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The Earl of Erroll: That had occurred to me as well. It seemed to me that the clause was either otiose or not. On the technical workshops bit, at a previous stage of the Bill the Minister pointed out that the rights owners have their own organisations monitoring this traffic and that monitoring will supply the information to the ISP to start logging against a particular subscriber to find out how many infringements there are, and then one goes further on to the Norwich Pharmacal order. The rights owners will have to respond to

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various privacy enhancing technologies which will appear: the "dark net", which started last autumn, is already here and then there are things like Tor, proxy servers and so on. There will also be quite a lot of technical things that the rights holders' monitoring organisations will have to respond to. The concept that they will not be involved at a very technical level in trying to monitor is very weird to me.

Lord Faulkner of Worcester: I can help the Committee a little more. The copyright owners download material, or part of it, and as they do so they note the exact date and time and the IP address being used. That enables the ISP to associate that with a particular subscriber. It is part of the audit trail through which one is able to track the downloading of copyright material.

The Earl of Erroll: The two technologies which I have just mentioned mean that the IP address received is not the IP address of the subscriber; it is another IP address supplied by an intermediary. Therefore, they will have to find technical ways around that and that is when it becomes interesting as regards the efficacy of the technical measures proposed. You have to talk to this part of the rights owners' organisations or you will not find out whether what they have is effective.

Lord Faulkner of Worcester: In response to the noble Earl, I make the point that we would certainly be prepared to talk to the rights owners if it is necessary to amass that sort of technical information.

Lord Clement-Jones: This is getting curiouser and curiouser. Although the noble Lord has been helpful in giving me something extra as regards the information which might be required from an internet service provider, it seems to me that he has made the case for the amendment in the name of the noble Lord, Lord Lucas, because these are quite technical things. In those circumstances, the copyright owner is intertwined with the ISP and, in terms of the information which needs to be obtained to ensure that these technical measures are effective, they will need to talk to the copyright owners as well. The noble Lord, Lord Lucas, has not had an answer to his point that if copyright owners are dealt with by another section of the Communications Act, why not the ISPs. Surely what is sauce for the goose is sauce for the gander.

Many questions are still unanswered. As this is at the core of the Government's proposals, it is somewhat surprising that the Government have not laid out their stall rather more successfully. Before the next stage of the Bill, I hope that the Government will give this further consideration. In the mean time, I beg leave to withdraw the amendment.

Amendment 169 withdrawn.

Amendments 170 to 172 not moved.

Clause 10 agreed.

Clause 11 : Obligations to limit internet access

Amendments 173 to 174A not moved.



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Amendment 175

Moved by Lord De Mauley

175: Clause 11, page 13, line 25, leave out "or" and insert "and"

Lord De Mauley: Amendments 175 and 176 focus on the reasons that the Secretary of State may give for imposing a technical obligation. They raise a number of points so, while being as brief as I can, I shall try to set out my concerns as clearly as possible.

Amendment 175 was intended to highlight the fact that by allowing paragraph (a) or (b) to provide justification for the imposition of technical obligations, the Bill in fact allows the Secretary of State to avoid any assessment by Ofcom. This is clearly not desirable. I hope that the Minister will agree with me that it would be irresponsible to impose such potentially drastic demands on ISPs without a proper assessment. No order should be made under this section without Ofcom being asked to undertake that necessary preparation. Unfortunately, Amendment 175 is not sufficient as currently drafted and I apologise for this. Since putting it down, I have realised that the phrasing,

would allow once again for no assessment to be undertaken. Indeed it seems possible for the Secretary of State to direct Ofcom to start the necessary steps under new Section 124G and then to use that direction as the reason why an order needs to be made under new 124H. Surely this is not the Government's intention, so we look forward to the Minister's explanation.

Amendment 176 is very much a probing amendment, I hope that the Minister will be able to give us rather more detail about the intention behind paragraph (b). By putting down this amendment I do not mean that I am entirely opposed to the inclusion of a similar paragraph. After all, the Secretary of State should be able to take into consideration any relevant circumstances that might not be covered by an assessment. However, as drafted, this paragraph makes the entire section completely meaningless. At the very least, the section surely needs to be tightened up to ensure that an assessment is not merely an option but must be undertaken before an order is made. Furthermore, I think it would be extremely helpful if the possible circumstances that might be considered relevant, but which would fall outside an assessment, were made clear. I beg to move.

Lord Young of Norwood Green: My Lords, I rise early to see whether I can assist the Committee with some helpful comments. On the face of it, this is not an unreasonable thing to require the Secretary of State to do. It would ensure that an assessment of steps by Ofcom would have to be taken into account by the Secretary of State, as well as whatever else seems most pertinent to him when deciding on the appropriateness of requiring technical obligations to be imposed. In practice, the Secretary of State is always likely to want to have had a report from Ofcom before making such an order, and therefore we are willing to agree to consider this change.

However I do not think we should restrict the Secretary of State to taking into account only an Ofcom assessment of technical obligations, or the steps taken by Ofcom

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to prepare for them, as proposed in Amendment 176. I do not think that it would be at all sensible to circumscribe the Secretary of State in this way. Inevitably-I think the noble Lord, Lord De Mauley, acknowledged this in his contribution-there are going to be wider societal or macro-economic factors or, for example, developments in Europe, that a Secretary of State is going to want to take into account. It is right and proper that he should do so. I hope that the Committee will recognise that Ofcom would not welcome being the sole source of advice which the Secretary of State has to take into account.

In the light of my assurance that we shall certainly take away Amendment 175 and agree positively to consider it, and with my subsequent explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord De Mauley: My Lords, I am very grateful to the Minister for his comments. It is quite a complicated area. I think we probably both need to take each other's words away to reconsider them. As I said, Amendment 175 is certainly not perfect. On that basis, I beg leave to withdraw the amendment.

The Earl of Erroll: Perhaps I may intervene before the noble Lord withdraws the amendment. I would have added my name to Amendment 176 if it had not already had four names on it.

I should like to have some legal advice. I know that when matters reach the courts it is what is in the Bill that counts, not what the Minister says at the Dispatch Box. I do not know how much the context inside the Communications Act matters to the interpretation in the courts. New Section 124H(1) states:

"The Secretary of State may at any time by order impose a technical obligation on internet service providers if the Secretary of State considers it appropriate in view of ... any other consideration",

because the provision contains an "or". We must be very careful that we do not leave it as "any consideration" -I do not see that it is related to anything to do with copyright, even. I have no idea whether the context of new Section 124G means that it must be restricted to issues of copyright and copyright infringement, or whether the Secretary of State could use it for any purpose he liked-because he did not like someone's face, or whatever. I am being ridiculous and extreme there. I am very worried that we might inadvertently give a huge power to the Secretary of State. I know that it is very easy to make mistakes like that in law.

4.30 pm

Lord Clement-Jones: My Lords, I very inappropriately failed to make a short contribution on the amendment, which was also signed by those of us on these Benches. The noble Lord, Lord De Mauley, made such a good fist of it that it needed no further addition. The Minister has partly answered on Amendment 176-sadly, because he is insistent that the Secretary of State should take other considerations on board, whereas Amendment 176 is designed to try to ensure that the pure channel of empirical evidence is via Ofcom and

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that Ofcom is the one to gather the appropriate information. The amendment was dealt with well by the noble Lord, Lord De Mauley.

Lord De Mauley: Taking into account the comments of both noble Lords, we are happy to wait for the Government to come back with their proposed wording. On that basis, I beg leave to withdraw the amendment.

Amendment 175 withdrawn.

Amendment 176 not moved.

Amendment 177

Moved by Lord Clement-Jones

177: Clause 11, page 13, line 28, at end insert-

"( ) An order under this section must not be made until at least a year after the digital Economy Act 2010 has been passed."

Lord Clement-Jones: I shall speak also to Amendment 180. The Government have already made certain concessions on the process to be adopted for technical measures in their response to the Delegated Powers Committee, but I do not think that they have done so on the matter covered by my Amendment 177. We believe that a chance must be given for the initial obligations code to bed down before any new measures are adopted. Earlier, we tabled an amendment about waiting until Ofcom had issued its first annual report. This is very similar in import. I should be interested to hear what assurances the Minister can give. We certainly do not believe that it would be appropriate to act hastily in this respect. It would be an extraordinary set of circumstances for the situation to have got so bad that the Government felt that they had to introduce technical measures within a year. A year and then an assessment seems about right.

Lord Maxton: Does that mean that it would be two years before any action could actually be taken?

Lord Clement-Jones: Funnily enough, the noble Lord, Lord Maxton, has been answered by the Minister in previous debates. The Minister was insistent that preparations could take place before Ofcom had actually proposed that measures be taken. Although that did not satisfy me, it may satisfy the noble Lord.

As regards Amendment 180, one of the key issues is how such a code should be introduced. This is simply an attempt to ensure that consultation takes place and that the affirmative process is used in those circumstances. We have not put on all the knobs, bells and whistles that the Government have put on to Clause 17, which forms a useful precedent for anybody wishing to make sure that an order is virtually unpassable. This is a rather modest amendment. I beg to move.

Lord Lucas: My Lords, the Minister may feel that my Amendments 179 and 207 cover ground which has already been sufficiently discussed. I would agree with him.



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Lord Young of Norwood Green: The noble Lord nearly gave me a nasty turn.

I will start with Amendment 177. I listened with interest to the concerns of the Committee last week that this part of the Bill is unclear about the order in which actions should happen and the timescales involved. I recognise that there are genuine concerns in this area. I have always made it clear that the Government intend to introduce technical obligations only if the initial obligations do not work. I agree, however, that it would be helpful to provide more clarity on the face of the Bill about the intention that technical obligations should not be introduced unless or until the initial obligations have been tried and found not to be sufficiently effective. For this reason it is our intention to propose, on Report, an amendment to Clause 11 to require a minimum period of 12 months following the coming into force of an initial obligations code before an order imposing technical obligations may be made. I hope that this will meet the concerns of the noble Lord and others with similar concerns that this will not be a rush to judgment. There will be a decent period of time; as I have said, our proposal is to have a period of 12 months following the coming into force of an initial obligations code on which there will be a consultative process.

On Amendments 179 and 207, we have set out in the draft SI our views on how the costs of the initial obligations should be handled. The noble Lord, Lord Lucas, appeared to be satisfied in that respect so I will not dwell on that.

Turning finally to Amendment 180, we discussed last week an amendment tabled by my noble friend Lord Mandelson to ensure that an order under this section is to be made by the affirmative procedure. I hope that that achieves what noble Lords want.

Given my explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: My Lords, these are two pieces of marvellous news; with regard to the second, although I could not find the Government's amendment in the right place, I knew intuitively that the Government had agreed to that. I thought I had better speak to my amendment nevertheless to make sure the point was dealt with.

I am pleased by the Minister's promise of further amendment to make the point absolutely clear and I look forward to seeing what the Government produce. In the mean time, I beg leave to withdraw the amendment.

Amendment 177 withdrawn.

Amendment 177A not moved.

Amendment 177B

Moved by Lord Young of Norwood Green

177B: Clause 11, page 13, line 33, at end insert-

"( ) No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.""

Amendment 177B agreed.

Amendments 178 to 181 not moved.



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Amendment 182

Moved by Lord Lucas

182: Clause 11, page 13, line 33, at end insert-

"(4) An order made under this section shall expire three years after it comes into force, unless it is renewed.

(5) At any time prior to the expiry of an order made under this section the Secretary of State may direct OFCOM to make-

(a) an assessment of the effect of an order made under this section; and

(b) a recommendation as to whether the order should be renewed.

(6) When directing OFCOM to carry out an assessment or make a recommendation under subsection (5), the Secretary of State may also direct OFCOM to-

(a) consult copyright owners, internet service providers, subscribers or any other person;

(b) carry out an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and

(c) take steps to prepare a proposed technical obligations code.

(7) In making an assessment under subsection (5)(a), OFCOM shall include in its report an assessment of any directions given under subsection (6)(b).

(8) The Secretary of State must lay before Parliament a report made under subsection (5) as soon as practicable after it is received.

(9) At any time prior to the expiry of an order made under this section the Secretary of State may renew that order for successive periods of three years following a recommendation from OFCOM."

Lord Lucas: My Lords, I am surprised that Amendment 181 was not moved. Amendment 182 is merely an amplification of Amendment 181 but I would be interested to hear what the Government have to say. I beg to move.

The Earl of Erroll: I agree entirely with the amendments, although I preferred the first amendment in the group, Amendment 181, which has not been moved. It is short, simple and to the point, as opposed to Amendment 182, which is rather tortuous. We do not know what the effect of the powers will be. The pressure on parliamentary time can be incredible, and the three-year point is the stage at which Governments think of the next election and busily try to bolster their credibility with the public, so it may not be the best time to revisit something that is not working terribly well. The amendment would be a very good way of forcing the Government to revisit this. I think that the power is more draconian than the Minister does, but let us think of the worst picture. A sunset clause would be a good idea.

Lord De Mauley: I sympathise with the concern that a technical obligations order does not just run and run without any further assessment of its impact or effectiveness. Having a clear expiry date would also ensure that Parliament had an opportunity to assess whether the replacement order was still justified. We would object to ISPs continuing to bear a technical obligation to restrict the subscription of certain subscribers, even when technology subscriber behaviour

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or copyright law has moved on so as to make it irrelevant. That would be ridiculous, so there needs to be a quick and easy way to remove burdensome regulation when it is no longer applicable. I am therefore slightly disappointed that the noble Lord, Lord Clement-Jones, did not move his amendment.

My noble friend's amendment is rather more detailed. It has the advantage of allowing the rapid renewal of an order to ensure that there is no break in its effect, while still ensuring proper ongoing assessment and scrutiny. I am sure noble Lords will also have noted the inconsistency between the detailed and almost excessive assessment of the impact of Clauses 4 to 8, as laid out in Clause 9, and the complete lack of any such reporting duty on the technical measures. We would not want to insist on three-monthly reports in perpetuity, as Clause 9 does, but some level of reporting is essential.

Lord Faulkner of Worcester: My Lords, I hope the Committee will forgive me if I do not speak to Amendment 181, as it was not moved. I am very happy to speak to Amendment 182, which is very interesting, and we can see the logic of what it proposes. However, while I suspect that in practice we will look at time limits, or at least review the continuing relevance and necessity of the measures, we do not think that it would be a good idea to set this in stone in the legislation. A shorter period may be preferable, and, while that would not be precluded by the amendment, it is inevitable that a time limit that is set in legislation becomes the default setting.

Moreover, while the idea of requiring an assessment from Ofcom to be laid before Parliament is attractive-I am sure that we would all endorse basing decisions on evidence-we should not underestimate the resource that such an assessment would require. Ofcom would quite rightly regard it as a major task, and the cost, which would be borne by members of the industry, could be considerable.


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