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20 Jan 2010 : Column 1008
Lord Monson: My Lords, as the noble Lord, Lord Carlile, said, some individuals for one reason or another do not possess a credit or debit card and are therefore obliged to pay cash for their airline tickets, and it would be wrong to prevent such individuals from flying altogether. However, does the noble Baroness agree that, if someone pays cash for their tickets, they should be subjected to the most rigorous scrutiny, particularly if the ticket that they have bought is one way.
Baroness Royall of Blaisdon: My Lords, the noble Lord is right that some people might not have access to a credit card and therefore might need to use cash, but those are precisely the sorts of individuals at whom we would look very carefully, perhaps more carefully than those with a credit card, because they might well be suspect in some way, just like those passengers who get on to a long-distance flight with no luggage.
Lord Jopling: My Lords, in the latter months of last year, the Government told us that there was no evidence that money raised from piracy in the seas around Somalia was getting into the hands of terrorists. I think that she would probably agree that, knowing the amount of money which is passing to those people who conduct piracy, it would be slightly surprising if some of it was not going towards terrorism. Is there any up-to-date information that that money paid in ransoms is going, as one might expect, to terrorists?
Baroness Royall of Blaisdon: My Lords, as I understand it, there is still no evidence to date to suggest that money from piracy or ransoms is funding terrorism, but it is a matter about which we remain concerned and vigilant.
Baroness Park of Monmouth: My Lords, does the Leader of the House agree that at this time it is vital for us to use every resource we have, one of which is the skill and knowledge that should be in the Foreign Office? I wonder how many Arabists we still have and how we propose to know and identify the threats against which we are working if we have no means of doing so. We will essentially be blind if the FCO is cut any further.
Baroness Royall of Blaisdon: My Lords, the noble Baroness is right that we have to use every person and tool available to us. Of course, the personnel in the Foreign Office are of great benefit to the Government and the people of this country. I recognise the concern expressed by the noble Baroness about further cuts. However, I am sure that this and any other Government will be vigilant and will ensure that the requisite people in the Foreign Office remain so that they can work on many other issues, but precisely on the terrorism threat.
Lord Mackay of Clashfern: My Lords, I have a little difficulty in understanding the relationship between the noble Baroness's answer to the noble Baroness, Lady Manningham-Buller, and the Prime Minister's statement about a remit to the Cabinet Secretary. How do those two fit together?
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Baroness Royall of Blaisdon: My Lords, as the noble Baroness said, there has been intense and very good co-operation between the services over a long period of time. These things need to be formalised, which is why the Cabinet Secretary has stepped in. But it does not point in any way to a lack of co-ordination between the services.
Digital Economy Bill [HL]
Bill Main Page
Copy of the Bill
Explanatory Notes
Amendments
2nd Report from the Delegated Powers Committee
Committee (4th Day)
4.28 pm
Clause 8 : Contents of initial obligations code
116A: Clause 8, page 11, line 1, leave out from "OFCOM" to end of line 3 and insert "has, under the code, the functions of administering and enforcing internet service provider and copyright owner compliance with the code"
Lord Whitty: My Lords, Amendment 116A is essentially a probing amendment which raises an important issue; namely, to understand what the Government mean by reference to "or another person"-that presumably means an organisation-which may be "administering and enforcing" the code. For the notification process to work, it has to have the credibility that the administering and enforcing authorities will ensure full compliance by the ISPs and the rights holders; otherwise there is a further risk of losing public support.
The subsection seems to envisage that Ofcom would allocate its duties to another organisation. That raises my suspicions. We already have a situation where the code may be drawn up in the first place by the industry and only approved by Ofcom. Surely it is the responsibility of the statutory agency to ensure that the terms of the code are complied with not only by the ISPs-that is clear-but by the rights holders. If the rights holders behave as some of them or their representatives have done under present law in terms of threatening people for file-sharing then there will need to be some sanction against these rights holders, at least so that they do not pursue their case further under the code and these provisions.
4.30 pm
I am therefore not clear why anyone other than Ofcom should have the responsibility for carrying out the administration and enforcement of the code. It is possible to envisage a desire to subcontract the formal administration in terms of writing the letters and performing the administration in the strict sense, but surely enforcement must be the responsibility of the statutory agency. In several of the fields that it covers, I have quite a respect for Ofcom. Much of that respect concerns the statutory duties placed on it to act in the interests of consumers and citizens and to take into account issues such as human rights and data protection. It is therefore an appropriate body to allay all the
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If anyone other than Ofcom will do it, will it do so under the auspices of Ofcom? Will all Ofcom's duties still apply? Will Ofcom ultimately be responsible? If it is anything less than that, we will need a statutory base for this alternative body. I would much rather see the whole process of administration and enforcement rest with Ofcom itself. As I said, I can see a narrow part of the administration being devolved somewhere else under subcontract. However, Ofcom should still be responsible. Surely it must be responsible for the enforcement. That enforcement relates to the ISPs, to which this part of the legislation relates, and to the rights holders themselves, over which, before this legislation is passed, Ofcom has no jurisdiction. I think that the Government have made it clear that they would expect Ofcom to have some oversight over the behaviour of the rights holders as well as the ISPs in this respect.
So my key question is: why do the Government envisage a body other than Ofcom carrying this out? If it does carry out the enforcement, I would be strongly opposed. If any other body is involved in the process at all, will it be covered by the statutory constraints on Ofcom, or will we need to legislate separately to ensure that it meets the same criteria in terms of various protections for consumers and for others against whom the sanctions might ultimately operate? I beg to move.
Lord Howard of Rising: I agree with the noble Lord, Lord Whitty; many of his comments are very sensible. It is surprising the extent to which these provisions allow for the establishment of a separate, semi-independent body to administer and enforce the code plus adjudicate in the matter of copyright disputes. All this is apparently separate from and in addition to the tribunal process. As I said earlier in these debates, we on these Benches are unconvinced about the benefits of such a body. We are certainly unconvinced that such a body should take on a quasi-judicial role. A separate body would appear to remove accountability from the process. If it remains with Ofcom, at least the Secretary of State will be ultimately responsible. A separate body would remove even that weak link. I am also extremely concerned at the idea that a body with no electoral or judicial accountability will be able to decide on administrative penalties of the scale mentioned in the Bill. What kind of powers does the Minister envisage this body having to resolve copyright disputes? Why would it be able to handle such disputes-or even the administration of the code-better than Ofcom? I also look forward to hearing the Minister's response to the question of the noble Lord, Lord Whitty, about whether such a body would have the same disciplines upon it as Ofcom.
Lord Mackay of Clashfern: My Lords, what kind of resources will this body have? The Minister will remember that, in answer to the proposal of the noble Lord, Lord Gordon of Strathblane-that competition matters in this area should be given to Ofcom-it was said that Ofcom would need resources to deal with such matters, including lawyers, economists and so on. What about this body and its requirements?
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The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, this hare is gaining more legs as it progresses round the Chamber.
The effect of the amendment would be to remove the ability of Ofcom to set up another body to administer and enforce compliance with the initial obligations code. It would require Ofcom-and no other body-to take on that role. I am sure that Ofcom appreciates the great faith that it inspires in noble Lords-although sometimes Her Majesty's Opposition have rather less faith in quangos-and, indeed, Ofcom is an estimable organisation. However, our admiration should not lead us to restrict it in the way that is proposed. It is entirely reasonable for Ofcom to organise the administration and enforcement of the initial obligations code, for which it remains responsible, in the way that is most efficient and effective. For organisational, financial or other reasons it may prefer to set up a body which is, I stress, independent of internet service providers and copyright owners to carry out this function rather than be directly involved as Ofcom.
As Ofcom is the body that will continue to have the obligations, powers and duties of a regulator under the Bill, I do not see what is to be gained by insisting on its direct involvement and restricting its freedom of manoeuvre in the way proposed in the amendment. Certainly such a restriction is unlikely to be welcomed by Ofcom.
Two separate points were made. My noble friend Lord Whitty asked whether the organisation would act under the auspices of Ofcom-yes, it will; I can give that assurance-and the noble Lord, Lord Howard, referred to copyright disputes. The body will not be involved in copyright disputes, because this is an initial obligations code. It will not be involved in copyright disputes-perish the thought-but simply with the enforcement of the code. At least that is how I have been informed. The noble and learned Lord, Lord Mackay of Clashfern, asked about resources. The answer to that is that if we will the end, we will have to will the means.
This is not necessarily the route that Ofcom will take, but it might find it more effective and efficient, for financial or other reasons, to set up this body. We have not said that it absolutely will; we have just allowed it some flexibility. We have given an assurance that it will still operate under the auspices of Ofcom and be monitored in that way. With the assurances that I have given, I hope the noble Lord will feel able to withdraw the amendment.
Lord Howard of Rising: Proposed new Section 124E(4)(a) refers to,
I am glad to hear the noble Lord making the odd joke, because I understand that there has been an edict to say that people at the DCMS are not allowed to look for jokes on the internet.
Lord Whitty: I said that this was a probing amendment, so I shall withdraw it, but I am not very satisfied with the answer. Although there are examples of regulators outsourcing administration, I do not know of a situation
20 Jan 2010 : Column 1012
Lord Young of Norwood Green: I thank my noble friend for giving way. I am told that the body will have the same statutory duties, but we will clarify it in writing. While I have the opportunity, perhaps I may clarify one point about copyright disputes. Disputes between ISPs and copyright owners, for example, over whether a CIR is code-compliant are not copyright infringement disputes as defined in Clause 8(6). I hope that that is helpful. However, as I have said, I shall clarify my noble friend's question about statutory obligations.
Lord Whitty: In light of that, I beg leave to withdraw the amendment.
Lord Clement-Jones: My Lords, we have heard that the Committee is not particularly happy with this rather shadowy, possible body which seems to be lurking in the wings. We had rather a similar situation under Clause 7, which contained the right,
Just how many of these shadowy bodies are we going to be threatened with? Is this the revival of something which we thought had had a stake driven through its heart: the digital rights agency? Who knows? It would be useful to have more clarity from the Minister on just what is proposed.
Even more concern is felt about the rather weasel wording of subsection (4)(b) of proposed new Section 124E of the Communications Act 2003, which uses the expression "sufficiently independent". If the Minister was frank and said that Ofcom will in all probable circumstances be responsible for the administration and enforcement of the code, we would be rather more satisfied, but if there is a possibility of this body being created, "sufficiently" seems to be rather important. Who decides what is "sufficiently independent"? Do we not need a rather more objective test? Is it independent or not? For what will it be "sufficiently" independent? Do we have to have to rely on the old test of the length of the Minister's thumb to decide whether independence is sufficient? He may
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Lord De Mauley: Our feelings on this possible extra body have already been made fairly clear, not least in the previous debate and that on Amendment 99, on which my noble friend Lady Buscombe intervened on Monday to such effect that the Minister said that he would take the matter away. Amendment 117A of the noble Lord, Lord Clement-Jones, goes right to the heart of our concerns. Ofcom, by its size, regulatory position and ultimate accountability to government, is, one would hope, immune to industry pressure. A small body, given the task of administering and adjudicating the code, will surely be at risk of being much more susceptible to all sorts of pressure. It also seems to us that it will be less able to assess the accuracy of the information as effectively as Ofcom, and will, furthermore, arguably be open to much more pressure from negative press briefing.
Of course, the Minister might respond that Ofcom will bear ultimate responsibility for the behaviour of the independent body. I am sure that that is technically the case-but, then, what advantage does the body add? Is the Minister implying that Ofcom might be seen as biased, giving rise to a need to establish a separate body in order to give the appearance of impartiality?
4.45 pm
Lord Young of Norwood Green: My Lords, the amendment would ensure that there was a clear separation between any body appointed to administer and enforce the code and the industry parties that will need to abide by the code, with the implication that "sufficient" independence is not, well, sufficient.
I understand the thought behind the amendment, since the independence of any body that is administering and enforcing the code must be clear; I endorse the concern of the noble Lord, Lord De Mauley, about it not being susceptible to undue pressure. However the amendment is not necessary to achieve that result. The noble Lord, Lord Clement-Jones, accused us of being shadowy and weaselly. I have to reject that; I am deeply hurt. In response to his anatomical analogy, we will not be operating by rule of thumb.
However, we need seriously to ensure that any such body is independent enough from the industry parties in order to perform its function properly and without risk of accusations of favour. Removing the word "sufficiently" would actually raise potential difficulties. The question could arise as to whether even Ofcom itself was independent, since it relies for its income on fees collected from industry and its operations within these provisions will be recouped from industry, and that would apply to any body it set up as well. I suggest that the answer to such questions would be that Ofcom, or a body set up by it to administer the code, is independent enough-or "sufficiently independent". The amendment would really not be helpful in the way intended, and I invite the noble Lord to withdraw it.
20 Jan 2010 : Column 1014
Lord Lucas: My Lords, when the Minister talks about "sufficiently independent" and bodies set up by Ofcom, that is not what the Bill says. The Bill just refers to "another person". If a body is set up by Ofcom, then we can take it that Ofcom has sufficient control over it, its method of operating and so on, and our respect for Ofcom-whatever that might be-can pass down to the body set up by it.
However, this just refers to a person chosen by Ofcom. "Sufficiently independent" is an odd concept. The idea that the courts should be "sufficiently independent" of the Government, say, would be an odd thing to put in to the structure of a constitution. Where you need independence-and here, you clearly do-should it not be there?
We will come to this again on one of my later amendments, in which I suggest that this body should be a properly constituted tribunal. Why do the Government think that limited independence is sufficient in this case?
Lord Young of Norwood Green: My Lords, I have endeavoured to answer this. We do not see it as limited. We see it as being a body, not just an individual. Yes, we see it coming under the auspices of Ofcom, as we have already said. There is really no more that I can add to that. I hope that my explanation is sufficient for the noble Lord to withdraw his amendment.
Lord Clement-Jones: My Lords, the Minister has used the word "sufficient" in rather a different context, but I am afraid that his reply was insufficient and very much hope that he will reflect on the wording. His response was very much special pleading on behalf of the Bill's draftsmen. I know that the Government are always reluctant to tamper with the peerless drafting of parliamentary counsel. However, in this case, I think that the Minister will recognise on reflection that he is introducing the rule of thumb into this Bill-he used the expression himself. Either this body is independent, or it is not; "sufficiently independent" allows all sorts of coaches and horses to fly through the door. I feel distinctly nervous about this wording, which I have not seen before in a Bill describing the independence of a body. It would be very difficult for anybody to define "sufficiently" in these circumstances.
Lord Gordon of Strathblane: Would the noble Lord agree that it might be perfectly possible for a body to be set up, which in the interests of securing an agreement contained representatives of potentially interested parties, and that therefore the words "sufficiently independent" are exactly appropriate to the task?
Lord Clement-Jones: My Lords, the point was made by the noble Lord, Lord Lucas, that it is a person that we are talking about here. We are not necessarily talking about a body-we are talking about a person who potentially will have certain functions of appeal, and so on. So it is a rather different concept.
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