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Digital Economy Bill [HL]

Volume 716: debated on Tuesday 26 January 2010

Committee (5th Day) (Continued)

Amendment 214

Moved by

214: After Clause 17, insert the following new Clause—

“Amendment of the Electronic Commerce (EC Directive) Regulations 2002

(1) The Electronic Commerce (EC Directive) Regulations 2002 are amended as follows.

(2) In regulation 2, after the definition of “the Treaty” insert—

““wireless network” means an electronic communications network that uses wireless telegraphy, as defined in the Communications Act 2003.”

(3) In regulation 17, after paragraph 2 insert—

“(3) This section shall apply to providers of wireless networks capable of delivering internet access, whether in return for consideration or otherwise.”

(4) After regulation 19 insert—

“19A Search engines, hyperlinkers and aggregators

(1) Where an information society service is provided which consists of the provision, creation or truncation of a hyperlink to content or activities provided by a recipient of the service, the service provider shall not be liable for damages of for any other pecuniary compensation or for any criminal sanction as a result of that storage where—

(a) the service provider—(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and(b) the recipient of the service was not acting under the authority or control of the service provider.19B Non-commercial service providers

For clarification, and for the purposes of regulations 17 to 19A, an “information society service” shall include a service provided for free where such a service is provided at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service.

19C New forms of liability: transitional arrangements

Regulations 17 to 19B shall apply from the day on which the Digital Economy Act 2010 is passed in relation to all forms of civil or criminal liability, whether or not such activity or content was illegal or actionable at the time of the coming into force of these regulations.””

My Lords, these provisions are all together in this amendment just because they would amend the same set of regulations. The first part I leave as a suggestion to the Minister as to one way in which he might seek to deal with the problem, which we have discussed before, of how libraries, internet cafés, Swindon and other such places might deal with the liability that the Bill potentially imposes on them.

The second part takes a similar opportunity to clarify the potential liability of search engines, which, by the nature of their job, link to infringing materials that fall under the Bill. Nine European Union states currently provide an explicit exemption from liability for search engines. That does not include us. I think that it should.

The third part clarifies the application of safe harbours in the e-commerce regulations to information services provided not for direct consideration—that is, search engines, social networking sites and public wi-fi services. Currently these qualify for protection only if normally provided for remuneration, which has caused a great deal of uncertainty. I do not see why such institutions should be discriminated against in favour of commercial business.

Lastly, the fourth part of the amendment is intended to ensure that the safe harbour regulations in Regulations 17 to 19 apply to new criminal offences created after the regulations came into force. This would be an umbrella provision that would catch all future such criminal offences rather than their having to be provided for each time such a criminal offence was created. I beg to move.

My Lords, this clause seeks to make significant changes to the implementation of the EU electronic commerce directive. This was not an issue that was covered in the Digital Britain report and, whatever the merits of these proposals, we do not believe that it would be appropriate to make such changes without consulting all interested parties.

The amendment attempts to do a number of things. First, by the amendment to Regulation 17 of the e-commerce regulations that implement the directive, the regulations would specify that limitations of liability currently available to mere conduits should apply specifically to wireless networks—the noble Lord’s new definition. I believe that the current term encompasses the noble Lord’s new definition and that therefore this new provision is unnecessary and, indeed, would confuse the intention to deliver a wide interpretation of the networks to be covered.

Secondly, the amendment would specify that the limitations on liability should apply to search engines, hyperlinkers and aggregators. The Department for Business, Innovation and Skills, in an earlier incarnation, consulted on the possibility of amending the regulations to make it clear that these activities were subject to the limitations of liability granted by the directive. The result of that consultation was that there was not a strong case that we should do so. We believe that it would be wrong to make these changes now without further consultation with all relevant stakeholders.

Thirdly, I note that the next proposed amendment is designed to clarify the scope of the regulations to cover non-commercial services. While the main thrust of the directive is to harmonise the regulation of those services provided for remuneration, it is clear from the recitals to the directive that the scope of the directive covers a wide range of economic activities extending to services for which the recipient does not pay, such as online information. I refer noble Lords to Recitals 17 and 18 of the directive. I understand that there are cases before the European Court that will help to refine the scope of the directive. It would be rash to consider such amendments while such cases are in train and before the court has reached its conclusion.

Lastly, the amendment would give prospective effect to the limitation of liability in the directive. That means that the limitation should be applied to all future legislation, not simply to legislation that had been enacted before the regulations came into force in 2002. This aspect of the implementation of the electronic commerce directive has been the subject of much discussion with the industry. There are attractions to the idea of prospective effect but also merits to the industry of the approach that we have adopted of creating bespoke implementation of the limitation of liability, which is specific to the legislation in question. Moreover, we have serious concerns about the danger of unintended consequences and the potential uncertainty of prospective effect. I hope that the noble Lord will consider withdrawing his amendment in the light of that explanation.

This is a prime example of exactly why we need properly to revisit the Copyright, Designs and Patents Act 1988 for a full parliamentary discussion about the Act’s ambit and how it should cover things in a digital age. I see why the Minister does not necessarily want to put this into the Bill, but it is something that should be addressed.

It is wonderful the way in which some things, particularly little things, take a lot of consultation while Clause 17 can be invented on a whim; it did not seem to appear anywhere in Digital Britain when I read it. However, I have received a satisfactory answer to my amendment and I beg leave to withdraw it.

Amendment 214 withdrawn.

Amendment 214ZA

Moved by

214ZA: After Clause 17, insert the following new Clause—

“Right to bring action

Nothing in any procedure provided for in sections 4 to 17 shall prejudice the ability of an individual author or, as the case may be, performer to bring an action for breach of copyright or a moral right, nor to recover costs in such actions.”

My Lords, I move the amendment in the name of my noble friend Lord Bridgeman. These provisions should certainly not be taken to prejudice the right to bring legal action. I hope that they will reduce the need to bring such actions, but that is not the same thing as impeding or preventing legal action. I would welcome any reassurances that the Minister could give the Committee on this subject.

My Lords, I am sorry that the noble Viscount, Lord Bridgeman, is not here to move the amendment himself as he and I were on the point of discussions about the issues that concern him. He had obviously not anticipated the extraordinary and most welcome progress that we have made, thanks to co-operation on all sides of the Committee today.

The answer to the amendment is that I can give assurances. We understand the concern and it is right for us to be reminded that in the part of the Bill that deals with copyright owners, internet service providers and subscribers, we should not forget the people who create material in the first place, whether they be photographers, musicians or film-makers. Of course these creative people have rights and may be copyright owners. It would be fair to say that the focus of the provisions in these clauses is on the investors in copyright, the creative industries, rather than on the creators themselves. I am sure, though, that we recognise that the whole structure of the creative economy is founded in large part on individual creativity.

I reassure the noble Lord, and I hope that he will take these reassurances back to his noble friend, that there is and can be nothing in this part of the Bill that would prejudice the rights of authors and performers in the way described. If an author or performer is also a copyright owner, their ability to protect their copyright will be enhanced, not restricted, by these provisions. They will not affect any contractual arrangements that they may have with their publishers. On moral rights, I assure the noble Lord that their current status and position will not be affected by these clauses, and we would in any case be constrained from doing so by European and international agreement. I hope that those reassurances will prove satisfactory.

I thank the Minister for his remarks. I am very grateful for them. I beg leave to withdraw the amendment.

Amendment 214ZA withdrawn.

Clause 18 : Powers in relation to internet domain registries

Amendment 214A

Moved by

214A: Clause 18, page 19, line 12, leave out “an” and insert “a qualifying”

My Lords, before speaking to these amendments I will say a few words about the Government’s intentions regarding the powers contained in Clauses 18 to 20. The Government decided to seek these reserve powers because the domain names system is a crucial element of the internet economy. Domain name registries themselves have a key role in making sure that the system runs smoothly. Any disruptions could have adverse effects on business, consumers and internet users as a whole.

For most people, the sort of disruption we have in mind manifests itself in the misuse of domain names. The domain names sector in the UK is self-regulated and it has worked well for many years. The Government’s intention is that self-regulation by domain name registries should continue: we want to be absolutely clear about that. The reserve powers we are seeking in the Bill will enable the Government to intervene if things start to go wrong, with self-regulation clearly failing.

The Government recently published a factsheet which I hope provided your Lordships with a bit more clarity on the circumstances in which the powers might be exercised. I know we will be covering the enforcement aspects of these powers when we examine Clauses 19 and 20, so for now I will not say anything more about this.

I turn to the amendments in question. Following representations made by the industry, the Government realised that the scope of the domain name provisions in the Bill could have unintended consequences. Specifically, the definitions in Clause 18 as currently drafted would bring any organisation or company in the UK that runs its own name server within the scope of the powers—that was not intended. Similarly, the UK-based domain name registry operations of some third countries are also caught. Again, that is not what the Government had in mind when they proposed this draft legislation.

The effect of the amendments tabled by the Government is to restrict the scope of the powers to cover just those top-level domain registries where the domain is clearly UK-related. That is where, in the opinion of the Secretary of State, the last element of the domain name will cause internet users to believe there is a connection with the UK or part of the UK. In practice, this will include the existing “.uk” and “.gb” domains, and indeed any future proposals ICANN receives for new domains which it approves—such as “.london”, or even “.britfishshops”. I am sure noble Lords will well appreciate that the Government will certainly be concerned about any phishing activities, if you will pardon the pun, associated with this domain. I see that joke went down really well. You can’t win them all, as someone once said.

Finally, the Government have tabled a minor amendment, Amendment 223C, to the definition of an internet domain registry so that the text correctly refers to “internet protocol addresses”. This is definitely one for the cognoscenti. I do not think this requires further explanation. I beg to move.

I am quite involved in this world and I probably ought to redeclare something I declared earlier in the Committee stage. I have been sitting on the Nominet policy advisory body for a number of years. I do not receive any remuneration for it so I have no financial interest in this at all, but I have been involved in many of the discussions around this area. I can see exactly what the Government are getting at. Just as they made a general comment at the start, I should like to make the following general comment. I can see exactly why the Government want to take these reserve powers. I, too, regard the .UK domain name as a UKplc asset. I am not sure that we would have ended up with the governance structure that we have if we had realised way back, when this was all set up under an exchange of letters with ICANN, that the internet would become so important. I welcome the Government’s provisions in this area. The amendments that I have tabled seek to make them either more flexible or to tweak them very slightly. They do not seek to alter the Government’s basic intention. Therefore, I welcome this set of amendments. I was concerned that someone who was with a registry that had nothing to do with the UK might be caught up by this. Therefore, I think that this is a very sensible set of amendments.

It is probably worth flagging up that certain issues may arise. For instance, I believe that proposals have been floated to have a .Scot top-level domain. The question arises whether that concerns Scotland or the worldwide Scottish diaspora. We can have a hefty argument about which it concerns. However, .Scotland would clearly relate to a part of the UK. The same would apply to .Cymru, .Wales and .Welsh. Therefore, arguments could arise in the future about the finer points of this. I like the idea of .fishshops. Would “sh” appear twice in the middle, or not? There is a phishing opportunity there.

My Lords, the government amendments were welcome, but I want to clarify the position. Certain domain registries—I think particularly of Telnic—expressed in correspondence their concern about the width of Clause 18. I want to tease out from the Minister information about the .tel domain, which is a London-based registry operator but provides a global service to citizens and businesses of all nations under the .tel domain name. I suspect that that is exactly what the government amendments are designed to exclude, so that the measure will deal just with .UK and .GB. However, it is extremely important that that is clarified. By the same token, it is interesting to ask, what control or influence do the Government have in other respects? There is what is called a geo domain, .tv suffix, which causes some frustration among those who would like to see it being a much more effective way for localities to signpost what they have in their areas. However, it is a much abused domain name. I suspect that the Minister will almost reassure me that the Government have no control over those .tv domains because a different registry deals with those geo domains. The Minister looks somewhat puzzled, but some clarity in all this would be enormously helpful.

My Lords, I thank the Minister for tabling these amendments. However, as the noble Lord, Lord Clement-Jones, said, concern has been expressed to us, and no doubt to other noble Lords, about the potential for these powers to be applied to all domains, not just the t.UK domain, and perhaps some of the other domains to which the Minister has referred, for which they were intended. The purpose of our Amendment 225BA is rather in line with that of the noble Earl, Lord Erroll; namely, to probe the Government to establish just how wide the new drafting could be taken to be read. There is still concern that the words “UK-related”, as used at line 13 of government Amendment 225B, could be understood by some intent on stretching these provisions to their maximum, as meaning any registry, with however loose a connection with the UK. The government amendment uses the words,

“connected with the United Kingdom”.

I suspect that this goes rather wider than the Minister intends. Will he consider improving the drafting to make the measure clearer? I see the difficulty, but spreading the jurisdiction too wide, either intentionally or, indeed, unintentionally, could, we suggest, create some unforeseen problems. He, of course, has at his disposal officials with formidable drafting skills.

My Lords, I thank the noble Earl, Lord Erroll, for his constructive comments. We know what he says about .scotland. The noble Lord, Lord Clement-Jones, sought confirmation about whether we would be covering .tel. The answer is no. The domain .tv is not covered either.

I am grateful to the noble Lord, Lord De Mauley, for tabling the amendment. As I understand it, the intention behind the amendment is to remove the definition of what is meant by a UK-related domain. As I have just explained, this wording has been proposed so that it is clear—UK-based registries of other country code domains are not covered by the powers.

The definition will provide necessary common-sense clarity to the industry as to what might be considered UK-related and will ensure that the powers will only be available to the Secretary of State if internet users are likely to believe that a domain has a connection to the UK.

Amendment 214A agreed.

Amendment 215

Moved by

215: Clause 18, page 19, line 16, after “period” insert “of not less than three months”

My Lords, Amendment 215 is a very simple one. Its purpose is to ensure that if a notice has been received by a registry it will have a reasonable length of time to prepare and make representations to the Secretary of State. The effect of being given this reasonable length of time, combined with the threat of government intervention might well prod the registry into taking steps to put things right, thereby saving much trouble and expense. I beg to move.

My Lords, we are fully aware of the need to give a domain name registry enough time to consider properly any notification by the Secretary of State of serious failure by the registry and to formulate any representations it wishes to make to the Secretary of State. I am therefore grateful to the noble Lord for giving me the opportunity of clarifying the position.

In practice, a registry will have been well aware that the Government were concerned about a serious failure of that registry long before receipt of formal notification by the Secretary of State. Informal approaches to the registry will have been attempted and exhausted before any decision to exercise these powers. Furthermore, before the Secretary of State can notify a registry of a serious failure he must have prescribed the specific practice or requirement that constitutes a failure. In the normal course of events, a full consultation will have taken place prior to prescribing practices or requirements under Section 124N(3). Therefore the registry should be well aware of the serious failure long before it receives a notification from the Secretary of State.

Noble Lords will understand that a serious failure of a registry will need to be addressed as soon as possible. We do not want to restrict the ability of the Secretary of State to stipulate a period of less than three months for a registry to make representations where the circumstances are such that a shorter period is warranted. The Secretary of State must of course act reasonably in setting the period for representations, taking into account all relevant circumstances. I hope the noble Lord will recognise that he raises an important point but safeguards are there and notification will be adequate. Therefore, I ask him to withdraw his amendment.

My Lords, I am grateful to the Minister for his response. I would like to think a little further on it. For this evening, I beg leave to withdraw the amendment.

Amendment 215 withdrawn.

Amendment 215A

Moved by

215A: Clause 18, page 19, line 18, leave out “an” and insert “a qualifying”

Amendment 215A agreed.

Amendment 216

Moved by

216: Clause 18, page 19, line 21, after “names,” insert—

“( ) the registry, having the powers and resources to do so, has failed to take effective action to end these practices,”

I shall speak also to Amendment 217. I thoroughly support the Government’s proposals in general, but I wanted to make sure that what the domain name registry is being asked to do lies within its powers. Many companies would like to acquire other people’s internet property. I do not know why one should give them the scope to lobby the Government to try to bully other people out of stuff that they legitimately own. Trying to make the domain name registry a creature of government would be a first step in that. Big commercial interests could then continue the pressure on the Government to try to get their way with internet domain name property. It seems to be plain sense that the Government should be able to require the registry only to do things that it has the power and resources to do.

Having looked at this issue and the impact assessment, I think that the Government are missing a trick. Why have they not thought of taxation as a means of controlling some of these abuses? If they are worried about people hoarding domain names, why not tax them? There are 8 million of them out there. The Government could get a tidy sum and would make life inconvenient for people who hoard domain names on the ground that they think that they could make a profit out of selling names to people with a commercial use for them. Like the number plates business, there is a pretty good business in prestigious domain names. This Government have proved to be very inventive in that sphere. Two of the three ills that the Government complain of could easily be dealt with by constructive taxation which would have added benefits for them. I beg to move.

My Lords, grouped with these sensible amendments, I have tabled alternative Amendment 218. It tries to achieve exactly the same purpose for exactly the same reasons. I do not mind which amendment is supported. Such a measure may be useful because it has to be remembered that the purpose of Clause 18 is to enable the Government to put in a manager under Clause 19; that is a drastic step to take. These are the trigger arrangements, and it is only reasonable that the registry has some control over what has gone wrong, because one could put in a manager who might do no better. It does not really matter, because if you do not have the power to do anything about whatever the issue is, you will need fast-track legislation to cure the problem—as we discussed previously. It might have been better to us a Henry VIII power here, rather than something else. Inserting an amendment with the word “reasonable” would ensure proportionality and reassure people. The effect would be exactly the same in the end. If the registry is misbehaving or not being competent, and a manager could do the job better, the Government would still have a reserve power to put in a manager under Clause 19.

On the previous matter, I wish to check something. The country code “.tv” is the top-level domain of Tuvalu. That country has been sensible because it spotted a huge opportunity and has a deal with VeriSign which markets the code for other purposes. The country gets a large slice of money, because it receives the royalties. This is an idea for the Government if they could grab the right domain. On top of that, Tuvalu has reserved “” for its own use. There are a lot of business ideas that the Government could use instead of taxing us.

My Lords, my speaking notes state that the suggestions of my noble friend and the noble Earl are very sensible. I have to tell the Committee that I am rather bowled over at the thought of suggesting to Her Majesty's Government yet another form of taxation, when they are already hard at it—particularly at a time when Gordon Brown wants me to write an enormous cheque before 31 January and to cap that with a request for a Henry VIII clause.

It would be quite unfair to punish a registry for failing to undertake something it is unable, rather than unwilling, to do. There is already considerable disquiet among many at the idea that these provisions will nationalise the internet. I would welcome the reassurance which will be provided by these amendments that the Government will not be using this clause as a pretext for unnecessarily taking over a registry.

My Lords, with regard to both amendments, what is being proposed by the noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, is a further test of a relevant failure by an internet domain registry. The effect of both amendments is that a registry might be able to delay or avoid taking action by claiming it could do nothing about the prescribed unfair practices or misuse of domain names because it did not have the power, responsibility or resources. The amendment of the noble Earl, Lord Erroll, would leave the Secretary of State powerless to act where a registry had taken reasonable steps, even when those steps had entirely failed to sort things out.

Let me reassure both the noble Earl and the noble Lord that the Government would not expect a registry to act beyond its powers to correct any failure that it could not reasonably address; for example, where that failure results from the actions of a third party over which it has no control. However, in our view, it is unlikely that a domain name registry would not have the authority and capability to suspend a domain name or take down a site using a domain name used by that registry if it was requested to do so by the relevant authorities because of the adverse effects on the interests of consumers. In practice, however, the Government will have attempted to have a discussion with the relevant registry about the problem that has caused concern long before the powers in this clause are exercised. Any real compliance difficulties faced by the registry will have to come to light during these discussions and, it is to be hoped, a way forward found to the satisfaction of both parties.

I turn to the amendment of the noble Lord, Lord Lucas. The absence of adequate arrangements for dealing with complaints by an internet domain registry is one of the two tests that decide whether there has been a relevant failure by that registry. While we regard it as important that such arrangements exist, we realise the form they take will depend on the registry concerned. As I have already explained, if we were concerned there might be a serious failure the Government would have had discussions with the registry to determine whether its arrangements for handling complaints were adequate before—and I stress before—exercising powers in this clause. These discussions will enable the Government to understand what, if any, barriers the registry faces in having adequate arrangements for handling complaints and to try to reach a solution satisfactory to both parties. Using the powers really will be a last resort. However, if abuses are damaging our internet economy, the Government should not be prevented from using these powers because the registry does not have the resources or powers to comply with prescribed requirements.

I was as shocked as the noble Lord, Lord Howard, at the idea of taxing domain names. The idea of the Opposition Benches proposing more taxes for the Government is an interesting one that we will take away and raise with the Chancellor. I was reassured that it was not described as a “stealth tax”. As for Henry VIII powers, we have dabbled enough in that already—I see the Lib Dem Benches concur. In the light of my explanation, I trust that the noble Lord will feel able to withdraw the amendment.

My Lords, I am grateful for that explanation. I will read it carefully along with the noble Lord’s replies to the few groups that follow. It is important that there should be a real disincentive to the Government deciding to trip this trigger and take over a domain name registry. I will look at this as a whole to understand whether I think the Government have achieved that. As for a tax, it is a tax only as a secondary effect. The real purpose is to improve the fluidity of the domain name market; the Government will just happen to earn some revenue from it. It might also help to reduce my noble friend’s tax bill in compensation. I beg leave to withdraw the amendment.

Amendment 216 withdrawn.

Amendment 217 not moved.

Amendment 218

Tabled by

218: Clause 18, page 19, line 24, at end insert “, and

“( ) the failure is an issue reasonably within the responsibilty of the registry and the registry has not taken reasonable steps to respond to this failure”

I will just say that I was not too serious about the Henry VIII idea: I just thought that the Government might have been over-tempted.

Amendment 218 not moved.

Amendment 219

Moved by

219: Clause 18, page 19, line 25, at end insert “seriously”

My Lords, we come now to another threshold. I was glad to see the qualifier “serious” in subsection (1) of new Section 124N, but was baffled to see it absent from subsection (4). It appears that any adverse effect, no matter how trivial, counts as serious if it relates to electronic communications or consumers. I cannot believe that this is the intention of the Government, and would therefore strongly recommend that the Minister clears up the confusion by accepting Amendments 219 and 220. I beg to move.

I am grateful to the noble Lord, Lord De Mauley, for tabling the amendment. What we are talking about here is the degree to which businesses, consumers or the UK’s internet economy must be affected before the Secretary of State can be satisfied that enforcement action against a registry would be justified. The Secretary of State is bound to act reasonably whenever he makes a decision. Deciding whether the failure of the domain registry is serious enough to warrant further action would not be an exception; and as we have said, neither is it a decision that would be taken lightly. It would be the last resort. It must remain within the Secretary of State’s reasonable judgment to decide, on the facts available, how serious the adverse effect is. In the light of that explanation, I invite the noble Lord to withdraw his amendment.

My Lords, I am not sure that that answers my noble friend's point. Perhaps he will differ, but I think that this word would go a long way towards allaying my concerns about this part of the Bill, and about the lightness of the trigger. The Minister is right that the Secretary of State will take the decision; but he ought to take it in the light of an improved clause, rather than of an open interpretation that the current wording might give rise to.

My Lords, I thank the Minister for his response. Perhaps, in the light of my noble friend's intervention, he might like to give this matter further thought. For this evening, I beg leave to withdraw the amendment.

Amendment 219 withdrawn.

Amendment 220 not moved.

Amendment 221

Moved by

221: Clause 18, page 19, line 31, at end insert—

“( ) The Secretary of State must consult before deciding whether a relevant failure is serious, where the responsibility for this failure lies and what remedial action needs to be taken and by whom.”

This is on the same subject: we probably should have grouped the amendments together. I thought it would be easier for the Minister if I kept this separate. It is another way of ensuring that the event is serious and not trivial. Amendments 221 and 225 make the point that the Secretary of State should consult to make sure that other people think that the matter is serious, and it is not just a case of the Minister getting a bit worried. Therefore, I support Amendment 224, which is grouped with the next two amendments and states that a draft order should be brought before the House. It is all connected, and intended to ensure that if this sort of thing happens, it is scrutinised properly and not just arbitrarily by the Secretary of State. I beg to move.

My Lords, following on from the last group of amendments, I agree with the noble Earl, Lord Erroll, that consultation should be required before this power can be exercised. When we discussed Amendments 216, 217 and 218 a few minutes ago, my noble friend referred to disquiet at the possible overreaching powers of the Secretary of State. The Minister has, throughout Committee, been at pains to reassure us that there is no intention to abuse these powers. He used the words “last resort” when we debated that group. Nevertheless, these amendments would give some comfort to those who are worried.

Again, I am grateful to the noble Earl, Lord Erroll, for tabling the amendment. The purpose of both amendments is to make it a requirement in the Bill for the Government to consult. The first amendment requires the Secretary of State to consult in order to establish whether the failure of a domain registry is serious such that he may have the power to take action against a registry, and to inform the decisions as to who is responsible for the failure, what action needs to be taken and by whom. The second amendment would impose a requirement in the Bill for the Secretary of State to consult before prescribing which practices are unfair or involve the misuse of domain names, and before prescribing the requirements to be placed on registries for dealing with domain name complaints.

I give an assurance that we are committed to consultation with the stakeholders. A government code on consultation prescribes the form that consultation should take. We are fully supportive of consultation and are aware of its importance in the decision-making process. The Secretary of State can consider using his powers against a registry only if he is satisfied that the particular registry to which he would address a notification is engaging in a serious relevant failure that could harm the reputation or availability of electronic communication network services and the interests of consumers or members of the public.

The Government have made a commitment to consult before the Secretary of State uses his powers. The degree of consultation requirements suggested by the noble Lord risks delaying action to the detriment of the very things that we are all seeking to protect. We believe that the necessary safeguard is already built into the process that we have set out and to which we are committed, including the consultation and prescribed practices and the opportunity for the registry to make representations to the Secretary of State further to being served with a notice. I hope that that explanation and the commitment to consultation will be sufficient to enable the noble Earl to withdraw the amendment.

I thank the Minister for that helpful answer. As the Government are so committed to consultation, I thought that it might be wiser to put this on the face of the Bill. As they are carrying out other consultations, it could run in parallel and I do not think that it would necessarily delay the process. It would make it clear that the Minister cannot operate unilaterally. With those reservations, I beg leave to withdraw the amendment.

Amendment 221 withdrawn.

Amendment 221A

Moved by

221A: Clause 18, page 19, line 33, leave out “an” and insert “a qualifying”

Amendment 221A agreed.

Amendment 221B

Moved by

221B: Clause 18, page 19, leave out lines 37 to 39

Amendment 221B agreed.

Amendments 223A to 223C

Moved by

223A: Clause 18, page 19, line 40, at the beginning insert “qualifying”

223B: Clause 18, page 19, line 41, leave out from “a” to “and” in line 42 and insert “relevant register of internet domain names”

223C: Clause 18, page 20, line 3, leave out “portal” and insert “protocol”

Amendments 223A to 223C agreed.

Amendment 224

Moved by

224: Clause 18, page 20, line 6, after “State” insert “where any such regulations must be made by statutory instrument and may only be made if a draft order has been laid before Parliament and approved by a resolution of each House”

This amendment raises a separate point. It comes under the same heading of making the trigger a bit heavier on this mechanism and refers to the fact that these orders should be made by affirmative, rather than negative, resolution. I beg to move.

I have to inform the Committee that, if this amendment is agreed to, I cannot call Amendment 225 by reason of pre-emption.

The clause already requires the Secretary of State to set out what constitutes unacceptable practice by registries and explains how they must deal with complaints and regulations. The Communications Act requires that those regulations be made by statutory instrument, subject to the negative procedure. In practice, there is likely to be a consultation on the proposed regulations by the Government and Parliament will have an opportunity to annul them before they come into force, so all interested parties will be able to make their views known and so help to inform the Secretary of State’s decision on whether to proceed further. If the regulations are made and approved, the registry will be notified and given a further opportunity to make representations to the Secretary of State before any enforcement action is taken.

This amendment would require an additional parliamentary process before the Secretary of State could proceed in making the regulations. Although I am conscious of the intention behind the amendment, it would further delay the Secretary of State’s ability to take action against a serious failure of a registry, which could be detrimental to the interests of UK consumers and businesses. We think that we have the balance right. In light of my explanation, I hope that the noble Lord will feel able to withdraw the amendment.

My Lords, as I said, I shall read with great interest all that the Minister said, and I beg leave to withdraw the amendment.

Amendment 224 withdrawn.

Amendment 225 not moved.

Amendment 225A

Moved by

225A: Clause 18, page 20, line 7, leave out “an” and insert “a qualifying”

Amendment 225A agreed.

Amendment 225B

Moved by

225B: Clause 18, page 20, line 11, at end insert—

““relevant register of internet domain names” means a register of—

(a) the names of second level internet domains that form part of the same UK-related top level internet domain, or (b) the names of third level internet domains that form part of the same UK-related second level internet domain;“second level internet domain” means an internet domain indicated by the last two elements of an internet domain name;

“third level internet domain” means an internet domain indicated by the last three elements of an internet domain name;

“top level internet domain” means an internet domain indicated by the last element of an internet domain name.

( ) An internet domain is “UK-related” if, in the opinion of the Secretary of State, the last element of its name is likely to cause users of the internet, or a class of such users, to believe that the domain and its sub-domains are connected with the United Kingdom or a part of the United Kingdom.”

Amendment 225BA, as an amendment to Amendment 225B, not moved.

Amendment 225B agreed.

Clause 18, as amended, agreed.

House resumed.

House adjourned at 9.51 pm.