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Digital Economy Bill [HL]

I shall speak also to Amendments 141 to 143. All these amendments essentially prescribe a minimum period during which the Secretary of State could not require Ofcom to assess the need for and prepare to introduce technical obligations. It might be helpful if I start by saying why we have included the possibility of technical obligations in the Bill. As my noble friends on the government Front Bench have said many times in our consideration of the Bill thus far, the Government believe that the initial obligations set out in Clauses 4 to 8 should result in a significant reduction in online copyright infringement. We believe that they are reasonable and proportionate steps to take and that most people will respond positively when they become aware that their actions are not only unlawful but also visible to those who can take steps to seek redress. However, we also recognise the strength of the argument that has been put to us that these initial obligations may not be sufficient. Those industries that have suffered at the hands of mass online copyright infringement are rightly anxious that we should be sure that the Bill gives us all the tools required to solve the problem. Therefore we have in Clauses 10 to 13 a reserve power to introduce technical obligations, should it be necessary to do so, to stem the flood of online copyright infringement if the initial obligations do not work. Clause 10 gives the Secretary of State the power to require Ofcom to assess the need for technical obligations and to make preparations for the imposition of those obligations such as preparing a technical obligations code. The amendments would build in a delay to when these preparatory powers could be used. The noble Lord, Lord Lucas, feels that a period of two years for the operation of the initial obligations is necessary before even thinking about technical obligations. The noble Lord, Lord Clement-Jones, suggests that 12 months—the time when Ofcom must prepare a full progress report—would be sufficient. The noble Lord, Lord Howard of Rising, simply suggests that the Secretary of State must have regard to Ofcom’s progress reports, implying that at least two interim progress reports must have been delivered over a period of six months. However, we disagree with all these suggestions. Clause 10 is not about the imposition of technical obligations—that is covered in Clause 11, which we shall no doubt come to soon enough. Clause 10 is about preparation for technical obligations. Perhaps I may paint a picture. Let us imagine that the initial obligations have been in place for a year and that Ofcom produces a progress report which says that the initial obligations are having no effect and that even online copyright infringement is growing. In those circumstances, the Secretary of State may feel that it is important to introduce technical obligations quickly. But here is the problem. We can be absolutely sure that the introduction of one or more technical obligations will require a good deal of work, analysis, consultation and a three-month notification with the European Commission before it can come into force. It is not impossible to imagine that it could take well over six months, or even as long as a year, for technical measures to be designed, prepared for and imposed in proper legal form. I therefore ask whether we really want to prevent the Secretary of State even asking Ofcom to do the preparatory work until we are sure that there is a problem. It would be better to be able to prepare before the need for technical measures is clear so that, if such an urgent need arises, the Secretary of State and Ofcom can move quickly to address it. The clause does not attempt to allow technical obligations to be introduced on day one; rather, it allows preparations for such an eventuality to be started straightaway so that, should that day come, we are able to move quickly. I hope that I have explained the purpose of the clause sufficiently convincingly to encourage the noble Lord, Lord Lucas, to withdraw his amendment and for other noble Lords not to press theirs.