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Digital Economy Bill [HL]

My Lords, I am particularly grateful for that intervention from the noble Lord, Lord De Mauley, because it provides me with a opportunity to respond directly to the point raised on this issue by the noble Earl, Lord Erroll, in the previous amendment. I have taken steps to make sure that we are in a position to allay anxieties on this point. We believe, of course, that the Bill is consistent with the EU framework provisions that the noble Earl mentioned. The proposals in the Bill will ensure that subscribers have an opportunity to be heard, should they feel that they have infringed copyright. They will also have a right of appeal to a first-tier tribunal, which is a judicial body. We certainly do not underestimate the seriousness of imposing technical constraints on a subscriber’s internet account and that is why we believe that we have got that balance right throughout the Bill. I wanted to reassure the Committee in those terms as regards compatibility. I also want to reassure the Committee on the next obvious point, which is that I have a great deal of sympathy with the sentiment behind this amendment and appreciate the fact that noble Lords, such as my noble friend Lord Whitty, enjoined me to accept the principle. I have no difficulty in accepting the principle, but it is the direct implications of the amendment with which I have slightly more difficulty. However, I am grateful to the noble Lord, Lord Clement-Jones, for moving the amendment. He asks that the Secretary of State, when acting under Clauses 4 to 17, should demonstrate that the action is proportionate and necessary to achieving the goal of protecting copyright and that it appropriately balances the interests of copyright owners and the public. That is an important principle which the Government regard as underpinning Clauses 4 to 17. I agree that any Secretary of State carrying out the actions ascribed to him, or exercising any of the powers given to him by those clauses, should have particular care to ensure that his actions are proportionate and necessary. In our debates over the past hour and a half or so all sides have emphasised that point. It is also essential that in taking any action the Secretary of State should consider the interests of the public as regards due process, privacy, freedom of expression and other human rights. Therefore, of course, all those elements underpin the amendment and the principles that the Government are working to with regard to the legislation. In practical terms, what would be involved in demonstrating that these proper and essential considerations had been made? To put in such a statutory obligation to demonstrate that the Secretary of State has considered these things looks to be a substantive exercise in bureaucracy. In relation to the more significant Secretary of State actions under Clauses 4 to 16 this may be appropriate. Where the Secretary of State is to make a decision to impose technical measures, for example, or to make a decision on cost-sharing, those actions will have to be done by statutory instrument. In preparing those statutory instruments the department will compile an impact assessment that will look at the costs and benefits of all sorts—not just financial—to all parties. That part relating to the necessary statutory instrument surely meets the intention of the amendment. In addition, this House and another place will have the opportunity to consider those statutory instruments and, as the noble Earl, Lord Erroll, emphasised, the powers will have to be exercised in accordance with the European Convention on Human Rights. However, there are many less significant actions that the Secretary of State will have to take, such as under the proposed new Section 124G that is just asking Ofcom to carry out research and preparation work, or under proposed new Section 124F which allows the Secretary of State to ask Ofcom to include matters in its progress report. Surely it would be cumbersome to have an impact assessment process applying to a direction of that sort. Clause 17 aims to give the Government a flexible tool to act in a timely fashion to reduce new sorts of copyright infringement that may emerge in future. We are well aware of the concerns raised by Clause 17 and when we discuss it later we will aim to tackle those concerns head on and find ways to address them. But I suggest that Clause 17 is different in nature from Clauses 4 to 16 and we should consider it separately. In short, I appreciate why the noble Lord, Lord Clement-Jones, has tabled the amendment—several noble Lords have sympathised with it and I recognise its merits—but I believe that in relation to Clauses 4 to 16 the existing requirements on Ministers to act reasonably and proportionately, as well as our normal statutory instrument processes, are enough to deliver what the noble Lord is looking for in relation to significant Secretary of State actions. If we were to accept the amendment we would add a layer of unnecessary bureaucracy, costs and delays to much less significant actions that are not of sufficient importance to merit that consideration. The noble Baroness, Lady Miller, asked me a question for the second time, having got what she obviously regarded as a less than satisfactory response in my first effort. She asked how rights holders can find out who is infringing copyright and how they can refute it. They go online and search for copyright material that they own on file-sharing sites. They identify the material and download it, noting time, date and IP address, which is the basis of the system. The initial letters that are sent out—I emphasise this as we had a debate on the question of sanctions on the margins and I have no doubt that we will get to this debate in the fullness of time and deal with it thoroughly—are simply warning letters allowing subscribers to take the necessary action to put them in the right where it can be established that they have been acting wrongly in downloading. Of course, there are the great sanctions available through processes of law to big operations. The noble Lord, Lord Lucas, also suggests that rather than recourse to law, the conduct of the big organisations ought to change. I bear in mind the significance of his point. However, I emphasise that when dealing with young people who are engaged in a great deal of this activity and do not seek to put themselves on the "wrong" side of what is right and wrong in doing this, the first sanction is modest. I hope that the noble Baroness accepts that point and that the noble Lord, Lord Clement-Jones, will feel able to withdraw his amendment.