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House of Lords

Wednesday, 14 May 2014.

3 pm

Prayers—read by the Lord Bishop of Oxford.

Thames Tideway Tunnel


3.07 pm

Asked by Lord Berkeley

To ask Her Majesty’s Government whether they have discussed with Thames Water the additional annual charge to its customers to fund the development and construction of the Thames Tideway Tunnel and the duration of this charge.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, the Government have indeed been working closely with both Ofwat and Thames Water to ensure that the Thames tideway tunnel is delivered in a way which minimises the impact for customers and taxpayers.

Lord Berkeley (Lab): I am grateful to the Minister for that Answer. Will he confirm that the latest figure for how much it will cost all Thames Water’s customers—from Swindon to Witney, and Newbury to London—is about £70 or £80 per year extra for the next 50 years? Is that reasonable, given the fact that the tunnel may become redundant in 20 years because of the Government’s own Flood and Water Management Act and the requirement for sustainable urban drainage systems? Is not the best thing now to abandon the tunnel completely and save all this taxpayer and government money?

Lord De Mauley: My Lords, of course not. Government estimates at 2011 prices were for a maximum bill impact range of between £70 and £80 per year. These figures remain valid as an upper bound and would take Thames Water customers’ sewerage bills to around the national average. The construction costs are currently out to tender with consortia of contractors. We also consulted last December on a competitive procurement approach for the financing costs, although no decision has yet been made.

Lord Smith of Finsbury (Non-Afl): My Lords, the Minister will know that the Thames tideway tunnel is robustly supported by the Environment Agency, which I chair, and by the Mayor of London. It was also supported by a range of voices in your Lordships’ House when we last discussed the matter. Unhappily, cost and disruption will be involved, but does the Minister not agree that this is the only practical way of ensuring that we do not continue to discharge raw sewage into the Thames at least 50 times a year and of bringing an outdated Victorian drainage system, on which this city sits, up to the modern age?

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Lord De Mauley: My Lords, yes. I am grateful to the noble Lord, not only for his question but for the very valuable work that he does, which we all know about. We are required to have a collecting and treatment system for London. Exceptions on grounds of cost have to be truly exceptional, and this project does not qualify as exceptional. The environmental standards that have been set are equivalent to those in other tidal estuaries. I am therefore confident that the tunnel is the right solution for London, and the only solution compliant with the urban wastewater treatment directive. However, I assure noble Lords that we remain completely focused on keeping costs to a minimum.

Baroness Parminter (LD): My Lords, the Government have offered contingent financial support for exceptional risks on this project. Following discussions with Infrastructure UK, Thames Water and Ofwat, is the Minister in a position to say what those exceptional risks and the potential cost to the taxpayer are?

Lord De Mauley: My Lords, we are still working on that, but I thank my noble friend for the opportunity to say that independent financial advisers have confirmed that no water company—whatever its financial structure—would have been able to access sufficient finance at an acceptable cost for such an exceptionally large and complex project without some contingent support from government. It is important that, when offering contingent support, taxpayers’ interests remain a top priority and that the taxpayer is appropriately protected by measures that minimise the likelihood of these exceptional risks.

Lord Campbell-Savours (Lab): My Lords, have the Government made concessions to the green environmental movement, which has, throughout the country, opposed the construction of this tunnel and come up with alternative solutions? Have any compromises been made with what it wants?

Lord De Mauley: My Lords, going back to the initial point made by the noble Lord, Lord Berkeley, who talked a bit about green infrastructure and science, we should not lose sight of the fact that these are important tools that will be used, but we cannot manage without the tunnel. In addition to the Environment Agency, a key supporter of the tunnel is a group called Thames Tunnel Now, which describes itself as a coalition of environmental, wildlife and amenity groups promoting the case for the tunnel. Its supporters include key groups such as RSPB, WWF, the London Wildlife Trust, and the Angling Trust.

The Earl of Courtown (Con): My Lords, would my noble friend agree that in the past there has been some criticism of civil servants’ management of such contracts? I was wondering what will happen in the future, and what my noble friend aims to do to ensure that such contracts will now be managed in a professional manner.

Lord De Mauley: My Lords, I am pleased to say that an early initiative of this Government was to enhance our Civil Service’s ability to lead large projects,

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and indeed to render that ability on a level with the best of the private sector. We set up the Major Projects Leadership Academy, which is run by the Saïd Business School. I met Defra graduates and those undergoing the course there on Monday this week, and an impressive bunch they are.

Lord Grantchester (Lab): Given the cost of living crisis, Ofwat rightly rejected Thames Water’s application to increase bills further. Given that Thames Water paid out £2.2 billion in dividends over the past six years and pays little or no corporation tax, what leadership are the Government showing to ensure the right vehicle for financing, managing and delivering the project is put in place, and that it will be subject to parliamentary oversight?

Lord De Mauley: My Lords, there is quite a lot in that question, but I should say to the noble Lord that Labour harps on about the cost of living, yet its own policies—spending commitments totalling £27.9 billion since 3 June last year, unworkable energy policies and increased borrowing—would increase it.

Lord Hylton (CB): My Lords, when tenders are received, will the Government consider whether storm water and grey water can be separated, thus requiring a shorter tunnel and reduced charges?

Lord De Mauley: We have thought very carefully about that, my Lords, and we have concluded that it would be more expensive. However, as I said, green infrastructure and SUDS solutions are part of the long-term solution.

Baroness Farrington of Ribbleton (Lab): My Lords, why did the Minister fail to answer the question put by my noble friend Lord Grantchester?

Lord De Mauley: My Lords, because there probably would not be time to do it justice. However, I assure noble Lords that the question of how we structure this project is complicated and we are being extremely careful about it.

Lord Kennedy of Southwark (Lab): My Lords, can the noble Lord tell us a bit more about the consultation that has taken place with local residents affected by the route? Many people in the city are very unhappy about what is going on. He mentioned Ofwat and Thames Water. Not enough is being done there and people are very unhappy about this.

Lord De Mauley: My Lords, we are acutely conscious of the impact of the tunnel’s construction on local communities and on the tunnel’s surroundings. Local authorities and the public had the opportunity to make their views known during the Planning Inspectorate’s examination of Thames Water’s planning application. The Planning Inspectorate will take all views into account and make a recommendation to Ministers in June. Ministers are expected to make a final decision

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in September. However, because Ministers have a quasi-judicial role in the planning process, I am sure that noble Lords would not expect me to comment further.

Schools: Free Schools


3.16 pm

Asked by Baroness Jones of Whitchurch

To ask Her Majesty’s Government what early intervention measures they are putting in place to reduce the educational and financial implications of failing free schools.

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): My Lords, as new institutions, free schools get support from educational advisers prior to opening to develop their education offer and to appoint key staff. They are also subject to rigorous checks on their financial viability. Once open, they are monitored by education and finance advisers. Where performance issues are identified, these advisers work with schools to bring about the necessary improvements. If a school fails to improve, we will take swift and decisive action.

Baroness Jones of Whitchurch (Lab): I thank the Minister for that reply but this weekend we heard accusations that £400 million has been diverted away from the targeted basic need fund to prop up the free schools programme. Meanwhile, West Sussex County Council has already had to find £285,000 to fund alternative places for pupils from the failed Discovery free school. Can the Minister please reassure the House that no further money will have to be diverted towards the Secretary of State’s pet project when there continues to be such severe pressure on school places elsewhere?

Lord Nash: I think I can assure the House. As I said on Monday, far from taking money away from the basic need places, the free schools programme is enhancing the number of places available. We inherited a shortfall in places from the previous Government, who surprisingly failed to anticipate this

Lord Forsyth of Drumlean (Con): My Lords, does my noble friend not agree that it tells us everything about the Official Opposition that they ask a Question not about failing schools but about failing free schools, when free schools have done so much to offer opportunities to people who would otherwise be deserted in failing schools? Does this not show why they are not really fit to form a Government in our country?

Lord Nash: I could give a very long answer to that question but essentially I agree with my noble friend. The free schools programme is an outstanding success, and I use that expression advisedly. Free schools are much more likely than other schools to be rated outstanding after four or five terms of opening. On Monday, I mentioned a number of free schools which I invited noble Lords to visit and which have been rated outstanding within a few months of opening.

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There are seven, but I am sure that noble Lords across the House will be delighted to hear that many more have recently been judged outstanding in their fifth term of opening, and these reports will be published shortly. Therefore, we should be loudly praising the heads, teachers, parents, sponsors and governors of these schools.

The Lord Bishop of Oxford: My Lords, given that prevention is better than costly cure, can the Minister let us know what is being done to make sure that free schools are established as groups of interdependent schools, rather than independent and autonomous units? Can he let us know how what we have learnt from the academies programme—that we need to get schools grouped together in multi-academy trusts—is being transferred to free schools?

Lord Nash: The right reverend Prelate makes an extremely good point. Although it is true that a number of outstanding schools have been established entirely independently, the way forward is the school-to-school support model, with schools operating in local clusters and secondaries working with their primaries. We are taking this learning, which has been very successful in the academy movement, into the free schools movement.

Baroness Massey of Darwen (Lab): My Lords, we all know that some free schools have not been as successful as the noble Lord makes out. However, apart from that, can he tell the House how the impact and competence of non-qualified teachers will be assessed?

Lord Nash: By the results of the schools.

Lord Storey (LD): The Minister may be aware of the for-profit Swedish company IES, which won a £21 million contract to run the Breckland free school. If that school continues to fail, whose responsibility will it be—the head or the principal, the governors or the trustees, or the for-profit company running that free school?

Lord Nash: The primary responsibility rests with the governors who entered into the contract with IES. I know, because I have been involved in this, that they are monitoring the company closely to ensure that performance improves.

Lord Hamilton of Epsom (Con): My Lords, in view of the hostility to free schools that we hear from both Liberal Democrats and the party opposite, does this mean that if by some extraordinary misfortune—it is very unlikely—we ended up with a Lib-Lab coalition, we would see a return to bog standard comprehensives?

Lord Nash: Or, worse, the situation that we have in Wales. The party opposite seems to have gone remarkably quiet on free schools recently and I can only assume therefore that, reluctantly, qui tacet consentire.

Lord Howarth of Newport (Lab): My Lords, will the Minister point out to his noble friends Lord Forsyth of Drumlean and Lord Hamilton of Epsom that there

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is another 12 months to go before the election and that they are getting prematurely overexcited. Does he agree that in this House at least we should try to sustain an intelligent conversation for as much as possible of the next 12 months?

Lord Nash: I take note of the noble Lord’s point. I think it is very unlikely that my two noble friends to whom he referred would ever get prematurely overexcited. However, I note the point that he makes on timing.

Lord Brooke of Alverthorpe (Lab): The Minister said that if a free school fails the Government will take swift and decisive action. Can he tell the House what that would be?

Lord Nash: Noble Lords will know that we have closed one and a half free schools with a total of 200 pupils and we have created so far 150,000 new free school places, and so this needs to be seen in that context. We have also brought other management into one particular free school.

Universities: Part-time Students


3.23 pm

Asked by Baroness Blackstone

To ask Her Majesty’s Government what action they are taking to promote an increase in the number of students studying part-time at United Kingdom universities.

Lord Ahmad of Wimbledon (Con): My Lords, this Government introduced non-means-tested tuition loans for part-time students undertaking their first undergraduate degree. Last year we commissioned Universities UK to undertake a review of part-time undergraduate higher education and to make recommendations. The sector is currently working on these recommendations. We are also relaxing the ELQ policy in selected STEM subjects, which will provide the opportunity for students to access loans so that they can retrain from 2015-16.

Baroness Blackstone (Lab): My Lords, does the Minister accept that part-time higher education is vital for mature students if they are to acquire skills and become socially mobile? In these circumstances, does he agree that a 40% decline in the number of part-time enrolments is wholly unacceptable? This follows the trebling of tuition fees. Can he also reassure the House that the Government will do far more than he has just set out to reverse this shocking statistic?

Lord Ahmad of Wimbledon: I agree with the noble Baroness’s first point, about the importance of part-time education particularly for mature students. Indeed, 89,730 of the over 150,000 students who study part time are aged 30 years and over. As a matter of history, I think that the noble Baroness herself was

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part and parcel of the Government who introduced tuition fees. Although we have raised them, it has been done to ensure the long-term future of higher education in our country. That point is acknowledged not just by these Benches and the coalition Government but by the OECD and the World Bank.

Baroness Sharp of Guildford (LD): My Lords, does my noble friend agree that the unfortunate result of introducing loans for tuition fees in both the higher and the further education sectors is that those in their 20s and 30s have disproportionately been put off, although we very much need them to upgrade and improve their qualifications? Will he say a little more about precisely what the Government are doing to encourage this group of people to come back into education so that the oft-used term “continuing education” is made a reality?

Lord Ahmad of Wimbledon: My noble friend has touched on an important issue, but I disagree with her on another. Higher education is important not only for mature students but for young people. Our current information shows that a record number of 18 year-olds are taking up higher education—indeed, at 34.8% the figure is unparalleled, especially in light of the fact that there are fewer 18 year-olds. Of course the issue of mature students in higher education is important, and the Government are working with the universities to ensure that every opportunity is made available to them. The Government have facilitated such opportunities through the steps we have taken to ensure that they are able to take out loans. However, the important thing to note about higher education is that it has to be demand led and something that employers want. I am sure my noble friend knows that 81% of part-time students are in employment.

Baroness McIntosh of Hudnall (Lab): My Lords, the noble Lord may be aware, although possibly he is not, that recently I chaired a seminar for the Westminster Higher Education Forum on this very subject. The decline in the registration of part-time students that my noble friend Lady Blackstone described was dramatically illustrated by the testimony of vice-chancellors and other university teachers. There is clearly a serious problem there. Can the noble Lord expand a little on the answer that he gave to his Liberal Democrat colleague on the subject of mature students, particularly those who are in full-time employment but wish to upgrade their qualifications? I am thinking particularly of teachers who are asked to work extremely long hours. Many of them would like to address their continuing professional development through part-time university courses but find it quite hard to do so.

Lord Ahmad of Wimbledon: I was not aware of the seminar that the noble Baroness mentioned but if she would like to enlighten me on it I would be happy to talk to her outside the Chamber. I fully acknowledge that the number of part-time students in higher education institutions has declined, but as I said, this is a matter that employers have to work with as well. Many employers

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who were facing challenging economic circumstances were not releasing people to go and study part time. The other point I would make is that the higher education offering has changed as well, and I give the example of Birkbeck College. When I talked to people there, I was interested to note that there is now a higher take-up of evening degree courses which are run on the equivalent of a full-time basis. The actual offering of institutions is changing, and that is having an impact on the figures.

Baroness Hooper (Con): My Lords, what proportion of students studying at our universities are international or overseas students, and what are the Government doing to promote this aspect of our university education system?

Lord Ahmad of Wimbledon: As my noble friend will be aware, the Government do not offer loans for university tuition to international students. I acknowledge that we have seen a decline in the number of international students coming to the UK as compared with some of our other European partners. The Government are making it clear through the reforms we are making in higher education—such as the opening-up of caps on university admissions—that the UK is open for business to anyone who wishes to come here to study on an accredited basis at an accredited institution. The Government take this most seriously.

Lord Stevenson of Balmacara (Lab): I am sure that the noble Lord will have read the CBI report, Tomorrow’s Growth: New Routes to Higher Skills. Does he agree with the CBI’s conclusion that relying on traditional university courses alone will not meet the growing demand for degree-level technical skills in key sectors such as manufacturing, construction, IT and engineering? What will the Government do to deliver on the CBI’s obviously very sensible call?

Lord Ahmad of Wimbledon: The noble Lord makes an important point. As I said, higher education has to reflect the needs of the economy and, indeed, the needs of employers. I was therefore delighted that my right honourable friend the Chancellor very recently announced, on 7 May—as I am sure the noble Lord will recall—the new industry campaign “Your Life”, under which leading organisations including Google, Microsoft, BP, BSkyB, Airbus, IBM and Nestlé, to name but a few, have created 2,000 new entry-level positions which cover both apprenticeships and graduate-level posts. I am delighted to inform the House that 170 businesses have now signed up to this initiative.

Nigeria: Chibok Abductions


3.30 pm

Asked by Lord Bach

To ask Her Majesty’s Government what action they have taken to assist the Government of Nigeria to rescue the schoolgirls abducted by Boko Haram.

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The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, the Government have offered support, both bilaterally and with our international partners, in response to this horrific and heartbreaking situation. A UK advisory team, drawn from across government, arrived in Abuja on 9 May. It held a series of meetings with the Government of Nigeria and others to understand the situation and to see how the UK can help Nigeria both deal with this abduction and address longer-term challenges. My right honourable friend the Prime Minister earlier today announced further support.

Lord Bach (Lab): My Lords, I thank the Minister for her reply. However, is she aware that many parliamentarians, on all sides, find it extraordinary that in the month that has elapsed since this barbaric abduction Her Majesty’s Government have neither made an Oral Statement nor instigated a debate in either House? Why is today the first time—and only by luck of the draw—that we have been able to discuss what by any standards is a major issue for Nigeria, Africa and the rest of the world, especially Britain, and then only for an absurdly short time this afternoon? Of course, we warmly welcome and support, as will the whole House, the action Her Majesty’s Government have taken in recent days but there seems to have been a gap of three weeks or more between the abduction and the Prime Minister’s phone call to President Jonathan on 7 May when no action seems to have occurred. Why was there that delay when speed of action was surely vital?

Baroness Warsi: My Lords, in the midst of this horrific situation, Her Majesty’s Government, and indeed this country, can be rightly proud of the fact that we were the first Government to offer assistance, which we did within hours of the incident. Within two days, the Foreign Secretary spoke to Foreign Minister Wali; we were the first country, along with the US, to send a team; we are leading the international effort; and Mark Simmonds, the Minister with responsibility for Nigeria, is in Nigeria as we speak. I am also pleased to repeat the Prime Minister’s announcement of earlier today that we have provided surveillance aircraft, a military team to embed with the Nigerian army in its HQ and a team to work with US experts to analyse information on the girls’ location. We are going beyond just military support by providing support and funding to the safe schools initiative spearheaded by Gordon Brown in his capacity as UN special envoy for global education. All noble Lords in this House can be rightly proud of the way that HMG have responded.

The Lord Bishop of Oxford: My Lords, would the Minister agree with the comments made by the most reverend Primate the Archbishop of Canterbury last weekend to the effect that, however abhorrent we may feel the organisation to be, it is necessary to engage in some way with Boko Haram and to do that at different levels? If that is the case, would the Minister give some indication of what kind of support or encouragement the Government are giving to that dialogue between Boko Haram and the Government of Nigeria?

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Baroness Warsi: The most reverend Primate’s comments about negotiations or discussions with Boko Haram are quite right and, as the right reverend Prelate says, they are certainly something which the Nigerian Government have to take forward. I know that he has a considerable history of dealing with this kind of situation in Nigeria and, indeed, of being involved in mediation processes. However, the message that HMG have been strongly sending out, along with our international partners, is that this is an abhorrent crime, that the girls must be returned unconditionally and that this is not something we need to feel that Boko Haram has negotiating power over. There is a longer-term challenge in relation to tackling Boko Haram but I am not sure that that needs to be done over the lives of these young girls.

Baroness Cox (CB): My Lords—

Baroness Berridge (Con): My Lords—

Lord Tebbit (Con): My Lords—

Noble Lords: Tebbit!

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, let us hear from the Cross Benches.

Baroness Cox: My Lords, is the Minister aware that, while the kidnapping of more than 200 girls at Chibok is unprecedented in scale, the brutal policy of kidnapping girls and subjecting them to forced marriage and/or conversion has been widespread across northern Nigeria’s Sharia states for years, sometimes with the connivance of local authorities? Therefore, while the rescue of these girls must be the urgent priority, will Her Majesty’s Government urge the Government of Nigeria to require all state and local authorities to ensure that this abhorrent practice is no longer tolerated anywhere in Nigeria?

Baroness Warsi: The noble Baroness is right: abductions are unfortunately not new in Nigeria, but the scale of the kidnapping at Chibok is clearly shocking. Through DfID, we have been working with Nigeria specifically on the education and protection of girls, especially in the northern region.

Lord Tebbit: My Lords—

Lord Chidgey (LD): My Lords—

Noble Lords: Tebbit!

Lord Tebbit: My Lords, does my noble friend agree that, while we are all horrified and disgusted at the atrocity of the kidnapping of these young girls, Nigeria is no longer a British colony, that the Prime Minister would not wish to intrude upon its internal affairs and that the telephone works both ways between Nigeria and London, so that if the President of Nigeria wishes to talk to our Prime Minister and request help, it is open to him, but we should not intrude upon Nigeria’s internal affairs?

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Baroness Warsi: My Lords, the Government accept that this matter has to be led primarily by the Nigerians, but it is quite right that we make offers of support, as we did right from the outset. However, it is for the Nigerian Government to accept those offers of support.

Lord Chidgey (LD): My Lords—

Lord Hughes of Woodside (Lab): My Lords—

Baroness Berridge: My Lords—

Noble Lords: This side!

Lord Hill of Oareford: My Lords, we must hear from the Labour Benches.

Lord Hughes of Woodside: My Lords, is the Minister aware that some of us in this House find it equally abhorrent that we should be talking about mediation with extremist groups such as Boko Haram, and that appeasement of such groups does not lead to peace but will encourage them to even greater atrocities?

Baroness Warsi: I think, my Lords, that I answered that question in a previous answer.

Lord Chidgey: My Lords, Nigerian Cabinet Minister Tanimu Turaki has said that,

“dialogue is a key option”,

in bringing this crisis to an end and that the issue can be resolved only outside of violence, yet his colleague the government information agency director Mike Omeri has said that authorities would,

“use whatever kind of action”,

it took to free the Chibok girls, and that a military operation with foreign help is possible. Given that the issues surrounding western education in Borno state arise from the Sokoto Caliphate, which fell under British control in 1903, what assistance is the UK considering in finding a long-term solution to these issues?

Baroness Warsi: My Lords, we have been working bilaterally through our regional CT co-ordinator, defence support, the high commission in Abuja, a small British military advisory training team, our own proscription of Boko Haram in July last year and with international partners to find a long-term solution, but I hope that the very clear message that we can send from this House today for those girls—from Abigail to Amina, from Hana to Halima—is simply this: bring back our girls.

Arrangement of Business


3.38 pm

Baroness Anelay of St Johns (Con): My Lords, on Monday, I announced that Parliament would be prorogued at some point today. I hope that it might help the House a little if I indicate that, once we have completed our own business this afternoon, we will

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adjourn during pleasure until we are confident—in other words, we are absolutely sure—that the House of Commons has also completed its business today. The time of resumption for the royal commission will of course, as always, be indicated on the annunciators, but, at this stage, I expect it to be very late afternoon or very early evening. I remind noble Lords that speakers lists are now open for our debate in response to the Queen’s Speech.

Communications Act 2003 (Disclosure of Information) Order 2014

Renewable Heat Incentive Scheme (Amendment) Regulations 2014

Motions to Approve

3.39 pm

Moved by Lord Gardiner of Kimble

That the draft order and draft regulations laid before the House on 31 March and 9 April be approved.

Relevant document: 26th Report from the Joint Committee on Statutory Instruments.Considered in Grand Committee on 12 May.

Motions agreed.

European Union (Definition of Treaties) (Convention on International Interests in Mobile Equipment and Protocol thereto on matters specific to Aircraft Equipment) Order 2014

Motion to Approve

3.40 pm

Moved by Viscount Younger of Leckie

That the draft order laid before the House on 31 March be approved.

Relevant document: 26th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 12 May.

Motion agreed.

Afghanistan: Quarterly Statement


3.40 pm

Baroness Northover (LD): My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Secretary of State for International Development in another place. The Statement is as follows.

“With permission, Mr Speaker, I should like to update the House on Afghanistan. First, I should like to pay tribute to the six service personnel who have

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died serving their country in Afghanistan since the last statement on Afghanistan was delivered to the House by the Defence Secretary on 10 February. They include Sapper Adam Moralee, who was killed on 5 March while preparing equipment for redeployment out of Afghanistan as part of our military drawdown. On 26 April, five UK service personnel—Captain Thomas Clarke, acting Warrant Officer Class 2 Spencer Faulkner, Corporal James Walters, Flight Lieutenant Rakesh Chauhan and Lance Corporal Oliver Thomas—were tragically killed in a helicopter crash south of Kandahar. A full investigation is under way into the incident but there is currently no indication of enemy activity being a contributing factor. It was the third biggest single loss of UK life since 2001.

These deaths are a timely reminder that our troops continue to risk their lives in Afghanistan every single day. Their legacy is realised in the fact that Afghanistan is now neither a safe haven nor a launch pad for terrorists who seek to destroy our way of life. The tens of thousands of Afghan security forces who they helped to mentor and who are now securing the country’s future are a testament to that. The sacrifice of our servicemen and women will never be forgotten.

I should also like to reiterate my deepest sympathies for those affected by the tragic landslide in Badakhshan province. Relief efforts are under way to help the more than 4,000 people displaced. The UK is closely monitoring the situation and stands ready to provide further assistance. Our recent £10 million contribution to the UN’s Common Humanitarian Fund will ensure that additional relief supplies can be delivered as required.

While the scale of the challenge cannot be underestimated, we are seeing some extraordinary progress in Afghanistan. Last month, Afghans took part in provincial and presidential elections. These elections were organised by Afghans, run by Afghans and security was provided by Afghans. The latest estimates from the preliminary results on voter turnout show that nearly 7 million people voted, 36% of whom were women. This is particularly impressive given Taliban threats of violence across the country. With very little support from ISAF, the Afghan security forces secured the vast majority of polling centres across the country and helped prevent any high profile attacks from occurring. Their professionalism and bravery were evident throughout, and their confidence has been boosted by this operational success.

A constitutional transfer of power from President Karzai to his successor will be a milestone for the Afghan people. Until 10 years ago, Afghans had never had the right to choose their leader. Now they are getting a choice and the UK Government are supporting that democratic process. We continue to support Afghan institutions in making sure that the elections are credible, inclusive and transparent. DfID is providing £20 million to the UN’s ELECT II programme, which ran a voter registration top-up exercise in Afghanistan. This has led to more than 3.8 million new registered voters, more than one-third of whom are women. ELECT II also trained almost 7,000 election commission officials, more than 2,000 of whom are women. That includes gender officers for each of Afghanistan’s 34 provinces.

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Women’s political participation has been a priority for the UK Government in the past year, and it was impressive to see so many women exercise their democratic rights as voters. Although there were no female presidential candidates, it is a sign of how much Afghanistan has changed that three women stood as second vice-president on presidential tickets, and 297 women contested provincial council elections. The Government’s support for women voters and candidates—through the UN and through DfID’s own programmes—will continue through to the parliamentary elections in Afghanistan in 2015.

We have made clear that our commitment to Afghanistan extends beyond the time that UK combat forces have returned home. The UK has committed to its current level of development funding until at least 2017. However, in order for us to continue our co-operation with Afghanistan for the long term, it is important that the bilateral security agreement and the NATO status of forces agreement are agreed as quickly as possible, and we will expect to see clear progress and further reforms from the new Afghan president and his Government.

Afghanistan’s economy remains fragile and vulnerable to shocks. Although economic growth and tax revenues have increased substantially over the past decade, uncertainty ahead of the elections, alongside the impact of the drawdown of international forces, have led to an economic slowdown in recent months. DfID’s continued support to Afghanistan’s economic growth and private sector development in the years ahead will seek to remove barriers to investment, particularly in the agriculture and extractives sectors, and create economic opportunities for women. The UK will also continue to support greater regional economic integration through infrastructure development and trade.

We hope that the new president will prioritise increasing domestic revenue collection and strengthening the economy, including passing key economic legislation. That is the best way to ensure that the country’s long-term future is not reliant on aid from other countries. At an early stage, the UK will be encouraging the new Government to take further steps on reforms that the international community wants to see, including tackling corruption and ensuring that gains made on women’s rights are strengthened. Some of the bravest Afghans I have met have been women’s rights defenders. These people risk their lives daily, fighting for rights that men and women take for granted in this country. The UK Government will continue to support their efforts to secure a better future for Afghan women and girls.

We cannot do that alone and Afghanistan’s future depends on many international actors playing their parts alongside the work that Afghans are doing themselves to secure their country’s future. Afghanistan will inevitably be a key feature of the NATO summit, which will take place at the Celtic Manor in Wales in early September. Plans and preparations are well under way to deliver that important NATO event, and the UK Government will co-chair a development conference on Afghanistan in the months after the new Afghan Government are formed. This will be a timely opportunity

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to focus both Afghan and international attention on the long-term economic, social and political challenges that Afghanistan must address.

The turnout for last month’s election shows the will and determination of the Afghan people to secure a brighter future, but they need our support. By continuing our essential development work by working together, we can create a stable country where Afghan children have opportunities that were denied to their parents. That will be a fitting and lasting legacy to the service of our troops, both those who are now returning to their families, and those who, tragically, do not”.

My Lords, that concludes the Statement.

3.49 pm

Lord Collins of Highbury (Lab): My Lords, I thank the Minister for repeating the Secretary of State’s Statement. Last week, we paid tribute to the service personnel whose tragic deaths in Afghanistan were reported to the House. As we approach the close of a 13-year operation, there will be time to reflect on what has been achieved—but regardless of those discussions, no one can doubt the courage, care and sacrifice of the men and women who served and continue to serve our country in Afghanistan. The burden on their families, too, is something that few of us can imagine. Just this week, we had a stark reminder that the pain of war is not only physical but, increasingly, can be an initially invisible injury to mental health.

DfID works in some of the most dangerous and demanding places in the world, and Afghanistan presents a unique challenge. For more than 30 years, the Afghan people have seen their communities blighted by conflict and violence. Half the population is in need of development assistance and a third of the population is food insecure. The Opposition’s approach on aid in Afghanistan is to support and scrutinise, so I will ask the Minister about four specifics.

First, in March this year the Independent Commission for Aid Impact reported on DfID’s bilateral support for growth and livelihoods in Afghanistan. The report raised serious doubts about the long-term sustainability of progress made, weaknesses in design and a lack of consultation and strategic coherence. What steps have been taken to improve the department’s programmes in the light of these revelations?

The report also found that none of the programmes assessed had made any plans for drawdown. Can the Minister assure the House that preparations are now well under way in all DfID projects for the impact of this year’s drawdown? The report made three main recommendations: a six-month review of current and future projects; the implementation of an enhanced system of consultation; and a better approach and commitment to independent monitoring. Can the Minister tell the House whether all the recommendations were accepted and what progress has been made in fulfilling them?

Secondly, I associate this side of the House with the expression of deep sympathy for those affected by the massive mudslide in Badakhshan province, in which 2,000 lives were lost. In the immediate aftermath of

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the disaster the Secretary of State rightly prioritised the safety and well-being of the survivors. However, what assessment has the department made of the needs of the 4,000 displaced, what assistance have the Government offered to the Afghan Government and what, if any, has been accepted?

Thirdly, I turn to the country’s future and the role of women. In doing so, I pay tribute to the Minister and the noble Baroness, Lady Hodgson, who unfortunately is not in her place this afternoon, for their continuing commitment over a very long time to this issue. As we approach the second round of presidential elections, the Taliban this week announced the start of its annual summer offensive. Nevertheless, Afghanistan’s women seem determined that their voices will be heard and their votes counted. What additional measures have been put in place to protect the right of Afghan women to vote? I welcome the commitment to tackle violence against women as a strategic priority in DfID’s next operational plan for Afghanistan, for 2015-2019. Can the Minister confirm that the DfID approach will be informed by consultation with Afghans, particularly women’s rights organisations?

Lastly, I turn to the mechanics of the drawdown. As we have heard in previous debates, there are widespread concerns about the sustainability of development gains and the protection of civilians. What assessment has the Minister’s department made of the impact of the drawdown on DfID’s strategy, and what extra security requirements will DfID staff and local partners require after it?

In conclusion, stability in Afghanistan will cease to rely on international military might but instead on the Afghan forces, on an improving local economy and on international development funding. DfID staff and their partners will have a vital part to play in the future of that country. For the sake of the people of Afghanistan and all the Britons who have served there, drawing down must not mean turning away. For all their sakes, our commitment to build a lasting peace in a viable state goes on.

3.55 pm

Baroness Northover: My Lords, I thank the noble Lord for his tributes in this area both to our troops and to our Government. We welcome the fact that the Opposition indeed work in a very constructive way in regard to Afghanistan, and I thank him for that.

The noble Lord raised a number of points. He mentioned the question of mental health among troops. He is right that this is a key area that we must ensure that we address. I assure him that the MoD works closely on combat stress and has just put up £7.4 million to improve mental health services.

Regarding the ICAI reports that he flags up, ICAI—the Independent Commission for Aid Impact, for those who are less familiar with this organisation—makes the point that:

“Afghanistan is one of the most difficult placers to deliver aid and DfID’s staff work hard under demanding conditions”.

It has made a number of recommendations, as the noble Lord mentioned: for example, reviewing current and future projects; ensuring that intended beneficiaries are directly consulted; and giving a commitment to

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independent monitoring. I reassure him that all those issues are being taken forward. DfID constantly reviews what it is doing. Of course, DfID itself set up ICAI to inspect what the department was doing, so obviously we take very seriously what ICAI says in this regard. In a situation of transition, making sure that development is taken forward is part of what DfID is looking at.

The noble Lord concluded by saying that we must retain our commitment to Afghanistan. He is absolutely right. If we are going to continue to sustain the progress that is being made, that development engagement is exceptionally important and we must ensure that it is as effective as possible. We must also, as our first duty, care for our staff, whether they are drawn from DfID in the UK, Afghanistan or wherever. That is also part of what we closely look at.

The noble Lord asked about the mudslides. We think at the moment that adequate support is getting through to those who have been so badly hurt by this event. He will know that we contributed £10 million of humanitarian aid, and obviously we are open to further requests if appropriate. At the moment, though, we understand that adequate assistance is getting through.

The noble Lord rightly highlights the situation of women in Afghanistan. They have made amazing progress, given their starting point, and we are determined that things should not go backwards. The women in Afghanistan are even more determined, if you like, to ensure that that is the case, and we will be there to assist them. I thank him very much for the tribute that he paid to me and to my noble friend Lady Hodgson in this regard; there are many others in this House, including the Lord Speaker, who have been extremely strong in ensuring that women in Afghanistan are supported.

DfID contributes significantly to the support of women. In the election, one of our main aims was to try to ensure that women were registered, knew about voting and were able to do so. It is striking to read that in Heart, women smashed down the door of the voting station so that they could get in to vote. They were not ready to wait for it to open; they were so keen to get in there.

It is excellent that 20% of places on provincial councils will be held by women. It is a complete change from the situation a decade or two ago. That is very welcome, but we are acutely aware that things could easily go backwards and we are determined to do our best to try to ensure that that is not the case. In sum, we continue our strong engagement with Afghanistan, and we are acutely aware that it is through development that we will secure the kind of stability that they and we wish to see. That is why the UK Government continue their involvement.

4.01 pm

Lord Laming (CB): I associate myself with the very sincere and warm tributes that the Minister paid to the troops who have recently given their lives in Afghanistan. I feel sure that across the House we would like our troops to know that they have our complete support and we will never underestimate their bravery and what they do on behalf of our society.

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It is difficult to single out the achievements in Afghanistan, but will the Minister convey to the Ministry of Defence how pleased we are to hear of the huge increase in the education opportunities for girls in Afghanistan? If anything is a fitting tribute to what our troops have achieved, that is it.

Baroness Northover: I thank the noble Lord for what he has just said. Of course, one of the names I read out was Oliver Thomas, whom many of us knew as he was a parliamentary researcher. That brings it home to those who would otherwise not feel the impact of the contribution that they have had to make. The noble Lord is right about the education of girls. The transformation from 2001, when virtually no girls were in school, is astonishing. Of the 6.3 million children in school in Afghanistan, about 2 million are girls. We have not got to equality, but we have made a lot of progress and will make sure it continues.

Lord West of Spithead (Lab):My Lords, the Minister quite rightly points out how much we owe to our men and women for what they have done in Afghanistan, but there is a pernicious scheme—a poison—abroad which really upsets our servicemen. It relates to things that have happened in the past. I hope the Minister can assure the House that it will not happen in Afghanistan. It has happened in Iraq. We have seen the Al-Sweady inquiry, which has cost the MoD £47 million. Key evidence, which would have made the whole thing unnecessary, was shredded just before it was called. We have the business of the International Criminal Court amazingly saying it is doing a preliminary investigation into this country, which can and does look into activities by its forces. I believe that is quite extraordinary. Members of the International Criminal Court would be jolly lucky if they were caught by our people rather than most countries in the world. Can the Minister say that we will not allow this trawling of Afghanistan to find cases and trumped-up issues to cause problems for our people, because it has a huge, pernicious effect on our service men and women?

Baroness Northover: I hear what the noble Lord says. I thank him for the tributes he has paid. He will know full well the contribution that our service men and women are making. I do not doubt that the standards of our troops are second to none. It is clearly vital that our troops, like all other troops, adhere to international law in this regard because we are trying to establish respect for the rule of law in Afghanistan. Clearly, if one or two let anybody down then that can let the whole group down. I am well aware that the troops themselves wish that every single member of their group adheres to the high standards to which they themselves adhere.

Lord Dannatt (CB): My Lords—

Lord Judd (Lab): My Lords—

Lord Cormack (Con): My Lords—

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Lord Gardiner of Kimble (Con): My Lords, we have had a member of the Cross Benches speak already. We take these things in turn. I hope that that will be helpful.

Lord Cormack: My Lords, I am grateful. My noble friend has made a moving and impressive Statement. However, she has not mentioned one group of people, and upon them so much has depended: the Afghan interpreters. As we withdraw from Afghanistan, we of course maintain our aid and connection. Can my noble friend assure me that the sacrifice and service that those men and women have given will not be forgotten, and that we will ensure—so far as is possible—that their lives will not be endangered after we have withdrawn?

Baroness Northover: Yes, we owe a great deal to the local Afghan staff who have worked for us in Afghanistan. As my noble friend will probably know, there is now a scheme in operation which is based in a generous in-country package of training and financial support for those for whom it is appropriate to stay, and a financial payment. For those who are eligible, such as staff who are regularly involved in working on the front line, there is the opportunity to apply for relocation in the United Kingdom.

In the other place, my right honourable friend the Secretary of State for International Development said that she would write to Keith Vaz, who chairs the Home Affairs Select Committee, with some details on numbers. I will ask that that same letter is put in the House of Lords Library and copied to my noble friend.

Lord Judd: My Lords, if the tributes which are being made genuinely to our service men and women for the price they have paid, and to the families of those who have fallen, are not rapidly to sound hollow, what will matter most is the commitment we give to the building of security and peace in Afghanistan following our engagement. That is absolutely crucial if we are sincere in our tributes.

Would the noble Baroness agree that, in emphasising the contribution that we have been making, it is important—for example, in the context of women—to put on record our unrivalled admiration for the courage of many Afghan women who have themselves led the struggle for the emancipation of women in their society? I underline, and ask whether the Minister agrees, that the point made by the noble Lord, Lord Laming, is crucial: education must be given priority. If the peace is to be secured, the quality and integrity of public service will be crucial within Afghanistan. What practical support are we giving to reform of the security sector and the administration of justice, which will be central in building stability for the future?

Baroness Northover: The noble Lord speaks from a lot of experience, and he is absolutely right that we need to build security and peace in order to secure what has been achieved thus far. He is also absolutely right to pay tribute to the courage of the women who have been ensuring that women and girls have the kind of rights that we take for granted.

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We support the Ministry of Interior Affairs and the police in trying to ensure that we provide the kind of security that the noble Lord wishes to see there. I also point out that, in other areas, half of all pregnant women, for example, now receive ante-natal care, compared with 16% in 2003. There have been many areas in which people’s lives have been transformed. We need to make sure that that continues to move forward.

Lord Dannatt: My Lords, I am very conscious that what I am about to say may not make me universally popular in your Lordships’ House. I was in command of the Army from 2006 to 2009. It will not have escaped the notice of noble Lords that this Chamber was packed to the gunnels at the start of Question Time today for discussion of the Thames tideway tunnel and other important matters. However, when the Minister began to draw attention to those who had fallen, noble Lords streamed out of this House in a way that was most unfortunate, given that six of our comrades had lost their lives. Can the Minister speak with the Leader of the House and other members of the usual channels so that if a tribute is to be paid to those who have fallen in the interests of our nation, noble Lords will be informed of that and will stay in their places? On a military base no one moves during the Last Post. In your Lordships’ House, I respectfully suggest that no one moves while a tribute is being paid to the fallen. The fallen have done their best to give the Afghans the opportunity of a better life in the future. We have done our best; it is now over to the Afghans to make the best of what we have given them.

Baroness Northover: Yes; I have noted what the noble Lord has said. It was not known until today that this Statement would be repeated in the Lords. The fact that I am speaking on behalf of DfID but answering on behalf of the MoD and the FCO may have made people think that the Statement would be DfID-focused. My noble friend who is the Minister for the MoD usually gives those names, and gave them when he last answered a Question. Therefore I left a gap as noble Lords began to leave. I hoped that they would hear what I was saying, but I think that some of them did not realise. I saw noble Lords pause and stop, and when they heard what I was saying they responded. However, the noble Lord is absolutely right.

Lord Richard (Lab): My Lords, the noble Baroness was somewhat overcharitable in her previous remarks, but she is not at fault for that. I want to ask a purely factual question; I do not want to make a big speech about Afghanistan. What was the percentage turnout in the election? Although the election itself is an enormous tribute to our commitment in Afghanistan, the key to whether it was a good election depends not only on the number of people who voted but upon the percentage turnout. If it was a high percentage turnout, it was quite clearly an expression of the genuine views of the majority of the population. If it was a low percentage turnout, it was not. I would be grateful for that figure.

Baroness Northover: Interestingly, I was trying to work that out myself when I was noting down the figures. I am not sure that I can answer the noble Lord

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precisely. I noted that the population of Afghanistan seems to be 30 million, and that probably 7 million turned out to vote. The noble Lord can probably do his own maths, bearing in mind the size of the young age group in the country. It is significant that 4.5 million people turned out in 2009, so that number has now gone up to 7 million. I will be very happy to get somebody who is better at maths to work that out, but I hope that it gives an indication of the upward trajectory.

Viscount Slim (CB): My Lords, we seem to be talking as if it is all over. It is not over until the end of the year and the withdrawal. In a withdrawal, there is often a temptation to think defensively, which can get you into a great deal of trouble. I ask the noble Baroness to ensure that the forces that we retain until the very end within Afghanistan have an offensive capability both on the land and in the air, and that the evacuation does not take place in such a way that those who remain until the end are in a somewhat desperate position. There is still an enemy to fight and to look out for. I hope that the Ministry of Defence has not picked up this defensive attitude, which takes away the complete attacking and offensive spirit of an army and an air force in a withdrawal position. I speak as someone who has withdrawn several times.

Baroness Northover: The noble Viscount talks about it being not over until the end of the year. As the DfID spokesman, I should say that it is not over then either, as we have been emphasising. He can be reassured that the Ministry of Defence is well aware of the need to ensure that those who are still there are well equipped. I see from the figures on redeployment of equipment quite a substantial amount still there. Around 63% of major equipment has been moved back and redeployed, but there is a quite substantial commitment still there. I hope that he will be reassured by that.

Lord Hannay of Chiswick (CB): My Lords, could the Minister address a point not covered in her very welcome Statement, to which I think most Members of the House who have spoken have given strong support—that is, Afghanistan’s neighbours? The history of Afghanistan is full of involvement by its neighbours in destabilising that country and, alas, in the past, also of Afghanistan destabilising its neighbours. Is it not absolutely essential that some very solid undertakings are given, perhaps in some regional grouping, that Afghanistan’s neighbours will co-operate with us and others in maintaining stability in the country after NATO’s withdrawal, and that they will be committed to respecting the territorial integrity and sovereignty of Afghanistan and working for economic co-operation? It is all very well us pouring money in but, if the neighbours are fiddling about, as they have often done in the past, it will not avail very much.

Baroness Northover: The noble Lord speaks from a great deal of experience. As he will know, there has been tremendous engagement with the Government of Pakistan and there is a trilateral relationship between Pakistan, Afghanistan and the United Kingdom. Pakistan

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has made a number of commitments. It is very clear from what is being said by both Afghanistan and Pakistan that they recognise that their long-term prosperity and security depends on the stability in each other’s country. That is also true for India, China and Iran. Stability and prosperity in Afghanistan have a beneficial effect on all the countries around, and we will be engaging with all those countries in that hope.

Lord Davies of Stamford (Lab): I very much support the comments and suggestion of the noble Lord, Lord Dannatt, and I express the hope that the Whip on the Bench will pass those comments and suggestions on to the Leader of the House and that they may be taken further. It has always been a great strength of this country that we have been able to adopt a bipartisan approach to a crisis situation such as we did at the time of 9/11 and the then necessary operation in Afghanistan. The whole House will undoubtedly be entirely with the Minister today and her expressions of tribute to the military who have died there, and in her expression of hope for the future, economic and political, of Afghanistan.

Can the Minister be a bit more specific than she was able to be in answer to my noble friend on the Front Bench about DfID? Does she now believe that conditions are such that it is possible for DfID personnel, whether UK-based or Afghan, to deploy in the Pashtun provinces such as Kandahar and Helmand to oversee and monitor projects? As she well knows, if you cannot monitor those projects, it is very difficult to avoid the kind of abuses and perversities that often arise, and then the money is really wasted, which is a very great shame. If she does not think that those conditions exist now, does she hope that in the near future we will be in a position whereby DfID personnel can deploy effectively in those difficult provinces for that important purpose?

Baroness Northover: DfID remains very committed in terms of its financial contribution, which is based on the fact that we believe that we can deliver that. A question similar to that was put to my right honourable friend the Secretary of State in the other place, and she was very reassuring about what we can do. She is keeping a very close eye on exactly what we can do to ensure that DfID staff are not, for example, office-based back in the capital but actually able to monitor projects as the noble Lord seeks.

Lord Soley (Lab): I am grateful to the Minister for spelling out the advances that have been made in Afghanistan because, sadly, outside this House there is still a tendency to see it as a failed operation. It is important that we change that perception. People think back to what Afghanistan was like when it was a base for al-Qaeda. If they think of the dangers to not just Britain but the wider world and of the enormous advances that have been made in Afghanistan, thereby giving those people a chance to recover from 30 years of war and revolution which ripped the country apart, they will see that we have made enormous progress while recognising the sacrifice that so many people have made.

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Baroness Northover: The noble Lord is absolutely right. I point, for example, to revenue collection. In 2004-05, only $250 million was collected. In 2011-12, $2 billion was collected. That is a sea change.

Lord Stirrup (CB): My Lords, I note that the Minister said that the end of 2014 is not the end. That is, of course, quite right. The endeavour in Afghanistan has been a major international effort. Co-ordinating that international effort has been something of a challenge, to say the least, even when it was at the top of various nations’ foreign policy and security agendas and when organisations such as NATO were involved. Will the Minister indicate to the House how the ongoing international effort in developing politics, economics and social life in Afghanistan is to be co-ordinated in future, which will be necessary if it is to be effective?

Baroness Northover: The noble and gallant Lord is right. It is something of a new science to have so many countries involved in this constructive activity. Obviously there are lessons to be learnt but, if he looks to the NATO summit which will take place later this year and to the development conference, he will see some of those lessons being taken forward.

Copyright (Public Administration) Regulations 2014

Motion to Approve

4.21 pm

Moved by Viscount Younger of Leckie

That the draft regulations laid before the House on 27 March be approved.

Relevant documents: 41st Report from the Secondary Legislation Scrutiny Committee, 26th Report from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, in moving the lead regulations I will take the opportunity to speak to all three instruments before us today, which deal with exceptions to copyright.

In today’s digital world the process of copying is intrinsic to new technologies that are used by vast sections of our society, from researchers and curators to teachers and consumers. Yet under current UK copyright law a great many activities that are intuitively acceptable to any reasonably minded person are unlawful or at best uncertain simply because they involve some element of copying. It is the responsibility of government to ensure that copyright law achieves an appropriate balance between protecting the rights and interests of creators and serving the wider public interest.

These statutory instruments are part of a process that dates back to the publication of the Hargreaves review in May 2011—and in fact similar recommendations were made in 2006 by the Gowers review of copyright under the previous Administration.

I feel it is appropriate at this stage to comment that the Government are proposing two other statutory instruments: first, on personal copying for private use; and, secondly, on parody, caricature and pastiche and quotation.

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The Joint Committee on Statutory Instruments has asked for some further points of clarification. It is not unusual for the committee to want to spend more time considering SIs but it does, unfortunately, have implications for the timetable for these exceptions, given where we are in the parliamentary cycle. While this delay is disappointing for the Government and many members of the public, the Government remain firmly committed to implementing each of these important exceptions to copyright law as soon as possible.

I turn to the three SIs before us today. One makes changes to the exceptions for research, education, libraries and archives. This instrument includes a new exception for text and data mining for non-commercial research. The other two instruments make changes for the benefit of disabled people and public administration. In most cases the instruments make small changes to existing exceptions—for example, by expanding the types of copyright works that the exceptions apply to or the types of institution or user that can benefit from them.

I am pleased to report that the Joint Committee on Statutory Instruments considered the three instruments we have before us today and had no comments to report. This means that the committee has not identified any issues that it feels need to be brought to the attention of Parliament. Noble Lords will also be aware that my officials and I provided oral evidence to the Secondary Legislation Scrutiny Committee on 6 May, and the committee reported its views on 9 May. I welcome this consideration of the regulations, and I very much welcome the opportunity for further consideration today.

The potential benefits of these SIs are significant. At a conservative estimate, based on the Government’s impact assessments, the measures in the three instruments are predicted to benefit the United Kingdom by nearly £250 million over 10 years. For the avoidance of doubt, the majority of uses of copyright materials will continue to require permission from copyright owners. The regulations have been carefully and narrowly drafted to contain safeguards that ensure they do not prejudice the legitimate interests of creators and rights holders. Indeed, many of the changes simply modernise existing exceptions that have been part of UK law for many years.

Over the past few years, the Government have consulted extensively on these proposals and the Secondary Legislation Scrutiny Committee recently commended the Government on their “sustained efforts” to consult on these measures. There is no doubt that the Government found it enormously helpful to hear the full spectrum of viewpoints, including those of individual creators, businesses, researchers and consumers.

I turn first to the new copyright exception to permit UK researchers to use text and data-mining technologies as part of their research. Data-mining techniques allow researchers to analyse large amounts of text and data using computers. This is extremely efficient and makes it easier for researchers to make interconnections within the vast amount of data being produced in the digital age. This new exception for text and data mining contributes to the Government’s overall goal of making the UK one of the best places in the world to do science.

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This measure is necessary because current copyright law does not allow us to realise all the potential benefits of text and data mining. This is because the technology usually requires copies to be made of the material that is being analysed, and making these copies risks infringing copyright. At the moment, only 11% of articles in the European database of biomedical research papers can be electronically analysed without seeking specific permission from the copyright owner. This is the case even where the researcher or their institution may have already paid for a licence to read these articles.

The evidence submitted to the Government’s consultations showed that requiring individual researchers to seek specific permission from each rights holder is a significant obstacle to the uptake of data mining. One case study found that a simple exercise to mine all papers with the term “malaria” in their title could require a researcher to spend between four and five weeks seeking permissions—time far better spent on actual research. The changes proposed will allow researchers to make copies of any material they already have the right to read, without obtaining additional permission from the rights holder. This will apply only to text and data mining as part of a non-commercial research project.

Researchers in the US and Japan already have this freedom to carry out text and data mining. This exception will give similar freedoms to British researchers, and give Britain greater competitive strength internationally. To ensure that researchers are fully able to benefit from the exception, the legislation makes contract terms that seek to prevent or restrict text and data mining for non-commercial research unenforceable. It is important to add, however, that it will not stop rights holders imposing controls on the way in which researchers can access material, such as reasonable limits on download speeds.

I turn now to other research elements of this same statutory instrument. The regulations will extend the existing fair-dealing research exception to cover all types of copyright works, not just literary and artistic works. Researchers will be permitted to carry out reasonable, limited copying for non-commercial research and private study, without permission from the copyright holder. The amount of copying that can occur is limited by fair dealing, which means that copying a whole work is extremely unlikely to be allowed. Institutions such as libraries and universities will also be able to offer access to copyright works on the premises at electronic terminals for research and private study. That will reduce costs and improve access.

4.30 pm

The instrument also modernises existing exceptions for education to allow schools, colleges and universities to make photocopies of copyright works. As is currently the case, the exceptions will continue to operate in tandem with licensing schemes. That means schools do not need to worry about accidentally infringing copyright if they have a licence, and they do not have to spend time and money checking whether a particular use is included in their licence.

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Another change will permit copying of small amounts of material where necessary to illustrate and explain a point, so teachers and lecturers will be able to do things such as displaying web pages or images on interactive whiteboards and in presentations. That change will not remove the need for educational establishments to hold licences such as photocopying licences and broadcast recording licences. Taken together, these modernised exceptions help define basic copying permissions for providers of education, ensuring that education is not constrained by copyright law.

The instrument also contains regulations to make it easier for libraries, archives, museums and galleries to preserve their collections. It would remove unnecessary regulation that hinders the preservation of our cultural heritage. Preservation techniques will often involve copying a cultural work or artefact—for example, digitising a book to transfer it to a more durable medium. The current law allows preservation copying, but applies only to books, and can be used only by libraries and archives. If an archive needs to preserve a film, sound recording, photograph or other work it risks copyright infringement. If a museum or gallery needs to preserve any item from its collection, it also risks infringement. By removing those barriers to preservation, these changes could save up to £26 million per year for libraries, archives, museums and galleries from reduced administration and transaction costs.

I now turn to the second instrument before us today, which focuses on changes for the benefit of disabled people. The change will mean that if any type of copyright work is not available commercially in a format that can be accessed by a disabled person, an accessible copy can be made for them. The changes would mean that anyone who has an impairment that prevents them accessing copyright works would be able to benefit from the exception.

Finally, the third instrument before us today makes changes to the existing exception for public administration and will enable more public bodies proactively to share certain third-party copyright materials online. Most information held by public bodies is already available for public inspection. Some of that material will have been submitted by businesses or members of the public. Currently, copyright law prevents any of the material being published online. Instead, third-party material can only be issued to the public in paper format or viewed on the premises of public bodies. Allowing it to be made available online will reduce administrative burdens for public bodies and save the public money and time.

This is a package of reasonable and common-sense changes to copyright exceptions. It will deliver significant benefits to the UK. First, it updates copyright law in line with the digital age. Secondly, it supports research by enabling text and data mining. Thirdly, it updates exceptions for educational purposes so that they are suited to modern teaching technology and practices. Fourthly, it makes it easier for libraries and archives to preserve our cultural heritage. Finally, it allows a greater number of disabled people to have access to a greater range of copyright works.

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The Government have committed to promoting a modern, robust and flexible framework for copyright. These reforms are an important part of that. I commend the instruments to the House.

Lord Scott of Foscote (CB): My Lords, I do not wish to oppose any of the three sets of regulations that the noble Viscount has recommended we approve. However, there are one or two aspects of the Government’s approach to copyright that I find a little worrying, and perhaps I may ventilate them with the Minister. They may arise particularly when the last two sets of regulations, which are not before the House at the moment, come to be considered.

It has to be borne in mind that copyright has been the subject of legislation for a long time. I cannot remember when the first Copyright Act was enacted, but it was enacted for the purpose of providing proper regulation of the protection that the producers of copyright works—artistic, musical, literary or whatever—were entitled to expect. Generally speaking, they were professionals earning their living from the works that they produced for those who were able to benefit from them. It became apparent that legislation was needed in this sphere and it has been thus ever since.

The Minister referred to a benefit that the current spate of regulations will produce of, I think, £250 million over 10 years. I was wondering out of whose pocket that would come. Does it mean that the proprietors of the copyrights will be subsidising the use of their work by receiving lower sums for that work, and for the copyright licences that they were granted, than they were previously receiving? If so, it is a sort of compulsory donation by the proprietors of the copyright works in question to the benefit of the country, which I am not sure has any precedent elsewhere. I began to think of the relevant law applying to patents. If an inventor produces a very valuable patent which the Government of the day wish to exploit for their own entirely proper purposes, the Government can apply to the courts and obtain a compulsory licence but they will not get it for nothing. The compulsory licence will have a term under which some remuneration for the use of the patent is paid to the proprietor of the patent—the inventor.

Here, we have amendments to the copyright regime that will apparently save a great deal of money, but, as I have asked already, at whose expense will that be? If it is just a saving in time for administrators, that is one thing, but if the copyright holders will receive less, that is entirely different. I wonder whether the patent analogy of a compulsory licence on appropriate terms that can be fixed by the court ought not to be preferred as the means of dealing with the problems that have been identified.

As I said, I do not object to any of the regulations. They are all for worthy purposes, but to the extent that their effect is to require copyright holders to be compulsory donators to, in some cases, charitable purposes and, in some, just general public purposes, I wonder whether it is fair to do so without providing for some compensatory element to recompense them for the loss to their pockets—which, according to the Minister, will be substantial—over the next 10 years.

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These points are going to arise particularly when the last two sets of regulations—one relating to personal copies for private use and the other relating to copying for the purposes of quotation and parody—come to be considered. Nothing there could be described as remotely charitable or for the public benefit, which is a shield under which these three sets of regulations can all shelter. I think that the Minister needs to tell the House to what extent the savings that the Government anticipate from the five regulations taken as a block will fall upon the pockets of the copyright holders who have created these works of arts, pieces of music or literary masterpieces that enjoy copyright.

Lord Walton of Detchant (CB): To follow up the point made by my noble and learned friend, perhaps I may briefly ask the Minister whether these welcome modifications to copyright law will in any way have an impact on or amend the procedures followed by the Authors’ Licensing and Collecting Society, which provides modest sums for authors if their works are subsequently copied through libraries or other mechanisms. Will they affect that procedure of the ALCS?

Lord Clement-Jones (LD): I thank the Minister warmly for his introduction. Whatever comments I may have on the substance of the exceptions, I thank him for his careful navigation and assiduous consultation and communication in the run-up to these SIs being tabled, including for the way in which the regulations have been presented to Parliament. I also thank him for his willingness to debate the issues, as we did last December and before the Secondary Legislation Scrutiny Committee recently. We should thank both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their careful scrutiny. I am pleased to hear from the noble and learned Lord, Lord Scott, and to see that the noble Baroness, Lady Morris, is in her place, as is the chair of the Secondary Legislation Scrutiny Committee, the noble Lord, Lord Goodlad.

There were some very good reasons for this careful scrutiny. After all, copyright is the foundation of our creative industries’ success and the economic driver of growth for this sector, which contributes £71.4 billion to the UK economy. The reform of copyright should be handled sensitively, with the value of the creative industries and any negative impact caused by changes to the law firmly in mind. Wrongly formulated, the exceptions could potentially deter investment in the industries and weaken performers’ and creators’ ability to benefit financially from their work.

It is also an extremely technical area of law. It has been pointed out by many experts that the Government’s proposed changes to primary copyright law implemented by way of secondary legislation risk not being compliant with our obligations under EU directives and incorrectly implement related legislation. It is notable that the Secondary Legislation Scrutiny Committee remarked from the outset in its report on the strength of opinion on the question of contract override, which I attempted to highlight in our December debate. It also said that,

“we flag up the possibility that the changes will have a greater economic impact on producers and creators than the Government have so far envisaged”—

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a point made by the noble and learned Lord, Lord Scott. The committee expressly says that it is not persuaded by the Minister’s statement that the changes are relatively minor. This particularly applies to the personal copies for private use exception, to be debated in future.

The Government cannot have it both ways. They cannot say that these exceptions will have minimal effect and then claim that there will be a benefit of a total of £500 million to the UK economy over 10 years for all five of the exceptions and £250 million for those that we are discussing today. In fact, in the Commons committee, a number of MPs drew attention to inadequacies with the impact assessments and sought to probe further how the figure of £500 million was arrived at. Where does this figure come from? Can we have a complete breakdown? Are the Government certain that this benefit is without any loss on the other side of the equation, a point raised by the noble and learned Lord, Lord Scott? How do the Government plan to monitor whether this benefit is achieved?

As a result of one of the key conclusions, where I wholeheartedly agree with the SLSC, the instruments are to be reviewed by the Intellectual Property Office no later than April 2019. The committee said:

“We would urge the Government to monitor the impact of the changes from the point of implementation, and in particular to respond effectively if it becomes clear that any negative potential is being realised”.

Can the Minister give that assurance? Can he commit to repealing these regulations if there is overwhelming evidence of a negative impact?

4.45 pm

In the end, it has to be recognised that the Minister is a man on a mission to implement the Hargreaves recommendations, as he admitted to the scrutiny committee. There is a major division of opinion here. I and many among the rights holders believe that, with significant commercial developments in licensing made possible especially by new technology—the creation of a copyright hub, the Global Repertoire Database and so on—only a very limited case can be made for these copyright exceptions. Moreover, there have been significant developments since the Hargreaves report was published. Exceptions should not apply where a commercially available alternative already exists. Sadly, the Government have not accepted this important principle or, let it be said, the flexibility contained in the information society directive. Rather, they have insisted on driving these exceptions through, as the memorandum from BIS to the Joint Committee on Statutory Instruments makes clear, using what they believe is the legally sound option of contract override.

David Willetts’ rationale in the Commons committee, in the light of research showing that 90% of research-focused requests for text and data mining are granted within a week at little or no cost to those seeking permission, for why the exception was needed, was barely credible. It appears that filling in a form—that is, asking for permission—is now an “unreasonable imposition”. Is that what the Government’s justification for introducing this exception amounts to?

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There are many issues to do with contract override and it is clear that even the Intellectual Property Office does not fully understand the position. The IPO has said that,

“the exception for photocopying by schools cannot be overridden by contract, so this is not us taking an unprecedented step”.

I do not believe that this is a completely accurate interpretation of the relevant section, Section 36 of the Copyright, Designs and Patents Act 1988, which applies to reprographic copying by educational establishments. The provisions of this section introduce an exception to copyright to permit photocopying by schools, but critically also provide that copying is not authorised,

“if, or to the extent that, licences are available authorising the copying in question”.

This provision is often referred to as an exception subject to licence, so the contract override provisions with which the IPO sought to make comparison are highly limited and apply directly and specifically to the terms of contracts of the licence working alongside the exception. This is a fundamentally different proposition to that being proposed in these statutory instruments, which seek to impose contract override provisions on any and all contracts.

It is also far from clear that the exceptions will not prove to be retrospective in the way they override contract. In the notes published by the IPO accompanying the exceptions, Exceptions to Copyright: Guidance for creators and copyright owners, it is stated that:

“Where a licence granted under the old law gives wider permissions than the new law, the licence will be unaffected. However, where the new law permits more than the licence, the licence holder will be able to rely on the new law. The licence will still be valid, but a licensee cannot be made to comply with any term in so far as it seeks to restrict something that the new law allows. E.g if an individual purchases a work on terms which prevent the copying of the work for any purpose, it will not be a breach of the licence if the purchaser makes a personal copy”.

It is clear from the guidance that, for any existing licence, certain terms will no longer be enforceable, and of course there was an element of confusion before the Secondary Legislation Scrutiny Committee, in answering the noble Baroness, Lady Morris, on this point, but that is indeed what my noble friend confirmed in his subsequent letter dated 12 May to the chair of the committee. But the point posed by my right honourable friend David Heath MP to the universities Minister in the Commons Fourth Delegated Legislation Committee remains inadequately answered by the Government. He said that:

“A previously agreed contract that conflicts with the new regulations will effectively cease to be enforceable. That creates a retrospectivity issue, so I would be grateful if the Minister would explain his view on the setting aside of contractual arrangements that are already in place”.—[Official Report, 12/5/14; Commons, Fourth Delegated Legislation Committee; col. 11.]

The Government’s response, both in my noble friend’s letter and in David Willetts’ comments to the committee, goes only half way to meeting the point. Their first line of argument is that it is not retrospective because it will not render a person liable for an action committed in the past. That is all well and good as far as it goes from a user’s perspective, but it does not deal with the perspective of the rights holders. The second line of argument from the Government is that retrospection

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does not come into play with regards to contracts because the effect will be in the future, but the Government’s approach does seem to fall foul of paragraph 1(1)(b) in Schedule 2 to the European Communities Act 1972. This states that a provision should not take,

“effect from a date earlier than that of the making of the instrument”.

However, the contract override provisions do precisely that. Their effect is to render unenforceable a contract made at an earlier time. What can my noble friend say in response to this?

Then of course there is the question of whether these exceptions should have been introduced by primary or secondary legislation. They in fact could perfectly well have been proposed during the passage of the recent Intellectual Property Bill as substantive amendments, fully debated and, if necessary, amended. It is very regrettable that we have not had that opportunity in view of the controversy surrounding them. The Minister claimed before the Secondary Legislation Scrutiny Committee that 50 copyright exceptions have been dealt with by statutory instrument rather than primary legislation. Is that really correct? I do not think there are 50 copyright exceptions; I think he meant the number of amendments to the Copyright, Designs and Patents Act.

What can the Minister say about the guidance material which will be used to brief and educate the public, consumers, intending researchers and so on? Multiple inaccuracies have been pointed out to the Minister and to the IPO by rights holders. I will not highlight the particular problems with the personal copying and parody exceptions guidance, as they are not subject to debate today, but they are considerable.

As regards data and text mining, the Explanatory Memorandum says:

“Publishers will be able to impose reasonable measures to maintain stability and security of their computer networks as long as researchers are able to benefit from the exception to carry out non-commercial research”.

This is followed by the government response to the technical consultation and the guidance note. However, the contract override provisions in the relevant SI itself state that any part of a contract which seeks to restrict the act of reproduction is unenforceable. Since one of the reasonable measures publishers would seek to impose is a restriction on the speed and level of “crawling”, these two provisions contradict each other. Can the Minister resolve that contradiction? If so, can he confirm that other examples may be valid as well? Does he envisage publishers being able to operate an “electronic handshake” procedure, or other form of formal verification, to ensure that the text or data miner is who they say they are? If so, this should be clearly stated in the guidance.

What assurance can the Minister give generally that the vital material explaining each of these exceptions will be revised and only then published? Surely, the setting of an arbitrary date of 1 June—not on a common commencement date—militates against this.

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The Minister’s rationale before the Secondary Legislation Scrutiny Committee for the commencement date was that,

“we had had such a long consultation and that certain stakeholders were really pushing us to get on with it, if I may put it that way. We thought we should do that and go for 1 June rather than delay further, until October, which would be the next window”.

Mr Willetts was equally circular in response in the committee. He basically said that it was included among the key domestic measures in the Government’s seventh statement of new regulations. Instead of adhering to the common commencement date programme, the Government are implementing early simply because they want to. Should the Minister not revise the implementation date to the common commencement date of 1 October for all new exceptions and take the opportunity to revise and correct the consumer-facing material at the same time? I look forward to the Minister’s reply.

Lord Howarth of Newport (Lab): My Lords, I join the noble Lord, Lord Clement-Jones, in congratulating the noble Viscount, Lord Younger, and thanking him for all his courtesy and assistance to noble Lords in making himself and his officials available to us so that we have had the opportunity to be informed about the Government’s thinking and to ask questions. He has been impeccable in this regard. Equally, I congratulate him on the extent of the consultation that he has undertaken. Any interests that still find themselves in disagreement with what the Government propose cannot reasonably say that they have not had the opportunity to put their case and to be heard. I agree with him that this process, which has been very long drawn out, does now need to be brought to a conclusion.

The Minister and the Intellectual Property Office have had to make their way forward through hurricanes of lobbying, and they have persisted in their purpose to achieve a better balance—what he just now called an “appropriate balance”—between the interests of creators, of rights-holders, and those of users and the wider public interest. He has also sought to modernise these aspects of the intellectual property regime to take account of technological change, which of course has been very great since the enactment of the Copyright, Designs and Patents Act in 1988. In this respect, he is catching up with progress that has been made rather earlier in a number of European countries, where perhaps established interests have less of a stranglehold on policy development. However, established interests are fighting a rearguard action. A managed retreat is a very difficult manoeuvre, and we have just seen a very fine example of it in the speech of the noble Lord, Lord Clement-Jones. I fully appreciate the right of the noble Lord to make the case that he does, and I think that many people will be grateful to him for doing so, but not all those who have raised objections are as scrupulous as the noble Lord.

Publishing was once considered a gentleman’s occupation, but I fear that all too extensively in the modern publishing industry it is a fairly cut-throat business. Publishers are among those who have sought to use contract to negate existing exceptions. The British Library told us not very long ago that 90% of contracts offered to it for licensing electronic content restricted the public interest exemptions that were

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already permitted under copyright law. The Alliance for Intellectual Property, the British Copyright Council and the Motion Picture Association have all complained to the Secondary Legislation Scrutiny Committee about the contract override provisions in these statutory instruments, but I do not think that it is reasonable for them to do so. It seems to me, having listened to what the noble Lord, Lord Clement-Jones, said, that we are entirely accustomed to changes in the law modifying the enforceability of existing contracts. People would be surprised if we reformed the law of tenancy if the situation remained that existing tenants had to carry on under the preceding contract. If we were to reform employment law to make changes, as I hope we might, in zero-hours contracts, for example, and what is permitted there, I do not think that we would find it acceptable if the employees who have to operate according to zero-contracts were required to carry on with the same contract indefinitely. It is therefore entirely reasonable that legislation in the public interest should modify the enforceability of existing contracts in the field of copyright.

The Minister has on various occasions described these reforms as “relatively minor”, “de minimis” and “modest”. He explained to us just now that he anticipates that the three statutory instruments before us will yield some £250 million of saving or advantage to the economy over 10 years. Some people think that that is a lot; I am inclined to think that it is a little. I appreciate the force of the points made by the noble and learned Lord, Lord Scott of Foscote, but I invite him to consider the other side of the balance sheet. There are vast costs to our economy of compliance with the copyright regime. There are vast opportunity costs arising from the restraint on people being free to use material as they would wish. There is an enormous apparatus of administration and bureaucracy associated with this regime. Huge amounts of time have to be spent on compliance. There are policing costs. It seems to me increasingly unrealistic to suppose that the enforcement of our traditional historic regime in the digital era can be successful and the attempt to sustain it is probably going to be futile. Innumerable lawyers, consultants and lobbyists are making a good living, perfectly legitimately, out of the complexity, impenetrability, imprecision and futility of the existing regime.

5 pm

Has the Minister commissioned a serious and thorough cost-benefit analysis of the copyright regime in this country? If not, will he do so? If policymakers are to achieve the balance that he very rightly talked about at the outset of his remarks as the Government’s aspiration, we need a rigorous assessment of the costs and benefits. That is a large task and I hope that in the mean time he will write to noble Lords about the specifics of the savings he anticipates will be made and how that figure of £250 million—and the larger one of £500 million that he hopes will arise from the five statutory instruments—will be broken down. How will that be achieved, going beyond the very limited information provided in the impact assessments?

The costs imposed on the economy and society by the existing copyright regime are excessive and unnecessary. They are the costs of monopoly. It is of course legitimate

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and proper that creators should have a property in their work and be rewarded for it, but let us recognise that copyright is a form of monopoly and as such should be kept to the necessary minimum. The balance has swung too far not only in this country but across the world in favour of the interests of creators. What has happened over many decades is that, naturally enough, those with a direct and personal interest in sustaining their intellectual property rights quite aggressively lobbied the Government to make sure that those rights were preserved and extended as far as possible. It also seems that over those many decades Governments were insufficiently resilient in resisting these cases in the wider public interest. That is very typical of what happens in politics. Those directly affected, if they see some possible detriment to their own interests, cry foul and are very vociferous. The wider public, who do not understand how their interests might be affected, stay quiet. Governments are driven pell-mell to concede to those who shout loudest.

It seems quite extraordinary that copyright in literary, dramatic, artistic or musical material extends not just to the life of the creator but for another 70 years beyond. I cannot imagine a reasonable justification for this very long extension of copyright. We are in a situation in which material that originated not in the 20th century but in the 19th century may still be in copyright. We have not seen anything like this since Jarndyce v Jarndyce and in a sense the copyright lawyers are to be congratulated on that but we need to think about whether this has not become excessive.

As I said, there must be due reward for innovation and creation. A copyright regime is absolutely essential and has long been regarded as such. The noble and learned Lord, Lord Scott of Foscote, tried to recollect when copyright law originated. Unless my memory deceives me, it goes back to the reign of Queen Anne. It has certainly been around for a very long time and I do not lightly suggest that we should assault the principles of it. However, I wonder whether, in the digital age, it will be practical to sustain this regime, to police it and to enforce it. I doubt whether that can be done by way of a regulated market in the circumstances in which we now find ourselves. We should look at the case for dismantling at least large parts of this vast apparatus of protection.

My suggestion is that creators should be rewarded through a royalty payment made by the Government on behalf of taxpayers. Of course, that will be difficult to bring about, but I do not think that it should be regarded as entirely in the realm of fantasy. I think that circumstances will force us in some such direction and there could be enormous savings for law-abiding institutions and individuals in the procedures that they have to undergo. The benefits to society and the economy, including the creative economy, of the unconstrained and undistracted transmission of ideas would be immense.

As it is, there will be significant benefits from the regulations. Disabled people will cease to suffer from what has been a kind of indirect discrimination. The obstacles that exist at present in the way of text and data mining are positively Luddite. The Joint Information Systems Committee, the JISC, has calculated that no

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less than £123 million of researchers’ time would be saved by the change that the noble Viscount proposes. The instance that he offered the House of malaria was very compelling. It is right that schools should not have to suffer the burden in time and cost that existing requirements lay on them. It is right that libraries, archives, museums and galleries should be able to save about £26 million. It is right that the changes in the public administration regime should extend freedom of information.

These are minor changes indeed. Perhaps regrettably, the noble Viscount will not be creating new rights through the regulations; he is extending and modernising existing rights. As Mr Willetts put it in another place—with, I am sure, intended irony—the Government are simply trying to keep up with technological change. I applaud them for doing that. I note that the regulations are due to be revisited in 2019, but I think that the pace of technological change might make it desirable to revisit them rather sooner. In the mean time, I urge the Government and the Intellectual Property Office to develop a much more radical approach to the reform of copyright.

The Earl of Erroll (CB): My Lords, I shall be brief and shall stick to the three regulations. I think they are essential because, first, of the problem of the preservation of things for history. My father is a great genealogist and historian, and one sees so many things lost and destroyed. I have archives going back to the 1200s, because they are written on vellum. Unfortunately, that does not apply to the modern stuff, which can disappear all too easily. Most of the media it is in will decay over time. Therefore we need to do what they call format shift and move it around. One of the problems with the current copyright restrictions is that you cannot format shift legally. The ridiculous thing is that you find that you have bought a piece of music that you can play on one thing, or you may have downloaded something on to your Sky box that you can watch any time, but actually you want to watch it on your iPad—this is not a iPad, it is a Microsoft Surface—and you are meant to buy a copy of it, even though you have it sitting there on your device at home.

That is not about these regulations, because that is coming up later, but the same sort of thing applies to the British Museum and other people who are trying to preserve stuff. They will allow them to preserve things which they cannot legally at the moment. As a private individual, personally, I would break the law, but you cannot do that as a public body. That is the challenge.

The Wellcome Trust is very interesting on this subject. It is interested in research that is going to save lives. At the moment, to try to what they call data mine—to research across many bits of information across the internet from many different sources—you have to clear every bit of it. I think that it was the noble Lord, Lord Clement-Jones, who asked what that costs and where the money comes from. Someone asked that. The answer is in sheer time of people trying to track down the sources to get every one cleared before you can look at it. That is absolute madness and is delaying

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research. As a result, people are dying, in some cases, because we cannot do research that we should be able to do.

At the same time—this is a bit of a red herring, but it is not meant to be—we are talking about releasing everybody’s personal health information to save lives. It will be all right to data mine that under Care.data, but here we are with stuff that is perfectly public and is not sensitive information, but we cannot mine it because of the copyright laws.

The challenge comes because the copyright springs out of the Statute of Anne—Queen Anne—of 1710, I think, as amended. Of course, it was all built around written work. I think it actually came from Charles II’s licences for the printing presses. It was all about printed work but the world changed when, suddenly, entertainment could be broadcast and then with the general availability of entertainment over the internet.

The trouble is that it is not usually the creators who own this higher value or more expensive stuff but the people who bought up the rights very early on. They own the rights. The big rights holders are not the creators and we should not mix the two up. Some creators still have their copyright but an awful lot of them do not. This would be to defend a distribution system which is rooted in the past. I am afraid that it is not going to survive in the long term, whether your Lordships like it or not. It needs to evolve and the question is how. Yes, you have to have fair reward—for the creators in particular, because that is where innovation comes from—but the way to do that is not by having such complex systems as the noble Lord, Lord Clement-Jones, laid out for us. There is such complexity in those for an ordinary human being who is not a lawyer, such as a researcher or any person who is not a specialist in law. You need to be a lawyer who is used to representing copyright interests to understand all the ins and outs and be able to do anything with it. That is wrong, in my idea, and is what is holding things up.

These three regulations are very much to be welcomed. They will help enormously the good people who are trying either to do research or to preserve our history. They are not going to do any damage whatever to the people who own a lot of entertainment and other copyrights.

Lord Berkeley of Knighton (CB): My Lords, I, too, congratulate the Minister on being extremely constructive in his attention to comments made by the music industry. Speaking as a composer, I sometimes feel on the horns of the dilemma that he faces. I would love to make my music completely free to schools and educational institutions but my publishers say, “It costs us money to produce it”, and the record people say, “It costs us money to record it”. That in a sense is the balance we have to strike here.

In the debate on 5 December 2013, which was mentioned by the noble Lord, Lord Clement-Jones, I spoke about what was then the forthcoming education exception and noted that the introduction of a “fair dealing” exception for the purposes of instruction was at that point of great concern to music publishers in this country. To them, the sale of sheet music for use in

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teaching is a key income stream. The chief concern was that fair dealing is a vague term and unlikely to be understood by consumers of sheet music. As such, music publishers were delighted to see improvements made to the drafting of the education exception, in particular the narrowing of the fair dealing element of the exception to be,

“for the sole purpose of illustration for instruction”,

in line with the EU directive. This is a helpful and necessary amendment and goes some way to allaying the concerns of the music publishing community.

In addition, music publishers welcome the inclusion of the frequently asked questions on sheet music in the education and training guidance notes which accompany the statutory instrument. However, those frequently asked questions could, I respectfully suggest, be further strengthened to give greater clarity to music teachers and music students, who will benefit from the new exception. The suggested improvements to the guidance notes include a specific reference to the Government’s published interpretation of the new education exception: that copying of sheet music by private music teachers is unlikely to fall under the exception,

“as it is not non-commercial, and is unlikely to be considered either illustrative or fair dealing”.

Music publishers would also like the frequently asked questions on copying material for use in exams to state clearly that making a copy of a musical work for use by an exam candidate when performing the work is not allowed under this exception. This protection for sheet music publishers is explicit in Section 32(4) of the current CDPA and its removal from the new Section 32, with no clarification in the frequently asked questions on exams, could lead to confusion.

5.15 pm

Lord Stevenson of Balmacara (Lab): My Lords, I thank all those who have contributed to this short but important debate today, which goes to prove that this is an interesting area of activity. As the noble Lord, Lord Clement-Jones, said, it bears on one of our key industrial sectors, which we must be careful to ensure is given protection and support. In some of the earlier debates on these issues in other places, where perhaps not so many people would crowd in as have done today, we had thought that we were a lonely band, a small group of complete nerds who were interested only in the very detailed minutiae exemplified by the brilliant speech from the noble Lord, Lord Clement-Jones, on the wide issues relating to copyright contracts, to which I will leave the Minister to respond. Of course, I am wrong; many issues are coming up now that we will return to with pleasure as we go through the other statutory instruments, and indeed as we wait for further measures to come forward as a result of the ERR Bill, particularly extended collective licensing and orphan works. Those who do not know these things might want to get themselves ready for it, because that too will be great fun.

The argument that we have heard today from the Minister is that these “small” changes to the UK’s copyright regime are vital to supporting innovation and growth in the UK. In fact, to my mind they bear

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more on individuals, particularly those with disabilities, and on the not-for-profit libraries and archives in the digital age, helping them to serve their patrons more effectively and to reduce costs. It is therefore likely that they will lead to greater efficiency, innovation and improved research, which is a good thing, and there seems to be no independently validated evidence that any of the proposed new exceptions will damage the legitimate commercial interests of rights holders.

Rights holders often claim, as the noble Lord, Lord Clement-Jones, suggested, that exceptions are or soon will be rendered unnecessary by the existence of licensing schemes. That argument has some merit and good progress has been made on this, particularly through the copyright hub, but consumers will not be well served if the licensing system is overly complex or expensive or withdraws works and therefore makes them inaccessible. It is also true, at least at present, that many copyright works are not, and in some cases cannot be, covered by licensing schemes. There is, for instance, no scheme for unpublished literary works such as private letters, or one for private films or photographs. It may be, as I have mentioned, that the mooted extended collective licensing schemes and action on orphan works will address many of these issues, but until then archives and libraries have no choice but to rely on exceptions in order to provide a service to the public.

My first point is that I do not think that the impact of these SIs will be quite as significant in the wider economy as the noble Lord makes out. In any event, it is important that both sides in this argument do not overclaim. We should also bear in mind that if, in a digital world, citizens do not feel that the law appropriately supports their own personal and educational needs, it will simply be ignored, which is in no one’s interest. Indeed, the noble Earl, Lord Erroll, rather hinted that that was the way in which he approached matters.

The Government believe that the changes contain safeguards to ensure that a reasonable balance is maintained between the interests of creators, owners, performers, consumers and users of copyright works. We have some concerns on this point. What is important is that we have a balanced copyright system that respects the legitimate interests of both the rights holders and the users of copyright works. Copyright law should work for everyone. There should be incentives for people to invent and create, appropriate protection for the output that they produce and a right to a reasonable return on that investment.

These instruments update the framework of exceptions to copyright in performance and expand the freedoms in copyright law to allow third parties to use copyright works for a variety of purposes without permission from copyright owners. We broadly agree with this approach and have supported the Government through this seemingly endless and tortured process. However, I should put on record that we wonder whether utilising exceptions is in itself the best way of making changes to a regime that in some respects is creaking and, as the noble and learned Lord, Lord Scott, suggested and my noble friend Lord Howarth agreed, may be in need of some serious recalibration.

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We should recall that in Modernising Copyright Ministers stated:

“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013”.

I observe October as a rather crucial date. It is one of the two CCDs referred to by the noble Lord, Lord Clement-Jones. Well it is May 2014, and we have only three SIs, although, of course, there are actually six exceptions contained in them and, as we know, there are more to come. It is fair to say that the Government have had a bumpy ride on this, and I think it is partly because they seem to have difficulty in opening up to proper debate and discussion with the industry and consumers not only about the principles under which they are operating but on the detailed drafting. As has been said, there is more to come in terms of public explanations of what is being proposed. However, there has been a public consultation, there was also a very brief general discussion on a QSD in your Lordships’ House, and further work and technical reviews have been undertaken. We are where we are.

I have only one substantive point to make about the regulations, although there are a number of questions I should like to put to the Minister. The question that underlies some of the points that have already been made is about the exchange in the Secondary Legislation Scrutiny Committee when the Minister was adamant that this packet of measures involved minor changes. In introducing the exceptions today, he said that they are “small changes to existing provisions”. However, the committee stated in its report:

“We pressed the Minister on his statement to us … that the changes proposed were ‘relatively minor’: we are not persuaded that this is an accurate assessment of their impact”.

I should be grateful if the Minister could expand on that when he responds. I struggle with his description “relatively minor”. I probably agree that they are quite small, but I do not know what reference point he is taking on this. What is the relativity?

I now turn to the exceptions themselves, the first of which is disability. It must be right that all print-disabled learners should have the right to have information provided in an accessible format. Indeed, this is required under Section 20(6) of the Equality Act 2010. Amending the existing exceptions for visually impaired people so that they cover all impairments that prevent a person accessing and making use of all types of copyright work will achieve this. We agree with what the Government are trying to do here and support it.

The public administration regulations will allow more public bodies proactively to share online unpublished third-party material from businesses and members of the public. We agree that the Government are doing the right thing here, and we support it.

The third SI is a bit of a plum pudding of an exception because the Government have tried to wrap a controversial issue—to overcook my metaphor—in the middle of three brown-bread and apple-pie proposals—sorry about that. This was the issue that

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got the most flak during the consultation process, and it continues to worry a number of industry personnel, as we have heard today. It is said that a new text and data-mining exception will dramatically boost non-commercial research by allowing computers to read material that consumers have already purchased or have legal access to. It is also said that the lack of such an exception means that UK research continues to lag behind countries such as the United States, which already allow text and data mining. My main concern is that the exception is designed to assist people who wish to make use of copyright works for the purposes of non-commercial research and private study. Non-commercial research I can sort of understand, and that seems to be an appropriate way to provide an exception, but what exactly is private study? The Government’s position on this seems vague and may well be open to legal challenge. I should be grateful if the Minister could return to this when he responds. I have looked at the accompanying information booklet, which says that this exception is not restricted to those studying at school, college or university. The guidance states that,

“this also applies to those carrying out their own private study but you must be genuinely studying (like you would if you were studying for a college course) to qualify. An example of this could be when you are learning to identify birds in your garden or simply learning more about a particular hobby”.

We seem to be quite a long way away from malaria. One can empathise with copyright holders who fear that a qualification such as,

“simply learning more about a particular hobby”,

might be seen to be driving a coach and horses through this provision. I should be grateful if the Minister could explain the position a little better when he comes to reply.

On the other exceptions within this SI, I particularly welcome the exceptions for libraries and archives and declare my interest as a former director of the British Film Institute, whose national film archive will benefit considerably from these changes.

Finally, I turn to common commencement dates. According to the Better Regulation Framework Manual, new domestic measures, both regulatory and deregulatory, must come into force on a common commencement date, either 6 April or 1 October each year. The guidance says that by requiring regulatory changes to occur at set times, CCDs inform business and other stakeholders about forthcoming regulatory changes, helping them to plan and budget for new measures and to minimise any additional costs. That seems a good and sensible suggestion. I point out that this is advice to officials but presumably also to Ministers. It goes on:

“You should always assume that your policy will be implemented on a CCD unless you have received explicit RRC”—

Reducing Regulation Committee—

“clearance for a waiver on one of the grounds below … clear emergencies … anti-avoidance measures … measures which remove significant risk or detriment from business … instances where the costs of timing a measure to meet a CCD would be wholly disproportionate to the public purse and … orders which commence other measures on a CCD”.

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Can the Minister explain to the House into which particular category these exceptions fall? There is mention of,

“limited flexibility for deregulatory measures to come into force on a date other than a CCD if there would be demonstrable benefits to business”.

However, it says:

“This would require agreement to a waiver by RRC at write-round”.

Can the Minister confirm that his department has obtained this waiver? If so, perhaps we could have sight of the letter? It would be interesting to read it.

Finally, I draw the Minister’s attention to paragraph 1.10.9 of the guidance, which states:

“If an unanticipated delay means that your measure will not be ready for the planned CCD”—

which seems to be the sort of case we have here—

“you should wait until the next CCD”.

However, the Government are trying to introduce three of the five SIs on 1 June. The next CCD is 1 October. Can the Minister at least confirm that the two delayed exceptions will be scheduled to come into force on 1 October? If it is not 1 October, can we please be allowed to know why?

Viscount Younger of Leckie: First, I will say how pleased I am that so many people have contributed today. What the noble Lord, Lord Stevenson, said is true: there is a greater number of noble Lords here than there has been for many of the copyright debates. I should quickly say that, although I did not agree with all the comments that were made, I greatly appreciate your Lordships’ presence.

As I said at the outset, this is a package of reasonable and common-sense changes to copyright exceptions, which will deliver significant benefits to the UK. I am sure that the noble and learned Lord, Lord Scott of Foscote, will understand when I say that I will not be focusing on private copying, parody and pastiches, as we are not ready for those particular SIs at the moment.

I also thank the noble Lord, Lord Howarth, for his kind words. He spent quite a bit of time focusing on the consultation process. It is true that, rather unprecedentedly, we engaged with a great number of people across the spectrum, looking at the rights-holders and consumer-and-user ends of the copyright process. In my case, it involved more than 250 meetings, so what the noble Lord said is true: we really have engaged. I hope that, as the noble said, this has been helpful. He was also right to say that there comes a time when the consultation process, which has been extremely long, has to come to an end. I think, again, that he is right that we need to move forward with that.

A lot of questions were raised today; I hope that I can get through them all. I will address a couple of them to begin with. The first was raised by the noble Lord, Lord Berkeley of Knighton, who asked about the amendments to public guidance in relation to copying sheet music for exam use, which is an extremely interesting point. I thank him for his kind words and the recognition of the changes that the Government are making. We have welcomed the written submissions from some stakeholders setting out their thoughts on the guidance; these will be considered in due course.

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The second point was raised by the noble Lord, Lord Walton, who I notice is not in his place. I beg the noble Lord’s pardon; he is now in his place. He asked whether schools and universities would now not need any photocopying licences. He used the example of the ALCS to this effect. I can reassure him that schools and universities will still need to hold photocopying licences. It would not be right to allow schools to copy textbooks without payment in order to get them for free. Authors will still be properly remunerated. However, where works are not licensed, a teacher will be able to make photocopies without worrying about copyright infringement, so I hope that that clarifies the point.

5.30 pm

I will spend the majority of my time focusing on the questions raised by the noble and learned Lord, Lord Scott of Foscote, who essentially questioned the principles of the copyright exceptions. I will take some time to focus on what we have in mind and on the impact, which he also mentioned in his question. He will know that copyright exceptions have long been part of copyright law. They exist for many reasons, but essentially to ensure that the copyright framework both properly takes into account the public interest and balances the interests of rights holders and users, which I alluded to earlier.

The noble and learned Lord asked where the benefits will come from. Economic gains are likely to come mainly from cost savings through reducing the complexities of the copyright system and from new business creation. Therefore those cost savings will be to copyright owners as well as users of copyright, and should be of benefit to the whole economy. I will produce some figures in a moment to support that.

Many of the benefits that arise from these exceptions are due to savings in time, effort and money spent clearing minor uses of copyright materials. For example, if a museum or archive wishes to preserve a film in its collection by copying it, currently it needs to identify each of the owners of the copyright in the film, contact them, and ask for their permission to make the copy. That can be time-consuming and costly—and, if the copyright owner cannot be identified, it may be impossible. When the copyright owners are identified, they will usually agree to the copying, as it is reasonable, but it takes a disproportionate amount of time and effort to get to that point. The noble Lord, Lord Howarth, eloquently made those points as well.

My noble friend Lord Clement-Jones and the noble and learned Lord, Lord Scott, asked me questions about the evidence base, and I will spend some time on that. The Hargreaves report on copyright exceptions estimated that between £0.4 billion and £2.6 billion would be added by 10 years from implementation. Those numbers were calculated by assuming that the growth benefits would not be realised immediately but would accrue over 10 years—hence the 10-year estimates.

At a conservative estimate, based on the Government’s impact assessments, the measures in the three SIs before us today are predicted, as I said, to benefit the UK by nearly £250 million over 10 years. The Government’s overall changes to copyright exceptions

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will add £0.5 billion to the UK economy over 10 years at current prices, with additional benefits of £0.3 billion per year identified. That figure is broadly consistent with the Hargreaves review, although it is not directly comparable.

As was mentioned by the noble Lord, Lord Howarth, the Government have worked hard to ensure that the proposed changes are based on evidence. The impact assessments are based on the best evidence available, and were reviewed and validated by the independent Regulatory Policy Committee. I promised to provide some figures on that. For research education libraries and archives, it represents £222.9 million as regards the impact—which, as I said, is of benefit to the economy and largely the result of bureaucratic savings. Those are quantifiable and monetised. Equally, for disability the figure is £0.66 million, and for public administration it is £13.8 million. As mentioned, that is over a period of 10 years.

However, it should be noted that the methodology for the impact assessment process from which the figures are derived can result in conservative estimates. Illustrative examples in the impact assessment, which are not reflected in the headline numbers of the text and data-mining impact assessment, indicate strongly that efficiency savings could be in the region of more than £124 million per year. They reflect evidence contributed by the creative industries and a range of other sources—and, again, were approved by the independent Regulatory Policy Committee.

To take disability as an example, the exception does not apply if accessible copies are commercially available; therefore, there is no impact on the copyright owner’s sales revenues which might be expected. More disabled people will benefit from access to the copyright works. The accessibility technology market and industries that produce accessible copyright works could benefit as a result of increased demand for accessible works, and increased demand is also likely to act as an incentive for copyright owners to provide their own accessible copies. I could go on to focus on public administration in the same way, but I have made my points; I hope I have done so for the noble and learned Lord as regards going into the figures.

I now pick up on the points raised by my noble friend Lord Clement-Jones on contract override. He spent some time focusing on this and stated at one point that he was concerned that the contract overrides would not be retrospective. When we say that a law is retrospective, we mean that it takes effect in the past. For example, if a law introduced this year said that last year it was illegal to cycle without a helmet, that would be retrospective. We are not allowed to do that with this legislation, and we do not intend to. However, that does not mean that the new law will apply only to new contracts; it will apply to contracts, regardless of the date on which they were formed, but will take effect only after the new law comes into force. Contract override provisions simply ensure that where the law provides for an exception to copyright, people are able to rely on that law without having to work out whether there is a contract term to the contrary

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My noble friend also asked about currently existing contract override provisions, saying that they were fundamentally different to the new approach and exceptions. The contract override provisions already exist in copyright law and in other areas of law—for example, in property and consumer law. The Government are not therefore doing anything radical here; they merely wish to ensure that the full benefits are delivered.

My noble friend also asked whether there really were 50 copyright exceptions, as I had said, or simply 50 amendments to the CDPA. The answer is that, yes, there really are 50 copyright exceptions. It depends slightly on how you count them, but there are 50 exceptions already in Chapter III of the copyright Act, which sets out the exceptions in approximately 50 sections. I hope that that reassures the noble Lord that what I said was accurate.

My noble friend asked, too, whether the exception would damage publishers’ business models by allowing unrestricted downloads from servers; he stated that the legislation contradicts the guidance and that publishers will not be able to impose reasonable controls. I reassure the noble Lord that the exception will not interfere with the ability of rights holders to impose reasonable measures to maintain stability and security, as long as researchers are able to benefit from the exception to carry out non-commercial research. Guidance that accompanies the draft legislation sets that out clearly. For example, a reasonable restriction on download speed would be acceptable. Furthermore, the exception applies only when a user has lawful access to the material. The ability of rights holders and researchers or their institutions to freely enter into a contract to supply material is unaffected.

There are a number of other questions that I would like to address, notably from the noble Lord, Lord Stevenson, who asked whether I could confirm that the other SIs would come into force at the next Commons commencement date in October. Yes, that would be our aim. My noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson, asked specifically on this subject why it should be 1 June and not the next Commons commencement date. We announced our aim to bring the changes into force a long time ago, as they will be aware, and we know that businesses have started to prepare for this—as the noble Lord, Lord Howarth, alluded to. We did not want to delay further, as we want to realise the benefits of these changes as soon as possible; it is because of this that we agreed to a waiver of the normal process.

The noble Lord, Lord Stevenson, asked me to qualify the copyright exceptions in terms of their being defined as minor changes. It is true that I said in Committee that they were minor—“relatively minor” were the words that I used. This is in the context of the extent to which the law is being changed. There is only one brand new exception in these SIs, on text and data-mining; all the other changes modernise and build on existing exceptions. We are clear, however, that the potential benefits are indeed significant.

The noble Lord also raised the issue of private study and its definition. I hope that I can reassure him by saying that the term “private study” is present in the current Act and that the Government do not believe that it has been misunderstood or widely abused.

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Accordingly, they do not think it desirable or necessary to define this term in the Act or the Explanatory Memorandum.

There may well be other points I have not addressed but I hope that I have attempted to answer all the questions raised by noble Lords this afternoon. I will conclude by saying that we believe that these are important statutory instruments. As I said, they update copyright law in line with the digital age; support research by enabling text and data mining; update the exceptions for educational purposes so that they are suited to modern teaching technology and practices; make it easier for libraries and archives to preserve our cultural heritage; and allow more disabled people to have access to a greater range of copyright works. This Government have committed to promoting a modern, robust and flexible framework for copyright, and these reforms are an important part of this.

Motion agreed.

Copyright and Rights in Performances (Disability) Regulations 2014

Motion to Approve

5.40 pm

Moved by Viscount Younger of Leckie

That the draft regulations laid before the House on 27 March be approved.

Relevant documents: 41st Report from the Secondary Legislation Scrutiny Committee, 26th Report from the Joint Committee on Statutory Instruments

Motion agreed.