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Digital Economy Bill [HL]

My Lords, I congratulate the Committee on this fascinating and wide-ranging debate. Because of the nature of the debate, I apologise for the extent of my reply. I will try to keep it short, but if I do not cover the waterfront, I will not have been a contender—if noble Lords will pardon the pun, which those in the cinematic area will recognise. I thank my noble friend Lord Puttnam for his contribution to the debate and for the thought that has clearly gone into the amendment. As noble Lords will see, the proposal under Amendment 212 that the power should be subject to super-affirmative procedure is included in the government amendment laid in the name of my noble friend Lord Mandelson. As such, I hope that this amendment can be withdrawn. Amendment 211C also raises an important point that any use of this power should take place only after a full consultation with all those who are likely to be affected. I agree with that sentiment, but the existing wording of the amendment laid in the name of my noble friend Lord Mandelson already specifies that consultation must include the persons who the Secretary of State thinks are likely to be affected, including those who represent such persons. I believe that this wording already includes the bodies which noble Lords wish to be consulted. I therefore suggest that Amendment 211C should be withdrawn. Amendments 211D to 211J would change the period specified to be part of the super-affirmative procedure from 60 days to 90 days. As with so many things, a balance has to be struck between the competing needs for careful and measured consideration of any action and the need to be able to act quickly when the occasion demands. I was disappointed that the noble Lord, Lord Howard, felt that the super-affirmative procedure was a form of prestidigitation on the part of the Government—or, if he prefers, a sleight of hand. We see it as a serious protection, which has to go through the hurdle of both Houses. It is true that it has not been successful on many occasions, but that may have been given the considerations that were taking place. On our part, there is no attempt to have any contempt for parliamentary procedure. It is a serious amendment. We believe that a balance has to be struck between the competing needs for careful and measured consideration of any action and the need to be able to act quickly when the occasion demands. It is absolutely right that Parliament should have enough time to consider properly any proposed use of this power. The use of a super-affirmative procedure will provide for this. I regret to inform my noble friend that we are not convinced about the need to extend the period to 90 days instead of 60 days. We feel that that would tip the balance too far and would prevent us acting in a timely fashion when so required. I thank the noble Lord, Lord Howard, for his reasoning behind not moving Amendment 213, which means that I do not have to respond to it. As I have explained, Clause 17 is required to future-proof our legislation and to provide a means for regulation to keep pace with the relentless march of technology. As the noble Lord, Lord Fowler, rightly reminded us, threats change. To limit the power in that way would not allow this aim to be achieved. I shall try to address the questions that were raised, provided I do not lose my place. Certainly we would not in any way ignore the comments of the Delegated Powers and Regulatory Reform Committee, but its new report concludes that the amendments are an improvement and it is now for the Committee to decide whether the changes make the clause acceptable. We have moved from being unacceptable to at least an improvement—that is progress. We are not saying that we have reached perfection but at least we have taken away the complete objection by the Delegated Powers Committee and I reassure the Committee that we would not ignore that important body. Reference was made to fast-track legislation. The Constitution Committee expressed concern about the breadth of the power in Clause 17 and suggested that it may be better to rely on fast-track legislation instead. We are unconvinced that the fast-track procedure would provide a better alternative to Clause 17. We believe that the requirement under super-affirmative procedure to lay a draft order and explanatory materials in front of Parliament for a minimum of 60 days provides more time for consultation and consideration of proposals. My noble friend Lord Whitty asked whether the powers could be used to extend copyright protection. The power cannot alter the definition of copyright protection so in this case we are happy to give the assurance asked for by my noble friend. He also asked why we need Clause 17 if previous clauses cover copyright infringement. Clauses 4 to 16 address online infringement using the tools provided, which are designed to tackle the many-to-many infringement based on detection by copyright holders. We recognise that that does not cover the whole waterfront. Clause 17 will enable us to respond if the case is made where these tools will not help. The noble Lord, Lord Fowler, asked whether we need primary legislation to tackle camcording of films in cinemas. After a bit of research and the wondrous powers of the Box to deliver on time—just in time, in this case—I am pleased to tell the Committee that there has been a successful prosecution for this offence under the Fraud Act, showing that existing remedies are effective against this threat. No doubt we can provide more detail for the noble Lord, and I undertake to make it more widely available. The noble Lord, Lord Lucas, asked what the power would be used for. The essence of the clause is that it allows us to respond to future threats. By their very nature, such threats cannot be confidently predicted today. We have already said that illegal file-sharing is the biggest problem facing creative industries today, but they may not be the biggest problem tomorrow. We need to be able to respond quickly and flexibly to new methods of infringement. There have been some potential threats, which I identified. We debated previously the question of cyberlockers which again could have a legal as well as an illegal use. The noble Lord said that we do not have a clue how to respond to this. I am not sure that we have not been focusing on it, but he is right to say that that will present another challenge. At this stage, we cannot necessarily concur with him whether the only way of solving it is as he portrayed. There are other threats such as streamed content, which is another problem area. I think that I have covered most of the questions raised. A number of comments were made about the need to define the clause more narrowly, and that it is too wide-ranging. I understand and recognise that concern as genuine, and we will reflect on it. Obviously we are looking to find as much of a consensus as we can on the clause. The noble Lord, Lord Howard, was not the only one to raise that. The noble Lord, Lord Lucas, made the same comment. I do not think I need say any more on the super-affirmative procedure. We have tried to build in safeguards. Concern has been expressed that that is not sufficient, especially taking into account the range of the clause. In my assurance to my noble friend Lord Whitty, I made it clear that it is not as wide-ranging as he thought. The noble Baroness, Lady Howe, suggested that it was draconian. I cannot concur with that, although I understand her concern. We believe that there is a need to address what the noble Lord, Lord Fowler, expressed best when he talked about the capacity for threats to change over time. That is the purpose of Clause 17 We do not believe that primary legislation, given the time that it takes to introduce, is the way forward. A number of noble Lords share that view. The assurance that I give generally is that we will reflect on the nature of the debate, on the concern expressed about the wide range of Clause 17 as it is currently drafted. We will try to address that. I conclude by thanking noble Lords once again for the tenor of the debate and the nature of the contributions, which have been wide-ranging and constructive. I hope that in the light of that explanation, the noble Lord will feel able to withdraw—