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Noble Lords will understand that a serious failure of a registry will need to be addressed as soon as possible. We do not want to restrict the ability of the Secretary of State to stipulate a period of less than three months for a registry to make representations where the circumstances are such that a shorter period is warranted. The Secretary of State must of course act reasonably in setting the period for representations, taking into account all relevant circumstances. I hope the noble Lord will recognise that he raises an important point but safeguards are there and notification will be adequate. Therefore, I ask him to withdraw his amendment.
"( ) the registry, having the powers and resources to do so, has failed to take effective action to end these practices,"
Lord Lucas: I shall speak also to Amendment 217. I thoroughly support the Government's proposals in general, but I wanted to make sure that what the domain name registry is being asked to do lies within its powers. Many companies would like to acquire other people's internet property. I do not know why one should give them the scope to lobby the Government to try to bully other people out of stuff that they legitimately own. Trying to make the domain name registry a creature of government would be a first step in that. Big commercial interests could then continue the pressure on the Government to try to get their way with internet domain name property. It seems to be plain sense that the Government should be able to require the registry only to do things that it has the power and resources to do.
Having looked at this issue and the impact assessment, I think that the Government are missing a trick. Why have they not thought of taxation as a means of controlling some of these abuses? If they are worried about people hoarding domain names, why not tax them? There are 8 million of them out there. The Government could get a tidy sum and would make life inconvenient for people who hoard domain names on the ground that they think that they could make a profit out of selling names to people with a commercial use for them. Like the number plates business, there is a pretty good business in prestigious domain names. This Government have proved to be very inventive in that sphere. Two of the three ills that the Government complain of could easily be dealt with by constructive taxation which would have added benefits for them. I beg to move.
The Earl of Erroll: My Lords, grouped with these sensible amendments, I have tabled alternative Amendment 218. It tries to achieve exactly the same purpose for exactly the same reasons. I do not mind which amendment is supported. Such a measure may be useful because it has to be remembered that the purpose of Clause 18 is to enable the Government to put in a manager under Clause 19; that is a drastic step to take. These are the trigger arrangements, and it is only reasonable that the registry has some control over what has gone wrong, because one could put in a manager who might do no better. It does not really matter, because if you do not have the power to do anything about whatever the issue is, you will need fast-track legislation to cure the problem-as we discussed previously. It might have been better to us a Henry VIII power here, rather than something else. Inserting an amendment with the word "reasonable" would ensure proportionality and reassure people. The effect would be exactly the same in the end. If the registry is misbehaving or not being competent, and a manager could do the job better, the Government would still have a reserve power to put in a manager under Clause 19.
On the previous matter, I wish to check something. The country code ".tv" is the top-level domain of Tuvalu. That country has been sensible because it spotted a huge opportunity and has a deal with VeriSign which markets the code for other purposes. The country gets a large slice of money, because it receives the royalties. This is an idea for the Government if they could grab the right domain. On top of that, Tuvalu
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Lord Howard of Rising: My Lords, my speaking notes state that the suggestions of my noble friend and the noble Earl are very sensible. I have to tell the Committee that I am rather bowled over at the thought of suggesting to Her Majesty's Government yet another form of taxation, when they are already hard at it-particularly at a time when Gordon Brown wants me to write an enormous cheque before 31 January and to cap that with a request for a Henry VIII clause.
It would be quite unfair to punish a registry for failing to undertake something it is unable, rather than unwilling, to do. There is already considerable disquiet among many at the idea that these provisions will nationalise the internet. I would welcome the reassurance which will be provided by these amendments that the Government will not be using this clause as a pretext for unnecessarily taking over a registry.
Lord Young of Norwood Green: My Lords, with regard to both amendments, what is being proposed by the noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, is a further test of a relevant failure by an internet domain registry. The effect of both amendments is that a registry might be able to delay or avoid taking action by claiming it could do nothing about the prescribed unfair practices or misuse of domain names because it did not have the power, responsibility or resources. The amendment of the noble Earl, Lord Erroll, would leave the Secretary of State powerless to act where a registry had taken reasonable steps, even when those steps had entirely failed to sort things out.
Let me reassure both the noble Earl and the noble Lord that the Government would not expect a registry to act beyond its powers to correct any failure that it could not reasonably address; for example, where that failure results from the actions of a third party over which it has no control. However, in our view, it is unlikely that a domain name registry would not have the authority and capability to suspend a domain name or take down a site using a domain name used by that registry if it was requested to do so by the relevant authorities because of the adverse effects on the interests of consumers. In practice, however, the Government will have attempted to have a discussion with the relevant registry about the problem that has caused concern long before the powers in this clause are exercised. Any real compliance difficulties faced by the registry will have to come to light during these discussions and, it is to be hoped, a way forward found to the satisfaction of both parties.
I turn to the amendment of the noble Lord, Lord Lucas. The absence of adequate arrangements for dealing with complaints by an internet domain registry is one of the two tests that decide whether there has been a relevant failure by that registry. While we regard it as important that such arrangements exist, we realise the form they take will depend on the registry concerned. As I have already explained, if we were concerned there might be a serious failure the Government would have had discussions with the registry to determine whether its arrangements for handling complaints were adequate before-and I stress
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I was as shocked as the noble Lord, Lord Howard, at the idea of taxing domain names. The idea of the Opposition Benches proposing more taxes for the Government is an interesting one that we will take away and raise with the Chancellor. I was reassured that it was not described as a "stealth tax". As for Henry VIII powers, we have dabbled enough in that already-I see the Lib Dem Benches concur. In the light of my explanation, I trust that the noble Lord will feel able to withdraw the amendment.
Lord Lucas: My Lords, I am grateful for that explanation. I will read it carefully along with the noble Lord's replies to the few groups that follow. It is important that there should be a real disincentive to the Government deciding to trip this trigger and take over a domain name registry. I will look at this as a whole to understand whether I think the Government have achieved that. As for a tax, it is a tax only as a secondary effect. The real purpose is to improve the fluidity of the domain name market; the Government will just happen to earn some revenue from it. It might also help to reduce my noble friend's tax bill in compensation. I beg leave to withdraw the amendment.
"( ) the failure is an issue reasonably within the responsibilty of the registry and the registry has not taken reasonable steps to respond to this failure"
Lord De Mauley: My Lords, we come now to another threshold. I was glad to see the qualifier "serious" in subsection (1) of new Section 124N, but was baffled to see it absent from subsection (4). It appears that any adverse effect, no matter how trivial, counts as serious if it relates to electronic communications or consumers.
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Lord Young of Norwood Green: I am grateful to the noble Lord, Lord De Mauley, for tabling the amendment. What we are talking about here is the degree to which businesses, consumers or the UK's internet economy must be affected before the Secretary of State can be satisfied that enforcement action against a registry would be justified. The Secretary of State is bound to act reasonably whenever he makes a decision. Deciding whether the failure of the domain registry is serious enough to warrant further action would not be an exception; and as we have said, neither is it a decision that would be taken lightly. It would be the last resort. It must remain within the Secretary of State's reasonable judgment to decide, on the facts available, how serious the adverse effect is. In the light of that explanation, I invite the noble Lord to withdraw his amendment.
Lord Lucas: My Lords, I am not sure that that answers my noble friend's point. Perhaps he will differ, but I think that this word would go a long way towards allaying my concerns about this part of the Bill, and about the lightness of the trigger. The Minister is right that the Secretary of State will take the decision; but he ought to take it in the light of an improved clause, rather than of an open interpretation that the current wording might give rise to.
Lord De Mauley: My Lords, I thank the Minister for his response. Perhaps, in the light of my noble friend's intervention, he might like to give this matter further thought. For this evening, I beg leave to withdraw the amendment.
The Earl of Erroll: This is on the same subject: we probably should have grouped the amendments together. I thought it would be easier for the Minister if I kept this separate. It is another way of ensuring that the event is serious and not trivial. Amendments 221 and 225 make the point that the Secretary of State should consult to make sure that other people think that the matter is serious, and it is not just a case of the Minister getting a bit worried. Therefore, I support Amendment 224, which is grouped with the next two amendments and states that a draft order should be brought before the House. It is all connected, and intended to ensure that if this sort of thing happens, it is scrutinised properly and not just arbitrarily by the Secretary of State. I beg to move.
Lord De Mauley: My Lords, following on from the last group of amendments, I agree with the noble Earl, Lord Erroll, that consultation should be required before this power can be exercised. When we discussed Amendments 216, 217 and 218 a few minutes ago, my noble friend referred to disquiet at the possible overreaching powers of the Secretary of State. The Minister has, throughout Committee, been at pains to reassure us that there is no intention to abuse these powers. He used the words "last resort" when we debated that group. Nevertheless, these amendments would give some comfort to those who are worried.
Lord Young of Norwood Green: Again, I am grateful to the noble Earl, Lord Erroll, for tabling the amendment. The purpose of both amendments is to make it a requirement in the Bill for the Government to consult. The first amendment requires the Secretary of State to consult in order to establish whether the failure of a domain registry is serious such that he may have the power to take action against a registry, and to inform the decisions as to who is responsible for the failure, what action needs to be taken and by whom. The second amendment would impose a requirement in the Bill for the Secretary of State to consult before prescribing which practices are unfair or involve the misuse of domain names, and before prescribing the requirements to be placed on registries for dealing with domain name complaints.
I give an assurance that we are committed to consultation with the stakeholders. A government code on consultation prescribes the form that consultation should take. We are fully supportive of consultation and are aware of its importance in the decision-making process. The Secretary of State can consider using his powers against a registry only if he is satisfied that the particular registry to which he would address a notification is engaging in a serious relevant failure that could harm the reputation or availability of electronic communication network services and the interests of consumers or members of the public.
The Government have made a commitment to consult before the Secretary of State uses his powers. The degree of consultation requirements suggested by the noble Lord risks delaying action to the detriment of the very things that we are all seeking to protect. We believe that the necessary safeguard is already built into the process that we have set out and to which we are committed, including the consultation and prescribed practices and the opportunity for the registry to make representations to the Secretary of State further to being served with a notice. I hope that that explanation and the commitment to consultation will be sufficient to enable the noble Earl to withdraw the amendment.
The Earl of Erroll: I thank the Minister for that helpful answer. As the Government are so committed to consultation, I thought that it might be wiser to put this on the face of the Bill. As they are carrying out other consultations, it could run in parallel and I do not think that it would necessarily delay the process. It would make it clear that the Minister cannot operate unilaterally. With those reservations, I beg leave to withdraw the amendment.
224: Clause 18, page 20, line 6, after "State" insert "where any such regulations must be made by statutory instrument and may only be made if a draft order has been laid before Parliament and approved by a resolution of each House"
Lord Lucas: This amendment raises a separate point. It comes under the same heading of making the trigger a bit heavier on this mechanism and refers to the fact that these orders should be made by affirmative, rather than negative, resolution. I beg to move.
Lord Young of Norwood Green: The clause already requires the Secretary of State to set out what constitutes unacceptable practice by registries and explains how they must deal with complaints and regulations. The Communications Act requires that those regulations be made by statutory instrument, subject to the negative procedure. In practice, there is likely to be a consultation on the proposed regulations by the Government and Parliament will have an opportunity to annul them before they come into force, so all interested parties will be able to make their views known and so help to
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