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The second group of amendments is obviously somewhat more contentious than the first in that it removes from the Bill the amendment to Clause 10 that was voted in by your Lordships' House on Third Reading after a very thoughtful and powerfully argued debate. Sadly, due to transport difficulties, I missed that debate-my noble friend Lady Hanham spoke in my place-but I have considered very carefully what was said by various noble Lords throughout the House then and what the Government said in another place when that clause was debated in Committee there. My honourable friends in another place were not left with much time to consider the Government's proposals before being required to agree them, but we have since reflected on the arguments put forward by the noble Lord's colleague, Claire Ward, who dealt with the Bill in another place. I note that, thankfully, the Government have not simply overturned the amendment that we put in but clearly have sat and thought about the very valid criticism that it is inappropriate to allow the state to commit bribery without any real oversight or limitation.

What the Government are proposing in place of the amendments passed in this House is, therefore, obviously something a compromise. Amendment 2 takes out the specific requirement for prior consent in Clause 10, while Amendment 4, which is the key amendment,

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moves the focus back to the defence clause, Clause 13. That amendment places a duty on the heads of the intelligence services and the Defence Council to make arrangements that show the necessity of committing a particular act of bribery, and that act would therefore be covered by the legitimate purposes defence in Clause 13(1), thereby providing a defence to prosecution to members of the relevant services.

The arrangements that have been put in place must be satisfactory to the Secretary of State-which, as the Minister has emphasised, will be an ongoing requirement. Presumably that means that any arrangements will need to be tweaked or overhauled if the Secretary of State does not feel that the result is satisfactory. I should therefore be very grateful if the Minister would give us a flavour of what those arrangements might be. We are taking quite a lot on trust if we are to accept these amendments, and we will have to rely on the various heads of the services to draw up satisfactory arrangements. We must also rely on the Secretary of State to ensure that he is not too easily satisfied with what they put forward. I should therefore also like the noble Lord to give us an indication of just what yardstick the Secretary of State would use to gauge his satisfaction.

The proposal that the noble Lord has put forward is not perfect; it is a compromise. We accept that the Government have thought about the criticisms that were made at earlier stages of the Bill, particularly when it was in this House, and have come up with an approach that has some ministerial oversight built into it. We will not oppose the amendments-in fact we will accept them-but I think that it will be necessary to keep a very close eye on how this part of the Bill operates once it is up and running.

Lord Thomas of Gresford: My Lords, I am grateful for Amendment 5, which has put into statutory form the objection that I made when the matter was before us. I am pleased to see that that is there.

My criticism of Clause 13, however, remains. I said before that it would be very difficult for a person who is a member of the intelligence services and charged with an offence to prove his defence, on the basis that he would not have access to the necessary documentation and information and, in the case of the Armed Forces, to witnesses who could assist him in proving his case. I thought, and think now, that the burden of proving that defence is impossible. But it is even more impossible with the amendments that have now been introduced, particularly Amendment 4, which states:

"The head of each intelligence service must ensure that the service has in place arrangements designed to ensure that any conduct of a member of the service which would otherwise be a relevant bribery offence is necessary".

So the offence can arise only if the person has ignored a direction or where there is no direction from the intelligence service or the Defence Council in question. In those circumstances, one simply cannot conceive of it ever happening and consequently Clause 13, this alleged defence, is otiose. It is perhaps not surprising that it involves the security services, because it has been a feature of this Government-and here we are at their very end-to defer to them on things such as intercept evidence and on other legislation that has

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passed over the last 10 or 12 years. But there it is; I have made my objections. I welcome the Government's attempt to improve upon what was in the Bill before.

Lord Mackay of Clashfern: My Lords, this group of amendments that the Government have put in place, in lieu of the one made by this House on Third Reading, is reasonably satisfactory. I understand the position that the noble Lord referred to if somebody has acted outwith the terms of the arrangements. If that happened, it would be very difficult for them, but so long as they are within the terms of the arrangements they are pretty well automatically covered. That is what the amendment which we put forward on Third Reading was really about; trying to ensure that the ordinary member of the security services or the Armed Forces who was involved would be able to point to some arrangement which covered him or her in relation to the allegation of bribery made against him or her.

I regard this as a satisfactory way of dealing with the matter. It is also important that these arrangements are subject to the approval of the Secretary of State; therefore, there is accountability to Parliament for the way in which this particular aspect of the security services and the Armed Forces is conducted. I shall go back for a moment to the question about guidance. The noble Lord, Lord Bach, said-I do not think that he was forecasting-that there might be a new Administration after the general election. So far as the Administration of which he is an honourable Member are concerned, they would hope to have the guidance out by the summer. That might not bind a successor, but it does bind a successor that the guidance must be published before Clause 7 comes into operation. It seems to me to be a governmental undertaking, which would be binding on a successor Administration before they brought Clauses 6 and 7 into operation.

Lord Mayhew of Twysden: My Lords, when introducing these amendments the Minister referred to the fact that we had grappled in Committee, and subsequently, with the difficult questions that this particular legislation throws up. To some extent, we have seen today that the grappling is not yet entirely over. I gratefully adopt what my noble and learned friend Lord Mackay of Clashfern said just now. I believe that what we have here finds a clever way round some really difficult questions. In an imperfect world, we need to have intelligence services; equally, it is very important that our intelligence services should stay within the law, as must all agencies of the state if we are to uphold the rule of law, as we must.

There has to be a measure of ministerial accountability and oversight, and that is found here. I believe that this represents a clever compromise on the part of the Government and, if I may say so, the parliamentary draftsmen. It was entirely legitimate for the Minister to say, in introducing this group of amendments on 18 March:

"The defence now provides a secure legal footing for the activities of the services concerned, while ensuring an appropriate level of oversight and accountability".-[Official Report, Commons, 18/3/10; col. 148.]

Looking forward as we all do to the guidance that will be issued, which will be important for the reasons that have been mentioned, it is a great pleasure for me-after

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the rather turbulent 24 hours that the Government have sustained-to be able to congratulate them on what they have done.

2.45 pm

Lord Goodhart: My Lords, speaking briefly for myself, I agree with what has been said by the noble and learned Lords, Lord Mackay of Clashfern and Lord Mayhew.

Lord Wallace of Tankerness: My Lords, to follow the point made by the noble and learned Lord, Lord Mackay of Clashfern, in the earlier debate when the Minister indicated that administrative arrangements in Scotland did not require the kind of legislation for consent that we have here for England, Wales and Northern Ireland, could the Minister also clarify the position regarding the issuing of guidance in relation to Scotland?

Lord Bach: My Lords, I am grateful again to noble Lords who have spoken, and particularly for the support for the compromise, as it is, that finds itself back with us today in Amendment 4. To have the general support of the noble and learned Lords, Lord Mackay of Clashfern and Lord Mayhew, as well as that of the noble Lord, Lord Goodhart, who are all eminent lawyers and experts in this field, is really welcoming for the Government. It makes us think that we may actually have got it about right. I am also grateful to the noble Lord, Lord Henley, for his party's acceptance of this arrangement, and to the noble Lord, Lord Thomas of Gresford-although I know that nothing I can say will persuade him that the Clause 13-defence is the right approach to this Bill.

At the risk of repeating what I have said, we think that the DPP, when deciding whether to prosecute, will be very much affected by the existence of Clause 13. There will be very rare cases indeed where it does begin; if there is a prosecution, of course the accused has the right to a jury decision, however strong or weak the evidence may be. We will see whether the Clause 13-defence works.

The noble Lord, Lord Wallace, asked about Scotland. The answer to his question is to be found in Clause 9 -soon, I hope, to be Section 9 of the Act. Clause 9(3) says that:

"The Secretary of State must consult the Scottish Ministers before publishing anything under this section".

Finally, the noble and learned Lord, Lord Mackay of Clashfern, said again that the important point about the guidance was not so much when it would be published-although we all hope that it will be published soon-but that any Government would be committed to the principle that guidance has to be published well before the relevant section comes into effect. We agree; if there is a change of Government, that should prevail whoever is in power.

Lord Mackay of Clashfern: It has just occurred to me that the noble Lord, Lord Goodhart, was saying that this Bill is different from others dealt with in the wash-up. I think that, technically speaking, this Bill is not in the wash-up, because that is where there has

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been some kind of setting aside of the ordinary procedures. Thankfully, this Bill has gone through every stage properly and has come just in the nick of time to Royal Assent.

Lord Bach: As so often, the noble and learned Lord, Lord Mackay of Clashfern, has got the exact point. No, this is not part of the wash-up. Speaking personally, I am pleased about that.

Motion agreed.

Digital Economy Bill [HL]

Bill Main Page
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Explanatory Notes

Commons Amendments

2.49 pm


Moved by Lord Young of Norwood Green

1: Clause 1, leave out Clause 1

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, I beg to move that the House do agree with the Commons in their Amendment 1, as well as Amendments 9, 10, 13 and 14. The first amendment leaves out Clause 1, thus removing the requirement in the Bill for Ofcom to promote investment in electronic communications networks and public service media content. The second amendment leaves out Clause 29, removing the powers from the Bill that would allow Ofcom to appoint providers of regional or local news. The final amendments leave out Clause 43 and Schedule 2. Effectively, this group of amendments removes the provisions on orphan works and extended collective licensing from the Bill.

Lord Clement-Jones: My Lords, this is a sad outcome to a Bill that started with promise. At the outset of the passage of the Bill through this House, almost all noble Lords accepted that we needed provisions that would avoid the scenario so graphically set out in the recent EU study that forecast the loss of 250,000 jobs by 2015 if current copyright piracy trends continue. There is no doubt that many parts of the Bill were greatly improved in the two and a half months that the Bill spent in this House, particularly in expressly stating that subscribers are presumed innocent until proof is provided otherwise.

Subsequent to the Bill's passage here, however, the process has been totally unsatisfactory. Second Reading could easily have been held three weeks earlier. The Bill left this House on 15 March and Second Reading could have taken place well before 6 April, when it actually took place in the Commons. Some Committee days on crucial areas such as file-sharing, website blocking and orphan works could have been allocated. Instead of that, we have had the unedifying prospect of a wash-up stitch-up between the Conservative and Labour Benches on many elements of the Bill. Allied to the lack of time was the Government's unwillingness in some cases to consider amendments or to give assurances that would have delivered a sensible, consensus

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solution. It is no wonder that so many internet users, Back-Bench MPs and now the Front Bench of my party are firmly of the view that the Bill has not received adequate debate and should not proceed further.

The stitch-up is clearly illustrated by the deletion of Clause 1, which would have given Ofcom valuable new powers. It is also illustrated in particular by the deletion of Clause 29, which would have enabled rollout of the IFNCs. As to the latter, the Government appear not even to have the courage of their own convictions. The clause would have enabled Ofcom to establish independently funded news consortia to provide innovative new methods of providing local and regional news on the Channel 3 network. On these Benches, we worked hard to strengthen this clause so that consortia could be appointed only if they were able to provide high-quality news.

The omission of IFNCs from the Bill is even more disappointing because the clause did not require them to be set up; it made it only a possibility in the future, dependent on successful pilots and a suitable source of funding. Deleting the clause means that we lose this possibility and gain nothing in return. ITV has made it clear that it does not think that it can afford to continue with the provision of local news, which leaves the BBC as the monopoly provider. A constant refrain from all sections of this House, including the Conservative Front Bench, is that that is not a good thing. We find it hard to understand why the Conservative Front Bench has insisted on scuppering IFNCs in this way.

The fact is that, as planned, the trials could have taken place in the Borders, Wales and the north of England without legislation. That would have received majority support here and in another place. However, the Government have said that they are no longer going to continue with letting those contracts for the pilots. That is a major missed opportunity. The Government have abjectly bowed to the Conservative Front Bench.

We support the deletion of Clause 43 at this stage. Throughout the Bill's passage through the House, we championed the cause of commercial photographers threatened by the orphan works provisions and we secured some improvements. In a proper Commons process, further amendments could have been made exempting contemporary photography, and ministerial assurances could have been given to ensure that only where moral rights applied across the board and there was proper attribution would photography be reinserted. In this way, the cultural sector could have been catered for by the process. However, because of the truncated time in the other place, that could not be done, so the only solution has been to delete Clause 43.

We will not be voting on these Commons amendments, but I hope that we have made the views of these Benches clear and that never again will such a complicated Bill be dealt with in this way at the fag end of a Parliament.

Lord Fowler: My Lords, my criticisms of these amendments are not quite as general as those of the noble Lord. I regret very much that, under Amendment 9, Clause 29 will perish. The House and the public need to recognise that we are likely to face an even greater

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problem in regional news in this country. We are going back to the 1950s. If ITV continues on its present path and policy, there will be no ITV regional news and none of those regional news programmes that have a major audience in this country. However, it is worse than the 1950s. At least in the 1950s there were strong regional and local newspapers. I speak as someone who chaired two regional groups. No one would say that this is the best time in the history of British journalism for regional newspapers.

As the noble Lord said, unless we are careful, we will have a BBC monopoly at the regional and local news level. That seems to me entirely wrong. I do not think that anyone in any part of the House wants that outcome. I am an enormous supporter of the BBC's reporting standards, which, both at home and overseas, are among the best in the world. However, I also think that the BBC needs competition from another major organisation. If we lose that competition from independent television, that will be totally counterproductive for the national interest and democracy.

Clause 29 would have provided a mechanism to allow for that to happen. It was not a particularly radical solution; it would have allowed consortia to be put together. Frankly, it is difficult to see what alternatives there could be to Clause 29. I do not know what the alternative will be. I hope that the noble Lord will give the House some help in his response. The noble Lord who spoke for the Liberal Democrats asserted that the pilot schemes, which had already been announced, have perished. Is that the case? Have they perished? It is one thing to have the policy absolutely withdrawn, but does that mean that all these weeks and months of negotiation in which the consortia have been put together will just be struck through? If so, what about the costs? Will the local newspapers that have taken part in these negotiations simply be told, "Awfully sorry, but we have changed our mind and there is no recompense"? Frankly, this is a sad move. It needs to be established and recognised that there has always been an implied subsidy and support for independent television companies under the analogue system. One of the reasons why ITV is moving away from its support for independent regional news is because that subsidy is being withdrawn. I do not think that the public money issue is as crucial and unique as some might claim. I think this is a very regrettable step. My Select Committee made this clear and I am not in any way going to resile from what it said. We need to tackle this problem and all we are doing at the moment is allowing a position to take place where regional news in this country becomes a BBC monopoly. That is not in the public interest.

3 pm

Lord Maxton: My Lords, I do not share the concerns expressed so far about the ending of these consortia having control of local news for two reasons. First, the noble Lord, Lord Fowler, with whom I have disagreed in the past over new technology, expresses himself unfortunately when he says that we are going back to the 1950s. We are not. There is a whole range of local news provided by a whole range of different organisations through, I accept, the internet. Every school now has

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its own website, as does every sports club and local authority. All the news is available on those websites for anybody who wishes to get it.

Lord Fowler: The difference, surely, is that under the current system that news is provided by professional journalists. Under what the noble Lord is describing, there are no professional journalists.

Lord Maxton: As someone who is not a professional journalist and has no high regard for them, I think it is of major benefit that the news is not provided by professional journalists.

My second reason is that the consortium for the Scottish region had been granted to a consortium made up of the two major newspapers-the Scotsman and the Herald-and one television company. I think there was one other organisation involved. They said that they would use their journalists to provide the local Scottish news on television. I am sorry, but I do not see how the arguments about being balanced, rational and impartial can be followed if the same journalists who write in newspapers, expressing their views, then appear on television, trying to be impartial. It just does not work. Therefore, I am quite happy to see this clause disappear.

Baroness Howe of Idlicote: My Lords, I agree with the noble Lord, Lord Clement-Jones, and the chairman of the Select Committee. I declare an interest, having served on it. This is a terrifyingly worrying step that is being proposed. It is absolutely crucial that the BBC news-for which I, too, have huge regard in every other possible respect-has a competitor of the same standing, with news presenters of the same quality. This is not least because there are so many moves within the BBC to different parts of the country. We heard this in the last session of the Select Committee only yesterday. That would be another illustration of how its dominance can, perhaps, be far too great. I bow to the expertise of the noble Lord, Lord Maxton, on many technical matters, but in this case I cannot agree with him and thoroughly support the noble Lords, Lord Clement-Jones and Lord Fowler.

Viscount Bridgeman: My Lords, I have been involved in the debate exclusively on Clause 43. It had admirable intentions to free up orphan works and make possible extended collective licensing. It was a victim of the bad programming by the Government, which results in the messiness that we have had to experience through the wash-up. The noble Lord, Lord Clement-Jones, has made the valid point that there were some points which ought to have been discussed in another place, particularly the releasing of-and giving attention to-photographers.

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