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Digital Economy Bill [HL]

My Lords, as I see it, there are two areas of concern about this clause—policy and procedure. I shall address policy first. Her Majesty’s Government are asking for extremely wide powers for the purposes set out in government Amendment 211A. It is understandable that the Government seek powers to future-proof, and that these will necessarily be vague given that the purpose of this clause is to deal with unknown problems and to cope with future technology. However, the power being demanded is quite out of proportion to the potential problems. At various moments during our debate, Ministers have pleaded with the House to keep things in perspective. I urge Her Majesty’s Government to do the same. We are dealing in this clause with the prevention or reduction of online infringement of copyright. To give the Secretary of State such huge powers as are being demanded in order to deal with copyright infringement would be unreasonable and, as I have already said, totally out of proportion. Effectively, entirely at the discretion of the Secretary of State, a large amount of law can be amended—the whole of Part I of the Copyright, Designs and Patents Act. One can take hypothetical examples too far, but I do not think that I am doing so when suggesting that a future Secretary of State might decide to amend significantly existing rights to copy or broadcast works because of an unfortunate rise in infringements. Other sections, such as those covering the terms of licences, could be materially amended in order to address copyright infringement. Should some unimaginable situation arise, or there be infringements beyond what could reasonably be expected, there is nothing to stop the Secretary of State returning to Parliament and seeking primary legislation to deal with the problem. To expect Parliament to give the Secretary of State the discretion at will to make laws as far-reaching as the amendment makes possible—I will come to procedure in a minute—to cope with online infringement is expecting Parliament quite unjustifiably to surrender its role of holding the Government to account. It demonstrates a contempt for Parliament which has been demonstrated all too often by this Government. There are protections in Clause 17 against improper use, but they are not as strong as might at first appear, and would not provide the restraint necessary for such wide-ranging powers. The new threshold test that the measure must be proportionate is nothing but reassuring flannel, as everything that the Secretary of State does should anyway be proportionate. The restriction on amending or creating criminal offences is necessary, but presumably does not cover creating or modifying provisions allowing for an injunction, which is a civil issue, but which can still impose significant restrictions on both companies and individuals. The Government’s justification for asking for those dictatorial powers is that the procedure for putting them into effect would act as a restriction and give Parliament the opportunity to hold Ministers to account, as the noble Lord, Lord Puttnam, pointed out, but the super-affirmative procedure suggested by the Government in no way answers the concerns felt by many, despite the noble Lord’s comments. The Delegated Powers and Regulatory Reform Committee did its usual sterling job and called attention to Clause 17 in its original report on the Bill. It is difficult to argue with its recommendations. In its most recent report, the committee states unambiguously that, ""the insertion of a super-affirmative procedure cannot bring a misconceived delegated power within the bounds of acceptability"." The committee leaves the final decision to the House, but I continue to hold that the Government have not met the legitimate concerns held by many in this House and that the procedures offered by the Government do not give adequate protection against the huge powers for which they are asking. The super-affirmative procedure is not a compromise between secondary and primary legislation. The DPRRC notes that it is, ""entirely exceptional, justified only by unusual circumstances"." With the best will in the world, I cannot see how online copyright infringement is in any way exceptional. It may be undesirable; it may be something that this House should be trying to do its best to stop; but I do not think that it is exceptional. With the super-affirmative process, all the flaws of secondary legislation remain. There is no chance to insist on amendments. Although there is no formal bar against throwing out a super-affirmative in its entirety, I am sure that I do not need to remind your Lordships how very rarely this House chooses to take such a drastic step. Statutory instruments have been thrown out of this House only three times since the war—one of which was at the instigation of the noble Lord, Lord Clement-Jones. Some may say, "It is all right, we have the House of Commons", but in fact, only eight statutory instruments subject to the negative procedure have been annulled in the House of Commons since World War Two. It is very rare for affirmative statutory instruments to be defeated in the House of Commons, the last occasion being in 1978. I end my comments on the procedural mishmash that the Government seek to insert into the Bill by again citing the committee’s report, which expressed things perfectly when it stated: ""The super-affirmative procedure is not an adequate substitute for Parliament's established procedures for dealing with matters of complexity and importance, through primary legislation"." I therefore entirely reject Amendment 211B. If the Government are unable to define the purpose of Clause 17 in such a way as to make a normal affirmative procedure acceptable to this House and to the Delegated Powers and Regulatory Reform Committee—and I do not consider that Amendment 211A does that—they should remove Clause 17 entirely and proceed against future online copyright infringement by primary legislation. The amendments tabled by the noble Lord, Lord Puttnam, although entirely praiseworthy in their attempt to further parliamentary scrutiny, do not really answer the problem.