Passage of Digital Economy Bill raises concerns over UK democracy

The government plans to amend Clause 18 again as the Bill passes through the House of Commons

The Digital Economy Bill has been causing controversy for some time now because of its proposals to change online copyright legislation, but now lawyers and human rights groups are warning that it signals an even greater problem - a serious weakness in the way government policy is formulated.

Critics say the government is ignoring input from both the public and parliament in its eagerness to pass the Bill, and that once it is passed the country will be left to deal with a number of undemocratic laws.

Many members of the House of Lords wanted to make changes to the Bill in the final reading last week. Their main focus was on Clause 18, which was put forward by Liberal Democrat members but then subsequently rejected by their own party after it came out that the changes were authored by powerful lobbyists.

The Bill, which was finally passed by the Lords unchanged on Monday, is now back with the House of Commons, which is unlikely to give the Bill further scrutiny as it is now under pressure to pass legislation.

"The real problem is that the other House also will not be able to come to any conclusion about this issue; its members will get only a Second Reading. They will not have a chance to put amendments forward on behalf of their constituents to make the Bill better balanced,” said Liberal Democrat Baroness Sue Miller.

The controversial clause the Lords tried to change was Clause 18, which they inserted in a previous sitting to give copyright holders the right to demand ISPs restrict certain web sites from their users. But during Monday's debate, their amendments were shot down by Lord Anthony Young, Parliamentary Under-Secretary of State for the department of Business, Innovation and Skills (BIS).

The House of Lords may have had more luck changing the clause in an earlier debate but public outrage over the restriction of web sites only peaked after the Open Rights Group revealed Clause 18 came directly from the music industry association, BPI, which holds considerable lobbying power in the copyright debate.

Furthermore, the Lords who authored Clause 18 were from the Liberal Democrat Party, which has since changed its standpoint after the party’s Conference announced web site-blocking is undemocratic and will leave the public open to civil liberty abuses.

While Lord Young tried to reassure the Lords that Clause 18 would be altered during debate in the House of Commons, there is a growing possibility that the Bill is just set for two readings there before it heads for the “wash-ups”, a period where Bills yet to be passed are speedily debated before parliament dissolves and a General Election is held.

In the wash-up period, alterations generally take place behind closed doors and without any public scrutiny.

Commentators have argued the government is likely to restore Clause 17 - the predecessor to Clause 18 - in the wash-up period. Clause 17 would give future ministers the power to introduce new copyright rules without going through the parliamentary process.

According to an official statement from the BIS, the new Clause will be tabled at some point but the department could not say when or what it will look like.

“The House of Lords could not do as it pleased because the government was so determined to get the Bill through without Clause 18. Now the government is likely to restore the Henry VIII clause [Clause 17] with some new alterations in the wash-ups,” said Tony Ballard, from law firm Harbottle & Lewis.

“This story has moved on from the controversies that surrounded Clause 18 and Clause 17 and is now about the abuse of parliamentary process. In fact, this is why Clause 17 caused so much outrage because it allowed ministers to do as they please.”

Ballard said the balance of power between the legislature, executive and judiciary, which is there to protect UK democracy, had been greatly disturbed.

“While it is parliament’s job to get the legislation right, and the government’s job to apply it, the government has taken more responsibilities for itself,” he said.

“This is wrong in principle. Executives should not have law-making powers. I think it is outrageous that the public will have no idea what will be agreed in Clause 17/18 until it reaches Statute."

Meanwhile, Jim Killock, the executive director of the Open Rights Group, called for the public to write to their MPs immediately.

"The fact is we have no idea what will end up being in this Bill,” he said.

"We do know that MPs may not get a chance to debate this. If they do not insist on their democratic right, then MPs may not get any chance to scrutinise the Bill at all."

The House of Lords also raised concerns over the 'three strikes' plans to tackle illegal file sharing, which would see culprits kicked off the internet after multiple attempts to download copyrighted material. ISPs will have to police the ‘three stikes’ plans and members of the Lords argued this is wrong.

According to the plans, before any individual has their internet access restricted, an educational stage will commence whereby the person concerned will receive written warnings from their ISPs.

However, the House of Lords argued the educational phase should not contain any warnings and should instead be focused on how new business models can be developed between rights holders, ISPs and lawful file sharers to combat illegal downloading.

“The government would have a more positive story to tell were they to accept that stage one is genuinely an educational stage and to say that they will use it not only to inform people of the copyright situation but to encourage the various parties to get together to develop and provide lawful means of accessing copyright material,” said Labour peer Lord Larry Whitty.

Additionally, Whitty said he was worried that innocent people may be blamed if their internet connection is used or hijacked by others who commit illegal downloading offences.

He said the legislation will affect businesses, parents and the hotel trade, which provides internet access to guests, as well as colleges that have Wi-Fi facilities. He argued the three strikes policy had not been given enough consideration.

However, BIS again rejected Whitty’s concerns.

“When it was said that we had not given the matter enough scrutiny, I could not help but wryly reflect that a 48-clause Bill that has had about 430 amendments tabled to it seems to me a fair amount of scrutiny. If we took the time and trouble to look at how many times we have debated the same issue, I think that we would refute that charge,” said Lord Young.