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Lord Sainsbury of Turville: The Delegated Powers and Deregulation Committee was happy with this matter on the basis that the affirmative procedure would be adopted for new issues on important subjects, but eventually when it became a matter of routine it would not be appropriate to follow that line.

Clause 8, as amended, agreed to.

Clause 9 [Section 8 orders]:

Lord Sainsbury of Turville moved Amendment No. 27:
Page 9, line 6, at end insert ("and section (Modifications in relation to Welsh matters)(1))").

The noble Lord said: Amendments Nos. 27 to 29 are designed to ensure that the National Assembly for Wales can exercise the order-making power in Clause 8. Clause 9(7) already gives powers to Scottish Ministers. The principal amendment is Amendment No. 30, on which I should like to focus, the others being consequential amendments. The new clause is quite complex but I hope that, once I have explained its purpose, Members of the Committee will agree that it is desirable.

It is right that the Assembly should be able to use the order-making power in Clause 8 of the Bill to authorise or facilitate electronic communication in relation to functions which are exercisable by it. These functions may have been transferred to the assembly by means of a transfer of function order under the Government of Wales Act 1998 or via primary legislation. In essence the new clause would allow the assembly, with the consent of the Secretary of State, to make orders in any one of the circumstances set out in subsection (3).

First, the assembly could make an order under Clause 8 in relation to subordinate legislation or other powers for which the assembly was responsible by virtue of subsection (3)(a) to (c). For example, the assembly has power to make regulations under the Social Security Act 1990 to allocate grants under home energy efficiency schemes. It could, therefore, make an order under Clause 8 to provide for the electronic communication and storage of applications, works and purchase orders, and so on. Second, it could do so in relation to any notice, account, record or document sent by or to the assembly, or to or by any public bodies, subject to reform by the assembly, by virtue of subsection (3)(d). Finally, it could do so in relation to publication by the Assembly or by the public bodies under subsection (3)(e). The relevant public bodies are listed in Schedule 4 to the Government of Wales Act and include organisations such as the Welsh Development Agency, the Wales Tourist Board and the Ancient Monuments Board for Wales.

Subsection (4)(c) of the new clause allows the Secretary of State, with the consent of the assembly, to add to the list of bodies for which the assembly can

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make Section 8 orders in relation to subsection (3)(d) and (e); that is, the sending of notices, accounts and so on. I have written to the Chairman of the Select Committee on Delegated Powers and Deregulation to draw his attention to this new order-making power. In all other matters relating to Wales it would be for the appropriate Minister to make the order. There will, therefore, be no danger of anything being missed or Wales being left behind.

Finally, Amendment No. 32 would prevent the National Assembly from making any order under the Bill which would require a person to "escrow" any encryption key with another person. This is in line with our policy for the remainder of the UK. I beg to move.

On Question, amendment agreed to.

Lord Sainsbury of Turville moved Amendments Nos. 28 and 29:


Page 9, line 22, after ("(4)") insert ("and section (Modifications in relation to Welsh matters)(6)").
Page 9, line 36, leave out ("appropriate Minister") and insert ("person making the order").

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Lord Sainsbury of Turville moved Amendment No. 30:
After Clause 9, insert the following new clause--
MODIFICATIONS IN RELATION TO WELSH MATTERS
(" .--(1) For the purposes of the exercise of the powers conferred by section 8 in relation to any matter the functions in respect of which are exercisable by the National Assembly for Wales, the appropriate Minister is the Secretary of State.
(2) Subject to the following provisions of this section, the powers conferred by section 8, so far as they fall within subsection (3), shall be exercisable by the National Assembly for Wales, as well as by the appropriate Minister.
(3) The powers conferred by section 8 fall within this subsection to the extent that they are exercisable in relation to--
(a) the provisions of any subordinate legislation made by the National Assembly for Wales;
(b) so much of any other subordinate legislation as makes provision the power to make which is exercisable by that Assembly;
(c) any power under any enactment to make provision the power to make which is so exercisable;
(d) the giving, sending or production of any notice, account, record or other document or of any information to or by a body mentioned in subsection (4); or
(e) the publication of anything by a body mentioned in subsection (4).
(4) Those bodies are--
(a) the National Assembly for Wales;
(b) any body specified in Schedule 4 to the Government of Wales Act 1998 (Welsh public bodies subject to reform by that Assembly);
(c) any other such body as may be specified for the purposes of this section by an order made by the Secretary of State with the consent of that Assembly.
(5) The National Assembly for Wales shall not make an order under section 8 except with the consent of the Secretary of State.
(6) Section 9(3) shall not apply to any order made under section 8 by the National Assembly for Wales.

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(7) Nothing in this section shall confer any power on the National Assembly for Wales to modify any provision of the Government of Wales Act 1998.
(8) The power of the Secretary of State to make an order under subsection (4)(c)--
(a) shall include power to make any such incidental, supplemental, consequential and transitional provision as he may think fit; and
(b) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 31:
After Clause 9, insert the following new clause--
DIRECT MARKETING
(" .--(1) The Secretary of State may, by order made by statutory instrument, provide for the regulation of the use of electronic communications for direct marketing purposes.
(2) An order under subsection (1)--
(a) may impose duties both on the persons using electronic communications for direct marketing purposes and on the persons providing the facilities enabling such use, and
(b) shall be laid in draft before, and subject to approval by resolution of, each House of Parliament.").

The noble Lord said: Not so long ago the Government took very welcome action to deal with junk faxes. I am not quite clear whether that is yet in force, but I continue to receive such material and cannot identify anyone to advise me as to whom I should address my complaints. However, perhaps I have not been sufficiently diligent. I also receive a large quantity of junk e-mail, some of which might best be described as offensive, and certainly would be offensive if received by a minor.

It is now the law in the state of California that people sending out direct marketing by e-mail have to include markers in the title which will enable people to exclude it if they do not wish to receive it. Similar strictures are made on people providing facilities such as ISPs to ensure that anyone using their facilities to send out junk mail does so under the regulations of the state of California and not otherwise.

It seems to me that there is scope for doing something similar in our law. I shall not press too hard for the provision to be included in this Bill, but I would be grateful to know what the Government intend to do to spare us from this particular nuisance. I beg to move.

Lord Sainsbury of Turville: The new clause would enable the Government to introduce regulations with very wide-ranging effect on distance selling. I am not at all persuaded that we should go down that route. In general, the same laws should apply online as offline, and the Government are committed to a light touch approach to the regulation of electronic commerce.

People may have a concern about the whole question of Spam e-mail--the equivalent of junk mail. None of us likes to be inundated with e-mail we do not want, but we need to strike a balance between curbing such abuse and allowing the Internet to be used as a legitimate form of advertising. It is desirable to

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provide a degree of protection for consumers from a flood of unwanted e-mail, but in general business recipients should be able to look after themselves. The Government will regulate the sending of Spam e-mail to consumers through regulations implementing the Distance Selling Directive which we plan to bring into force in June this year. There is no evidence to show that a similar provision is needed for business-to-business communications, and I ask the noble Lord to withdraw this amendment.

Lord Lucas: I am grateful for the noble Lord's comments, which answer my question, and I am delighted to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 10 shall stand part of the Bill?


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