Electronic Commerce Directive (Hatred against Persons on Religious Grounds or the Grounds of Sexual Orientation) Regulations 2010

My Lords, these regulations are a technical measure to implement the EU directive on electronic commerce—known conveniently as the e-commerce directive—in respect of the offences in Part 3A of the Public Order Act 1986. The regulations will enable us to commence the offences of stirring up hatred on grounds of sexual orientation. The offences themselves are found in the 1986 Act. They were inserted by the Criminal Justice and Immigration Act 2008. I will not go into the details of the offences here; this is not the right place to have that debate. We want to commence those offences as soon as possible. The regulations also implement the e-commerce directive in respect of the offences of stirring up religious hatred. That also appears in Part 3A of the Public Order Act 1986. The e-commerce directive plays a significant part in the way that Europe ensures free movement of services within the European economic area. Meeting our obligations under the directive is of importance and helps to ensure a level playing field for service providers. The directive deals with providers of "information society services"—which are, broadly speaking, commercial activities that take place online. It covers a wide range of online activities, such as selling goods and services, as well as video on demand, hosting a website or providing web or e-mail access. As I said, the directive deals with commercial services provided online and how the providers of such services should be regulated by member states. Such regulation includes the criminal law, if that law affects providers of information society services. The directive applies to the offences of stirring up hatred on religious grounds and on grounds of sexual orientation. Those offences can cover stirring up hatred through any medium, so it is possible to commit the offences by providing commercial services online. Turning briefly to the detail of the regulations, I say that Regulations 3 and 4 implement the directive’s "country of origin" rules. Those rules broadly say that a provider of information society services must be regulated by the law of the state in which the provider is established, not the law of the state in which the services are received. That is what Regulation 3 does. Similarly, the "country of origin" principle has the effect that the UK must not restrict the freedom of service providers established in another European economic area state to provide their services in the UK unless certain conditions apply. Such providers will generally be regulated by the other state in which they are based. Therefore, Regulation 4 provides that proceedings for these offences may not be brought against a service provider from another European economic area state, unless specific conditions are satisfied relating to the public interest. Of course, intentionally stirring up hatred on either ground is a serious offence. In practice, it is therefore likely that the public interest conditions would always be met in such cases. Regulations 5 and 7 implement the requirements of the directive in relation to intermediary service providers. These are mere conduit providers that cache or host information. The directive requires us to limit the liability of such intermediary service providers. I will briefly mention some of the history regarding implementation of the directive, which was originally implemented by regulations in 2002. Those regulations applied the directive to all legal requirements then existing, therefore including all offences that existed at that time. For offences passed after that date, we have to implement the directive on a case-by-case basis. I mentioned that the draft regulations cover the offences of stirring up hatred on the two grounds. The offences of stirring up religious hatred were created by the Racial and Religious Hatred Act 2006, which added a new Part 3A into the Public Order Act 1986. The directive was implemented in respect of the religious hatred offences by regulations in 2007. The Criminal Justice and Immigration Act 2008 extended the offences in Part 3A to include stirring up hatred on grounds of sexual orientation. These regulations are therefore necessary to implement the directive in relation to the extended offences in Part 3A. They will do so in a way which ensures that implementation will be consistent for all the offences in that part. The regulations are made under Section 2(2) of the European Communities Act 1972. That Act provides that regulations made under Section 2(2) cannot result in the imposition of a penalty of more than two years’ imprisonment. That produces an unfortunate and undesirable anomaly. The offences in Part 3A of the 1986 Act carry a maximum penalty of seven years’ imprisonment. If the two-year penalty limitation were to be applied to the regulations, it would mean that offences committed by an England and Wales service provider elsewhere in the EEA would attract a maximum penalty of only two years, whereas the identical offence committed here would attract a seven-year maximum. To resolve that anomaly, Section 143 of a Bill that noble Lords will well remember, the Coroners and Justice Act 2009, provides that the penalty limit will not apply to regulations made to implement the e-commerce directive. The same issue arises for the EU services directive, and Section 143 applies to both. That section came into force when the 2009 Act was given Royal Assent. The regulations make use of that section and will ensure that the penalties available for offences committed under Part 3A are always the same. At the same time, to ensure a consistent approach, we are revoking and replacing the previous regulations that covered the religious hatred offence. Those were made in 2007, so the anomaly I have just mentioned applies to them. These regulations will correct that anomaly. There will be a single set of regulations covering all the offences in Part 3A of the Public Order Act 1986. I began by saying that the regulations would enable us to bring into force the offences of stirring up hatred on the grounds of sexual orientation. We intend to do that as soon as possible.