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Amendment 57 makes a similar point and requires a sworn statement that the person making the report actually owns the requisite copyright. It is in line with

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the amendments tabled by my noble friend Lord Clement-Jones that this should not be just in relation to allegations but in relation to significant and sworn statements, both with regard to compliance with the law and to the effect that the person making the report owns requisite copyright. It is a straightforward amendment which the Government ought to be prepared to accept. I beg to move.

Lord Howard of Rising: I have a great deal of support for these amendments. It is important that any internet service provider has confidence that, if they are to take action based on the receipt of a copyright infringement report, the evidence that it includes has been obtained legally and that, if they make use of such evidence, they will not be exposed to legal action from any alleged infringer. We have tabled a later amendment dealing with similar issues around mere conduit status. We will deal with this at the appropriate time but it is important to state that Amendment 56 would ensure that internet service providers are not using evidence that is of a dubious legal nature, as pointed out by the noble Lord, Lord Razzall, or that may incriminate them in the future.

Amendment 57 is equally important. First, internet service providers should not be expected to establish whether a copyright infringement report has come from the genuine rights holder. Such an expectation would place too much of the burden of this process on internet service providers, who are not equipped to establish who actually holds the copyright. A sworn legal statement asserting ownership would give the internet service provider a level of security that they need to proceed. Secondly, this is an important element in the protection against scams and unscrupulous firms who may make false claims simply to pursue financial gain. The House, as has already been said today, is aware of a number of law firms who are already attempting to contact people threatening to disconnect them unless they pay a fine. It would be a small step for these firms to contact internet service providers with similar false claims. Evidence of ownership of the copyright would help prevent such an abuse of the system.

Lord Davies of Oldham: At the end of a reasonably testing sitting, it is my great pleasure to indicate that I am broadly in sympathy with the contributions of both noble Lords, Lord Razzall and Lord Howard of Rising. I am not going to accept the amendment but I will indicate why I think the noble Lord, Lord Razzall, will feel quite confident in withdrawing it.

There is no doubt that this is an important issue. It would clearly be extremely undesirable if information for a copyright infringement report was itself gathered unlawfully. However, it is not usual practice to put a requirement in legislation that it should be implemented in accordance with existing legislation. The law of the land applies and it goes without saying that it must be complied with in exercising the rights and fulfilling the obligations provided for in this Bill. The code of practice will set out in detail the conditions that a copyright infringement report must comply with. Ofcom and the Secretary of State will have to approve that code of practice and neither could do so if it permitted copyright owners or ISPs to breach laws

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relating to data protection, privacy or anything else. I do not, therefore, think that the first amendment is necessary.

In respect of Amendment 57, where the noble Lord is seeking a sworn statement that the person making the report owns the copyright being infringed, the Bill would mean that a copyright infringement report must comply with code requirements. Clause 8 makes clear that this must include requirements as to the means of obtaining evidence of copyright infringement for the CIR and the standard of evidence that must be included. A copyright infringement notice will be valid only if it is issued by the true owner of the copyright or someone authorised to act on his behalf. I am going this far: we will require a sworn statement of ownership of the relevant copyright. I apologise-when the noble Lord is suggesting that there should be a sworn statement, I think that that is otiose and an unnecessary additional cost factor. We expect that for a copyright infringement notice to meet the requirements of the code, the copyright owner would, indeed, have to sign a statement confirming that they had compiled the CIR in compliance with the code and that they were the owner of the copyright concerned. Therefore, there will be an attestation-an assertion and a clear written position-where the ownership is identified. I think that that will meet the point and, therefore, renders Amendment 57 otiose. However, I am grateful to the noble Lord for raising two important issues.

Lord Lucas: Perhaps I may pick up the noble Lord on Amendment 56. I would have more confidence in his reply if it were not the case that the details of tens of thousands of internet subscribers have already been passed to copyright owners on the basis of entirely black-box evidence. No one knows what system is being used to recover the information that forms the basis of the allegations that internet subscribers have downloaded stuff illegally. As the noble Lord said earlier, no known system can do this without breaching laws. It appears that this is already happening. Why, then, should we not guard against it happening in the future?

Lord Davies of Oldham: That is the whole purpose of the Bill-to actually guard against it and to identify to people the dangers involved in not complying with the law. The noble Lord will recognise that I identified in my response that the code of practice, backed by Ofcom and the Secretary of State's approval of it, will ensure that the way in which the CIRs are compiled is in accordance with the law.

Lord Razzall: I thank the Minister for his response. Having heard the noble Lord, Lord Lucas, I wonder whether the Minister's promise to me is rather the same as his earlier promise to me of an earldom. However, I will, of course, look in Hansard at what he said. In the mean time, I beg leave to withdraw the amendment.

Amendment 56 withdrawn.

Amendments 57 and 58 not moved.

Lord Faulkner of Worcester: My Lords, in view of the hour and the number of Members who have indicated that they wish to speak on the next item of

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business, the usual channels have agreed that it may be for the convenience of the House if we do not resume proceedings on the Bill this evening. The intention is, therefore, to adjourn the House after proceedings on the Motion of the noble Lord, Lord Roper, have been completed. I hope your Lordships will agree that this is a sensible way forward in the circumstances.

House resumed.

Asylum: EUC Report

European Union Committee - First Report

Motion to Agree

8.04 pm

Moved By Lord Roper

Lord Roper: My Lords, when your Lordships' House considers reports of the European Union Committee, it is almost invariably on a Motion in the name of the chairman of the sub-committee which compiled the report, and the terms of the Motion are that the House should take note of the report. The noble Lord, Lord Jopling, will shortly be elaborating on the reasons why the sub-committee which he chairs took the view-a view endorsed by the Select Committee-that the Government should opt in to the two directives in question. First, however, let me explain why this Motion is in my name, and why it invites your Lordships not to take note, but to agree.

Provisions on visas, asylum, immigration and other policies related to the free movement of workers were introduced into the Treaty establishing the European Community by the treaty of Amsterdam, which was signed on 2 October 1997 and came into force on 1 May 1999. The Government did not necessarily wish to be bound by EC measures on visas, asylum and immigration, and negotiated a protocol to give the United Kingdom the necessary flexibility. The effect of this protocol was that the United Kingdom does not take part in the negotiation and adoption of such measures, and is not bound by them unless, within three months of a proposal for legislation being presented to the Council of Ministers, the United Kingdom notifies the President of the Council that,

of the proposed measure. This is the United Kingdom opt-in. What is sometimes referred to as an opt-out is simply a decision by the Government not to opt in, and requires no action by the United Kingdom.

While the terms of the proposed legislation are important in every case, the Government's decision on whether or not to opt in is of at least equal importance, since without an opt-in, the legislation, whatever its terms, will not apply in this country. Yet until recently there has been no procedure for Parliament to consider

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and give its view on what that decision should be-let alone a procedure for doing this speedily, so that the Government can be aware of Parliament's view before the three months have elapsed.

The matter came to a head with the signature of the treaty of Lisbon. Provisions on police and judicial co-operation in criminal matters were previously in Title VI of the Treaty on European Union-the so-called third pillar-and thus required unanimity. There was therefore no way in which the United Kingdom could be bound by such legislation against its will, and no need for an opt-in on such legislation. But under the Lisbon treaty the first and third pillars are merged, and the protocol giving the United Kingdom an opt-in has therefore been extended to cover this category of legislation as well.

When the European Union (Amendment) Bill was before the House, both the European Union Committee and the Committee on the Constitution-whose chairman, the noble Lord, Lord Goodlad, I see is in his place-sought to obtain from the then Leader of the House, the noble Baroness, Lady Ashton of Upholland, a procedure for allowing the House to give its view on whether the Government should opt in to any particular proposal for legislation before the time for doing so had expired. In April 2008, my predecessor, the noble Lord, Lord Grenfell, set up a small sub-committee of the European Union Select Committee to consider such a procedure. The Select Committee took evidence from the noble Baroness, Lady Ashton, in May 2008. The upshot of these discussions was that, on 9 June 2008, just before the Report stage of the Bill, the noble Baroness agreed to a series of undertakings, which are set out in Appendix 2 to the report that we are considering.

Two of these undertakings are of particular importance. First, the Government undertook to take into account any opinions of the committee on whether the United Kingdom should opt in. This is qualified by the words,

"Provided that any such views are forthcoming within 8 weeks of publication",

even though there are still five weeks of the three-month period to run. But, thus far, the Government have not suggested that they would ignore any views made known after eight weeks. It would be helpful if the Minister could confirm that the Government will take account of the committee's views whenever they are forthcoming, although I concede that this may not be possible if they are received very close to the end of the three-month period.

The second undertaking given by the noble Baroness was that where the committee concluded that the question of whether or not to opt in to a measure should be debated, this should be on a Motion that is amendable and the Government would make time for the debate.

The two undertakings amount to a substantial extension of Parliament's powers to hold the Government to account on European matters. They took effect when the treaty of Lisbon came into force on 1 December 2009, and your Lordships' Select Committee on the European Union lost no time in putting them to work. The two proposals for directives on asylum issues which are the subject of this report were published by

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the Council on 23 October. The report, with the committee's views, was published six weeks later, on 4 December, having been agreed by the committee on 2 December, the day after the treaty came into force. The three-month period for opting in will expire on 23 January, and I am grateful to the House authorities for having made time for this debate today. I should be grateful if the Minister would confirm that the views expressed by all noble Lords in this debate will, like the committee's views in its report, be considered by the Government before they reach a decision to opt in to these proposals.

All the committee's substantive reports make recommendations for the Government to take particular courses of action. This however is the first of a category of report where the Government will have to decide within a matter of days whether to accept the recommendations and where the application of important legislation in the United Kingdom will depend on their decision. Without going into the substance of the report-which the noble Lord, Lord Jopling, will be dealing with in a moment or two-its recommendations are, in paragraph 17, that the Government should opt in to the proposed second-phase qualification directive; in paragraph 22, that the Government should opt in to the proposal for a revised Asylum Procedures Directive; and in paragraph 24, that the report should be debated, which is what we are about to do.

The Procedure Committee will shortly be considering whether any particular rules should apply to the debates on such Motions but, for the present, I hope that this Motion will allow a full debate on all the points raised in the report. I beg to move.

8.12 pm

Lord Jopling: My Lords, like the noble Lord, Lord Roper, I thank the Government for finding time for this debate. Of course, we would have liked to have the debate somewhat earlier, but I understand that the Leader of the House was not able to find time so, if I can put it this way, we have to be thankful for what we regard as second best. That second best is very much more than nothing at all.

As the noble Lord, Lord Roper, said, this is a report of Sub-Committee F of the European Union Committee, of which I have the honour to be the chairman. The noble Lord has dealt with the general issue of scrutiny by your Lordships' House of decisions by the Government on whether to opt in to the ever wider categories of legislation to which the opt-in applies. It now falls to me to explain why, in the case of these two proposals, the committee took the view that the Government should opt in to both.

The new common European asylum system was one of the main planks of the first justice and home affairs programme under the treaty of Amsterdam, as the noble Lord, Lord Roper, said. Between 2000 and 2005, proposals were brought forward and adopted for six measures making the first phase of the system. Three of these measures were directives addressed to the member states. In logical order, though not the order in which they were adopted, they dealt with, first, the minimum standards for qualification as a refugee under the qualification directive; secondly,

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minimum standards on procedures for granting and withdrawing refugee status under the asylum procedures directive; and, thirdly, minimum standards for the reception conditions for asylum seekers under the reception conditions directive. All three proposals were the subject of reports from the European Union Committee which were debated previously in the House, and the Government opted in to all three, which have been implemented and apply currently in the United Kingdom.

The problem with the first-phase instruments is that they were negotiated under unanimity of the Council of Ministers, which meant that agreement could be found only at what I describe as the lowest common denominator. Obligations were vaguely formulated and the wide discretion allowed to member states in the way these were to be met has to some extent worked against the desired harmonising effect. It was envisaged that in the longer term, when the Council procedures turned towards qualified majority voting, these instruments should be replaced by fuller measures making for a truly common asylum policy and a unified status for refugees.

Accordingly, between December 2008 and October 2009, the Commission brought forward proposals for recast versions of these three directives. The first in time was the reception conditions directive, to which I referred earlier. In February last year we were told in evidence that the Government intended to maintain the minimum standards laid down by the existing directive, but they felt that the amendment dealing with arrangements on detention, wider access by asylum seekers to the labour market and some elements of financial support would be too onerous, and in March the Government told us that they had decided not to opt in to the recast directive.

The qualification and asylum procedures directives were brought forward on 23 October, and they are the subject of the current report. In appendices 4 and 5 we have printed the Government's explanatory memoranda setting out the major changes, and their views on them. In the case of the qualification directive they find many of the changes unobjectionable, but they have three main concerns. The first is the extension of the definition of family members to include minor married children and minor unmarried children even if they are not dependent. The second is that the draft appears to extend the international protection to persons who might have protection provided in their home countries, but not by agents able to enforce the rule of law. The third is a provision which appears to require protection to be continued to persons who may not still need it if they can provide compelling reasons arising from the previous persecution for not returning to their home country.

In the case of the asylum procedures directive, the Government seem to have one major fear. This is that their ability to make what they refer to as "fast and fair" decisions through the detained fast track scheme will be constrained by the proposals. They are also concerned about the more restrictive definition of what constitutes "manifestly unfounded applications" and the effect this may have on the United Kingdom's continued use of non-suspensive appeals.

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I am far from saying that these are trivial concerns but the Government have two choices. The first is that they should not opt in to either directive. In that case they will to all intents and purposes have abandoned all the common European asylum system other than the Dublin system of jurisdiction. Their second choice is to opt in to both proposals. They will then be able to play a full part in the negotiations. Other member states are likely to have identical fears. We have evidence to that effect. Surely it is likely that the Minister and his ministerial colleagues together with their officials will be able to persuade other delegations to meet their concerns.

A Justice and Home Affairs Council was held on 30 November and 1 December 2009. In advance of the council, the Parliamentary Under-Secretary of State at the Home Office, Meg Hillier, said:

"The UK believes these directives are not necessary at this time as they undermine the migration pact".

After the council, the Home Secretary in a Written Statement stated that the United Kingdom did not support the draft directives. He feared that changes in who qualified would result in member states granting asylum to those not in need of European Union protection, and that restrictions on accelerated procedures would prevent fast and fair procedures on asylum applications and increased costs. He added significantly-this is important; I referred to it earlier-that:

"These concerns were supported by other member states".-[Official Report, Commons, 8/12/09; col. 17WS.]

This is precisely why the committee believes that the Government should opt in and then if necessary take up these points and try to settle them in the negotiations.

There is another most important reason why the committee believes the Government should opt in to both directives. Last year, in the context of the Government's failure to opt in to the reception conditions directive, we explained the legal and technical problems this would cause. They are set out in full in our earlier report, which I am sure is familiar to noble Lords, and more briefly in our current report. I will sum them up in one sentence, which is very important indeed. While in nearly all other member states the recast directives will apply in place of the first-phase directives, a failure to opt in will result in the first-phase directives continuing to apply in the United Kingdom.

I know this is not the view of the Home Office's legal advisers. They believe the Government will be free to apply whatever law they like in this field. However, they have ranged against them, apart from Sub-Committee F and the European Union Committee, a formidable body of legal opinion. Sub-Committee F was assisted by the noble and learned Lord, Lord Mance, whose legal expertise is well known to your Lordships. The European Commission, whose views are printed in appendix 3 of the report, unequivocally agrees with our analysis of the law. In a memorandum of 8 December 2009 the Immigration Law Practitioners' Association, a body of distinguished lawyers who are specialists in the field, expressly concurs with us.

For all these reasons, I hope that the Minister will give us tonight the Government's reaction to these matters. Clearly the directives are not satisfactory as

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they stand but my committee feels that, to get them right, it would be better to be inside the negotiations than outside. This debate, as the noble Lord, Lord Roper, has said, is a new departure. The committee badly wanted to debate these issues before decisions have to be taken. Of course, the debate is in a way putting the cart before the horse-but it is welcome for all that-because the Procedure Committee, of which I happen to be a member, has yet to make formal proposals to the House for dealing with the opt-in procedures. Until the House has those formal procedures, we must be content to have this debate on an interim basis with regard to the rules of the House.

8.24 pm

Lord Dykes: My Lords, I thank the noble Lord, Lord Roper, for coming to the House and presenting his remarks on this matter, and for representing the EU Select Committee as its chairman. I thank him for the excellent work that has been done in that regard. On Sub-Committee F, I also warmly thank the noble Lord, Lord Jopling, for his detailed explanation. I have no hesitation in, and derive great pleasure from, saying that I agree entirely with the remarks of the noble Lord, Lord Roper, as well as with those of the noble Lord, Lord Jopling, to whose warnings it is very important for the Government to pay attention-I except only his final remarks about the involvement of the Procedure Committee, but that is a matter that will have to be considered by the whole House tonight. I do not dismiss the importance of his point, but there may be a slightly different approach that I hope will also meet with some agreement at least from Members of this House, depending on how the debate now transpires.

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