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Digital Economy Bill [HL]

My Lords, I am not sure whether my intervention is appropriate here or whether it should have waited until the clause stand part debate to which my name is attached. I promise the Minister that I will not say it twice. I deeply appreciate the efforts that my noble friends Lord Puttnam and Lord Bragg have put into this and the Government’s acceptance of it. I would unequivocally say that if something like Clause 17 remains part of this Bill, the super-affirmative resolution set out in these provisions would give significant protection and significant retention of the scrutiny of Parliament in relation to the implications of Clause 17. I would therefore be more welcoming of these amendments than is the noble Lord, Lord Howard of Rising. The fact remains that Clause 17 raises anxieties that are well beyond the areas we have already discussed. One of the original justifications from the Minister’s department for Clause 17 having the wide range that it did was that Clauses 4 to 16 only dealt with unlawful peer-to-peer file sharing. As a result of the post-consultation amendments to the legislation put forward by the Government, those clauses potentially apply to all forms of copyright infringement. I queried that at an earlier stage and I still think it would be better, since the procedure relates to unlawful peer-to-peer file sharing, if it were more narrowly defined in those earlier clauses. However, if it is not to be, one of the main justifications for the wide range of Clause 17 disappears. I re-declare my interest as chair of Consumer Focus. We know worldwide that there are always pressures from different forms of copyright owners to extend the powers and rights of copyright holders. There are international and European negotiations current in those fields. In the European context, there are proposals for extending certain forms of copyright which, unless they were attached to a fair-use provision, the consumer organisations nationally and at European level by and large oppose. Could Clause 17 be used to bring those into national law? In a more sinister way, there are also discussions on a world-trade basis under the ACTA provisions about changes in copyright protection in the trade context. By definition, those trade negotiations are not transparent or open. We do not know what will come out of them and what might need to be transposed into national law. If Clause 17 were used for all sorts of copyright protection in that context, it would undoubtedly be a Henry VIII use of powers. It is not connected to other purposes of this Bill and it would undoubtedly mean that the powers implied in Clause 17 could be used for very wide purposes. I would like the Government to place on the record a denial that Clause 17 could be used for those purposes or for the purposes of extending copyright protection and patent protection more generally. It did not relate to the main purposes of this Bill or the main strategy of Digital Britain. I hope that the fears that are being raised by the wide-ranging nature of Clause 17 could be allayed to some degree. I also agree with the noble Lord, Lord Howard, that, in relation to aspects of Clause 17 and the need to keep up with technology, the Government are justified in having easier and wider-ranging powers but they need to define them significantly more narrowly than is done in Clause 17. The view of the Delegated Powers Committee would normally be taken very seriously by the Government. When I was on the Front Bench, every time such a castigation came from the Delegated Powers Committee we automatically rolled over. I hope that the Minister and his colleagues will do the same on this occasion and come up with a more acceptable form of Clause 17. I am not clear whether, had the super-affirmative procedure existed in the 1530s, His Late Majesty Henry VIII would have been inhibited by it or indeed whether it would have inhibited his Minister Thomas Cromwell, who more or less occupies the same position as the noble Lord, Lord Mandelson, does at present. In today’s age, the provisions in these clauses would be a bit of a break but it would be much better if the clause itself were more narrowly defined in the first place.