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Clause 17 goes to the heart of copyright legislation and exposes the whole of that construct to the affirmative procedure. I would like a clause that was clearer and narrower. We are not totally in the dark; we know what steps people will take if they wish to continue to file-share illegally. They will use cyberlockers, encryption and proxy, and the Government, as my noble friend on the Front Bench has said, have no clue what to do about these things. Nor do I; these are very hard things to deal with. The only clear, technical way of dealing with them is to intrude extremely heavily into what people are doing on the net.
I am not at all clear that the solution lies in the Copyright, Designs and Patents Act, but I suppose that once the Government have the power to amend an Act they can put anything they want into it to deal with a particular problem. We might find something in there that does not have anything particularly to do with copyright, but the Government have given no illustration of the sorts of things that they need to do to deal with the particular threats that they see coming. If we could focus on that, we might have an idea of how we can make Clause 17 acceptable. I would not be against something along those lines.
My attention has been drawn to paragraph 136 in my noble friend Lord Fowler's report, which I have been reading with interest, and to the quotation above it from an industry executive on the attitude that he would like his industry to have:
"You can have whatever you want when you want but it is going to cost you more or less".
That is the right attitude; we give customers what they want, charge them for it, and get tough if they do not pay. We need that transformation. Given how shaky the Government's ability to deal with piracy is going to be, the industry really ought to be moving to give customers what they want, how they want it and when they want it. Then we will reduce this problem substantially. That is the right way in which to protect our copyright. Technology has outflanked us. Speaking as someone who has his own copyright interests, I do not think it defensible to stick with legislation and be tough with customers who misbehave. You give them something extra. You give them incentives to behave properly, and by and large they will.
I do not mind the amendment at all, but I do not want it on top of Clause 17 as it is at the moment.
6.45 pm
The Earl of Erroll: My Lords, I am not quite sure what one should do at the moment, because we seem to have strayed into the Clause 17 stand part debate.
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Lord Clement-Jones: If it helps the noble Earl, I intend to make quite a full speech in the clause stand part debate.
The Earl of Erroll: In that case, I will confine most of my remarks for the debate on whether the clause should stand part of the Bill. I do not like the clause at all. If we are to retain it, it must include the super-affirmative provisions and I therefore would vote for that. But at the next stage, I would vote to get rid of the clause altogether. That is my stance. I will explain exactly why I do not think that this clause should stand part when we get to the clause stand part debate. I should like to respond to a couple of remarks made by the noble Lords, Lord Fowler and Lord Puttnam, because I am not against protecting the rights of copyright holders. This is about effectiveness, which is why the other remarks are more apposite.
Lord Faulkner of Worcester: My Lords, it may assist the Committee if I respond to the point made by the noble Earl, Lord Erroll. The rules in the Companion are liberally drawn for Committee stage. If the noble Earl wishes to speak on this amendment and again on whether Clause 17 should stand part, he is at liberty to do so. However, the repetition of an identical speech might try the patience of your Lordships a little.
Baroness Howe of Idlicote: My Lords, I am alarmed by the Government's amendment, which seems rather draconian. I lived through the experience of the passage of the Communications Act 2003 and know very well the importance of getting the right parts of the Bill enacted. Even then, against considerable pressure at times, that Bill was out of date fairly quickly. As to the need to have the power to update quickly, there is an urgency which perhaps we need to address, but which has not been addressed satisfactorily so far.
I rather agree with the noble Lord, Lord Whitty, who said that, if nothing else could be agreed, the amendment in the name of the noble Lord, Lord Puttnam, should be agreed. Certainly, there should be 90 days, as opposed to 60 days, to gather evidence to refute what was going on. I would again stress that when this Bill is passed, we will need legislation that will be able to react quickly. Like the noble Lord, Lord Fowler, I do not think that primary legislation should be brought in fast. Certainly, after what has happened in the past few years of this Government's reign, there is no way in which primary legislation can be achieved quickly. There is a huge backlog waiting to go through Parliament.
I have considerable reservations about the government amendment, but I see the need to redraft and to have something. The Government may draw up something which will satisfy us. I certainly hope so.
Lord Howard of Rising: My Lords, the noble Lord, Lord Fowler, talked of new threats and the importance of being in a position to counter such threats, which means that my amendment to Clause 17 is not justified.
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As usual, the noble Lord, Lord Whitty, made interesting and pertinent comments. I hope that the Minister will listen to what the noble Lord said when he exhorted him to roll over. The noble Lord and my noble friend Lord Lucas urged Her Majesty's Government to look at the possibility of narrowing Clause 17, which might provide an answer to what everyone wants. I am somewhat disappointed that no one took real note of my comments on the complete ineffectiveness of statutory instruments in terms of controlling government. Eight times since the war in the House of Commons and three times in this House does not seem to be a very effective brake on anyone or anything. But if I was on the other side and wanting to do things, it would be a very effective way of getting absolute power while pretending not to have it.
Lord Young of Norwood Green: 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
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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
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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.
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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-
Lord Faulkner of Worcester: It is the government amendment which has been moved.
Lord Young of Norwood Green: That is a useful bit of cautionary advice from my fellow Whip. I hope that noble Lords will not move their amendments in the group as we will return to these issues on Report.
The Deputy Chairman of Committees (Baroness Harris of Richmond): My Lords, I remind the Committee that if government Amendment 211B is agreed, I cannot call Amendment 212 because of pre-emption.
211B: Clause 17, page 18, line 39, leave out from beginning to end of line 5 on page 19 and insert-
"(9) The Secretary of State may not make an order under this section unless-
(a) the Secretary of State has consulted the persons the Secretary of State thinks likely to be affected by the order (or persons who represent such persons) and such other persons as the Secretary of State thinks fit;
(b) following that consultation, the Secretary of State has laid a draft order and explanatory document before Parliament in accordance with section 302B; and
(c) the order is made in accordance with section 302C.
302B Draft order and explanatory document laid before Parliament
(1) If, after the conclusion of the consultation required by section 302A(9), the Secretary of State considers it appropriate to proceed with the making of an order under section 302A, the Secretary of State must lay before Parliament-
(a) a draft of the order, together with
(b) an explanatory document.
(2) The explanatory document must-
(a) describe the infringement of copyright that the Secretary of State is satisfied is having a serious adverse effect on businesses or consumers;
(b) describe the effect;
(c) explain why the Secretary of State is satisfied that making the amendment is a proportionate way to address that effect;
(d) give details of the consultation undertaken under section 302A(9), any representations received as a result of the consultation, and the changes (if any) made as a result of such representations.
(3) Where a person making representations in response to consultation under section 302A(9) has requested the Secretary of State not to disclose them, the Secretary of State must not disclose them under subsection (2)(d) if or to the extent that to do so would (disregarding any connection with proceedings in Parliament) constitute a breach of confidence actionable by any person.
(4) If information in representations made by a person in response to consultation under section 302A(9) relates to another person, the Secretary of State need not disclose the information under subsection (2)(d) if or to the extent that-
(a) it appears to the Secretary of State that the disclosure of that information could adversely affect the interests of that other person; and
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(b) the Secretary of State has been unable to obtain the consent of that other person to the disclosure.
(5) Subsections (3) and (4) do not affect any disclosure that is requested by, and made to, a committee of either House of Parliament charged with reporting on the draft order.
302C Super-affirmative procedure
(1) The Secretary of State must have regard to-
(a) any representations,
(b) any resolutions of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.
(2) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order in the terms of the draft, the Secretary of State must lay before Parliament a statement-
(a) stating whether any representations were made under subsection (1)(a); and
(b) if any representations were so made, giving details of them.
(3) The Secretary of State may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.
(4) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (2) and before the draft order is approved by that House under subsection (3), recommend under this subsection that no further proceedings be taken in relation to the draft order.
(5) Where a recommendation is made by a committee of either House under subsection (4) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (3) unless the recommendation is, in the same Session, rejected by resolution of that House.
(6) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order consisting of a version of the draft order with material changes, the Secretary of State must lay before Parliament-
(a) a revised draft order; and
(b) a statement giving details of any representations made under subsection (1)(a) and of the revisions proposed.
(7) The Secretary of State may after laying a revised draft order and statement under subsection (6) make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(8) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (6) and before it is approved by that House under subsection (7), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(9) Where a recommendation is made by a committee of either House under subsection (8) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (7) unless the recommendation is, in the same Session, rejected by resolution of that House.
(10) Subsections (3) to (5) of section 302B apply in relation to the disclosure of representations under subsections (2)(b) and (6)(b) of this section as they apply in relation to the disclosure of representations under subsection (2)(d) of that section.
(11) For the purposes of subsections (3) and (7) an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.
(12) In this section the "60-day period" means the period of 60 days beginning with the day on which the draft order was laid before Parliament under section 302B.
(13) In calculating the 60-day period no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days."
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