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7 Apr 2010 : Column 1129

We also said that we need to address the time scale in which the initial obligations code is produced by Ofcom, arguing that it could not possibly be given full justice if it was done within a six-month period, given that three of those months have to be spent in consultation with our European colleagues.

Adam Afriyie (Windsor) (Con): The hon. Gentleman is quite right to say that there is not enough time to consider this Bill in great detail. I am pleased that the Government have dropped one or two of the measures that they were going to introduce. There is some merit to his point about a super-affirmative resolution, but will he explain why it is relevant for clause 18, on site blocking, which his amendment seems to tackle, but not for clause 11, on technical measures?

Mr. Foster: I fear that the hon. Gentleman ought to do his homework a little better. If he reads the amendment that we are debating, he will see that that is exactly what it does. It proposes a super-affirmative resolution in relation to clause 11, which is what I said a few moments ago.

I am grateful to the Government for the fact that, although they have not entirely accepted the concept of a super-affirmative resolution, they have at an incredibly late hour-this afternoon-now tabled amendments 44 and 45. They go a long way, if not the whole way, towards addressing the concern about the need for a super-affirmative resolution. However, I believe it is crucial that we should have the maximum opportunity for scrutiny in the new Parliament. There should be an amendable resolution before that House before the severe technical measures are introduced. That is why I have tabled these amendments.

Mr. Grogan: I want to say a few words about the concept of the super-affirmative resolution procedure, which I had never heard of before last week when I was having my photograph taken with six members of the Mongolian Revolutionary People's party-a sister party of the Labour party-and Lord Mandelson. That is not an event that happens every day, but it did happen last week. Lord Mandelson whispered "super-affirmative resolution" in my ear. I was not quite sure what he was referring to, but I realised I would have to explain it to my Mongolian friends later, so I looked it up. It certainly is not the answer to the democratic deficit in this Bill, which will give Ministers of whichever party forms the Government after the election extensive powers to lay orders that will basically translate the principles of the Bill, which are very bad principles for much of it, into legislation.

Such orders will not be rushed through a legislative Committee of the House, as often happens with orders. Instead, there will be a 90-day consultation process in which a Committee-it is usually the Regulatory Reform Committee, but I do not know whether it would be another Committee at that stage-will take evidence. The Committee will also be able to propose amendments, but in the end the Government will be able to go through the normal procedures of getting an order through. Heavily whipped, the order will no doubt go through the House whichever Government is in power and on to the House of Lords. The idea that everyone in this House and outside who is concerned about the democratic deficit in the Bill can breathe a sigh of relief
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because we now have a super-affirmative procedure promise is far from the truth. The only super procedure that we need in this House is the old-fashioned super procedure of MPs considering a Bill line by line and giving it proper scrutiny. That is the super procedure we need, and the only way we will get it is by voting against Third Reading.

Dr. Palmer: I am just concerned, as are a lot of people out there, that what is underlying this debate is a Front-Bench stitch-up. None of the Front Benchers are saying clearly that they are taking a different course. They are whingeing at length about the process, but we are not hearing an alternative concept. For me, the basic case for what is being proposed has not been made, and until we have a coherent case, I am going to vote against it.

Mr. Timms: Let me comment on the three amendments that my hon. Friend the Member for West Bromwich, East (Mr. Watson) moved at the outset of the debate. On the first amendment, I can give him an assurance that technical measures will not be imposed until Ofcom has concluded its report. On the second amendment, we will certainly need to cover, in the code that the Bill requires to be drawn up, how the notifications will be sent out. I thought that his comments on that issue made a good deal of sense, but that is something that Ofcom will need to address, in conjunction with the industry, when drawing up the code.

On my hon. Friend's concern about giving undue power to a future Secretary of State, it is certainly right that imposing technical obligations is a big and undoubtedly controversial step to take. That is why clause 11 requires the Secretary of State to have regard to the assessment prepared by Ofcom as to whether technical measures should be imposed as well as to the reports prepared under clause 9. We have agreed that those documents should be published so that everyone can see the evidence that will inform the decision.

My hon. Friend and the hon. Member for Bath (Mr. Foster) have made a telling point. It is right that Parliament should have the greatest opportunity to scrutinise and debate the order. That is why my right hon. Friend the Secretary of State has today tabled the amendment that the hon. Member for Bath mentioned, which provides for the super-affirmative procedure. The procedure is, as my hon. Friend the Member for Selby (Mr. Grogan) rightly said, quite a novel arrangement. I thought he was going to tell us that it is well known in Mongolia, but he did not.

However, the procedure underlines the extent to which we want to maximise proper parliamentary scrutiny. Government amendment 45 sets out how it will work; proposed subsection (8) states:

while proposed paragraph (b) of the subsection specifies,

I think that is a significant move, as it amends the Bill to address some of the concerns raised in amendment 26, the third moved by my hon. Friend the Member for West Bromwich, East.

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The hon. Member for Bath talked about education and universities, but they are covered in the next group of amendments, so I will say no more about those matters now. He said that he would prefer it if Ofcom had more than six months to prepare the code, but I remind him that that period will not begin until two months after this Bill gets Royal Assent. That means that we are looking at rather longer than the six months stated on the face of the Bill.

In view of the amendments tabled by my right hon. Friend the Secretary of State, I hope that my hon. Friend the Member for West Bromwich, East will not press his amendment to a vote, and that the House will accept the Government amendments.

Mr. Watson: I am reassured about the first amendment in the group. However, I am not convinced on what my right hon. Friend has said about the second amendment, and certainly not by what he has said about the third. Nevertheless, because the House has important amendments still to discuss, I beg to ask leave to withdraw amendment 39.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Clause 6

Approval of code about the initial obligations

Mr. Don Foster: I beg to move amendment 15, page 8, line 25, leave out 'may' and insert 'must'.

The Second Deputy Chairman: With this, it will be convenient to discuss the following: amendment 35, page 8, line 29, after 'case', insert

'or in relation to a particular class of internet service providers or subscribers'.

Amendment 14, page 8, line 33, at end insert-

'(c) specifies reasonable rights and obligations in relation to a subscriber that is a library, an educational or cultural establishment, hotelier or internet cafe as a provider of networks operating between an internet service provider and a user of the network.'.

Amendment 29, in clause 10, page 14, line 31, at end insert-

'( ) an economic and social impact assessment as to whether any application of the technical measures will be proportionate to its likely affect on, inter alia, subscribers, households, businesses, users of wi-fi networks, not-for-profit organisations, libraries, educational establishments and the internet network; and'.

Amendment 43, in clause 13, page 16, line 35, leave out 'and' and insert-

'( ) that those provisions are proportionate to their effect and take into account the impact upon, and relevant arrangements made by, an educational establishment, prescribed library or accredited museum in order to achieve what the provisions are intended to achieve; and'.

Mr. Foster: I shall be very brief indeed. The House will know that I have already raised the concerns expressed by very many people about universities, libraries, small businesses, wi-fi cafes and the like. These organisations
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often have a very large number of users on a single system and could very easily fall foul of the legislation unless we ensure that that does not happen.

In another place, my noble Friend Lord Clement-Jones tabled an amendment to solve the problem, and he was given an assurance by the Government that it would be dealt with in the obligations code to be drawn up by Ofcom. Since that time, however, no amendment to that effect has been forthcoming from the Government-perhaps because we have had so little time to discuss any of these issues.

Therefore, to save the Government time and to help them out, we have drafted an amendment that would give effect to the promise that they made in another place. In that spirit, I hope that the Government will be willing to accept it.

Mr. Watson: I have tabled some of the amendments in this group. Amendment 35 is really a reaction to the Bill's economic impact assessment which, frankly, was fairly hopeless. It did not look at the impact on libraries, hotels, internet cafes or any other institution that might have wi-fi. The problem is the lack of clarity about what constitutes a service provider, and the amendment would enable Ofcom to define special categories of service provider, such as libraries, universities and institutions, that provide open wi-fi networks.

Amendments 29 and 43 deal with how we assess the technical measures that need to be taken. The aim is to provide some safeguards to ensure that such measures are proportionate. Obviously, we could take a technical measure to remove internet access from a parent because their child had been infringing, but that parent might sustain a small business in their home, employing a number of people. We should be removing those people from employment. There are many examples showing that the technical measures might be unfair and disproportionate to the infringement that had taken place. The amendments would provide protections in the Bill, so that Ofcom had an obligation to measure its proportionality and fairness.

10.30 pm

Mr. Denis MacShane (Rotherham) (Lab): I rise as a parent and a former president of the National Union of Journalists to humbly suggest to the Committee that the labourer is worthy of his hire. If someone puts his intellectual effort into writing an article, making some music or creating something, it should not be stolen from him and handed out free through the power of the internet.

As a parent, I have to say that it may not be the most unwelcome thing in the world for a father or mother to tell their child, "Actually, you can't spend all evening on the internet." I understand why the Liberal Democrats-representing big capitalism-generally oppose the measure, but as a socialist I am astonished that any Labour MP-

Mr. Watson: I am sorry that the right hon. Gentleman did not hear the earlier parts of this debate or Second Reading yesterday. He has just walked into the Chamber and expressed astonishment, but there are legitimate concerns about people having access to justice if allegations of copyright infringement are made under the Bill.
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Those are the people we are standing up for-our constituents who may lose their livelihoods as a result of the Bill's being bounced through in an hour. I hoped that the right hon. Gentleman would have had a more proportionate response to our legitimate concerns.

Mr. MacShane: I have been following the debate in great detail. In the very last debate of this Labour Government, some of my hon. Friends are telling my journalist colleagues and others that they do not have the right to protect that which they have created, and to have some modest share of the value they add to our economy, because that would represent problems for wi-fi providers, internet café owners or hotels. That is not something I am happy with, and that is why, in the last, dying hours of a Labour Government, I am doing something that may be difficult for colleagues, which is to support a Labour Government. I do so not from Labour loyalty, but because I profoundly believe that the explosion of the net-of information provision-which I welcome, must not deny those who add value to it their chance to have some share of that which they produce.

Mr. Don Foster: Will the right hon. Gentleman give way?

Mr. MacShane: A Liberal Democrat asks me to give way. We are in the last dying hours of this Parliament. That party has always stood up for the rich and the privileged against the rights of journalists and trade unionists. I will not give way. If he wants to make another speech, he can do so.

Mr. Timms: I agree that what we are doing on infringement must not undermine our efforts to ensure that there is good public access to broadband and to rich content. Everybody will agree that that is important. We should not act to make commercial provision something that coffee shops, pubs or hotel chains will have to think twice about.

We need to put the provisions in context. It would not be right to introduce a large and growing loophole in what we are doing. If we did so, there would be serious consequences for providers. We need to keep that concern in mind.

Universities tend to take tough action against students or staff found infringing copyright, not just because it is unlawful, but because it clogs up valuable resource-bandwidth needed for legitimate use, including file sharing of research. However, I agree that libraries, universities and the rest need to be sent appropriate advice on reasonable steps that they can take to protect their networks. I agree that there might well be a case for such institutions to be subject to a different threshold than other subscribers. It would be rather silly-it would not make sense for anyone-if a big hotel faced the same threshold as an individual before being added to an infringement list.

I said on Second Reading that we would not approve any code that did not take full account of the needs of such subscribers. I repeat that now, and I think that it is the reassurance that the hon. Member for Bath (Mr. Foster) said that the Government gave in another place. No amendment is needed to give effect to that. The code
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will require the consent of the Secretary of State, and I am happy to confirm again that we would not give consent to any code that did not properly take account of the position of libraries and educational establishments.

Mr. Austin Mitchell: There is a type of case that is not covered by the Minister's reassurance. Somebody might park outside my house with a laptop, access my signal and abuse it without my knowledge. What would happen if such an abuse occurred and it could be traced back to me?

Mr. Timms: In such a case, my hon. Friend might receive a letter in due course informing him that an infringement had occurred on his internet access. He would then have the opportunity to protect that access.

Mr. Mitchell: How?

Mr. Timms: My hon. Friend could introduce a password so that somebody driving up outside his house would not be able to use his access. The letters that are sent out will have to give such advice and explain what people can do.

There are a number of things that libraries and others can do to prevent infringers from using their connection. For example, they can apply controls so that particular file-sharing sites with unlawful content are blocked at the subscriber level, which would be more difficult for an ISP to do more generally. Alternatively, they can block particular protocols or limit the bandwidth available so that file sharing on such connections is unrealistic. Such measures would allow libraries to prevent widespread infringement, but would still permit people to enjoy good online access.

I hope that I have provided some reassurance to hon. Members and that the amendments will not be pressed to a Division.

Mr. Don Foster: In light of the Minister's assurances, and because I am conscious of the time available, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7

Initial obligations code by OFCOM in the absence of an approved code

Mr. Don Foster: I beg to move amendment 12, page 9, line 35, leave out 'six' and insert 'nine'.

The Second Deputy Chairman: With this it will be convenient to discuss amendment 13, page 9, line 36, leave out from 'force' to end of line 38.

Mr. Foster: I refer the Committee to the comments that I made a few moments ago regarding my concern about the time scale, which was why I tabled the amendments. I look forward to the Minister's response.

Mr. Timms: Taking my cue from the hon. Gentleman, I refer him to the remarks that I made a few moments ago, which I hope he found reassuring.

Mr. Foster: In the light of that reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

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