Terrorist Offenders (Restriction of Early Release) Bill

Baroness Buscombe Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Gloucester. I am in favour of the Bill; it is a critical stepping-stone to fundamental and urgent reform that will require courage, honesty and acceptance of what is happening in this country, particularly in our prisons. Let us not forget that we are talking about sentencing for treason; a heinous act against our sovereign and our state that has become almost commonplace in this country in recent years.

A recent and brilliant article in the Spectator written by Ian Acheson, and already referenced by the noble Lord, Lord Marks of Henley-on-Thames, refers to the awful reality that our prisons are fuelling radicalism, not fighting it. He references the fact that, of 82,000 prisoners, about only 220 are terrorists—but “only” 220 is an appalling number.

Our sentencing rules do not take account of this reality. As a barrister with 43 years’ call, I believe that reform of our sentencing rules is absolutely overdue. They have not, to my mind, made sense for some time. As the noble and learned Lord, Lord Judge, has explained so well, they are overcomplicated and so often misunderstood. To many living in this country now, the current rules do not incentivise good behaviour. Rather, they are a sign of the weakness of the state and do not command respect. For many people, where there is a conflict between our rule of law and their religious beliefs, the latter takes precedence.

I want to use this opportunity to share with noble Lords a specific case which I feel speaks volumes and demonstrates a truth which has shocked me personally. I hope this will discourage any suggestion that a tough and fundamental review of our approach to terrorism and sentencing, and a radical reform of our prison and probation systems, are not needed.

I will not declare my source, for obvious reasons. However, I ask noble Lords to accept the veracity of what I am going to say. It relates to a Christian family I know, for whom I have great regard and to whom I pay tribute for their courage in sharing with me the experience of one young man among them who, four years ago, aged 20, did time in a category A prison. He has had mental health issues since about the age of five and suffers from a complex range of learning difficulties. During his time in prison, he was regularly approached by Muslim prisoners and encouraged to convert to Islam. The message, to be exact, was, “If you convert to Islam, you will have a better life in here, and we will protect you”. Various incentives and enticements were offered to put pressure on him to convert; one was the opportunity to meet, without being overheard by the prison authorities, every Friday at 1 pm for prayers, where “stuff” was planned. Other enticements were repeatedly offered to him—I did not press for details.

I asked his mother whether this was an isolated case. She said, “This is a massive issue across all our prisons and everybody knows about it, including the prison authorities, but they turn a blind eye because they do not want to be personally attacked, and, anyway, they would be accused of racism”. The main targets for conversion are young men like my source, who are vulnerable, often with complex issues, and who probably should not be in prison at all. To put it bluntly, they are easy targets. It seems that many convert to Islam for the promise of an easier life, and just some are able to forget what they have learned when they leave prison. However, let me be clear that this is not a sound reason for opposing the Bill, as suggested by the noble Lord, Lord Marks: it is not an argument that people should not remain longer in prison because of radicalisation. Rather, it means that we need fundamental reform.

I keep using the word “respect”, and I hope noble Lords will allow me to explain why. Some 23 years ago, I fought the parliamentary seat of Slough. I am still haunted by what young Muslim men would say to me then: “Peta, we like you on a personal level but we don’t respect you people because you are all weak, because you do not stand up for what you believe”. I entirely understand those young men and boys, who were, notwithstanding that they were born and brought up in Slough, living a hard, parallel life, stuck between two different cultures: one largely secular, in good local schools; the other within a strict regime of work and prayer at home, where their parents—their fathers in particular—demanded a separate way of life. I witnessed it for myself. In essence, they were not free to mix beyond the school gates with their school friends from other faiths. As for the girls and young women, I was not even allowed to look at them in their homes, let alone talk to them, even though I may have spoken to them earlier in the day in their schools.

1 recall saying to my husband back then, “We are storing up enormous trouble in this country, with so many largely intelligent, angry and isolated young men”—and that was before 9/11. Is it much different now? I doubt it. Why should it be while we just carry on talking about working together, spending more money on so-called local community projects and undertaking endless departmental reviews, leading to reports that are then shelved and metaphorically marked “too uncomfortable”?

In essence, our reform must take account of cause: of what leads to radicalisation and terrorism—the bigger picture, as the right reverend Prelate has said. We need to have the courage to face the truth and embrace the need for fundamental reform. It is time for tough love and to show wisdom and determination, given—as my noble and learned friend the Minister has said—the unprecedented gravity of the danger we face.

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[Baroness Chakrabarti (Lab)]

My Lords, the Opposition support the logic that terrorist offenders—even minor terrorist offenders—should not be released from prison on an automatic early-release basis; they should be subject to assessment by the Parole Board. That said, it is a daunting burden and a grave duty of any legislator to be faced with emergency legislation, let alone emergency legislation affecting both public safety on the one hand and the rule of law on the other. Inevitably, the Executive present us with an emergency, and such is the nature of sensitive intelligence—reports relating to specific offenders and their potential associates—that we lack equivalent information. Therefore, to some extent, we have to trust in the emergency, but it would be better if we could be granted a little more trust as well.

I have seen a letter sent by Peter Dawson, director of the Prison Reform Trust, to the Lord Chancellor and Justice Secretary. It is a letter to which I do not think there has yet been a reply, and no doubt there cannot be a reply this evening. However, it highlights one point that needs to be considered before any further legislation in this area. Peter Dawson is an experienced former prison governor and a distinguished former Home Office civil servant; I hold Home Office civil servants in quite a lot of regard. Following the debate on the Bill in the other place, he wrote:

“I noticed your response to the general issue raised by Kate Green MP about recall arrangements during the second reading debate. You mentioned that either arrest or charge on suspicion of a further offence might trigger recall, but of course recall can and very often is triggered at a much lower threshold. In the specific case of Sudesh Amman, in the days following his release, there was sufficient concern about an imminent risk to public safety for the police to mount a covert surveillance operation by armed officers. Why was that concern considered insufficient to justify a decision by the National Probation Service to protect the public by recalling Mr Amman immediately to prison, as the law currently allows?”


It might be that the Minister will not be in a position to respond to that in his remarks, but that kind of scrupulous detail in relation to the law as it currently stands needs to be considered before the deep dive that we are promised later in the year, after this specific measure, which broadly we support.

We also heard from the noble Baroness, Lady Jones, about rumours and suggestions that some of those serving offenders on whom this legislation will bite are not of the jihadi persuasion but might be minor “terrorist” offenders who have been convicted of criminality in connection with other kinds of activism; she mentioned an animal rights activist. No doubt the Minister can give us some answers in relation to the scope of this legislation and the particular offenders who will be affected.

It is also right that I echo concerns raised by the noble Lord, Lord Pannick, and others about the lack of an Intelligence and Security Committee at a time when we are looking at one version of emergency terror legislation, and why we do not yet have a Hall report. These other mechanisms are there to assist your Lordships’ House and the public in grave times such as these. There cannot just be emergency legislation in a vacuum without the supporting mechanisms that have been provided.

That said, I am prepared to accept the emergency, and have no choice in doing so. But if there is an emergency that requires this legislation—I do not mean this rhetorically; this is really the central thrust of my concern—it is, for the most part, an emergency of the Government’s own making. It is an emergency made by all those who failed for at least a decade to protect the Ministry of Justice from 40% cuts—some of the most savage cuts in Whitehall. That has a direct bearing on the nature of capacity, regime and intervention in the prison and probation systems. It is an emergency of overstuffed, understaffed prisons; some parts of prisons are almost controlled by dangerous offenders. As was eloquently put in the other place by no less than the former Prime Minister, prisoners—most of whom will leave at some time—are highly likely to be far more dangerous when they leave than when they entered; that includes prisoners suffering from mental health and substance-abuse problems who were convicted of minor non-terrorist offences, who have gone into the estate and been radicalised there.

With respect to the comments made by the noble Lord, Lord Blencathra, it is all very well to talk about minimum mandatory sentences or longer sentences for terrorists, but what about the other prisoners who are going into the estate? They would never be sentenced to life in prison, but they are being radicalised. I have even heard serving prison officers speak of their own vulnerability in this kind of regime—vulnerability to radicalisation as well as to physical harm. Such are the dangers of this crumbling criminal justice system on its knees, the cuts to the Prison and Probation Service, and a system too much run for private profit and not for public safety. I noted the remarks from the other side of the Chamber on the failure of privatisation in relation to accountability and public trust in the system.

I support the basic principle of this Bill: discretionary release in the hands of the Parole Board, rather than early automatic release for terrorist offenders. I am glad that that was the limited measure proposed in the light of this emergency, but of course there were many alternative briefings to which we were all subjected suggesting other things that the Government might have been considering and might yet consider. I have heard talk of derogations from the European Convention on Human Rights, of leaving it altogether, and of further experiments in executive punishment without charge or trial—all those have been mooted and briefed on. I am grateful to the Lord Chancellor, at least at the time being, for adopting this more limited measure, and indeed for taking the trouble to consider its compatibility with human rights and to make the Section 19 statement, as mentioned by the noble Lord, Lord Faulks, and others.

On the point of legality and the desperately interesting forensic debate that has gone on in your Lordships’ Chamber on Article 7 of the convention and common law traditions on retrospection—between a positively fantasy football league of eminent lawyers—I will say this. It is quite something to be faced with the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, on the one hand, and my noble and learned friend Lord Falconer and no fewer than three Independent Reviewers of Terrorism Legislation—the two former ones, and Jonathan Hall with his report—on the other. This suggests a grey area. I have always been completely forthcoming when I have believed that a measure is patently unlawful and will fall foul of the courts: this is not one of those cases. It is of course for the Government to investigate and ultimately defend the legality of their policy and legislation in the courts.

Your Lordships heard the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, eloquently explain the case law that supports the idea that to retrospectively change release arrangements within the envelope of a sentence does not offend the principle against retrospective punishment. However, your Lordships also heard from my noble and learned friend Lord Falconer, the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Garnier—another fantasy football team—about the danger that, whether or not this offends Article 7, it would certainly offend the sense of basic fairness of a lot of people and prisoners, which is quite important when trying to establish and promote the rule of law in our communities.

I therefore humbly submit to your Lordships that, in the light of that genuine grey area, and given that, whatever we would like, these provisions will almost certainly at some point be tested in the courts, it would be sensible for any Government to listen carefully to the amendment in the name of the noble Lord, Lord Anderson, and to adopt it if it presents no challenge to the basic public policy ambition of this legislation: that is, to prevent dangerous offenders being released automatically into the community while they still pose a risk. As your Lordships have heard from the noble Lord, Lord Anderson, my noble and learned friend Lord Falconer, and others, this amendment does no harm to that central ambition of the Bill: that in future, those convicted and sentenced of the relevant offences will not be eligible for release until the two-thirds point in their sentence, and not without the permission of the Parole Board. If the amendment were accepted by the Government, those already convicted, sentenced and serving in prison would not be released automatically as now, as they understood when they were sentenced. They will have to persuade the Parole Board, but at least they will be able to go to the board at the halfway point. It is to some extent a compromise: it does not offend the public protection ambition of the Bill but goes some way towards that sense of fairness and instinct against retrospection, whether it would ultimately fail in court or not. I will be particularly interested in what the Minister says about that amendment, which can only improve the legal defence ability of this legislation in the domestic court and the Strasbourg court.

However, even with that exquisitely drafted amendment and the wonderful seminar that some noble Lords enjoyed earlier today, this legislation will be vulnerable to challenge if adequate resources are not pumped into the prison and probation system so that offenders have a realistic prospect of engaging with programmes and of an early hearing before a properly resourced Parole Board. If those resources are not provided, the right to engage in programmes and to appear before the Parole Board will be completely illusory. Therefore, resources go not just to the practicality of trying to keep people safe but to the legality and efficacy of protecting prisoners’ rights as well. Resources are the central problem in all this.

Of course, there is no risk-free society, and this is an incredibly difficult area of public policy and legislation, as all noble Lords have acknowledged. However, it is so much harder because of the environment of savage cuts that has been created over the past decade. Even beyond that decade, our politics have not served this area of policy well; there has been a lack of resources, combined too often with overblown rhetoric, and even attacks on the rule of law itself. The rule of law binds not just citizens but Governments too, and if we undermine it by blaming judges and human rights instruments, and by treating it as an irritant, that message will go home to the public and to those who feel that they have just cause for disfranchisement. The rule of law is surely the one thing that binds us all together, not just in your Lordships’ House but in this country, even in polarised and difficult times. I hope that, when the Government and those on the Benches opposite engage with the deep dive that is yet to come after tonight, they will remember that and restrain the more carnivorous instincts in No. 10.

[Baroness Buscombe]

Does the noble Baroness believe that sharia councils do not interfere with our rule of law? Do they fully respect our rule of law?

[Baroness Chakrabarti]

There is one law of the land and it binds everyone. Sharia councils do not provide an alternative legal regime; there is one law of the land, which is what I am talking about. If people seek to argue otherwise—I take the noble Baroness’s point—they need to be disabused of that. There is one law of the land which binds us all, in this House, in government and in opposition; it binds the citizenry, the suspects and the victims. I think we can agree about that.

Assisted Dying

Baroness Buscombe Excerpts

Monday 6th March 2017 Lords Chamber

[Baroness Jay of Paddington]

To ask Her Majesty’s Government what assessment they have made of recent legislation on assisted dying in North America; and whether those laws provide an appropriate basis for legislation in England and Wales.

[Baroness Buscombe (Con)]

My Lords, I remind all Back-Bench speakers that they are time limited to one minute—and we have to be strict about that.

[Baroness Jay of Paddington (Lab)]

My Lords, I am grateful for the opportunity to raise this Question for Short Debate today. This House has a very distinguished record of authoritative, informed and wise debate about the very complicated and difficult issue of assisted dying. However, since 2015, when my noble and learned friend Lord Falconer’s Bill made considerable progress in this House but was then dropped at the time of the general election, and following a Bill in the House of Commons that failed, there has been very little opportunity to reopen the question of changing our law. I must say that the number of speakers this evening suggests that interest has not declined, and I apologise for the very short time that has been given to the debate.

While the UK Parliament may have been inactive in the recent past, the international picture has changed significantly. This is particularly true in North America, where Canada and several important jurisdictions in the United States have passed, and indeed implemented, laws to enable assisted dying. Overall, these new laws bear a striking similarity in their provisions and safeguards to those proposed in the Falconer Bill.

I have just spent a few weeks in the United States, including in Washington DC, where, as noble Lords are well aware, the political atmosphere is febrile and deeply divided. Nevertheless, on 18 February, the capital city of the United States became the latest place to bring an assisted dying law quietly into effect, without, as far as I know, even a single presidential tweet. It is too early to judge how that will work in practice, but what surprised me was the calm acceptance which greeted its introduction. The same has been true in California, the most populous and diverse state in the union, where legislation was passed in 2015. Colorado followed suit in 2016, after a referendum in which 65% of the population supported the law change.

Canada’s Parliament also acted last year, with Canada becoming the first Commonwealth country to legalise assisted dying. The Canadian decision came after a constitutional ruling from its Supreme Court. There are some lessons in that experience for the British situation, and my noble and learned friend Lord Falconer will address those.

It is very important to note that all the lawmakers in the USA have closely followed the state of Oregon’s original Death with Dignity Act, which was introduced as long ago as 1997. The citizens of Oregon now have two decades of experience of the Act, and the most recent report shows, once again, the stability that has always characterised its practice of assisted dying. In total, 1,127 Oregonians have made this choice in the past 20 years, amounting to less than 0.19% of all deaths over the same period. Interestingly, in 2016, the number of assisted deaths fell slightly, from 135 in the previous year to 133. The original tightly drawn eligibility criteria have not been challenged or extended beyond the terminally ill, and there have not been proven cases of abuse. The argument that changing the law leads always to a slippery slope of rising numbers and looser guidelines has been shown to be wrong.

Interestingly, Oregon’s hospice movement, which in the 1990s was opposed to a change in the law, now acts to support end-of-life options. Palliative care there is very highly rated, as indeed it is in this country, but unlike in Britain there is no suggestion that palliative care may always be an alternative to an assisted death. More than 90% of the state of Oregon’s citizens who choose to end their lives are already enrolled in the hospice system and the vast majority of them die at home in comfort. That same kind of experience is reflected in the newer statistics from other states where monitoring is now in place.

This is a gentle and compassionate approach to dying which is working effectively and safely for the minority who make the choice. I emphasise again that all the American laws are very similar to those proposed in the Falconer Bill, although my noble and learned friend’s proposals contain even more stringent safeguards, partly of course as a result of amendment in this House. Surely the expanding transatlantic experience should act as a positive guide to future legislation in this country.

Of course it would be wrong to suggest that although death with dignity is now an accepted choice for many North Americans, there was not fierce controversy when it was first mooted. However, what I find surprising is that some of the types of opposition which have so far seemed insurmountable in this country have not prevented change there. Let us take, for instance, the question of religious faith and belief. Americans are known to be more religious and certainly more observant than the British. Surveys suggest that almost three times as many citizens in that country attend a religious service about once a week, and yet within religious practice and faith there does not seem to have been the intransigent opposition to the concept of assisted dying either by faith leaders or their flocks that we have often heard here.

I was impressed by the statements of Governor Jerry Brown of California when he signed that state’s End of Life Option Act. Noble Lords may remember that Jerry Brown, who was indeed a Jesuit seminarian in his youth, said that he did not know what he would do personally if faced with a terminal illness but:

“I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill. And I wouldn’t deny that right to others”.


I am delighted that the noble and right reverend Lord, Lord Carey, is speaking in the debate, and I hope that others of our faith leaders will be able to follow what I would regard as the more open approach shown both by the noble and right reverend Lord and people such as Governor Jerry Brown.

Another source of rather adamant opposition to change in this country has been some of the professional organisations representing doctors. Obviously doctors must play a vital role in the safe practice of any assisted dying legislation. Again, the North American experience is instructive. In California and Canada the medical associations, which were initially concerned, have now adopted appropriate positions of neutrality to the new laws. This pragmatism has therefore usefully meant that they, doctors and other health professionals can be actively involved in both shaping good practice and guiding the development of safeguards for everyone involved.

While all this has been happening on the other side of the Atlantic, the situation here remains frozen, and today’s Parliament really does seem to be out of step with the overwhelming majority of the British public who, when they are surveyed, always support change. The evidence suggests that more and more people here are now assuming control over the end of their lives by taking the law into their own hands. In 2016, a record number of 47 Britons—those who could afford both financially and physically to do so—travelled to the Swiss organisation Dignitas for assisted deaths. A recent freedom of information request to local authorities revealed that each year more than 300 terminally ill people die by suicide, sadly often taking their lives alone so that they do not involve or incriminate anyone else.

It is now more than 20 years since I first became involved in this issue as a member of a Select Committee of this House. I said earlier that noble Lords have taken a leading role in the assisted dying debate, and perhaps unusually we have been widely commended for our thorough and proper approach. Now, in 2017, the North American experience shows that laws which closely resemble Bills that have been introduced in this House before can operate safely and successfully. I hope that the Government will make a positive assessment of these developments and reflect seriously on how they might be relevant to this country. I also hope that the business managers of the House will make it possible to have a more lengthy consideration of the current issues.

I am grateful to all those who are taking part in this debate, although as I say, I regret the shortness of time to speak. I am sure that noble Lords will continue to play a central part in developing legislation to reform our own laws.

Digital Economy Bill

Baroness Buscombe Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very interesting debate. We, particularly those of us of a certain age, often get to a point where we are scared of the technology that we are expected to use. We are in the hands of our children, who shout things like, “It’s intuitive! Just do it!”, but we do not have the faintest idea what we are trying to do. However, we should not be scared of technologies. History should tell us that the reason why Shakespeare’s Globe is outside the city walls of London is that people like us in those days felt that they were dangerous plays that should not be seen by too many people. Video nasties and indeed concerns about some of the issues that are in the Bill are examples of the same thing. We have to be careful that this is not just another “penny dreadful” story but a serious issue.

I was not that concerned about this matter in my own consciousness until I came across it personally and in relation to something that has already been mentioned in the debate. I work with a small charity that relies entirely on a website presence in order to try to help people who suffer from the condition that it serves. For the first seven or eight years of the charity’s life, we were ranked number one on a search engine—let us call it Google—so when you searched for the condition, we came up top. In the last six months, we have gone from top to, I think, 44th in the rankings for this condition, which means that no one now uses our services, rings up or communicates with us. We are now on page four of the search results and that turns out to have been achieved by a change in the algorithm, which prunes out the people who apply. The ISP put in a particular search term that managed to knock down the efficacy of the inquiries that were coming to us at our charity. So the charity, which was doing good work and reaching 2,000 or 3,000 people a year, is now reaching no one, and we cannot change that because the algorithm is behind a commercial confidential situation. So I pick up the points that are being made all round the Chamber about the need for us to get more clued up about this without being scared of it, and I support the amendment for that reason.

The second point that has been picked up, which slightly goes against the wise words of the noble Baroness, Lady O’Neill, is that, where an algorithm is helping to achieve a relatively straightforward systems approach, it is probably not as much of an issue as where it is substituting its judgment for yours. It is not knowing what that judgment is that is the problem, and that is where the points that have been made need to be picked up. That is something that we would all benefit from. Whether or not this is the right amendment, there is an issue here that will need to be pursued, and I look forward to hearing the Minister’s response.

[Baroness Buscombe (Con)]

My Lords, I thank noble Lords who have taken part in this very interesting debate. Clearly there is a principle upon which everyone is agreed, and that is that this is a serious and growing issue. It is certainly an issue that the Government take very seriously.

As my noble friend Lord Lucas has set out, the basis of the amendment aims to understand the impact of algorithms on users of digital services. As we have already heard, algorithms play an important role in modern life, from making recommendations for books you might like to read, to more important matters such as credit ratings and detecting fraud. Indeed, there is a real debate here on the extent to which the public are willing to compromise on what is termed privacy for a better service. Transparency itself is incredibly important in terms of knowing how information about oneself is used, for what and with whom it is being shared, and having some control over that.

--- Later in debate ---

[Baroness Buscombe]

I believe that my noble friend’s idea is very good. We hope to hear from the Royal Society and British Academy later this year and, on the basis of their recommendations, it might then be timely to have a debate in your Lordships’ House.

[Lord Lucas]

My Lords, I am very grateful to all who have spoken in this debate. This is something which the Government should have their mind on. I am delighted that my noble friend on the Front Bench says that the Government are paying attention to this, and that we will get something we can get our teeth into later this year. I beg leave to withdraw my amendment.

--- Later in debate ---

Moved by

[Baroness Buscombe]

228: After Clause 84, insert the following new Clause—
“Communication devices used for drug dealingPrevention or restriction of use of communication devices for drug dealing
After section 80 of the Serious Crime Act 2015 insert—
“80A Prevention or restriction of use of communication devices for drug dealing(1) Regulations may make provision conferring power on a court to make a drug dealing telecommunications restriction order.(2) “Drug dealing telecommunications restriction order” means an order requiring a communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices in connection with drug dealing offences.(3) Without limiting the action that may be specified, it includes—(a) action that relates to a specified device;(b) action that relates to a specified phone number or something else that may be used with a device.(4) In this section “drug dealing offence” means an offence under section 4(3) of the Misuse of Drugs Act 1971 or section 5 of the Psychoactive Substances Act 2016; and a communication device is used in connection with a drug dealing offence if it is used by a person (“the user”) in the course of—(a) the user committing a drug dealing offence,(b) the user facilitating the commission by the user or another person of a drug dealing offence, or(c) conduct of the user that is likely to facilitate the commission by the user or another person of a drug dealing offence (whether or not an offence is committed).(5) Regulations under this section must provide for drug dealing telecommunications restriction orders to be made only on the application of—(a) the Director General or Deputy Director General of the National Crime Agency, or(b) a police officer of the rank of superintendent or above.(6) Regulations under this section must—(a) specify the matters about which the court must be satisfied if it is to make an order;(b) make provision about the duration of orders (which may include provision for orders of indefinite duration);(c) make provision about the giving (by a communications provider or any other person) of notice of the making of an order; (d) make provision about variation (including extension) and discharge of orders;(e) make provision about appeals.(7) Regulations under this section must provide—(a) for applications for drug dealing telecommunications restriction orders to be made and heard without notice of the application or hearing having been given to persons affected (or their legal representatives), subject to subsection (9)(a);(b) for applications to be heard and determined in the absence of persons affected (and their legal representatives), subject to subsection (9)(b);(c) for applications to be heard and determined in private.(8) Regulations under this section must provide for a court hearing an application or an appeal to have power to restrict disclosure of information submitted in connection with the application or appeal if satisfied that it is necessary to do so in the public interest.(9) Regulations under this section may—(a) make provision for a communications provider affected by an application to be given notice of the application or hearing;(b) make provision for a communications provider affected by an application to be present or represented at the hearing and determination of the application;(c) in connection with any provision under paragraph (b), make provision for a communications provider to have a right to make representations;(d) make provision for a drug dealing telecommunications restriction order to specify that a requirement of the order is not to apply in particular circumstances;(e) make provision authorising a court to include in an order a requirement for the person applying for the order to pay any or all of the costs of complying with it;(f) make provision about time limits for complying with orders;(g) make provision about enforcement of orders (which may include provision creating offences);(h) make provision about costs (or, in Scotland, expenses) in respect of legal proceedings;(i) make provision about compensation;(j) make different provision for different purposes or areas;(k) make incidental, consequential, supplementary or transitional provision, including provision applying any enactment (with or without modifications).(10) The power to make regulations under this section is exercisable by statutory instrument made by the Secretary of State.(11) A statutory instrument containing regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.(12) In this section—“communication device” means an item specified in section 1(3) of the Prisons (Interference with Wireless Telegraphy) Act 2012 (mobile telephones etc);“communications provider” means a person providing a telecommunications service;“court” means—(a) in relation to England and Wales, the county court;(b) in relation to Scotland, the sheriff;(c) in relation to Northern Ireland, a county court;“enactment” includes— (a) an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;(b) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;(c) Northern Ireland legislation;“telecommunications service” has the meaning given by section 261 of the Investigatory Powers Act 2016.””

[Baroness Buscombe]

My Lords, Amendment 228 introduces a new clause with a regulation-making power that will enable the police and the National Crime Agency to apply to the courts for an order compelling communication providers to take whatever action the order specifies to prevent communication devices being used in connection with drug-dealing offences. Such action may include blocking mobile phone handsets and SIM cards and preventing particular phone numbers from porting between networks, as well as preventing access to wi-fi networks. This is an enabling provision that provides for the Secretary of State to set out in regulations details of how applications are to be made and dealt with in the courts. The amendment broadly mirrors Section 80 of the Serious Crime Act 2015, which provides for a similar power to prevent the use of mobile phones in prison.

The amendment responds to an operational requirement of the police, who require support in tackling the issue of county lines—the police term used to describe gangs in large urban areas who supply drugs, especially class A drugs, to suburban areas and market and coastal towns. To support their market expansion, gangs recruit and exploit children and vulnerable adults through deception, intimidation, violence, debt bondage and/or grooming. They are used to carry drugs and money.

County lines gangs’ criminality relies on the unrelenting recruitment, coercion and systematic exploitation of the most vulnerable including looked-after children, young people reported as missing and children from broken homes. Vulnerable adults are also exploited and can lose control of their home to gangs who use it as a base to distribute drugs, in a practice known as cuckooing.

The phone line is central to this model and to the gangs’ ability to deal drugs out of area in this way. When establishing a new county lines market, gangs will promote a number locally as the number to call to buy drugs. That “deal line” is therefore at the very core of this criminal model. Dealing drugs is a serious criminal offence and the police are committed to securing prosecutions wherever possible. However, as the deal line is held well away from local street-level drug-dealing activity and it will be an anonymous pay-as-you-go line, both those factors make it hard for the police to achieve prosecutions against an individual for the activity on that line.

Each deal line has the potential to interact with hundreds of customers and facilitate thousands of deals 24 hours a day. Disrupting these lines will have a significant impact in disrupting the gang-related drug supply and associated exploitation. There is currently no legal power in place to compel communication providers to disconnect phones used in county lines drug-dealing activity. We must ensure that the police have the powers they need to tackle this issue.

This legislation is part of a wider ongoing multiagency response, including safeguarding partners, to tackle county lines gangs, but this new order is a critical tool that will render this operating model ineffective and unattractive through the disruption of it. Amendments 236 and 241 are consequential. I beg to move.

[Lord Clement-Jones]

My Lords, we are broadly supportive of the amendment. We want to put on record that we have our doubts about the efficacy of the provisions, but obviously if they work then we will be thoroughly delighted. We are slightly doubtful about whether these measures will ultimately be effective, though, and I am sorry that my noble friend Lord Paddick is not here to add his experience to the debate.

Digital Economy Bill

Baroness Buscombe Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I thank all noble Lords who have taken part in this important debate. It is good to have this debate.

This group of amendments seeks to make extensive changes to the broadcast media public interest considerations that may be relied upon to intervene in certain media merger situations and the fit and proper test that Ofcom has a duty to apply to all those who hold a broadcasting licence in the UK.

Before I get into the detail, the debate has included views from across the House about the parties to the Fox/Sky merger. There is a proposed merger currently in train, which it is very likely the Secretary of State will need to consider under her existing powers. As the Secretary of State noted in her written statement of 10 January, any decision will be a quasi-judicial one. It is important that she is able to act independently and that the process is scrupulously fair and impartial. As a result, neither I nor any Minister can comment on the merits of this specific case. I will have to restrict my comments to the substance of the amendments themselves.

I have noted carefully the views of noble Lords, and of the noble Lord, Lord Puttnam, in particular. I have a transcript here of some of the debate of the then Communications Bill, in 2003. Of course, the noble Baroness, Lady O’Neill, remembered the key issue about citizen and consumer. Indeed, Lord Puttnam and I met outside this Chamber to try to come to terms with our approach to this issue—I was part of Her Majesty’s Opposition in those days. A lot was achieved. Of course, it was a government amendment on Third Reading which created the plurality and public interest test. It was my noble friend Lord Lansley, who is unfortunately unable to be in his place tonight, who sat on the draft legislative committee on that Bill, and who retains that interest.

Drawing all the contributions together brings us to a single question: do the Government believe they have the necessary powers to allow them to deal with complex media mergers and a concentration of ownership that would be damaging to media plurality?

In our view, the tests introduced in 2003 are wide-ranging and provide the Secretary of State for Culture, Media and Sport, who is responsible for media mergers, with a wide discretion to intervene. For example, in cases where there are concerns about media plurality, or where a bidder does not have a genuine commitment to the UK’s well-established rules on content standards and cross-promotion, which are overseen by Ofcom, the Secretary of State can consider those concerns as part of her deliberations as to whether to intervene in the proposed merger.

Turning to the amendments themselves, given the discretion to intervene based on the existing media public interest considerations, we do not believe it is necessary to add the additional requirements set out in Amendment 229ZA and would argue that these are matters that can already be considered under the existing tests. In addition, the matters set out are considered by Ofcom on an ongoing basis in its regulatory role.

There are three existing broadcast media public interest considerations that the Secretary of State can take into account in deciding whether or not to intervene in a merger. The first is the need for a sufficient plurality of persons with control of media enterprises—I stress, plurality of persons. The second is the need for a wide range of broadcasting which is both high quality and appeals to a wide variety of interests. In other words, the focus must be on content and plurality of content. The third is the need for persons carrying on media enterprises to have a genuine commitment to broadcasting standards. Together, these powers give the Secretary of State discretion to consider a wide range of matters in deciding whether the specified public interests may be relevant, and whether or not to intervene in a particular merger.

Amendment 229ZA, which inserts new Section 58(2D) into the Enterprise Act, would allow the Secretary of State to intervene in a media merger based on the need for those holding broadcasting licences to be a fit and proper person, as noble Lords have said today. The issue of who is a fit and proper person to hold a broadcasting licence is a regulatory matter for Ofcom. Ofcom is under an ongoing duty to remain satisfied that those holding broadcasting licences are fit and proper to do so, under Section 3 of the Broadcast Act 1990 and Section 3 of the Broadcast Act 1996. Ofcom’s assessment of these matters will consider the conduct of those who have material influence or control over broadcast licensees and will consider a wide range of factors in assessing who is fit and proper, including the matters set out in the amendment.

The amendment also proposes a new Section 58(2E), which is aimed at allowing intervention on the basis that the governance of broadcast media enterprises providing news needs to include sufficient safeguards for editorial freedom in the provision of full and accurate news services. I entirely accept—and the Government entirely agree with noble Lords on this—that the issue of governance is crucial, although we discussed in earlier debates today that the issue of accurate news is becoming a very difficult one and will exercise all our minds in the coming months. It is a long-established condition of broadcast licences in the UK that news is reported with due accuracy and impartiality, as set out in Ofcom’s broadcasting code. Ofcom, as the regulator, governs compliance with this requirement of the code.

The matters set out in the amendment at proposed new subsection 58(2F) would be dealt with by licence conditions and Ofcom’s broadcasting code, including provisions on fair and effective competition and the cross-promotion code, as well as matters that would be considered as part of the fit and proper person test.

[Lord Stevenson of Balmacara]

I thank the Minister for going through this in so much detail. The issue raised in the first part of the amendment on the fit and proper person test was not whether the powers exist but how they would be triggered. The worry is that they would be triggered post hoc rather than anticipatorily with regard to a merger. Do the Government accept that there is a difficulty here?

[Baroness Buscombe]

The Government do not accept that there is a difficulty in this. The important issue is that the powers remain broad in their application. To the best of my understanding, though, there is no difficulty regarding when they are triggered.

[Lord Puttnam]

What I believe the noble Lord, Lord Stevenson, is saying, and it is very important, is that there is an accidental anomaly in the Bill. As someone who, like the Minister, pored over every word of it, I take some responsibility for this, but it is extraordinary— I even referred to it as bizarre—that the bar that is set for an ongoing licensee is higher than the bar for a bidder. Surely common sense requires that someone bidding has to reach the same standards of honesty and probity that are required of an ongoing licensee. There is an anomaly, and I am trying to help the Government to get rid of it because it should not be there. Obviously there should be a bar, but it should apply to anyone applying for a licence just as it does to anyone who has an ongoing licence that is being looked at.

[Baroness Buscombe]

I am going to wait for a reply on that. I would like to be able to respond tonight, rather than saying that I will write to noble Lords; if the Committee will bear with me, let us just wait and see. I understand what the noble Lord is saying about bidders meeting the same standards as those who already have a licence.

It is a long-established condition of broadcast licences in the UK that news be reported with due accuracy and impartiality, as set out in Ofcom’s broadcasting code. Ofcom, as the regulator, governs compliance with this requirement of the code. The matters set out in the amendment at proposed new subsection 58(2F) would be dealt with by licence conditions and Ofcom’s broadcasting code, including provisions on fair and effective competition and the cross-promotion code, as well as matters that would be considered as part of the fit and proper person test. I have been informed that the fit and proper test can be looked at by Ofcom only once they hold a licence, but we believe that the provisions on genuine commitment to broadcasting standards give the Secretary of State the powers she needs in this regard.

[Lord Puttnam]

I think that we all deserve to be very clear about this: can we be sure that the Secretary of State will apply exactly the same standards to a bidder as she would require of an ongoing licensee?

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[Baroness Buscombe]

There is nothing coming from the Box—I think that I will have to come back to this point.

Ofcom’s role as a regulator is to have ongoing oversight of these matters. The important point, however, is that the Secretary of State’s power to intervene in media mergers provides an additional layer of protection for media plurality in the UK. In the case of Amendment 229ZA, the very fact that these matters are part of the regulatory broadcasting framework with which licence holders must comply means that they can be taken into account by the Secretary of State in deciding whether or not to intervene, particularly in terms of the impact that such matters have on the need for persons holding broadcast licences to have a commitment to broadcasting standards. In addition, any merger must also be judged on competition grounds by the relevant competition authority, and the existing competition law. The Government believe that the existing provisions in the Enterprise Act 2002 already give the Secretary of State wide and proportionate powers in relation to proposed media mergers. While we understand the intent behind this amendment, we do not judge that it is necessary.

Amendment 229ZB would similarly seek to add unlawful acts or corporate governance failures as specific matters that Ofcom could take account of when determining, on an ongoing basis, whether an individual or a corporate body satisfies the fit and proper person test, which will include an assessment of those with material influence or control over such bodies. Ofcom can and does take into account such matters and this amendment is therefore unnecessary. There is also a risk that this amendment may potentially narrow Ofcom’s discretion here, although I acknowledge that that is not the noble Lord’s intention.

From a legal standpoint, there is always a danger in seeking narrowly to define the parameters of the law. Indeed, I sought to do just that during our debates on this issue back in 2003. I was seeking to limit the scope—the boundaries—of the Government’s intended plurality test; I wanted the law to be narrowly defined and to target specific circumstances in which the plurality and public interest test could apply. The noble Lord, Lord Puttnam, disagreed with me, saying that breadth is very important. Of course, it was he who won the day. So I do think it important to take care when trying to narrowly define what does and does not apply, thus narrowing the scope, as that can constrain the whole approach. It is important to take this into account when considering these amendments overall.

The Government therefore believe that the powers introduced in 2003 are sufficiently wide to deal with complex media merger cases which raise public interest concerns and, for this reason, we ask the noble Lord to withdraw his amendments.

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[Baroness Buscombe]

My Lords, I begin by apologising to the noble Baroness, Lady Finlay of Llandaff, that she is, for the second time running, almost a tail-end Charlie. It was the same on Monday evening and she was extremely gracious in waiting for so long for us to get to her amendment. I welcome her amendment, which highlights an issue that most of us here are acutely aware of when buying goods and services online; namely, the consequence of not ticking a box or, in some cases, unticking a box.

The proposed new clause imposes a fine not exceeding 10% of a seller’s annual gross operating profit if a seller of goods and services on the internet were to retain, share or use the contact information of a buyer without the buyer’s consent to do so. It also makes it a requirement that websites provide a tick-box which is not pre-filled, as a means by which an individual can demonstrate their acceptance of having their contact information processed by the seller.

Although I accept the spirit of the amendment, I do not believe it is necessary, for the following reasons. Clause 77 already places a statutory duty on the Information Commissioner to publish a direct marketing code of practice. Putting the ICO’s direct marketing code of practice on a statutory footing will make it easier for the Information Commissioner to take enforcement action against those organisations in breach of the direct marketing rules under the Data Protection Act and the Privacy and Electronic Communications Regulations. The current direct marketing rules are also clear, stating as follows:

“Organisations will need to be able to demonstrate that consent was knowingly and freely given, clear and specific, and should keep clear records of consent. The ICO recommends that opt-in boxes are used”.


The general data protection regulation—GDPR—which will come into force in May 2018 will introduce tough new measures on consent and will place obligations on data controllers to demonstrate clearly how they obtained consent when processing personal data, such as contact information. Silence or pre-ticked boxes as a form of consent will not be permitted under the GDPR. The GDPR will also allow tougher penalties to be imposed on organisations in breach of the rules: up to 4% of the organisation’s total global annual turnover, or €20 million.

The noble Baroness also suggested that the time limit for retaining personal information should be limited, for example, to a year. The reality is that time is not specified: one should hold on to the information only as long as is necessary to process payment or whatever the application is made for. For these reasons, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister for that reply and for welcoming the spirit of the amendment. Just for the record, the reason for specifying a year if someone has opted into the mailing list is that over time their circumstances might change. They might want to withdraw their consent but not be clear about how to do it. I hope the Information Commissioner will consider that. People might also lose cognitive function over time and therefore become much more vulnerable to scams than they were when they opted in. So I hope that a time limit is also introduced. However, on the basis of the Government’s response, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Baroness Buscombe]

236: Clause 89, page 90, line 12, at end insert—
“( ) section (Prevention or restriction of use of communication devices for drug dealing);”

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Moved by

[Baroness Buscombe]

237A: Clause 89, page 90, line 15, after “except” insert “Chapter 1 so far as that Chapter relates to the disclosure of information to or by a water or sewerage undertaker for an area which is wholly or mainly in Wales,”

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Moved by

[Baroness Buscombe]

239B: Clause 90, page 90, line 24, at end insert—
“( ) Sections (Disclosure of information to water and sewerage undertakers) and (Disclosure of information by water and sewerage undertakers) extend to England and Wales only.”

--- Later in debate ---

Moved by

[Baroness Buscombe]

240: In the Title, line 8, after “functions;” insert “to make provision about internet filters;”

Digital Economy Bill

Baroness Buscombe Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Buscombe (Con)]

My Lords, I reassure the noble Lord, Lord Tope, that we recognise this problem, although I have to admit that I certainly did not spend my Sunday reading the trading standards review.

Amendments 75 and 76 seek to impose a commitment to review and report on the sale and cost of counterfeit electricals being sold online. The sale of counterfeit goods of all kinds, not just electrical goods, has, as noble Lords said, the potential to cause consumer and economic harm by damaging legitimate traders and often supporting organised crime.

This is an issue the Government take extremely seriously, and that is why the Intellectual Property Office is committed to tackling counterfeiting of all kinds. We do this by working through our IP attaché network in manufacturing countries, targeting import routes in conjunction with UK Border Force and targeting UK sellers and distributors along with trading standards and police services across the UK.

We have heard reference to the challenges of the online world and sales via social media. We absolutely recognise that, and that is why we have supported some very successful work through Operation Jasper, working with police and trading standards to tackle the sale of counterfeits through social media sites.

The full range of work undertaken by government in this area is outlined in the IPO’s IP enforcement strategy, which was published last year. This strategy makes a number of commitments that are very relevant to the ideas proposed in these amendments. The strategy commits the Government to further improving the reporting of IP crime as well as to developing a credible methodology to measure the harm caused. Work is also ongoing with academics to build the structures necessary for commercial entities to share information that they hold about levels of infringement in a safe manner. The IPO also hosts the IPO crime intelligence hub, which is able to receive, develop and disseminate intelligence on IP crime, whether online or physical. The hub is in regular contact with the UK’s leading online sales platforms, and they are continually developing better mechanisms for sharing information about sellers and products.

In addition to this, the IPO, on behalf of the IP crime group, which is a collection of government departments, industry bodies and enforcement agencies which work to tackle IP crime, publishes an extensive report each year on a wide range of IP infringement, including counterfeit electrical goods. The IPO is also working with Citizens Advice to see how it can offer better information to consumers so that they in turn can make more informed purchasing choices. Finally, the IPO is working to encourage trade associations voluntarily to share information about sales of counterfeits that raise safety concerns.

In light of all the things that the Government and others are involved in, I hope the noble Baroness will withdraw her amendment.

[Baroness Janke]

I thank the Minister for the information she has shared with us. It is very encouraging. However, there is a feeling that this issue has been around for a very long time and that perhaps stronger enforceability is needed to do something about it. I read that eBay is now producing its own mechanism for preventing the sale of counterfeit goods and that other online retailers will be looking at that, but it still seems that the ability to enforce action on this is missing. I hope to look at the work the Government are already doing on this and consider its future contribution and then consider whether to return with this matter at a later stage. I beg leave to withdraw the amendment.

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[Lord Stevenson of Balmacara (Lab)]

My Lords, it is extremely kind of the noble Lord, Lord Foster of Bath to introduce my amendment for me, saying that he was not going to speak to it and then covering all the points I was going to make. That means we will move a little faster than we would otherwise have done. I think I can limit my speech to three points, in the sure and certain knowledge that the noble Lord, Lord Clement-Jones, will cover any points that I do not cover in great detail.

We understand that there is a voluntary code in circulation that has been offered to all parties, and it is thought that it might be signed some time this week—at least, that is the deadline that the Government have given. If that is the case, as the noble Lord, Lord Foster, says, then that is obviously good news and takes us a step down the road, but my amendment would be necessary if not everyone who has been offered this signs up to it, which I think is quite likely. There may be new entrants and other companies that participate in this area for which the activities that facilitate copyright infringement by users will remain a problem, and of course there may be changes in technology that we cannot even anticipate at this stage that may make it necessary, as adumbrated by the amendment, for the Secretary of State to return to this issue in future. For all the reasons given by the noble Lord, Lord Foster, this is a helpful amendment, intended to ensure that this long-running problem gets solved. I hope very much that the Government feel able to accept it.

[Baroness Buscombe]

My Lords, on Amendment 77, over recent years the UK has made great strides in the enforcement of intellectual property, and we are now judged to have one of the best IP enforcement regimes in the world. This is definitely a position that we are keen to maintain, and the Bill sends a clear signal that the Government believe copyright infringement is a serious matter, irrespective of whether it is online or offline. This includes measures to increase the penalty for online copyright infringement from two years to 10 years. We understand that there are concerns in the music industry particularly that online intermediaries need to do more to share revenues fairly with creators, which the amendment seeks to tackle. However, we need to find balanced solutions that provide clarity without undermining basic freedoms or inhibiting the development of innovative digital models.

As the e-commerce directive is EU single-market legislation in origin, we will in effect have to wait until after we exit the EU and then possibly initiate a debate as to whether this regime, or indeed the e-commerce regulations as a whole, is still fit for purpose. We are also wary of making piecemeal changes to this important regime that has helped to foster the development of online services and has been helpful to the development of the UK’s burgeoning tech sector without a proper debate involving all parties.

That said, the current law, including the exemptions from liability, has fostered an open and innovative internet, giving online services the legal certainty required to start up and flourish. This has been good for creators, rights holders, internet businesses and consumers alike. Platforms, like all businesses, have a role to play in helping to remove copyright-infringing material, and there is no place for a system that encourages copyright infringement online. However, the UK Government are fully committed to ensuring that our creative industries receive fair remuneration for their work. We want to see creators remunerated fairly, while encouraging investment in new content and innovative services. We will carry forward these principles when engaging at policy level with the EU while considering our own UK-based solutions.

The Government are clear that we must maintain our rights and obligations as members of the EU until we leave. That means that we carry on making arguments within the EU concerning our preferences for EU law. Once we leave the EU, we may choose to reconsider a range of issues, including the limited liability regime, but for now, government policy remains unchanged. The European Commission has recently published a series of copyright proposals in that area, and we are in the process of carefully considering those proposals. While we remain a member of the EU, we will continue to engage with policy development in this space, alongside considering the development of our own copyright framework.

Amendment 79 would mean that the Government take a power to impose a code of practice on search engines, to dictate how they should work to prevent copyright infringement. The return of that suggestion, which was also discussed in another place, gives me an opportunity to update noble Lords on progress in this important area. Since the idea was last discussed in the other place, IPO officials have chaired a further round-table meeting between search engines and representatives of the creative industries. While there are still elements of detail to be settled, the group is now agreed on the key content of the code and I expect an agreement to be reached very soon. All parties have also agreed that the code should take effect, and the targets in it be reached, by 1 June this year. The search engines involved in this work have been very co-operative, making changes to their algorithms and processes, but also working bilaterally with creative industry representatives to explore the options for new interventions, and how existing processes might be streamlined. I understand that all parties are keen to finalise and sign up to the voluntary agreement, and so we believe there is no need to take a legislative power at this time.

Surely it is better to act on a co-operative basis now, and start tackling this serious issue right away. If, however, a voluntary deal cannot be achieved, we will re-evaluate our options. I hope therefore that the noble Lord is reassured, and feels able to withdraw the amendment.

[Lord Foster of Bath]

My Lords, I thank the Minister for her response. On the second amendment, my concern is that although she is optimistic that we will have a robust agreement in place, if that does not happen—or if the agreement breaks down at a future date, for whatever reason—she has said merely that the Government will re-evaluate their position. She will be as aware as I am of the difficulty of bringing new legislation before your Lordships’ House to address any decision they might make at this time. The amendment would provide that backstop mechanism if it is needed in the long run, which is why I hope we will have an opportunity to discuss that at further stages of the Bill.

On the first amendment, the Minister has not been able to reassure me that the Government are committed to introducing appropriate legislation if the EU legislation has not been finalised at the time we leave the European Union. I hope therefore that we will have an opportunity to discuss that matter in more detail on a future occasion. For the time being, however, with an opportunity for us to reflect on what the Minister has said, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Buscombe]

My Lords, I thank the noble Lord, Lord Clement-Jones, for raising this issue. Our creative industries ultimately depend on the efforts of authors, musicians and other creators, and I agree with the principle that they should be fairly remunerated when their works are used. We want to create an environment where the UK’s creative industries can continue to thrive and retain their world-leading edge. The creative content tax reliefs are one of the Government’s flagship policies, and the film tax relief alone supported over £1 billion of expenditure in the UK in 2015-16. The Government are also investing in skills to create a pipeline of future talent. Since 2013, we have made available up to £20 million match funding to the skills investment fund to help employers address priority skills needs in the screen sector. Over the last 18 months, this has supported more than 500 graduate placements.

The amendment would require those organisations exploiting copyright works via licences to provide the relevant creators with regular information on their use and the revenue they generate, and states that this obligation could be met by complying with a code of practice determined at sector level. It would also provide creators with recourse to court if these requirements are not adhered to. The principle of transparency is an important element of well-functioning markets. I am aware that some creators and their representatives find it difficult to access information on the use of their works owing, for example, to difficulties in negotiating suitable contractual terms. I am, however, happy to confirm to your Lordships’ House that the Government are already engaged in discussions to address this issue. The European Commission has made proposals in this area as part of its current draft directive on copyright, and the UK will actively engage in these debates while we remain a member of the European Union. As such, I hope the noble Lord, Lord Clement-Jones, will understand the Government’s wish to allow this process to develop before considering the case for domestic intervention.

I welcome the noble Lord’s recognition in his amendment of the important role that collectively agreed industry standards can play in this space. Creators and publishers alike have highlighted the role that such standards can play in improving transparency and fairness. Examples in the UK include the Publishers Association’s Code of Practice on Author Contracts, and the fair digital deals declaration operated by the Worldwide Independent Network. I believe that it is worth giving careful consideration to the part that these industry-led initiatives can play, and I hope the debate at EU level will be a chance to explore that. With this explanation, and the assurance that these issues are under active consideration, I hope the noble Lord will withdraw his amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for an extraordinarily well-crafted response—it seemed to throw bouquets in various directions, but I am not quite sure where the petals will fall at the end of the day. It was splendidly positive at the outset, and I felt a speech on industrial policy for the creative industries might be coming on. I thank the noble Earl, Lord Clancarty, for his very supportive contribution.

The Minister talked about transparency being an important element of a well-functioning market and went on to talk about codes of practice, the Government’s active engagement in discussions of elements of the EU draft directive, and so on, but she never actually agreed that the principle of transparency should be incorporated into UK law. Clearly, if the EU directive is passed within the two-year period after notice of Brexit is given, it may well be incorporated into UK law. However, the Minister did not say, “Yes, and moreover, given the call for evidence, we have heard the evidence on transparency and we fully support that element of the directive”. It was rather a case of saying, “Let’s keep talking and actively engaging”, and so on and so forth. I suspend disbelief slightly given that the Minister supported the principle but I am not sure she went so far as to support its incorporation into law. That is a rather different matter. We may well return to this issue on Report. In the meantime, I thank the Minister and beg leave to withdraw the amendment.

Digital Economy Bill

Baroness Buscombe Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

Moved by

[Baroness Buscombe]

86: Clause 33, page 32, line 31, leave out from “behaviour”” to end of line 33 and insert “means conduct that—
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”

[Baroness Buscombe (Con)]

My Lords, this group consists of mainly technical amendments to make sure the Bill works in the way it is meant to. Although they are technical, they are important. They fall into four broad subject areas: whistleblowing and journalistic freedoms; the meaning of “anti-social behaviour”; references to the Investigatory Powers Act; and the description and powers of devolved authorities.

In relation to whistleblowing and journalistic freedom, the first series of amendments relates to the new criminal sanctions for unlawful disclosure of personal information disclosed under the powers. Concerns were raised that the clauses as drafted could criminalise disclosures made by whistleblowers and journalists making disclosures in the public interest. This was never the Government’s intention. These amendments make sure that disclosures made by whistleblowers and journalists will not be subject to criminal sanctions.

There is a distinction here in terms of how the amendments address HMRC information and non-HMRC information. In respect of non-HMRC information, the amendments introduce additional exemptions to the general prohibition on further disclosure to cover “protected disclosures” under the Employment Rights Act 1996, which will protect whistleblowers pursuing the proper channels for disclosure. Disclosures made for the purposes of journalism are also removed from the criminal sanctions, provided that the disclosure is in the public interest.

There are already separate provisions in each of these chapters for personal information disclosed by HMRC. These amendments make clear that the criminal sanction for unlawful disclosure applies only to an official who wrongfully discloses HMRC information outside the permitted scope of the information gateways in Part 5 of the Bill at Chapters 1, 3, 4 and 5. This brings the provision into line with HMRC’s statutory regime in the Commissioners for Revenue and Customs Act 2005 and its other statutory information gateways.

I am conscious that the noble Lords, Lord Stevenson of Balmacara and Lord Collins of Highbury, have two amendments that relate to this section, Amendments 138A and 146A. I suggest that I reply to those amendments separately after hearing from noble Lords.

The second series of amendments concerns the definition of anti-social behaviour. Chapters 1, 3, 4 and 5 of Part 5 all contain a general rule restricting the use of information disclosed under these powers to the particular purpose for which it was shared and a general prohibition on further disclosure. There are a number of exceptions to these rules. A previous amendment added an exception enabling disclosures made for the prevention of anti-social behaviour. The definition as currently drafted needs to be adjusted to work in Scotland and Northern Ireland. These amendments provide a revised definition that works across the UK.

In relation to reflecting the enactment of the Regulation of Investigatory Powers Act, the third series of amendments is also minor and technical in nature. The public service delivery, debt, fraud, research and statistics clauses provide that information cannot be disclosed under these powers if that would contravene the Data Protection Act 1998 or if it is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000—commonly known in your Lordships’ House as RIPA. The Investigatory Powers Act 2016 received Royal Assent last December and will replace RIPA. These amendments replace the references to RIPA with references to the equivalent provisions in the IPA, with a provision for RIPA until that Act is fully in force.

Regarding devolved public authorities, the final series of amendments facilitates information sharing across the United Kingdom, including by and with public authorities in devolved Administrations. The amendments broadly fall into two categories, which I will take in turn. The first category provides personal information disclosed by Revenue Scotland and the Welsh Revenue Authority with equivalent protection to that given by Clause 60 to personal information disclosed by HMRC. In order to protect information relating to taxpayers, these two new clauses provide, as is the case for personal information disclosed by HMRC, that persons who are processing Revenue Scotland or Welsh Revenue Authority information cannot further disclose that information without the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable. Secondly, reflecting the Government’s amendments to Clause 60, the amendments provide that persons who receive Revenue Scotland or Welsh Revenue Authority information under Clause 57(1) also cannot further disclose that information with the consent of Revenue Scotland or the Welsh Revenue Authority, as applicable.

Amendments 171 and 172 are consequential amendments to those tabled separately in respect of preventing unlawful disclosures under the research power. The first of these amendments is necessary to ensure that the separate safeguards regime for HMRC that has been maintained throughout Part 5 also applies to the criminal offence as amended. The second ensures that the separate arrangements for HMRC will be mirrored in respect of Revenue Scotland and the Welsh Revenue Authority.

The second category ensures that the definition of “Welsh body” in Part 5 is consistent with the definition of “devolved Welsh authority”, as will be enacted by the Wales Bill. The amendments will ensure that no devolved Welsh authority will be inadvertently excluded from the relevant Part 5 powers. The amendments also provide for Welsh Ministers to commence the provisions which relate to the disclosure of information by the Welsh Revenue Authority. This reflects the fact that the Welsh Revenue Authority is not yet operational. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the Minister for a very well-read response to the questions we all had about these technical amendments, although some of them were not quite technical of course. In terms of the four categories, I listened to three very carefully, and I will read what she said in Hansard, but we have no further comments to make on them at this stage.

She touched on the issue in relation to which we have two amendments down. I am grateful to the Government for responding so quickly to the discussion in another place on this issue, because as originally drafted, the Bill would have criminalised disclosures by whistleblowers and investigative journalists revealing matters of legitimate public interest. The point was picked up and discussed at some length, and had attracted interest from a wide range of people such as Sir Peter Bottomley and Helen Goodman, who raised it. The Minister in another place undertook to take it back, and we have now had the amendments put forward.

Those of your Lordships who have bothered to read the amendments in Clauses 50 and 51 will recognise that the wording is very similar in both cases. The difference, narrowly put, is that the amendment that we were advised would take the trick in this area included not just print journalism but also broadcast journalism. I am not certain whether that is necessary or not, but the Government have come forward with a slightly narrower point of view. I think we agree the aim, and it may just be a question of the correct wording, so unless there is any particular issue, we can do this either by correspondence or perhaps in a quick meeting, and I do not think there is anything on this point that need detain the Committee further. We are agreed and are delighted that the Government are making the move. It is just a question of trying to use what time we have to make sure that we have absolutely nailed it down completely.

Having said that, what has proved difficult in other pieces of legislation is how one defines whistleblowers. There is no attempt to do that here; the test is simply whether or not what has been disclosed was in the public interest. Again, there might just be something around that where we might look at other discussions and come back on it. But for the moment, I will leave it.

[Baroness Buscombe]

I thank the noble Lord for that. The opposition amendment makes specific reference to broadcast transmission when the government amendment on this topic does not. However, the word “publication” in our view can be construed sufficiently broadly to cover broadcast media. Section 32(6) of the Data Protection Act 1998 provides that:

“For the purposes of this Act ‘publish’, in relation to journalistic … material, means make available to the public or any section of the public”.


The ICO guidance on this indicates that publication for these purposes would therefore cover broadcast. As a result these additional changes are not necessary.

[Lord Stevenson of Balmacara]

It is quite an interesting point. The world has moved on since those original drafts, and we have to think a bit more carefully about what happens on YouTube and whether disclosure on social media will be covered by this. I do not dissent from what is being said but would just like to be certain that we have used this opportunity, which may not come again, to make sure we have this nailed.

[Baroness Buscombe]

I thank the noble Lord for what he has said and absolutely understand where he is coming from.

Amendment 86 agreed.

Moved by

[Baroness Buscombe]

86A: Clause 33, page 32, line 35, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

88A: Clause 33, page 32, line 44, at end insert “or (Disclosure of information to water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

89A: Clause 33, page 33, line 7, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

93A: Clause 34, page 33, line 20, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

94A: Clause 34, page 33, line 25, leave out “section 30, 31 or 32” and insert “any of sections 30 to (Disclosure of information by water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

97: Clause 34, page 33, line 35, at end insert—
“( ) which is a protected disclosure for any of the purposes of the Employment Rights Act 1996 or the Employment Rights (Northern Ireland) Order 1996 (SI 1996/1919 (NI 16)),( ) consisting of the publication of information for the purposes of journalism, where the publication of the information is in the public interest,”

--- Later in debate ---

Moved by

[Baroness Buscombe]

99: Clause 34, page 33, line 43, leave out from “behaviour”” to end of line 45 and insert “means conduct that—
(a) is likely to cause harassment, alarm or distress to any person, or(b) is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”

--- Later in debate ---

Moved by

[Baroness Buscombe]

100A: Clause 34, page 34, line 22, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”

--- Later in debate ---

Moved by

[Baroness Buscombe]

100B: Clause 35, page 34, line 25, leave out “or 31” and insert “, 31 or (Disclosure of information to water and sewerage undertakers)”

Scotland Bill

Baroness Buscombe Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord McAvoy]

Cheap? I have been called worse. I take the point of view that we must be allowed to get on with this. I urge the Labour Party, and I am sure that everybody in this House urges both negotiating teams, to come to a conclusion. It is hard; it is difficult. However, we should not underestimate the task that that team is facing, nor should we underestimate the task that the Government are facing in getting this Bill through. We on the Labour side of the House believe that this Bill must go through. This amendment is a distraction. It is not quite right in the threats that it makes. We should get on with the Bill as quickly as we can.

[Baroness Buscombe (Con)]

Before the noble Lord sits down, does he agree that it would be sensible at least to respond to what my noble friend Lord Forsyth has suggested in urging the Minister to consider and bring forth a sunrise clause, to ensure that at least we can go through this process in the knowledge that this Bill will not pass until this framework is published and considered by your Lordships?

[Lord McAvoy]

With due respect to the noble Baroness, that would send the message to Scotland from this House, from Westminster, that I have been arguing against for the last five or six minutes. That would be interpreted as Westminster reneging on its commitment to Scotland. I do not accept that argument but that is the argument that would win the day because in my opinion—the noble Baroness will have to take my word for it—that is the mood of Scotland in listening to Westminster.

[Baroness Buscombe]

It may assist the noble Lord if he were to remind those who seem to mistrust this House that the Smith commission comprised purely Scottish representatives. It is therefore wrong to say that our Prime Minister was in any way not supportive of the Scottish coming out of this with a fair deal. We have all accepted this process thus far. By having a commission—whose results we have all accepted—to decide the future of our overall relationship, but in which only Scotland was represented and not the rest of the United Kingdom, we have made a huge step forward in trying to show Scotland that we care about its future.

[Lord McAvoy]

The noble Baroness has not addressed my response that the mood in Scotland is such that, correctly or incorrectly, that sort of behaviour would be seen as Westminster tricks or deviousness. That is how it would be seen and there would be a massive reaction against it. This is a massive development for this United Kingdom of ours, in dangerous times when we need to keep a cool head. I may take stick for this elsewhere, but there we go. We have confidence in the capacity of the Scottish Government and the United Kingdom Government to come forward with an arrangement that will guarantee the future of this country.