Clause 17 of the Digital Economy
1. The Digital Economy Bill, introduced in the
House of Lords in November 2009, contains provisions concerning
a wide range of issues emanating from the Digital Britain Final
Report. In its scrutiny
of the Bill the Committee noted one important matter of constitutional
concern: the extent of the powers which the Bill confers on the
Secretary of State.
2. We decided to raise this matter in correspondence
with the Secretary of State (Lord Mandelson). We raised concerns,
in particular, about clauses 17 and 42. We are grateful to the
Secretary of State for his reply, which is reprinted in the annex
to this report. While we accept his explanation of and justification
for clause 42, we are not persuaded by what the Secretary of
State had to say in his letter about clause 17.
3. The House will recall that while the Delegated
Powers and Regulatory Reform Committee examines Henry VIII clauses,
where such clauses raise broader constitutional concerns this
Committee has also reported on them. The Henry VIII power in
clause 17 of this Bill is astonishing in its potential breadth.
This provision inserts a new section, s. 302A, into the Copyright,
Designs and Patents Act 1988. It allows the Secretary of State
to amend very substantial proportions of the United Kingdom's
statutory law of copyright. There is a purposive limitation to
the Secretary of State's power. As originally introduced in the
House, the Bill provided that the Secretary of State may exercise
the power only "where appropriate to do so having regard
to technological developments that have occurred or are likely
to occur". The Committee was concerned that this was a limitation
that would not lend itself to effective judicial supervision,
on the basis that it would be difficult for a court to rule that
a technological development is unlikely to occur. The clause makes
it clear that the power does not include the power to create or
modify a criminal offence, but it expressly includes the power
"to confer a power or right or impose a duty on any person"
and "to require a person to pay fees". Exercise of the
power is subject to affirmative resolution procedure, and must
be preceded by consultation.
4. We asked the Secretary of State to provide
examples of the sorts of provisions of statute law which he thought
might need to be amended under this power. He provided only one
example. The Committee was not persuaded that such a broadly
worded Henry VIII power is required in these circumstances.
The Committee notes that the Secretary of State's justification
for the power was that that "we need to be able to respond
effectively" if threats arise. But it does not follow from
this that a Henry VIII power as broad as that conferred by clause
17 is necessary. No explanation has been given, for example, as
to why fast-track legislation could not be used instead of relying
on ministerial powers to alter the statute book.
[In the recent example of the Video Recordings Bill Parliament
has shown that time can be made available for fast-track legislation
that is shown to be necessary.]
5. The Committee is aware that the Secretary
of State has subsequently tabled amendments to clause 17 (amendments
211A and 211B). Amendment 211B provides for the use of the super-affirmative
procedure. Amendment 211A amends the purposive limitation with
regard to the power. The reference to "technological developments"
has been removed and replaced with a new purpose concerning an
online copyright infringement having a "serious adverse effect".
This may extend the scope of the power. Further, if this
is the purpose of the power, the Secretary of State's justification
for the power (namely, that it is needed in order to enable the
Government to respond quickly to technological developments) no
6. Even with these amendments the Committee
remains of the view that clause 17 is constitutionally inappropriate
and should be omitted.
1 Cm 7650, June 2009. Back
See our Report on Fast-track Legislation, 15th Report for
2008-09, HL 116. Back
See our Report on the Video Recordings Bill, 5th Report
for 2009-10, HL 36. Back