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Digital Economy Bill [HL]

My Lords, I thank the Minister for his response and thank those who entered the lists during this debate. The noble Lord, Lord Howard, made a very interesting contribution, particularly when he said that he thought that the Government might be opting for an easy life. I thought that probably the Minister would not be taking the Digital Economy Bill through the House if he was really after an easy life, but I appreciate the comment. This is a paradox. The Minister knows full well what the intent is, which is that there needs to be certainty in the way in which this procedure operates. He knows that there is a great danger here. As a lawyer, I know that there is a big difference between the onus of proof being on the copyright owner and having a rebuttable presumption of something in those circumstances. A rebuttable presumption means that, after you have had three notifications of CIRs, it is perfectly possible for the appeals person, or Ofcom, whoever it happens to be, to say, "It appears to us that you have had three of these letters, so show us now why we should not cut you off"—that is, if the technical measures code was in place—rather than saying, "You have had three of these, so let’s hear all the evidence again and make sure that I have got it absolutely right that the copyright owner owns the relevant material". Then he goes through all the steps of uploading or downloading, or whatever the subscriber is claimed to have done. If subscribers are to be confident about these two codes—the Minister and the Government are fully aware of the controversy surrounding the Bill in terms of arguments about the freedom of the internet—adding these words about the onus of proof would make a massive difference to public appreciation of the way in which the Bill operates and would instantly demonstrate the fair way in which these two codes are intended to operate. The Minister may say that this is not a judicial process, but in terms of the consequences it is a quasi-judicial process, because this person or Ofcom will be in a position to adjudicate. They will make a judgment about whether certain measures should be taken. I do not think that we can take refuge behind whether or not this is a judicial procedure; it is quasi-judicial and has all the relevant characteristics. Therefore, using language such as "burden of proof" seems to us to be absolutely fundamental. I do not know whether the Minister has received any notes from the Box, but if he has I would be more than happy to sit down to allow him to speak. On the second limb—the costs argument—the Minister is on rather more familiar ground. Many of us would not argue with a 25:75 split precisely because of the Minister’s arguments about incentives. We should give people the incentive not to have to issue too many notifications, but the boot is entirely on the other foot when we are talking about appeals procedures. We need an incentive for creative copyright owners to make jolly sure that they get their facts right when they start prosecuting subscribers. However, "prosecuting" is the wrong word; I meant to say when they start alleging that subscribers have breached their copyright. That is where the incentive should be and that is why I suggested that we should not follow the pattern set out in the rest of the order but break out that element about subscriber costs in terms of appeals and have a different allocation.