Digital Economy Bill Debate

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Department: Scotland Office

Lord Ashton of Hyde

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Non-Domestic Rating (Rates Retention) and (Levy and Safety Net) (Amendment) Regulations 2017

Digital Economy Bill

Lord Ashton of Hyde Excerpts

Future Day:
Tue 21st Mar 2017
House of Lords
Report: 2nd sitting (Hansard - continued): House of Lords
Monday 20th March 2017

(7 years, 8 months ago)

Lords Chamber
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Read Full debate Digital Economy Act 2017 View all Digital Economy Act 2017 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-III Third marshalled list for Report (PDF, 182KB) - (20 Mar 2017)
Moved by
25YYA: Clause 31, page 30, line 24, leave out “Chapter” and insert “section”
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Moved by
25YYC: Clause 31, page 30, line 26, leave out subsection (3) and insert—
“(3) The appropriate national authority may by regulations amend Schedule (Public service delivery: specified persons for the purposes of section 31) so as to add, remove or modify an entry relating to a person or description of person.(3A) Regulations under subsection (3) may add an entry relating to a person or a description of person to Schedule (Public service delivery: specified persons for the purposes of section 31) only if—(a) the person is a public authority or (as the case may be) each person of that description is a public authority, or(b) the person provides services to a public authority or (as the case may be) each person of that description provides services to a public authority.”
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Moved by
25YYE: Clause 31, page 30, line 33, leave out “(2)” and insert “(3)”
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Moved by
26B: Clause 31, page 31, line 16, at end insert—
“( ) The third condition is that the objective has as its purpose the supporting of—(a) the delivery of a specified person’s functions, or(b) the administration, monitoring or enforcement of a specified person’s functions.”
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Moved by
28AA: Clause 32, page 31, line 40, at end insert—
“( ) In this section and section 33 “specified person” means a person specified, or of a description specified, in Schedule (Public service delivery: specified persons for the purposes of sections 32 and 33).”
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Moved by
28AJ: Clause 34, page 33, line 8, at end insert—
“( ) In this section and section 35 “specified person” means a person specified, or of a description specified, in Schedule (Public service delivery: specified persons for the purposes of sections 34 and 35).”
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Moved by
28BG: Clause 39, page 36, line 38, at end insert—
“(6A) The relevant Minister may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(6B) Before reissuing the code the relevant Minister must lay a draft of the code as proposed to be reissued before Parliament.(6C) The relevant Minister may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.(6D) In subsection (6C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(6E) For the purposes of subsection (6D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28BJ: Clause 39, page 37, line 2, at end insert—
“(8) In disclosing information under any of sections 31 to 35 , a person must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.(9) The duty in subsection (8) does not affect any other requirement for the person to have regard to a code of practice in disclosing the information.”
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Moved by
28BL: Clause 40, page 37, line 14, leave out subsection (3)
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Moved by
28BN: Clause 40, page 37, line 19, leave out from “of” to first “this” in line 20 and insert “—
( ) regulations under section 31 (3) which amend Schedule (Public service delivery: specified persons for the purposes of section 31) so as to add an entry relating to a person or description of person,( ) regulations under section 32 (4)(za) which amend Schedule (Public service delivery: specified persons for the purposes of sections 32 and 33) so as to add an entry relating to a person or description of person, or( ) regulations under section 34 (3A)(a) which amend Schedule (Public service delivery: specified persons for the purposes of sections 34 and 35) so as to add an entry relating to a person or description of person,”
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Moved by
28BS: Clause 41, page 38, leave out line 32
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Moved by
28CC: Clause 42, page 41, leave out lines 37 to 39 and insert—
“(6) The Registrar General may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(7) Before reissuing the code the Registrar General must lay a draft of the code as proposed to be reissued before Parliament.(8) The Registrar General may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.(9) In subsection (8)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(10) For the purposes of subsection (9) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28CD: Clause 42, page 41, line 39, at end insert—
“(7) In disclosing information under section 19AA, a civil registration official must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.(8) The duty in subsection (7) does not affect any other requirement for the civil registration official to have regard to a code of practice in disclosing the information.””
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Moved by
28CH: Clause 44, page 42, line 30, leave out “specified person” and insert “public authority”
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Moved by
28DC: Clause 48, page 46, line 38, at end insert—
“(6A) The relevant Minister may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(6B) Before reissuing the code the relevant Minister must lay a draft of the code as proposed to be reissued before Parliament. (6C) The relevant Minister may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.(6D) In subsection (6C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(6E) For the purposes of subsection (6D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28DK: Clause 50, page 48, line 34, leave out subsection (3)
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Moved by
28DS: Clause 51, page 50, line 14, leave out “44(4) which specify” and insert “ 44(5) which add, modify or remove an entry relating to”
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Moved by
28DW: Clause 52, page 50, line 28, after “section” insert “and in Schedule (Specified persons for purposes of the fraud provisions)”
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Moved by
28EK: Clause 56, page 55, line 7, at end insert—
“(6A) The relevant Minister may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(6B) Before reissuing the code the relevant Minister must lay a draft of the code as proposed to be reissued before Parliament.(6C) The relevant Minister may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.(6D) In subsection (6C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(6E) For the purposes of subsection (6D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28EN: Clause 57, page 55, line 37, at end insert—
“( ) The power in subsection (5) to amend this Chapter— (a) may be exercised for the purposes only of improving the effectiveness of the operation of the power in section 52 (1), and(b) may not be used to remove any of the safeguards relating to the use or disclosure of information in section 53 , 54 or 55 .”
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Moved by
28ES: Clause 58, page 56, line 46, leave out subsection (3)
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Moved by
28FA: Clause 59, page 58, line 19, leave out “52(5) which specify” and insert “52(6) which add, modify or remove an entry relating to”
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Moved by
28FE: Clause 60, page 59, line 6, at beginning insert “subject to sections 63(5), 64(5) and 65(5)(information disclosed by tax authorities),”
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Moved by
28FG: Clause 62, page 61, line 1, leave out paragraph (b) and insert—
“( ) for the purposes of enabling anything that is to be published as a result of the research to be reviewed before publication, where the disclosure is made to a person who is accredited under section 67 as a person to whom such information may be disclosed for that purpose”
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Moved by
28FH: Clause 63, page 62, line 42, at end insert “, or
( ) by a person to whom the information is disclosed by virtue of subsection (3).”
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Moved by
28FK: Clause 64, page 63, line 39, at end insert “, or
( ) by a person to whom the information is disclosed by virtue of subsection (3).”
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Moved by
28FM: Clause 65, page 64, line 43, at end insert “, or
( ) by a person to whom the information is disclosed by virtue of subsection (3).”
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Moved by
28FT: Clause 66, page 66, line 17, at end insert—
“(8A) The Statistics Board may not issue the code of practice unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(8B) Before reissuing the code the Statistics Board must lay a draft of the code as proposed to be reissued before Parliament.(8C) The Statistics Board may not reissue the code if, within the 40-day period, either House of Parliament resolves not to approve it.(8D) In subsection (8C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(8E) For the purposes of subsection (8D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28FW: After Clause 70, insert the following new Clause—
“Disclosure of non-identifying information by the Welsh Revenue Authority
(1) A relevant official of the Welsh Revenue Authority may disclose relevant information to any person if— (a) the information is non-identifying information, and(b) the official thinks that the disclosure would be in the public interest.(2) Information is non-identifying information for the purposes of this section if—(a) it is not, and has never been, identifying information, or(b) it has been created by combining identifying information, but is not itself identifying information.(3) Information is identifying information for the purposes of this section if it relates to a person whose identity—(a) is specified in the information,(b) can be deduced from the information, or(c) can be deduced from the information taken together with any other information.(4) In this section—(a) “relevant official of the Welsh Revenue Authority” means a person within any of paragraphs (a) to (d) of section 17(2) of the Tax Collection and Management (Wales) Act 2016, and(b) “relevant information” means information which—(i) is held by the Welsh Revenue Authority in connection with its functions, or(ii) is held by a person to whom any of the functions of the Welsh Revenue Authority have been delegated in connection with those functions.”
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Moved by
28GA: Clause 71, page 69, line 29, at end insert—
“( ) After subsection (4) insert—“(4A) In disclosing information under subsection (1), the Commissioners or an officer of Revenue and Customs must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.(4B) The duty in subsection (4A) to have regard to a code of practice does not affect any other requirement for the Commissioners or an officer of Revenue and Customs to have regard to a code of practice under the Data Protection Act 1998 in disclosing the information.(4C) In determining how to comply with the duty in subsection (4A) the Commissioners or the officer of Revenue and Customs must have regard to any views of the Board which are communicated to the Commissioners or the officer.”
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Moved by
28GC: Clause 72, page 70, line 18, at end insert—
“(7A) In disclosing information under subsection (1), a public authority must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.(7B) The duty in subsection (7A) to have regard to a code of practice does not affect any other requirement for the public authority to have regard to a code of practice under the Data Protection Act 1998 in disclosing the information.(7C) In determining how to comply with the duty in subsection (4A) the public authority must have regard to any views of the Board which are communicated to the authority.”
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Moved by
28GE: Clause 73, page 76, line 12, at end insert—
“(9A) The Board may not publish the original statement under this section unless a draft of the statement has been laid before, and approved by a resolution of, each House of Parliament.(9B) Before publishing a revised statement under this section the Board must lay a draft of the statement as proposed to be published before Parliament.(9C) The Board may not publish the revised statement if, within the 40-day period, either House of Parliament resolves not to approve it.(9D) In subsection (9C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(9E) For the purposes of subsection (9D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28GG: Clause 73, page 76, line 18, at end insert—
“(11) In exercising any of its functions under section 45B, 45C or 45D to require the disclosure of information, the Board must have regard to any code of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998 which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information, so far as the code applies to the information in question.(12) The duty in subsection (11) to have regard to a code of practice does not affect any other requirement for the Board to have regard to a code of practice under the Data Protection Act 1998 in exercising the function.”
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Moved by
28GJ: Clause 73, page 77, line 26, at end insert—
“(5A) The Board may not publish the original code of practice under this section unless a draft of the code has been laid before, and approved by a resolution of, each House of Parliament.(5B) Before publishing a revised code of practice under this section the Board must lay a draft of the code as proposed to be published before Parliament.(5C) The Board may not publish the revised code of practice if, within the 40-day period, either House of Parliament resolves not to approve it.(5D) In subsection (5C)“the 40 day period” means—(a) the period of 40 days beginning with the day on which the draft is laid before Parliament, or(b) if the draft is not laid before each House on the same day, the period of 40 days beginning with the later of the days on which it is laid before Parliament.(5E) For the purposes of subsection (5D) no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
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Moved by
28GL: Clause 74, page 78, line 39, at end insert—
“(8A) In disclosing information under subsection (1), the Board must have regard to the following codes of practice issued by the Information Commissioner under section 51(3) of the Data Protection Act 1998, so far as they apply to the information in question—(a) any code which makes provision about the identification and reduction of the risks to privacy of a proposal to disclose information;(b) any code which makes provision about the information to be provided to data subjects (within the meaning of that Act) about the use to be made of information collected from them.(8B) The duty in subsection (8A) to have regard to a code of practice does not affect any other requirement for the Board to have regard to a code of practice under the Data Protection Act 1998 in disclosing the information.”
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Lord Wood of Anfield Portrait Lord Wood of Anfield (Lab)
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I thank the noble Lord, Lord Inglewood. I think the principle of maintaining the independence of the BBC unites virtually everyone in this House. However, the question is: do we agree on what constitutes a challenge to that independence, and do we agree to provide extra protection to the BBC when the independence is under threat?

This amendment sets out concerns about three kinds of independence being compromised: editorial independence, operational independence and financial independence. As the debate in Committee showed, there are widespread concerns about independence of these three varieties being challenged in different ways. Therefore, I think the statements of intent and principles in the amendment of the noble Lord, Lord Inglewood, enjoy widespread support. I think most people would agree that they should govern the approach of the legislature and the Executive to the BBC. However, I wish to bring a couple of issues to the surface. Although the amendment raises these crucial principles, it also suggests the difficulty of using the power of the state to protect bodies outside the state against interference from the state.

I have two concerns in particular. First, there is a larger principle here of putting the independence of a major institution of British public life on a statutory footing. I am personally sympathetic towards that but it is a principle which deserves debate on its own terms, both as a principle and as applied to specific cases such as the NHS, which has been debated before, or the BBC. Secondly, what exactly constitutes independence—not simply politically but legally—needs clarification and precision. Imposing a duty on Ministers and other bodies to ensure that the BBC can operate independently opens the question of how that can be defined, both so that we can recognise it in the observance and the breach, and enforce it. Again, this is something that needs further debate and discussion.

The amendment touches on a cornerstone issue for the BBC and broadcasting policy and the ethos and integrity of public life more generally. However, it raises a broader issue which deserves a more lengthy proper scrutiny in future.

Lord Ashton of Hyde Portrait The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)
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My Lords, I am grateful to noble Lords for their remarks. In returning to this issue, I am sorry that the noble Lord, Lord Lester, is not here to speak to his amendment as we have debated this issue at length with him as part of the recent discussions on the BBC’s royal charter. We have debated it at Second Reading, in Committee and in other debates and Questions. The amendments that the noble Lord, Lord Lester, has tabled, and my noble friend Lord Inglewood has proposed, seek to constrain future royal charters for the BBC through statute. I should have said that I hope the noble Lord, Lord Lester, makes a speedy recovery and returns not to bring this subject up again but other subjects.

I note that, following the discussion we had in Committee, the noble Lord, Lord Lester, made a number of changes to his amendments proposed tonight in the areas of governance and funding. I appreciate the thought that he put into this and the dialogue that we have had on this so far. However, we still maintain that very serious risks are associated with the amendments and therefore we cannot support them.

As noble Lords will by now appreciate, the disagreement between the Government and those who tabled this amendment comes down, as the noble Lord, Lord Wood, said, to a matter of principle. Is the BBC best governed and protected through a charter or through a charter underpinned by legislation? I accept that there are instances where it is desirable and appropriate for a charter to be underpinned in statute but it is the Government’s view that this does not apply to the BBC.

Noble Lords may be interested to know that this is a discussion as old as the BBC itself—indeed, it is almost exactly 10 years older than the noble Lord, Lord Lester. When the then Postmaster-General announced in July 1926 that the BBC would be established through its first royal charter, he remarked that the new corporation would derive its authority from royal charter rather than from statute to make it clear to the public that it was not,

“a creature of Parliament and connected with political activity”.

In practical terms, noble Lords will appreciate that there is little difference between the effect of the BBC’s charter and its accompanying framework agreement and an Act of Parliament. Both are binding on the BBC and on Ministers. Article 3 of the current charter provides:

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions, the times and manner in which its output and services are supplied, and in the management of its affairs”.


That carries the same weight in a charter as it does in primary legislation, but in my view the latter option carries unacceptable risks to the independence of the BBC. From a practical point of view, amending an Act of Parliament in the event that a change is required—with all the party-political debate and pressure that that would entail and the uncertain legislative timetable—is not the right vehicle to make sure that the BBC can be governed effectively. Who can tell what political pressures will exist entirely unconnected to the detail of the BBC charter when the charter comes up for renewal?

Charter review remains the right vehicle. It affords an ample opportunity for debate and consultation but also allows for full consideration of all the connected and complex key issues, for effective decision-making and, crucially, for a negotiated agreement with the BBC.

Incidentally, I cannot resist mentioning that my noble friend Lord Inglewood referred to the Government as Dick Turpin in this case. I may be entirely unfamiliar with the story of Dick Turpin but I did not realise that he gave £3.7 billion annually to his victims.

Therefore, I submit that a statutory underpinning will leave the BBC under constant threat of change and monitoring what the Parliament of the day sees as the national interest. I fear that fellow parliamentarians, some of whom may not have my noble friend’s pure motives, will find it an irresistible temptation to tweak here and there, and, even with the best of intentions, we cannot expect the BBC to operate effectively and plan for its future in such circumstances.

I believe that this should be a matter for the Government of the day to decide ahead of the next charter review. The charter model has stood the test of time since 1926—through economic depressions, world war and huge technological change—to achieve what has been praised throughout the passage of this Bill as the BBC we have today. Given your Lordships’ ongoing interest and informed views, I am confident that the Government of the day will be minded to consider this carefully. With that explanation, I hope my noble friend will be able to withdraw his amendment.

Lord Inglewood Portrait Lord Inglewood
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My Lords, I am very grateful to my noble friend for his very full response to the remarks that have been made on this amendment. He went to the heart of it at the outset when he said that he was opposed to the suggestion in the amendment because it would constrain the royal charter in the future. But that is precisely the reason why we moved the amendment. The mechanism of the royal charter enables the Government, in practice, to have a huge and relatively unscrutinised and uncontrolled ability to adapt and adjust the framework for the relationship they have with the BBC to their own preferred ends.

As I listened to my noble friend, it occurred to me that it was about 25 years ago that I stood at the Dispatch Box at which he was standing a moment ago, discussing the same issues. It crossed my mind—ignoble though it may be to say it—that almost the same speech could have been given to me to deliver all those years ago.

It is perhaps a mistake to simply assume that because something gives the impression of having worked reasonably well for 70 years—it may or may not have—it will continue to work equally well in the years to come. I look around the Chamber this evening and see that some of us are perhaps not quite yet 70 years old but heading that way—and that some may even have passed it. I am afraid that it is the nature of the human condition that when you get to 70 years old, you may not be as fit, spry and sharp as you were in years gone by. So it is not good enough to say that because it has worked well in the past—and it has worked only moderately well—it therefore follows, as night follows day, that you can extrapolate that it will work well indefinitely.

However, I was encouraged by the concluding remarks of my noble friend. He said that he was confident that Governments in the future would seriously consider the point that was being made. I think that is important. On any measure, we have just started a BBC charter and there is a bit of time until the next one comes into effect. While I think that it would have been desirable to have placed in the Bill the statutory provisions that are contained in the amendment, not to do so may not be fatal to the underlying project. Certainly this is something we ought to think carefully about in the hours and days to come—not least the noble Lords, Lord Lester and Lord Pannick, who have not had the advantage of listening to the remarks of my noble friend. Against that background, I beg leave to withdraw the amendment.

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