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Digital Economy Bill [HL]

My Lords, Amendment 116A is essentially a probing amendment which raises an important issue; namely, to understand what the Government mean by reference to "or another person"—that presumably means an organisation—which may be "administering and enforcing" the code. For the notification process to work, it has to have the credibility that the administering and enforcing authorities will ensure full compliance by the ISPs and the rights holders; otherwise there is a further risk of losing public support. The subsection seems to envisage that Ofcom would allocate its duties to another organisation. That raises my suspicions. We already have a situation where the code may be drawn up in the first place by the industry and only approved by Ofcom. Surely it is the responsibility of the statutory agency to ensure that the terms of the code are complied with not only by the ISPs—that is clear—but by the rights holders. If the rights holders behave as some of them or their representatives have done under present law in terms of threatening people for file sharing then there will need to be some sanction against these rights holders, at least so that they do not pursue their case further under the code and these provisions. I am therefore not clear why anyone other than Ofcom should have the responsibility for carrying out the administration and enforcement of the code. It is possible to envisage a desire to subcontract the formal administration in terms of writing the letters and performing the administration in the strict sense, but surely enforcement must be the responsibility of the statutory agency. In several of the fields that it covers, I have quite a respect for Ofcom. Much of that respect concerns the statutory duties placed on it to act in the interests of consumers and citizens and to take into account issues such as human rights and data protection. It is therefore an appropriate body to allay all the anxieties that I and others have expressed about how this notification process and the subsequent sanctions process are likely to work. If anyone other than Ofcom will do it, will it do so under the auspices of Ofcom? Will all Ofcom’s duties still apply? Will Ofcom ultimately be responsible? If it is anything less than that, we will need a statutory base for this alternative body. I would much rather see the whole process of administration and enforcement rest with Ofcom itself. As I said, I can see a narrow part of the administration being devolved somewhere else under subcontract. However, Ofcom should still be responsible. Surely it must be responsible for the enforcement. That enforcement relates to the ISPs, to which this part of the legislation relates, and to the rights holders themselves, over which, before this legislation is passed, Ofcom has no jurisdiction. I think that the Government have made it clear that they would expect Ofcom to have some oversight over the behaviour of the rights holders as well as the ISPs in this respect. So my key question is: why do the Government envisage a body other than Ofcom carrying this out? If it does carry out the enforcement, I would be strongly opposed. If any other body is involved in the process at all, will it be covered by the statutory constraints on Ofcom, or will we need to legislate separately to ensure that it meets the same criteria in terms of various protections for consumers and for others against whom the sanctions might ultimately operate? I beg to move.