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.[1] 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.[2] [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.[3]]

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 longer applies.

6.  Even with these amendments the Committee remains of the view that clause 17 is constitutionally inappropriate and should be omitted.

2   See our Report on Fast-track Legislation, 15th Report for 2008-09, HL 116.  Back

3   See our Report on the Video Recordings Bill, 5th Report for 2009-10, HL 36.  Back