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Digital Economy Bill [HL]

My Lords, this amendment is important and seeks to limit the role of the appeal tribunal to judging appeals that are based on process and due cause, whereby the appeal should decide only whether the rights holder and the ISP have conformed to the provisions of the code. In other words, the appeal would be against breach of process. It is difficult to move to an appeal tribunal set up administratively by Ofcom which would have powers that, in other contexts, would be taken by the court. These are, as I said on previous amendments, severe enforcement measures. They would limit access to the internet, and leaving such measures to a decision of an administrative tribunal without going through the formal process would be against normal civil procedure and the rights of the individual citizen to due process. Wider human rights issues are involved, and the importance of the Government following due process in this regard is reinforced by the EU provisions on the subject, in particular those that apply to communications markets under Amendment 138 to the EU telecoms package—which is not yet fully enforced but which will be enforced by the time that this part of the Bill is brought into operation. I have argued from Second Reading onwards that sanctions of this order need to be endorsed or imposed by the court process. The clause does not allow for access to the court. It leaves the imposition of sanctions to the new administrative tribunal, the formation and governance of which are not explicit in the Bill but are left to the operational processes of Ofcom. While in many respects I trust Ofcom, it is not right that it should be left to establish a body that in all parallel contexts would be left to the court. I scratched my head and talked to people, but I failed to find an equivalent case where a potentially very damaging penalty to households and businesses could be imposed without going through the court system. The Government would do well to think again. I am happy for issues of process to be dealt with by the appeals tribunal, but the imposition of sanctions should be imposed under our general law. There are issues with the Human Right Act, with EU law and with the EU telecommunications package that will need to be taken into account. This procedure does not conform to any of them. I therefore hope that the Government will at least take time, if they do not accept the amendment, to consider the matter. It would be very serious if the whole structure fell on this point. At the moment, it depends on an obscure tribunal that is not yet set up, not designated, not defined, and with its qualifications and role not clear to the House. Noble Lords would be wise not to go down that road at least until further consideration has been allowed both here and—I follow the noble Baroness, Lady Miller, on this point—in another place. I beg to move.