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Digital Economy Bill [HL]

My Lords, Clause 10 allows the Secretary of State to require Ofcom to prepare in advance against the need for technical obligations, to require Ofcom to assess the need for technical obligations generally and the likely efficacy of particular technical obligations on particular types of networks, and to require Ofcom to develop a code of practice to underpin any such technical obligations. It may well be desirable for those powers to be used one at a time rather than in parallel. The Secretary of State might want an assessment of whether any measure is needed and, if so, which is the right one before asking for a code to be drawn up. This would make sense since the detail of the code is likely to be heavily influenced by the nature of the measure. This suggests that it is not sensible to make all of paragraphs (a) to (c) a requirement in relation to every direction that the Secretary of State might make under new subsection (1) of new Section 124G of the Communications Act 2003 in Clause 10. Imposing technical obligations is something a Secretary of State would decide only if he were sure it was the only way to deal with the problem of online copyright infringement and if the initial obligations have failed to deliver the expected results. I stress that because we are all committed to ensuring that the initial obligations have an opportunity to deliver the expected results before we think about technical measures. An assessment of whether technical obligations should be imposed will be informed by consultation of relevant groups, including consumers—there is an explicit assurance on that—which in this context includes subscribers. The noble Lord, Lord Lucas, for example, expressed concern about that. Adding the phrase "consumer groups" does not add anything. The amendment also calls for the addition of "the judiciary" to the list of those to be consulted. Such a statutory obligation would be highly unusual and is unnecessary. I share the view of the noble Lord, Lord Howard of Rising, that it is also undesirable in this context. Finally, on Amendment 160, I explained in relation to the previous amendment why I think this is unnecessary. I accept entirely the need for consultation with consumers and consumer groups before any technical obligations are imposed, but the Bill already provides for that. I think it was the noble Lord, Lord Howard, who asked why we need paragraph (c). We believe that paragraph 4 provides the necessary detail. I hope in the light of this explanation, the noble Lord will agree to withdraw the amendment.