: supplementary provisions

The following Schedule is inserted after Schedule 8 to the Terrorism Act 2000 (c. 11)—

Offence under section 58A: supplementary provisions

Introduction

1 (1) This Schedule makes supplementary provision relating to the offence in section 58A (eliciting, publishing or communicating information about members of the armed forces).

(2) The purpose of this Schedule is to comply with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (“the E-Commerce Directive”).

Domestic service providers: extension of liability

2 (1) This paragraph applies where a service provider is established in the United Kingdom (a “domestic service provider”).

(2) Section 58A applies to a domestic service provider who—

(a) commits any of the acts specified in subsection (1) of that section in an EEA state other than the United Kingdom, and

(b) does so in the course of providing information society services,

as it applies to a person who commits such an act in the United Kingdom.

(3) In such a case—

(a) proceedings for the offence may be taken at any place in the United Kingdom, and

(b) the offence may for all incidental purposes be treated as having been committed at any such place.

Non-UK service providers: restriction on proceedings

3 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).

(2) Proceedings for an offence under section 58A must not be brought against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the following conditions are met.

(3) The conditions are—

(a) that the bringing of proceedings is necessary for one of the following reasons—

(i) public policy,

(ii) public security, including the safeguarding of national security and defence;

(b) that the proceedings are brought against an information society service that prejudices the objectives referred to in paragraph (a) or presents a serious and grave risk of prejudice to those objectives;

(c) that the bringing of the proceedings is proportionate to those objectives.

Exceptions for mere conduits

4 (1) A service provider is not guilty of an offence under section 58A in respect of anything done in the course of providing so much of an information society service as consists in—

(a) the provision of access to a communication network, or

(b) the transmission in a communication network of information provided by a recipient of the service,

if the following condition is satisfied.

(2) The condition is that the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

(c) select or modify the information contained in the transmission.

(3) For the purposes of sub-paragraph (1)—

(a) the provision of access to a communication network, and

(b) the transmission of information in a communication network,

includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.

(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.

Exception for caching

5 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.

(2) The service provider is not guilty of an offence under section 58A in respect of the automatic, intermediate and temporary storage of information so provided, if—

(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and

(b) the following conditions are satisfied.

(3) The first condition is that the service provider does not modify the information.

(4) The second condition is that the service provider complies with any conditions attached to having access to the information.

(5) The third condition is that if the service provider obtains actual knowledge that—

(a) the information at the initial source of the transmission has been removed from the network,

(b) access to it has been disabled, or

(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.

the service provider expeditiously removes the information or disables access to it.

Exception for hosting

6 (1) A service provider is not guilty of an offence under section 58A in respect of anything done in the course of providing so much of an information society service as consists  in the storage of information provided by a recipient of the service, if the condition is met.

(2) The condition is that—

(a) the service provider had no actual knowledge when the information was provided that it contained offending material, or

(b) on obtaining actual knowledge that the information contained offending material, the service provider expeditiously removed the information or disabled access to it.

(3) “Offending material” means information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism.

(4) This paragraph does not apply if the recipient of the service is acting under the authority or control of the service provider.

Interpretation

7 (1) In this Schedule—

“information society services”—

(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and

(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;

“recipient”, in relation to a service, means any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;

“service provider” means a person providing an information society service.

(2) For the purposes of this Schedule whether a service provider is established in the United Kingdom, or in some other EEA state, shall be determined in accordance with the following provisions—

(a) a service provider is established in the United Kingdom, or in a particular EEA state, if the service provider—

(i) effectively pursues an economic activity using a fixed establishment in the United Kingdom, or that EEA state, for an indefinite period, and

(ii) is a national of an EEA state or a company or firm mentioned in Article 48 of the EEC Treaty;

(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;

(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.”—[Mr. McNulty.]

Brought up, read the First and Second time, and added to the Bill.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I beg to move, That certain written evidence already reported to the House be appended to the proceedings of the Committee.

That is another contentious move, but it gives me the opportunity to thank you, Mr. O’Hara, for your time  as Chair. Your patience and indulgence—not least of me as the Minister—have been very well received, and I am very grateful for them. May we, through you, send our best wishes to our other Chairman, Mr. Bercow, who, when he was with us, was just as excellent? I am sure that the entire Committee would endorse that fully, especially the hon. Member for Reigate. We also wish Mr. Bercow well because, on the days when you have been chairing our proceedings, he has been enjoying paternity leave with the third addition to his family, and we wish him the very best with that.

I apologise again to the Committee for my little breakfast tantrum, because the hon. and learned Member for Beaconsfield was entirely right. Despite the import, substance and, sometimes, contention of our proceedings, they have been carried out in a very temperate and well-mannered fashion, for which I am enormously grateful to everybody. The hon. Member for Somerton and Frome has shown that he is a deadly loss to the Liberal Democrat Front Bench. He has done a very good imitation of a Front Bencher and a Back Bencher during our deliberations, while his hon. Friend the Member for Carshalton and Wallington has done a very good imitation of a no Bencher, since he has not been with us for much of the deliberation. [Interruption.]

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. The Minister is trying to be nice.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

That was perfectly deliberate and nothing to do with the absence at lunch at all, and I stand by that remark entirely.

I am grateful to the Welsh guy, as he shall now be known, for his short, pithy, good-humoured and overwhelmingly productive contributions. It is a great credit to his micro-party—[Interruption.] I do not mean on local government in Wales.

During our deliberations, the most significant role that the hon. Member for Gravesham played was as a Tory splitter. He defied the Whip and decided that the future of British politics lies with the right hon. and learned Member for Sleaford and North Hykeham, rather than with his Front Bench, and I wish him well in that judgment. It was such a memorable and significant split that I cannot remember what the headlines were, but I remember the no vote. I thank the hon. Gentleman for his subsequent no vote—I am sure that that pregnant pause between the “no” and the “vote” will not be reflected in Hansard as meaning quite what it did to the Committee.

I thank the other two ex-soldiers, who are not with us today—the hon. Members for Lancaster and Wyre and for Newark—for colouring our deliberations with their contributions. Perhaps unusually for politicians on Committees, they made significant contributions when they could and shut up when they had nothing to say, which we were grateful for—the first point, not the second. That was good of them.

The rather strange contributions made every now and then by the hon. Member for Monmouth were entertaining, although not as informative as those of his Welsh confrère. We now understand that the Tory policy, at least in Monmouth, is to have a Taser in every household and compulsory target practice for the  under-60s, or something of that order. I am not entirely sure, but maybe he was making a bid to replace the outgoing right hon. Member for Maidstone and The Weald (Miss Widdecombe) with regard to toughening up the law and order team on the Conservative Front Bench. I wish him well in that endeavour, because the notion that he might adorn the Conservative Front Bench as a law and order and Home Office spokesman cheers us up enormously. The sooner that can happen, the better.

Let me say to the Conservative Front Bench that things have been done in an overwhelmingly effective and efficient fashion through the usual channels. The hon. and learned Member for Beaconsfield has given an excellent display, once again, of his knowledge, good manners, astuteness, erudition, and of course his efficacitÃ(c) as a member of the Conservative Front Bench. I thank him for his courtesy and kindness. It is always a pleasure to appear opposite him.

Although the Under-Secretary of State for the Home Department, my hon. Friend the hon. Member for Gedling was not called upon much, I am grateful in many different ways that he was here, because it helps enormously. It almost helped this morning, and perhaps it should have done, given my fit of temper. I am grateful that he was here to be called upon should the necessity arise. When someone asked me why there were two Ministers on the Committee, I said rather unkindly that it was better than being fitted with a catheter, and that is at least part of the reason—nature calls at the most inappropriate times, although not terribly much in this case. I am also grateful to him for all his background work on the Bill before it came to Committee.

I am grateful to all my hon. Friends for their contributions, not least during the evidence sessions. The questioning of witnesses was done well by everyone concerned, and it collectively gave us a good deal of information, for which I am enormously grateful. With as much grace and courtesy as I can, I thank everyone on the Committee for their contributions and deliberations. I hope that we stay as courteous, and move towards consensus—which I certainly remain convinced should not escape us—in terms of every single aspect of the Bill.

My last point is quite deliberately left to the end. I thank very much my hon. Friend the Whip—if I do not, he will kill me—who has kept us in order and has done it very well and in substantial fashion. Apparently—this is getting like a wedding now—I am supposed to thank the photographers—[Interruption.] I thank my officials, and I will thank them in another way once they get the whole Bill through—not now. I thank the police, Hansard and everybody else who has helped us with our deliberations.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:15 pm, 15th May 2008

I am happy to support the motion and I shall not dwell on it at any length at all. I echo the Minister’s appreciation of yourself, Mr. O’Hara, and also of Mr. Bercow, for chairing our Committee proceedings. I also echo the Minister’s thanks to all the officials and the Clerk of the Committee, who have helped to make these proceedings so easy. This is the first time that I have served on a Committee with evidence-taking sessions, and the first time that I can recall having had departmental briefing sessions during  the Bill’s passage. All those seemed to me to be useful and productive, and also provided an opportunity for the involvement of all members of the Committee in its proceedings, which has not always happened in the past.

I would also like to thank the military contingent who have backed me up from the Back Benches in the course of these proceedings—my hon. Friends the Members for Gravesham, for Newark and for Lancaster and Wyre, who came on to this Committee precisely because they wished to provide their specific experience—particularly in security matters—for which I am very grateful.

I am also grateful to my hon. Friend the Member for Monmouth. I remind the Minister that there was once a time when, for the security of the realm, particularly in counties such as Monmouthshire where Welsh archery originated, it was compulsory to practise at the butts with one’s bows and arrows—so substituting Tasers may only be a technological development, and nothing more. They started them young.

I also thank my right hon. and learned Friend the Member for Sleaford and North Hykeham, who has brought his legal expertise and long experience as a Member of this House to bear on the proceedings of this Committee, and my hon. Friend the Member for Reigate, for helping facilitate the proceedings.

I hope I will be forgiven if I do not do a round. I am grateful to the Liberal Democrats and to the hon. Member for Meirionnydd Nant Conwy for his input. I was greatly cheered during the course of the proceedings when the hon. Member for Nottingham, East, of whom I have long experience as the silent person in Committee when he was a Whip, succeeded in showing us that being deprogrammed from being a Whip is a very difficult thing, when his instinctive reaction to the suggestion that anybody might be voting aye to an amendment was to object to it automatically, thereby showing that his ability to keep abreast of the proceedings and to intervene at the right moment before something terrible happened has not been lost at all on his return to the Back Benches. With those remarks, Mr. O’Hara, and again with thanks to yourself, I am happy to support the motion moved by the Minister.

Photo of Tom Brake Tom Brake Shadow Minister (Olympics and London), Liberal Democrat Spokesperson (Olympics and London)

I would of course like to support the Minister’s motion, which we are debating in a round-about way. I would like to thank you, Mr. O’Hara, and Mr. Bercow, for your roles in ensuring that our proceedings have been conducted in a fair and considered manner. I also welcome the fact that it is possible for Mr. Bercow to go on paternity leave: that is a positive development in itself.

The Minister has dispatched the Bill with efficacitÃ(c)—an oft-used word—and he has displayed some emollience, although there was a lapse this morning followed by another this afternoon, which I thought uncharacteristic of him.

I have a word of advice for the Under-Secretary of State for the Home Department, the hon. Member for Gedling, who has played a supporting role. If my children are getting tetchy after a long day at school, a chocolate biscuit and a drink usually do the job, so I recommend that he comes armed with those in future. [Interruption.]He should ensure that he has those on his person in future.

I have watched with admiration the Labour Whip, who has managed to contain any Back-Bench rebellions with such ease. It was clearly a real struggle. There was no hand-picking of the Back Benchers who sat on this Committee.

A consensus has emerged on certain issues, such as post-charge questioning and intercept evidence. However, it is very clear that we will have to return to the issue of pre-charge detention because no common ground has been identified. We will organise in support of the official Opposition, other parties and Labour Members who are not represented here to ensure that the right thing is done on the argument of 28 versus 42 days.

I am very pleased with how our proceedings have been conducted, Mr. O’Hara, and that we have finished on time.

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

Briefly, on behalf of my micro-party, which is in government in Cardiff, I congratulate you, Mr. O’Hara, and thank you for shepherding the Committee through the last couple of weeks. I also express gratitude to Mr. Bercow.

On the Minister’s profuse apology for his alleged behaviour this morning, I tell him that I have seen far worse. I once had a colleague who was very badly affected by lack of food on occasion, such that he ended up with the unfortunate nickname of Nosebag. I caution the Minister against making any public utterances about that again.

Our debates have been informed and both sides have consistently tried to engage constructively. That is not always the case in Public Bill Committees. Despite the vehement differences of opinion on various provisions of the Bill, they were expressed in good part, with good humour and hon. Members were genuinely respectful of other people’s views. This has been a worthwhile experience, which is often not the case in such Committees.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

In making my remarks from this end of the floor, may I say that my co-Chairman, Mr. Bercow, has taken a major share of the chairmanship duties in terms of time and the difficulty of the business, a distribution of duties that was entirely dictated by his happy family circumstances, and I will pass on the remarks that have been made to him.

Starting at this end of the Floor, I thank Hansard, which I am sure has kept a correct record of the occasional spoonerisms that Chairmen commit. I thank the Clerks at my elbow for their constant assistance. On my right, those who are seen but not heard have conducted themselves with exceptional dignity and propriety in this Committee, unlike in other Committees sometimes.

In referring to the members of the Committee, I run out of complimentary adjectives. This has been a very impressive Committee to chair in terms of the general mastery of the briefs on both sides—disciplined, restrained, with an avoidance of repetition, succinct, constructive, courteous, respectful, with give and take, and constant good humour. That has led to a high level of debate, as befits the seriousness of the subject matter before us, and has made it easy for me to conduct the efficient dispatch of our business.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at twenty-six minutes past Three o’clock.