To ask Her Majesty’s Government whether Article 122.2 of the Treaty on the Functioning of the European Union can be used to require them to provide financial assistance to another member state which is “threatened with severe difficulties caused by exceptional circumstances beyond its control”.

Any request for financial support in accordance with Article 122.2 would need to satisfy the specific criteria set out in the treaty and would be considered on its individual merits by the ECOFIN Council, where it would be voted on by qualified majority.

My Lords, I am grateful to the Minister for that reply. I hope that he will forgive me if I say that illegality under the treaties has never bothered the Eurocrats. Will he give a clear guarantee that the United Kingdom will not, willingly or unwillingly, contribute to any bail-out of the member states, including the proposed European monetary fund? Will he also confirm whether any such initiative would require a treaty change or whether it could be done by majority voting?

I do not propose to comment on market speculation about the possibility of a European monetary fund. This is being discussed by the eurozone nations, but the UK is not part of those discussions. However, Article 125 of the treaty is very clear in stating:

“The Union shall not be liable for or assume the commitments of … governments … A Member State shall not be liable for or assume the commitments of governments … of another Member State”.

Does the Minister agree that it would be grossly unjust if Britain finished up having to pay for the follies not only of those who joined the monetary union but of those who urged Greece’s membership by bending the rules? Will he give a guarantee that we will not finish up paying for these follies?

I think that the House would join me in encouraging Greece in the actions that it is taking to make the necessary fiscal adjustments to ensure that it is in a position to sustain the credibility of its borrowing and, importantly, to comply with the European growth and stability pact.

Did the Minister notice the defection on Friday of Edward McMillan-Scott, who joined the Liberal Democrats, emphasising over the weekend that there is no difference between the Conservative Benches and UKIP on European matters? Does he agree that the treaty and the ECOFIN mechanism provide a number of interesting options to help countries—Greece has a tiny GNP—for the whole Union? Above all, is he not perturbed and disturbed that the noble Lord, Lord Pearson, has not dealt with the priority in his party, which is to make sure—

Too long!

The Conservatives should listen just occasionally to these points. Should the noble Lord, Lord Pearson, not make sure that Nigel Farage apologises for his unseemly outburst recently and—

Too long!

Was he not described by another MEP as a lout?

It really is not necessary for me to comment on the statements made by Mr Farage or another member of UKIP in the European Parliament. I do not think that it made any of us feel very proud to be British to hear that sort of language being used in the European Chamber. We know that there are differences between UKIP and the Conservative Party on matters of Europe, but they are no wider than the differences within the Conservative Party. There will be plenty of opportunities in the remaining four and a half minutes for Members on the Conservative Benches to evidence their support for the European Union.

My Lords, given that the Government are borrowing £1 in every £4 that they spend, would it not be better to take a leaf out of Greece’s book rather than to give it advice?

Rather than giving advice, I said that we were pleased to see the steps that Greece is taking. We have already set out clearly in the Fiscal Responsibility Bill the actions necessary to reduce government spending and the deficit as a percentage of PBR to a sustainable level by halving it in less than four years once economic recovery is established. We are committed to waiting until recovery is firmly established, rather than snuffing it out as the Tories would do by premature cutting of public expenditure at a time when the economy cannot bear that cost.

My Lords—

My Lords—

My Lords, I think that we should hear from the noble Lord in the corner.

I am sorry to cross the noble Lord, Lord Tebbit—we are great friends normally. Does the Minister recall that, when he answered a Written Question from me on this subject, the Answer was an unequivocal no? However, this afternoon he appears to be equivocating about whether we would be required to bail out Greece in any way. Does he agree that, if Greece had not joined the eurozone, it would have been able to tackle the financial problems in the same way as Britain has?

My Lords, I do not think that I equivocated at all. I do not think that I in any way deviated from the Answer that I gave to my noble friend in reply to his Written Question. I am sure that a careful reading of Hansard would prove that to be the case. As far as a hypothetical question is concerned, I do not propose to answer it.

My Lords—

My Lords—

My Lords, I think that we have had two from the Benches opposite and I do not think that we have had one from this side.

My noble friend gave a challenge to the Conservative Party a few moments ago. A substantial part of the four and a half minutes has elapsed and no one from the Conservative Benches has risen to say anything positive about the European Union. Does my noble friend draw any conclusions from that?

I would like to allow the full seven and a half minutes. I look forward to hearing from the noble Lord, Lord Tebbit.

My Lords, is the noble Lord aware that I acquit him of equivocation? Can he confirm that in his earlier answers he made a statement that would cause us to believe that, should any costs fall on the British taxpayer in respect of the bail-out of Greece, he would forthwith resign?

We are talking about European Union support and I have been very clear in my response about that; I have been very clear in my response about what the treaty says.

To ask Her Majesty’s Government what progress they have made in tackling domestic violence; and how the United Kingdom compares with other countries in that respect.

My Lords, on behalf of my noble friend Lord Morris of Handsworth, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper.

My Lords, we continue to make significant progress in addressing domestic violence, including expansion of specialist domestic violence courts, multi-agency risk assessment conferences and independent domestic violence advisers. The British Crime Survey indicates a 64 per cent decrease in the number of incidents of domestic violence between 1997 and 2008-09. Domestic violence is a volume crime accounting for one in seven—14 per cent—of violent incidents in 2008-09. This represents a 9 percentage point decrease from 1997. Prosecution rates have nearly doubled since the introduction of specialist domestic violence courts, to an average of 72.5 per cent, and continue to rise. I am not aware of any other country achieving such significant outcomes.

My Lords, I am grateful to my noble and learned friend for her Answer and congratulate the Government on the enormous progress that they have made in this very difficult area. I put to her one specific and detailed point. Can she confirm that the new domestic violence protection notices, which I believe will be very helpful in this area, will be introduced quickly, at the very least on a pilot basis?

My Lords, efforts are being made to introduce these orders as quickly as possible. I assure my noble friend that every opportunity will be made to introduce them quickly.

The Home Office statistical bulletin published last year showed that, in the 10 years from 1997 to 2008, 361 homicides were perpetrated by partners or ex-partners as opposed to 253 homicides that were perpetrated by a stranger. Clearly, domestic violence leads to homicide. Why is it that, as reported by the Hestia Fund’s report last November, support from independent domestic violence advisers, to whom the noble and learned Baroness referred—a service introduced in 2005—is available to less than half the women in this country, given that it has proved to be successful where it has been used?

My Lords, we now have more than 700 domestic violence advisers. I tend to refer to them as “divas”, because that is what they are—both male and female. They are being rolled out right across the country, on a stage by stage basis. The noble Lord is absolutely right: they make a real difference. Every pilot that we have had demonstrates that difference, which is why we are making sure that there will be independent domestic violence advisers in every corner of our country.

Is my noble and learned friend aware that some time ago in the House of Commons a group of us got together and decided on a campaign on domestic violence? We had met some of the women concerned, who had been beaten and bruised and shattered and battered. We were appalled at this, so we started a campaign, with some limited success. Is my noble and learned friend aware that the present picture is very unclear? For example, how many people are subject to domestic violence? What provision do we make for them? Do policemen still comment on it as a perk of marriage? Could my noble and learned friend inform us on that?

My Lords, unfortunately, one in four women will be subjected to domestic violence at some stage in their lives, with 89 per cent of them subject to repeat victimisation—meaning that one to four additional assaults are on women. We have made a real difference to that figure; we have almost halved the repeat victimisation figures and have saved £7.5 billion in terms of pain, injury, loss and suffering. That is making a significant difference. We have the lowest level of domestic homicide rates at any time for the past 10 years.

Does the noble and learned Baroness agree that it is both right and proper that the criminal courts should regard domestic violence as, if anything, more serious than other species of violence, while remembering at all times that all unlawful violence tends to undermine a civilised society?

My Lords, I certainly agree that domestic violence should be treated more seriously—noble Lords will know that I have appeared in the Court of Appeal myself in the past few weeks to make that point. The Court of Appeal has been very clear to endorse the sentencing guidelines provision, and in the case that I appeared in the court doubled the sentence and made it clear that domestic violence is wholly unacceptable and will not be tolerated.

My Lords, I think that the noble and learned Baroness has told the House that reported domestic violence is the lowest in our history. Can she explain why, according to the Home Office statistical bulletin entitled Crime in England and Wales, it has flat-lined since 2005?

My Lords, it has not flat-lined. There has been a 64 per cent reduction in domestic violence since 1997, and the trajectory is downwards. I said that the domestic violence homicide rate is the lowest it has been in 10 years.

My Lords, does my noble and learned friend agree that many young girls and boys witness domestic violence on a weekly, if not daily, basis and could learn a pattern of inappropriate behaviour? What efforts are being made to ensure that young boys learn that this behaviour is totally unacceptable, and that young girls learn that they can say no and there is no need for them to accept this form of behaviour?

My Lords, my noble friend is right: about 750,000 children in our country will see domestic violence in any given year. In February, the Government launched a £2 million campaign to raise awareness in relation to teen dating and teen violence. This is specifically targeted to help our young people understand that domestic violence is unacceptable and they should not participate in it.

To ask Her Majesty’s Government what plans they have to cap charges made in the home credit market.

My Lords, I acknowledge the right reverend Prelate’s concern regarding home credit and his desire to protect vulnerable people. Evidence suggests that caps on charges could be detrimental to those on low incomes by risking a contraction in the supply of licensed credit, leading to an increase in the use of loan sharks. The OFT is reviewing the high-cost credit market, including caps on interest rates, and the Government will respond quickly when the results are published.

My Lords, I am grateful for that Answer and for the promise of thought and action in the future, because a large number of people are driven into deep debt by the home credit market. What action will the Government take to make it easier for credit unions to make loans, as they are a far better way of helping those in debt than home credit can ever be?

My Lords, I wholeheartedly agree with the right reverend Prelate about credit unions. We strongly support credit unions and we have taken steps to make them more accessible to vulnerable consumers, helping them to move away from high-cost credit. The growth fund has enabled credit unions and CDFIs to make over 230,000 loans worth £100 million to financially excluded people. We have also laid a legislative reform order which will put credit unions in a better position to grow and provide a wider range of services.

My Lords, I was surprised to hear the Minister dismiss the idea of capping charges, which can be astronomic. Can he tell us what is the highest rate that a person in the clutches of these lenders can be charged? Also, can he give us the Government’s definition of “usury”?

I cannot say what the highest rate is, but it could be something like 500 per cent—they are huge figures. We have looked carefully at introducing interest-rate caps, and we recognise that vulnerable consumers sometimes have little option other than to use high-cost credit products. However, the case for a rate cap is not clear-cut, and is not supported by consumer bodies—even though I have some personal sympathy with the idea. Introducing a cap could lead to lenders withdrawing from the market, denying vulnerable consumers legitimate sources of credit and leaving them no option but to resort to illegal, unlicensed lenders, exposing them to much higher borrowing costs and potentially violent methods for obtaining repayment.

My Lords, how can a loan at a rate of 500 per cent be described as legitimate?

My Lords, I do not think that I was describing it as legitimate. I was asked to give an estimate of the highest possible figures and I went on to say why we have not yet acted to introduce a rate cap. Research tells us that that would not particularly solve the problem. In countries such as France and Germany, where they have introduced rate caps, more borrowers than in the UK admitted that they or someone in their household had used an illegal lender.

The Minister referred to violence being used by loan sharks at the bottom end of the market. Is he satisfied that trading standards officers and the police have the resources that they need to crack down on loan sharks where they are known to operate?

My Lords, since 2004, the Government have committed £16.5 million to tackling illegal money lending. Initially, that covered two pilot areas—Glasgow and Birmingham—but was rolled out in 2007 to cover every region of England as well as Wales and Scotland. The Government will continue to fund an anti-loan-shark team in every region until March 2011.

My Lords, is it not the case that district and circuit judges have a wide discretion to brand as unconscionable high rates of interest and indeed any other oppressive condition in such a contract? Is it not time that every opportunity should be made to exercise that discretion, which enables courts to clamp down considerably if they are so minded?

I would not demur from the point made by the noble Lord.

Will my noble friend encourage our ministerial colleagues in the Department for Work and Pensions substantially to increase the loan facility of the social fund, which makes credit available to people on lowest incomes, including benefit incomes, at virtually nil rate and reasonable terms of repayment? That would surely be an appropriate way to drive out some of the completely hazardous and disgraceful rates—not just 500 per cent but 1,000 per cent at the lower end of the market.

I agree with my noble friend. There has already been some increase in the social fund and we will continue to try to ensure that that provides an opportunity for people to ensure that they get loans at a reasonable rate, especially at the vulnerable end of the market.

My Lords, in the continuance of support for credit unions, do the Government have any initiatives to assist in their start-up in localities and communities? One of the most difficult periods is in the earliest months of a credit union. It would be a great help to the public-spirited people starting them up if the Government could show some initiative in helping them, perhaps with preferential council tax on the premises that they often have to take at expensive rates in high streets.

I agree with my noble friend. We have taken some steps, as I said in Answer to the right reverend Prelate, to support credit unions. We have taken steps to make them more accessible to vulnerable consumers. As I said, the growth fund has enabled credit unions and CDFIs to make more than 230,000 loans worth £100 million to financially excluded people. We will do everything we can to assist the establishment of credit unions.

My Lords, what is the most extortionate example of a home credit agreement in the Minister’s brief?

I have already answered that, as best as I can. The figures available tell us that rates of interest are extortionate. I have suggested 500 per cent, some have suggested that they are even higher than that and they may be right. These are illegal activities and, with a range of measures, we are doing our best to stamp them out.

Is it not the point that even credit card companies, which are supposed to be respectable banks, are still charging extortionate rates in double digits—up to 20 per cent APR—when we have a base rate of only half a per cent? Is that not even more outrageous in the terms of financial services?

It might be a high rate of interest, but if we could reduce it from 500 per cent to the rates the noble Lord suggested, the people concerned might find that a considerable improvement.

To ask Her Majesty’s Government whether they will make a statement on the reductions in support payments to asylum seekers while they are awaiting a decision on their application.

My Lords, on 5 October 2009, we removed the distinction between rates of asylum support provided to single adults aged 18 to 24 and those aged 25 and over. The new unified rate was based on the lower rate provided to 18 to 24 year-olds, uplifted by 5.2 per cent. The rates paid to children and couples were also increased by 5.2 per cent. We continue to provide the over-25 rate to those who were in receipt of it prior to 5 October 2009, so no individual saw a reduction in their rate of support.

Is it still the Government’s policy to provide for the essential living needs of asylum seekers awaiting their decisions? Can the Government give the calculation on which the reduction from £42 to £35 for an adult over 25 was based? Would the noble Lord agree that following the consultation on asylum support, the unfettered discretion of the Secretary of State to decide these amounts should be replaced by a process of scrutiny by Parliament to make sure that they are adequate to meet essential living needs?

My Lords, the reasoning behind the change was that asylum seekers who otherwise would be destitute are given access to rent-free accommodation, plus all utilities paid and council tax included. Therefore, we felt that the difference between being 24 and 25 was nothing—it was exactly the same. All those things are provided, and this is an addition of money on top of that.

As regards the other point, it is fair to say that it is something that needs to be looked at. I cannot give a promise that we will do that, but I certainly believe it is something that should possibly be looked at.

Will the Minister confirm that by the end of next year, 2011, the UK Border Agency aims to conclude 90 per cent of new asylum cases within six months of application—in other words, to try and make this subvention as short as possible? There have been criticisms by the UNHCR and the Centre for Social Justice that six months is far too long. What is the noble Lord’s response and what guarantees are in place to ensure that this target will be met?

My Lords, as the noble Lord says, our aim is that we will conclude all such cases within the six-month target. At the moment we have reached about 60 per cent, and we are marching towards achieving the target. Also, we are doing very well getting rid of the backlog that we had in these cases. It is very important that we look at these people very carefully and accurately, and I think we do that. The tightening of our borders has reduced the number of asylum seekers who are not real asylum seekers—people who are coming here because they want to work here and for other reasons—to about 24,000 in 2009 compared with 84,000 in 2002. This is a dramatic reduction in numbers. We have a very fair system. Real asylum seekers who deserve asylum are looked at very thoroughly and carefully and get asylum in this country. Those who come here for other reasons do not, as is appropriate.

My Lords, the Minister, in answering my noble friend Lord Avebury, justified increases for all categories by 5.2 per cent but not for people aged over 25. He did so on the basis that utilities costs did not apply to this category. Do they not apply to other categories as well? In other words, he can uprate for all other categories but this category. His explanation does not work.

My Lords, perhaps I did not make myself clear. The reasoning behind it was that it made no real difference whether a single asylum seeker, who was already getting his accommodation, council tax and all utilities paid, was 21 or 22, or 26 or 27. It made sense to have that as one amount of money. That was the basis on which it was done.

My Lords, does the Minister support the sanctuary pledge, promoted by Citizens for Sanctuary and based on the findings of the Independent Asylum Commission, that people seeking sanctuary can have access to essential support and public services?

My Lords, I have to admit to being not absolutely au fait with that specific issue. I think I can promise that we always make sure that we look after people who come here to try to gain asylum. We give asylum to genuine asylum seekers. That is something that we can be proud of in this country. I will write to the right reverend Prelate on the specifics of his question.

My Lords, is my noble friend aware of the tragic case of the three failed asylum seekers in Glasgow, who committed suicide? Can he confirm that Glasgow is the only local authority taking on the huge burden and responsibility of looking after asylum seekers in Scotland? Will his department now reopen discussions with other Scottish local authorities to make sure that that responsibility is spread more widely?

My Lords, I cannot speak in detail on that case because what exactly happened is still being looked at. It is incumbent on all parties to make sure that these things are looked at closely and are dealt with. It is necessary for all of us to look at these things closely to make sure that such horrible events do not happen.

My Lords, of the figures given by the noble Lord, how many applicants are successful every year and how many applicants are returned overseas?

My Lords, I do not have that specific figure at my fingertips, but I think around 13 per cent were being returned and around 30 per cent were successful. Any expert in mathematics can work out that that is not 100 per cent. That is because many of these cases involve dual counting, duplication, wrong names and so on. There are a huge number of those. We have to take into account all of the backlog as well as the people currently coming in. If I have a specific figure for those coming in now, I will write to the noble Lord.

To ask Her Majesty’s Government whether they have taken or are considering any urgent action to avert the proposed strike by British Airways cabin crews or its impact on travellers.

My Lords, passengers will be seriously inconvenienced if a strike goes ahead. The Prime Minister and I have urged the union to call off the strike and urged both sides to seek to reach an agreement. We continue to do so. However, British Airways is a private company and the resolution of the dispute is a matter for the company and its staff. The Government have no powers to impose a settlement.

My Lords, I thank the Secretary of State for that reply. While we welcome his words and those today of the Prime Minister in roundly condemning Unite’s action, we want to know what else can be done to prevent the lives of millions of passengers being badly affected. Is not the real problem over this and the Government’s ability to handle it that the Government have turned a blind eye for months to the growing crisis because the Labour Party has been funded by Unite to the tune of more than £11 million since the Prime Minister became leader, and Mr Charlie Whelan—one of the so-called forces of hell identified by the Chancellor of the Exchequer—is political director of Unite and up to his elbows in Labour’s general election campaign? Will the Labour Party now stop taking donations from that trade union? Are the Government hampered in taking any action because of these donations?

My Lords, the noble Baroness’s remarks were well below the level of events. This is an industrial dispute; it is not a political dispute. I deeply regret the attempt by the Conservative Party to politicise the dispute, which will make it so much more difficult for it to be solved in the way we all wish it to be. The Prime Minister’s statement this morning could not have been firmer. My statement yesterday could not have been firmer. We wish to see this dispute resolved by negotiations, not by strike action. I continue to call on the union to lift the threat of the strike and get back to the negotiating table.

In respect of arrangements made for passengers who stand to be severely inconvenienced, British Airways has put out a statement setting out how it intends to handle flights if the strike goes ahead. The statement on its website at the moment says:

“We plan to operate all British Airways’ flights from London City airport, including long-haul services to New York. From Gatwick, we plan to operate all long-haul services and about 50 per cent of short-haul. From Heathrow, we plan to operate a substantial part of our long-haul and short-haul schedule … We are also in the process of obtaining seats on flights operated by other carriers to enable thousands of customers to fly to their chosen destinations”.

BA will give further details later today or tomorrow about precisely which flights will operate and which ones will not. BA is clearly therefore doing all it can to get early information to passengers. In this House, we should do all we can to urge both sides to reach a settlement so the strike does not take place.

My Lords, I thank the Secretary of State. We support the statement he made over the weekend which has been endorsed by his right honourable friend the Prime Minister today. Reports in the press indicate that the RMT union is planning serious disruption on the railways at Easter. This sort of action both in British Airways and on the railway is an attempt to blackmail employers, using the travelling public as a weapon. I know the difficulties which exist with private companies but I want the Secretary of State to exert every effort possible to ensure that disputes such as these are dealt with through arbitration rather than through the unacceptable measures that the unions are taking. These are not down-trodden and exploited workers. Many of them are among the better paid people. I really think that they and their unions have a duty to provide the public with the service they pay for.

My Lords, I entirely agree with the noble Lord that passengers should not be held to ransom in seeking to resolve industrial disputes. That applies to the railways as much as to the airlines.

My Lords, I speak as the president of BALPA. Does my noble friend agree that the Government should use their influence on both sides so that they abandon their preconceived views, which are not helpful? It is imperative that they engage urgently in talks designed to resolve this absolutely stupid dispute.

My Lords, I entirely agree with my noble friend on the importance of both sides talking. They were close to a settlement last Thursday. If they could return to the negotiating table it might well be possible to avert this strike. I urge them to do so immediately.

My Lords, I declare an interest as a past chairman of the Air Transport Users Council. What part has the present Air Transport Users Council played in this strike?

My Lords, it has been urging that flights should continue. I am not sure that it has any locus to help bring the sides together or enable them to reach an agreement but I know it has spoken up strongly on behalf of the interests of passengers.

My Lords, can the Minister explain what the Unite union is doing in its dispute with British Airways that is inconsistent with its overall responsibilities as a trade union and duties to its members?

My Lords, the question is whether it is possible to reach a settlement which meets the concerns of the unions without needing strike action. The two sides came very close indeed to such a settlement last Thursday. If they return to the negotiating table there is every reason to believe that it would be possible for them to reach a settlement which meets the interests of the members of the union without requiring strike action and the massive inconvenience and disruption that will be caused to the travelling public.

My Lords, my noble friend has made his position and that of the Government perfectly clear as regards their attitude towards the union. Do the Government feel that British Airways should now retable the proposals it tabled last week and withdrew? I may be wrong but I understand that those proposals got within a whisker of being agreed by both sides. Should we not therefore be pushing British Airways, as well as the union, to do something?

My Lords, if both sides come together for negotiations, I am sure that the offer that was on the table last Thursday will be one of the matters that they wish to discuss. However, they need to get round the table and start negotiating seriously before that is possible.

My Lords, does not the fact that Unite is such a major donor to the Labour Party, which is very significant in the run-up to the imminent election, make it very difficult for the Government to condemn the trade union in the way that perhaps they should?

My Lords, if I may say so, that is a ridiculous question. It is equivalent to saying that, because some noble Lords opposite give very large sums of money to the Conservative Party, the Conservative Party should not be regarded as a legitimate force in this House. There is a proper system in place for party funding; everything is done within the law; and, as I said, this is an industrial, not a political, dispute.

My Lords, is it not better that the parties be allowed to settle their dispute in the proper way? The TUC has already been involved, as is perfectly proper, but surely it does not help if the dispute becomes involved in party politics. As the Prime Minister did this morning, we should be urging the parties to get together to have realistic negotiations, leading, it is to be hoped, to the resolution of a very difficult problem.

My Lords, that is precisely what the Prime Minister and I are urging both sides to do.

My Lords, with the leave of the House, I wish to make a Statement.

Last year, when the House came under some scrutiny in relation to both Members’ conduct and Members’ expenses, I undertook to keep the House informed about major and relevant developments in this area. That is the purpose of my Statement today.

Although uninformed criticism seeks to paint this House as resistant to change, this House has embraced sensible change, including the Life Peerages Act 1958, proposed by the party opposite, and the House of Lords Act 1999, proposed by this side of the House. I can confirm the Government’s intention to bring forward proposals for further reform of your Lordships’ House.

In relation to financial support for Members of this House, a week today the House will debate proposals from the House Committee for long-term and permanent reform of the designation and declaration of Members’ principal residences. The proposals are drawn from the work of the all-party ad hoc group established by your Lordships’ House and chaired by the noble Lord, Lord Wakeham, following a review of financial support for Members of this House carried out by the independent Senior Salaries Review Body. The ad hoc group has been dealing with some very difficult issues and is now considering further matters referred to it by the leaders in this House and by the Clerk of the Parliaments. As a result, the group’s examination of these issues is unlikely to be available until after the forthcoming general election. However, in advance of that, the House will have before it next week a rigorous definition of what constitutes a Member’s primary residence and associated requirements on declaration.

As the report from the House Committee putting forward the new proposals states, a main weakness of the current system has been the inadequacy of the definition of what constitutes a Member’s principal residence outside London. The proposals from the House Committee detail new arrangements for the future but, at the same time, the Clerk of the Parliaments has been considering a number of complaints against Members of the House under the current arrangements for Members’ expenses, which the new proposals will replace. As part of his consideration of these complaints, the Clerk of the Parliaments set out some general principles for what the minimum threshold of residence might be and he sought the endorsement of the House Committee for these principles, including what the minimum frequency of stays in a Member’s main residence should be. The criteria that he proposed were endorsed by the full House Committee on 26 January on behalf of the whole House. It is these criteria that were cited by the Director of Public Prosecutions last week in relation to a decision that he had taken in respect of a Member of this House following an investigation by the Metropolitan Police. There has been considerable media criticism following the decision by the DPP, including unfair and unjust criticism of the Clerk of the Parliaments in this House.

Hear, hear.

My Lords, I deplore the media criticism of the Clerk of the Parliaments, who is a fine, conscientious and distinguished public servant.

The changes that we will be considering next week will replace and supersede any and all previous definitions or criteria and will give this House a clear and robust system. I believe that they are valuable and important improvements and I will be strongly recommending them to the House. The systems that I hope we will have in place will be reinforced by the decision before this House tomorrow on new guidance for the code of conduct for Members of the House, which the House approved last year following the report of the Leader’s Group chaired by the noble and right reverend Lord, Lord Eames. I look forward to the House approving the new guidance tomorrow.

I know that these are difficult issues. They are issues that make many Members, including me, feel uncomfortable. However, just as we took clear and decisive action last year on issues of conduct, which led to the suspension, unprecedented in modern times, of Members of this House, so, too, we are now taking clear and decisive action on the issues surrounding Members’ principal residences. At all stages, all sides of this House have acted in concert and in agreement. I thank the leaders of the principal political parties in this House and the Convenor of the Cross Benches for their positive, constructive and consensual support. I undertake again to continue to keep this House informed of developments and I look forward to the important steps that I hope the House will now take.

My Lords, I thank the noble Baroness for making that Statement and keeping the House informed. We face an enormous issue of public confidence in the House as a result of the actions—and perceived actions—of a few. It is a terrible day when the reputation of your Lordships’ House is dragged through the mire. The overwhelming majority of Members of this House are honourable and act as such. I support the noble Baroness in the programme of action that she has outlined, which also included last year’s unprecedented exclusion of two Peers found not to have acted in accordance with the code of conduct.

We will, indeed, debate a new code of conduct tomorrow, which I trust will be supported. I also support the debate that we shall have next week on the new proposed definition of a main residence, although I regret that we will be unable to introduce a new regime for expenses this side of a general election, albeit for reasons that I understand. The expenses system that we currently have was recommended not by the House but by the SSRB. As noble Lords know, we on this side proposed a system of reform of expenses that would have swept away the regime of second homes and shut down scope for abuse, but the SSRB, in its recent report, did not support it. I therefore do not accept that all wisdom on this subject lies outside this House and I reject the widespread attacks on your Lordships’ House.

When abuse was uncovered, we moved with speed to put matters right. We must of course pay heed to public indignation and apologise for the causes, but the public should not underestimate the anger that most Peers—in what, let it not be forgotten, is an unpaid House—will feel against those guilty of abusing the trust of the House. There is a limit to what further comment I can make. Some cases will now be brought before the sub-committee on interests, where they must be heard with fairness but with the utmost rigour. I join the noble Baroness in rejecting the public attacks on the Clerk of the Parliaments, an outstanding servant of this House and a public official of the highest integrity. The Clerk of the Parliaments has, I know, tolerated no abuse; indeed, it was he who advised the House that it could revive its ancient powers to exclude Members guilty of misconduct.

As a layman, not a lawyer, I find it hard to see how a jury would not have taken a view on the whole range of factors on what constitutes a main residence, rather than a single point that, taken out of context, has received such publicity. I think that most of us know what constitutes a home and what does not. There will be grey areas, especially in a part-time, unpaid House, many of whose Members lead very different lives in recess. However, I venture to conclude with this: whatever the rights and wrongs in the small print, noble Lords who may have abused the system in any way should now examine their consciences and consider making amends for any profit that they have made in relation to what they will know, in their own minds, was not a main residence. I thank the noble Baroness the Leader of the House for keeping us informed of these matters.

My Lords, I associate myself and these Benches with both the Statement of the Leader of the House and the remarks of the Leader of the Opposition. This House has been well served by the fact that there has been no attempt by either the government or opposition sides to get into a nuclear arms race of indignation. Instead, we have addressed the difficult problem of moving from what I once described as a vaguely drawn and lightly policed system to a more precise and fit-for purpose system, which we have done with due concern for the issues at stake. We have been well served by the Leader of the House, the Lord Speaker and the Clerk of the Parliaments. I thought that the attacks on him were outrageous; the House has already indicated its feeling about those unworthy statements.

I wholly support the Statement of the Leader of the House and the actions that have been and will be taken. I also look forward very much to the debates on the reports from the Privileges Committee and the House Committee that will take place this week and next week. I look forward to contributing at that time.

That the draft regulations laid before the House on 20 January be approved.

Relevant Document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 8 March.

That the draft order and regulations laid before the House on 19 and 27 January and 2 February be approved.

Relevant Documents: 7th and 8th Reports from the Joint Committee on Statutory Instruments and 11th Report from the Merits Committee. Considered in Grand Committee on 8 March.

That the draft order be referred to a Grand Committee.

That the draft order be referred to a Grand Committee.

My Lords, before we begin the debate it may be helpful for me to say a few words about Third Reading amendments. In line with the procedure agreed by the House, the Public Bill Office advised the usual channels on Friday that two amendments on the Marshalled List for Third Reading today fall outside the guidance in the Companion on Third Reading amendments. On the basis of that advice, the usual channels recommend that Amendment 1, in the name of the noble Earl, Lord Erroll, and Amendment 6 in the names of the noble Earl, Lord Erroll, and the noble Lord, Lord Whitty, should not be moved. As ever, this is ultimately a matter for the House as a whole to decide.

My Lords, I am allowed to move Amendment 2, and in doing so I declare my usual interest as chair of Consumer Focus.

The amendment, which is fairly straightforward, is intended to ensure that notification of apparent breach of copyright by subscribers in a notification letter should not count towards any subsequent imposition of technical measures until after Parliament has decided that we should move to technical measures. However, I need to put this in a rather wider context. Those of your Lordships who have been present during earlier stages of this debate will know that I am not enamoured of Clauses 4 to 18, both from my concern as a consumer representative and from my concern about human rights. The Minister may be pleased to hear that I owe him an apology in relation to one aspect of the Bill where I misunderstood the intention. However, in general, although the Government have ameliorated some aspects of the Bill in the course of the Committee and Report stages, the basic problems still remain. So although this is a specific amendment, it goes to the heart of the way in which the Government propose to deal with the issue of online copyright infringement.

My Lords, I did not intend to speak on this amendment, but I cannot allow the remarks of the noble Lord, Lord Whitty, or rather the chairman of Consumer Focus, whose interests he is clearly representing here today—

My remarks represent my personal view. In fact, Consumer Focus may be slightly more conciliatory, so I ask the noble Lord to withdraw that remark.

I think the noble Lord, Lord Whitty, should withdraw the remarks he made about my noble friend Lord Clement-Jones. A number of us have spent many years trying to wrestle with this problem. I understand that the noble Lord, Lord Whitty, has obviously come to it relatively late.

The Government have engaged in an extensive consultation to try to find the right balance between the rights of the copyright owners and the rights of the consumer. What concerns me about the comments of the noble Lord, Lord Whitty, is that a number of the things he has said about this Bill are simply not true. I am sure that the Minister will deal with that.

What worries me more particularly, apart from the intention of delaying the provisions, is that despite the fact there has been extensive consultation and significant movements by the Government to try to get the right balance between the rights of the copyright owner and the rights of the consumer, no proposal comes from the noble Lord, Lord Whitty, as to how the interests of the copyright owner should be protected.

It is a perfectly sustainable position that a lot of people take that everything on the internet should be free and that everyone should be allowed to download for free; most 18 to 23 year-olds take that view. I completely share the noble Lord’s view that this requires a significant educational process. The creative industries have now spent three, four, five or six years endeavouring to get a structure in place that will get the right balance between the interests of the copyright owners and the rights of the consumer, and we cannot suddenly now say, “Let us tear that up and start again”. That is essentially what this amendment says. I am afraid we cannot support it from these Benches.

My Lords, I very much hope that this is the last time I will speak in what has been a very protracted series of debates seeing this Bill through to its passage down the corridor. I find myself in a very odd, paradoxical situation. The noble Lord, Lord Whitty, is right: I bow to no one in my defence of the rights of legitimate copyright owners and also in maintaining that—in my judgment—the creative industries will eventually atrophy unless adequate protections are created and a respect for copyright is developed.

Having said that, I disagree with the noble Lord, Lord Razzall. I do not believe that enough has been done, or enough intelligence brought to bear, in creating a serious balance between what I would refer to as free-use protocols and copyright protection. The ball was dropped badly early on by the failure of the Government to understand that, in exchange for a firm commitment to protect copyright, a review should have been undertaken of those areas in which copyright could be freed up. We have done a pretty good job in this House in the area of orphan works, but there are many other areas where copyright unnecessarily prohibits educational use as well as any number of other uses—clip rights, for example, in the film industry. A trade-off should have been orchestrated early on between firm protection on the one hand, and optimum free use as advocated by the Creative Commons movement on the other. That was the first missed opportunity.

As to the other missed opportunity—I would be grateful if the Minister would help me on this—why on earth were the ISPs early on allowed to wriggle off the hook of their obligations as part and parcel of the value chain by which copyright material creates revenues and reaches customers? What kind of strange double think was it that allowed the ISPs to believe they were not part of that value chain? I used an analogy on the radio the other day which is not unreasonable: it is rather like the owners of chemist shops deciding that they have no responsibility for what prescription drugs are or are not sold over their counters. Every chemist understands that if you open a chemist’s shop you immediately take on a series of clear responsibilities—not only health and safety responsibilities but responsibilities for the products you sell. How was it that the ISPs managed to convince the Government that they were not part of a legitimate value chain with all the responsibilities that come with it? This is what puzzles me most. I sincerely believe that it lies at the core of the problems with the Bill, and I would be grateful if, at this very late stage of Third Reading, the Minister could explain to the House exactly how this occurred.

My Lords, the disquiets I had at Second Reading have not been dissipated, and I join the noble Lord, Lord Whitty, in many of his remarks. My disappointment is that normally this House is assiduous in making sure that due process is seen to be done in Bills. The fact that we are not going to be allowed to debate and come to a conclusion on Amendment 6 reflects poorly on the Government, but I accept that the usual channels have no doubt agreed that it will not be debated. However, the amendment encapsulates some of the principles that the noble Lord, Lord Whitty, was talking about. The Bill refers to a study of the efficacy of techniques, but this House will not be allowed to take a view on whether an economic and social impact assessment should be undertaken. That is the heart of the matter.

People like me who worry about what is in the Bill have never disputed that the creative industries need protection—I thoroughly agree that they do. However, I have felt all the way through the Bill that there are not sufficient checks and balances to protect the consumer. In particular, when a person, an institution, an internet café or a university is accused of transgressing these rules, it will hit the individual very hard. How will they disprove the accusations? They will have to employ a computer expert to counter the argument but there will not be legal aid for this; the money will not come forth. We should have debated these issues in this House. I believe that we would have come to the conclusion that we should protect the consumer better.

The real problem is that the other House also will not be able to come to any conclusion about this issue; its Members will get only a Second Reading. They will not have a chance to put amendments forward on behalf of their constituents to make the Bill better balanced. Given the imminent election, it is incumbent on the Government to include the checks, balances and concessions for which we have asked.

My Lords, I wish to make a couple of remarks, as I have my name down to this amendment. I thank the Minister for being so patient with us for raising so many points as we went round and round certain issues several times, seeking different ways of trying to get consumer protection. I know that this has been a difficult time for the Minister. I am sorry when he half rises to his feet and then has to sit down again. I wondered whether we should excuse him from doing so because of his hip. Perhaps he could just stand back from the Dispatch Box if we interrupt his speech and we could—in our courteous way—allow him a slight degree of latitude as regards our conventions.

This Bill is supposed to be based on the Digital Britain report produced by the noble Lord, Lord Carter, which encapsulated a vision of a future based on a digital economy. However, it contained considerable consumer focus; this Bill does not. A couple of issues that helped the consumer could have been included, but unfortunately I received notice earlier this afternoon that they lay outside the rigorously rigid rules for Third Reading, and therefore the usual channels had disallowed them. I had notified the Bill team of them because they might have helped to clarify some points for the general public, who will be watching this debate with interest. It may interest your Lordships to know that “Panorama”, at 8.30 pm tonight—

My Lords, I apologise for intervening, but the noble Earl must remember that we have a Companion to the Standing Orders, which is agreed by the whole House. It is not just a question of the Government or the usual channels; Third Reading amendments are subject to the guidance which has been agreed by the whole House. It is not a matter for the Government at all.

The noble Lord has not seen my e-mail in which I argued that I thought the issues were just within the bounds for various reasons. However, we should not be debating that now, for the very reasons that the noble Lord has just given. That issue might be worth taking up because they were different in emphasis. My Amendment 6, which has been refused, was not the same as the others, which offered enforceable protections to the consumer. Amendment 6 sought purely to produce a report and impact assessment for the same class of people through Ofcom. It did not have the same force as the previous amendments that we had tabled. Perhaps that is not allowable; perhaps it is. It is the sort of debate that this House should have. The matter should not be decided by just a small cabal of Front-Benchers.

The real trouble with the Bill is that it is highly unusual. We should not pass legislation in this way. The Bill is entirely a product of your Lordships’ House. It will go to another place and will receive a Second Reading. One is told that no amendments will be permitted to it. Many Members of the other place are extremely annoyed about that and are very upset that the Bill cannot be amended at all. The form in which the Bill leaves this place is that in which it will pass into law. Therefore, our rules at Third Reading should be much less rigid considering that this is the last time that amendments can be put down. It is a very dangerous way in which to pass legislation; in fact, it is unethical. As I have said before, if we were directors of a company we would probably be locked up for failing to undertake proper governance. Parliament should not behave in this way.

As I say, noble Lords may be interested to hear that “Panorama” at 8.30 pm tonight on BBC1 will be devoted entirely to this Bill. It will be interested to see what balance is struck in the arguments. I have no idea what is in the programme—

Watch Sky.

The channel is 101 on my Sky machine, and it is at 8.30 pm tonight, if that is of any assistance to the noble Lord.

There has been an escalation in notifications being sent out—without this Bill being in place—from various law firms, particularly American law firms. If these notifications are already piling up and are counted from day one, some people will have a huge handicap at the starting blocks. This amendment is essential as it would enable us to say, “We are drawing a line. We now have new legislation. We are going to move forward under the rules of this legislation. Therefore, notifications issued under previous legislation that might have existed will not count towards the various measures that might be introduced under this legislation”. It is entirely sensible to have a proper start point. I would be very surprised if anyone wanted to turn this down.

My Lords, I do not believe that we should accept the amendment. It is very clear under new Section 124G(2) of the Communications Act 2003, inserted by Clause 10, that technical obligations can apply only in relation to relevant subscribers, and relevant subscribers are those who are included on a copyright infringement list. It would not be sensible, therefore, to suggest that copyright infringement reports produced prior to the order imposing technical measures should essentially be set aside; they are the basis on which the subscriber is “relevant”.

It was neither helpful nor even fair of my noble friend Lord Whitty to suggest that everybody else was captured by external interests. We have had long, serious debates on these issues which have examined every facet of the legislation. It is untrue that the Government are backing protectionism as opposed to innovation; indeed, we have taken the opportunity time and again to say that there is a duty on copyright holders to produce legal means of access. My noble friend pointed to a poll indicating that 75 per cent of the population do not understand what is lawful and what is not. About that, I would say that it depends how you put the question.

My noble friend needs to make up his mind about stage 1. First, he said that you were more or less found guilty at stage 1; the next minute, he described it as an educational stage. He is right in the latter description: it is of course educational. Moving towards any possible sanctions under technical measures would be a long process. I shall not reply to every nuance of my noble friend’s argument, because we have debated the points time and again. Unfortunately, we must agree to differ.

My noble friend Lord Puttnam said that we had missed opportunities. He may be right, but we have tried as hard as we can. The Government have recently published a copyright strategy which looks at copyright broadly and the balance between owners, users and consumers at a European level. It may not be the total answer to what my noble friend requested. We perhaps do not have time today fully to debate the role of ISPs, although we will perhaps touch on it in later clauses. Attempts have been made to encourage ISPs to recognise that they have a role to play, certainly in relation to pornographic and paedophile material, where they have been expected to take action.

The noble Baroness, Lady Miller, again said that she was disappointed. Her analysis was similar to that of my noble friend Lord Whitty. She does not agree with the direction that we have chosen to take. I am afraid that it is not possible to satisfy her in those circumstances.

I thank the noble Earl, Lord Erroll, for his concern. I assure him that I can rise to the occasion today.

When it was said that we had not given the matter enough scrutiny, I could not help but wryly reflect that a 48-clause Bill that has had about 430 amendments tabled to it seems to me a fair amount of scrutiny. If we took the time and trouble to look at how many times we have debated the same issue, I think that we would refute that charge.

I return to the amendment. As I have said, it is not a question of imposing technical measures immediately. We have already made a number of amendments, one of which included a year’s interval before such measures could even be considered. However, this does not mean that everybody who thus qualifies as a relevant subscriber will suddenly find themselves subject to a technical measure once an order has been made. New Section 124G(2), in Clause 10, defines a “technical obligation” as,

“a technical measure against some or all relevant subscribers”.

This should be read in conjunction with new Section 124H(3) and (4) in Clause 11, which say that the order must specify the date from which the technical obligation should have effect and the criteria for taking the measure.

My Lords, I am obviously disappointed in that. This Bill, as my noble friend recognises despite his calm and patient dealing with the long scrutiny we have gone through, makes me quite angry. It is true, as the noble Lord, Lord Razzall, said that there was a lot of consultation prior to the publication of the Bill when this issue was being discussed. However, the representations made by consumer interests, educational interests, the ISPs and many others were not taken into account.

For the sake of future peace and harmony and good relations, I withdraw any implication that individuals are captured by producers. If people interpreted that personally, I apologise. It is nevertheless the case that the views, in particular of the music industry have been pressurising government over the past few years throughout this whole process. When the Government modified their position slightly, following the report of the noble Lord, Lord Carter, the pressure came back on and it was tightened up again.

I think there is an imbalance in this Bill. The amendment was not intended to destroy the structure of the Bill—I do not agree with the structure of the Bill but we have debated all that. It was intended to say that the first stage, which the Government themselves have said again today is an educational stage, should indeed be an educational stage. It should not be the start of a process that could end in very substantial sanctions. That would seem to me, if you were starting from scratch, a very sensible way of proceeding. As the Bill stands, it is only an 18-month delay that I am talking about and that is already built into the Bill. It would simply be that when you are sending notification letters to subscribers, who may be utterly unaware that any infringement has taken place, the letters should not accumulate until this House, and this Parliament, have decided that technical measures—namely, heavy sanctions—are actually required.

In normal, calmer circumstances certain Members of the House at least may well have accepted that argument. I certainly think that it would have been a major argument in another place. Given the present circumstances, I felt it necessary to make my case for this relatively minor amendment, which accepts the general structure the Government have now put in place to ensure that we do in fact get a positive outcome; that is, a lawful system under which consumers can access copyright material. I agree with the noble Lord, Lord Razzall, that digital rights holders have rights in the digital system. We want some return to them but actually this system does not give any return to rights holders. Closing down a significant number of subscribers does not mean that any money whatever goes to the creative artists. The only people who will immediately benefit from it are perhaps a few well-heeled organisations and their rather unscrupulous lawyers. It is not beyond imagination that those who are hit by this sanction will immediately go out and buy a copy of the original work. Quite where the £200 million that the Government expect to go back to digital rights holders emerges from this process, I am not clear—whereas, if we move to what my noble friend Lord Puttnam described, with the ISPs, file-sharing systems and digital rights holders getting together to create a lawful system, which would be accessible, a guaranteed income would go to the digital rights holders. This Bill does not guarantee income for the digital rights holders.

As we go down the line, that may become more apparent. I am hoping that in the process of the code with Ofcom, some of these things may be clarified in a direction that I can support. At the moment, I cannot support this Bill. I recognise, from the opinions expressed around the House, that I should not break the habit of a lifetime and ask the House to vote against the Government. However, I deplore the Bill and am afraid that there is nothing that the noble Lord can say—or my noble friend the Minister, who I hope soon recovers from his affliction. I apologise if this Bill has made his affliction worse and commend his patience and that of his colleagues in dealing with this and other legislation. However, nothing will convince me that this is right. I suspect that, further down the line, we will find that it is horribly wrong and we will be back here in three or four years’ time, trying to find some other way of dealing with this situation. Until that point, I withdraw my amendment.

My Lords, I am proposing this group of seven amendments, which are needed for the purpose of tidying up the Bill rather than for any new policy purpose. For example, the first amendment, which removes text from new Section 124E(5) in Clause 8, is because it is otiose for paragraph (d) of that subsection to cover “any other matter” when the opening words of the subsection already refer to “any matter” at page 12, line 8. All the other amendments do a similar tidying-up job.

It is inevitable, given the number and the pace of the amendments that we considered at Report, and following a very full debate in Committee, that these sorts of things are picked up later. While they do not effect any policy changes, it helps the readability and understanding of the Bill if we put these things right when we spot them. On that basis, I beg to move.

My Lords, in earlier debates on these provisions we have discussed, and agree, the need for Ofcom to be able to require information and assistance from both internet service providers and copyright owners in their assessment of the need for technical measures. It goes without saying that Ofcom will need similarly to be able to require information and assistance from the same parties in carrying out their duties in administering and enforcing the codes. Section 135 of the Communications Act gives Ofcom wide powers to require information to carry out its functions under that Act. However, it is possible that a copyright owner might consider that the provision does not apply to them or that a copyright owner or ISP would argue that these functions of Ofcom under the codes are not covered by the existing power and would seek to challenge a request from Ofcom for advice or information. It is that possibility, and any resulting difficulties in administering or enforcing the code, that we are seeking to avoid by putting this obligation clearly and explicitly on the face of the legislation. I believe this is a sensible and uncontroversial point and I beg to move.

My Lords, Amendment 12 is much more straightforward and I hope that the Government will be prepared to accept it. At some stage during the Bill it was determined that not only should the ISP share the cost with the digital rights owners, but also, in certain circumstances, the subscriber should. I can conceive of situations in which this would be legitimate and in which the subscriber’s behaviour could lead to them sharing the costs. However, in general it is not legitimate. It is certainly not fair and it is not due process that the subscriber should be charged the cost of what is, effectively, the digital rights owners trying to pursue their rights.

My amendment would not delete the possibility of the subscriber being asked to meet part of the cost, but it would mean that the imposition of that cost would not inhibit the subscriber from taking forward an appeal against the sanction. In other words, the share of the cost imposed by the tribunal should be assessed in terms of its economic and social impact on the subscriber and whether or not their potential share would prevent them from taking this further and being able to make an appeal. As the noble Baroness, Lady Miller, said, this is not subject to legal aid, so the cost of an appeal is a very relevant consideration. If this imposition of cost inhibits people from taking their right to appeal, that is a very dangerous road to go down. This does not alter anything else that the Government have in the Bill; it would simply protect more vulnerable consumers from the imposition of costs. In that respect, I would have thought that the Government could accept it. I beg to move.

My Lords, I have put my name to this amendment because I have seen how the threat of costs has been used to blackmail people into not appealing, particularly in employment with very small employers. For example, an employee may leave for whatever reason; the employer may have done nothing wrong but it does not dare to defend itself because of the threat of costs. I would hate to see that read across into this Bill. We have previously discussed the behaviour of certain firms of solicitors. I understand that that cannot be stopped immediately—it is not simple and the whole thing would be very long-winded. However, something like this amendment would be a sensible way of stopping abuses from day one.

My Lords, this amendment addresses an important issue. It is essential that subscribers have the ability to appeal against notifications and decisions, both in terms of the appeals structure being in place and in terms of the ability to utilise the appeals process without undue financial concern. Thus far I am happy to agree with the noble Lords. However, I am not convinced that the sort of social and economic impact assessment advocated is proportionate, nor do I think that we need to see this in the Bill. Rather, this is exactly the sort of issue that should be raised as part of the consultation that we would conduct on a statutory instrument on the sharing of costs in the event of technical obligations being imposed.

I understand that we need to look at this in the round and that the issue is not just the refundable fee, which we have discussed before in this House. We have given assurances on that front: there should not be costs that would inhibit the process of appeal. However, because this is such an important issue, it will certainly be part of the consultation on both the statutory instrument that would introduce technical obligations and the statutory instrument that would be needed to order the sharing of costs in—I stress this—the event of technical measures being applied.

The consultation that we will shortly launch applies purely to the regime under initial obligations. We will of course be asking within that consultation whether and how subscriber contribution should be dealt with, although, as I have said on a number of occasions, we have given our views about appeal charges not inhibiting an appeal at the initial obligations stage. That being the case, and with the assurance to my noble friend that I fully appreciate the importance of what the amendment is addressing, I hope that he will feel able to withdraw it confident that the issue will be fully and properly addressed when it becomes relevant.

My Lords, I welcome the assurance that this will be taken into account when the secondary legislation and the code are drawn up. On the basis of that assurance, I beg leave to withdraw the amendment.

In moving this amendment, I will also speak to Amendments 16, 21 and 22. There are different views about the merits of the Bill that we have so carefully discussed over the past three months and there is clearly much to discuss in the other place. Of course, there are still some unsatisfactory aspects. My noble friend Lady Miller mentioned the major problem that remains with use of the internet by libraries and universities. The noble Lord, Lord Puttnam, had some good points to make about the freeing up of copyright laws, which will mean the implementation of some aspects of the Gowers report that were not included in the Bill. Orphan works are another area that will leave this House in an unsatisfactory state.

However, I strongly disagree with the noble Lord, Lord Whitty, who seems to have suggested in today’s debate that we have all been wasting our time for the past three months. I certainly do not accept that. I am quite clear that the Bill leaves this House in far better shape than when it arrived. The Government’s willingness to listen and to make changes to Clauses 4 to 16 is partly responsible for that. On these Benches, we have played our part to help significantly alter the Government’s original proposals relating to illegal P2P file-sharing and the possible introduction of technical measures. We take some satisfaction that there is now an explicit assumption, contrary to what the noble Lord, Lord Whitty, said, of innocence until proven guilty. None the less, the Government strenuously and rather bafflingly, throughout our deliberations on the Bill, insisted on the retention of Clause 17. These Benches opposed and helped to defeat the Government’s proposals, which would have given them wide powers to change copyright law by order.

These amendments consist of a number of clarifications and improvements to the amendment that was introduced on Report to insert a new Section 97B into the copyright Act. I do not accept that the amendment that we voted on at Report is worse than Clause 17, but these amendments are much more targeted. I certainly do not accept that all this is evidence that we are in the pockets of the music industry. The music industry was mad keen—as indeed were many broadcasters and sports organisations—to keep Clause 17. I see that the noble Lord, Lord Triesman, is in his place. He made a passionate speech about Clause 17. The industry wanted Clause 17. New Section 97B is very much a second string in those circumstances.

We drafted new amendments as a result of discussions with the Open Rights Group and others, which we believe will go some way towards meeting the objections of critics. They may not be officially endorsed by the Open Rights Group, but we are grateful for its assistance none the less.

Amendment 14 would provide that a notice of a request for blocking must be given to service providers and online locations in the prescribed form. Amendment 16 would require courts to consider whether an injunction would disproportionately prejudice legitimate uses and legitimate users of the online location. This is to deal with any issue where an injunction could be used to disproportionately affect sites such as YouTube. Amendment 21 clarifies that the courts would determine costs where an injunction had been granted. In order to make the process more even-handed between an ISP and a rights holder, there is no presumption as to costs. Amendment 22 would create a remedy whereby innocent parties affected by requests for blocking where no court order was sought would have access to appeals via the courts and the ability to claim compensation.

These amendments would help to rebalance the clause and are worthy of support. Without wishing to pre-empt the noble Lord, Lord Howard, I indicate our support for the other amendments in the group. I beg to move.

My Lords, I assume that the noble Lords, Lord De Mauley and Lord Howard, will be speaking to their amendments in this group, which I support. I do not like Clause 18 at all, which is unclear in certain areas. I have tabled a set of amendments, which we shall debate immediately after this, to clarify the issue of search engines, which I am assured will be trapped by what is proposed. I asked for those amendments to be degrouped; I think that the issue needs to be looked at separately, as there may be some people who feel very strongly about it. It will be very brief. The amendments in this group go some way towards improving Clause 18. I still do not think that it would be perfect, but anything is better than nothing. Therefore, I will support the amendments. This clause cannot, however, be made perfect that easily. It needs a lot of thought, but these amendments are a good start in the right direction.

The noble Lord, Lord Clement-Jones, has put the point that needs to be made on this clause extremely adequately, so I will not waste the House’s time any further. I look forward to hearing what the Minister has to say.

My Lords, I am delighted that we are making progress in this direction. Whether the Government will listen to the siren voices of British Telecom and others saying that this is a step in the wrong direction, I do not know. It seems to me that that was where Clause 17 was aiming. The Government wanted to get away with something much broader and much less definite and, now that they are confronted with something specific, they seem to be running away from it. That shows how right we were to delete Clause 17. There are clearly major issues to be settled.

We ought to be making it inconvenient for people to find illegal material. There will always be people who will go to great lengths to find stuff that they should not. They are a small minority and it takes a lot of their time. We want to deal with the ordinary people who are finding it terribly easy to find illegal material. It is as if every street was lined with stalls selling counterfeit goods. If we can just take them off, yes, new ones will pop up, but they take time to get known and, when they are known, you knock them off. If you go in this direction with Clause 18, you deal with the bulk of the business.

Certainly in that way we begin to answer the questions raised by the noble Lord, Lord Triesman, in Committee, about people who are streaming football matches straight after the game or maybe during the game. These people have identifiable sites. People know where to go. You knock them on the head. Sure, a few will pop up elsewhere but, before they can do any damage, they become big enough to notice and you sit on them again. That seems to me the sensible approach.

We will need proper protection for search engines. We will need to think carefully to what extent they can be asked to block material. I think that they will have to be asked to block material to some extent. I looked for a copy of Stephen Fry reading one of the Harry Potter stories the other day, which he does beautifully. Listening to it is a wonderful experience. When I looked for it on Google, the first three pages were occupied by illegal material. It was extremely difficult to find something that was legal. It was easy enough to identify the illegal material because it all referred to BitTorrent. It would be easy enough to drop those services from the index, as they advertise that they are illegal.

I do not see why search engines should not be able to block these things. Taking them out of search engine results would be one of the most obvious ways of making life inconvenient and one of the easiest ways of doing so, compared with trying to block individuals’ internet traffic. This will be a productive way to go. I suspect that it will require a lot more consideration than we have had time to give it, but I go back to my amendment tabled in Committee. This is where Clause 17 ought to have been heading. As has been suggested by the noble Lord, Lord Puttnam, if this gets struck from the Bill in the wash-up, we certainly ought immediately to begin discussions on how we can make a success of going down this route to deal effectively with piracy at source, rather than just prosecuting those who happen to be drinking the counterfeit rum.

My Lords, I thank the noble Lord, Lord Lucas, for his generous comments and record the fact that I agree with much of what he said. I add my voice in urging the Government again to have a discussion with the search engine companies. I know that it will not be the first time that an attempt at fruitful discussion with them has taken place. It seems a plausible argument to put to them that there are a variety of things which are illegal and undesirable in all sorts of different ways but which the technologies that they employ can open up to people. It is not beyond them to deal with that. It is certainly not beyond them to co-operate, because it is socially, let alone legally, right to co-operate. Without wishing either to hear things that the noble Lord did not intend, or to put words in his mouth, I urge that conversation to go ahead as soon as possible in light of the clause that is now in front of us.

My Lords, when the Minister responds, it would be worth him answering the question asked by the noble Lord, Lord Puttnam, although he is no longer in his place. Why are the ISPs so exercised about such issues? Why were they allowed to get into the position where this sort of thing was nothing to do with them? We debated that in Committee. As we know, the ISPs are strongly against this amendment because they have traditionally taken the view that they are like the Royal Mail. When you send a letter through the Post Office and the Royal Mail delivers it, nobody suggests that the Royal Mail should be responsible for the content of the letter, even if it is defamatory or in breach of copyright. That is how the ISPs regard themselves. Clearly, it is a major issue to get the balance right between the ISP in the role of the Royal Mail and the ISP taking down material that is illegal or in breach of copyright. This amendment is the first time that the issue has been addressed. The Minister indicated that the ISPs take down material relating to paedophilia and illegal hard pornography, but I understand that that is only by voluntary agreement among the ISPs and that not all of them sign up to it. This is a significant step forward and it explains why the ISPs are against it.

My Lords, with the permission of the House, it may help if I clarify that issue, which I know a little about. It has to do with Europe and the e-commerce directive. ISPs, in acting purely as a way of accessing the internet—as a pipeline to other content—and not delivering content themselves, are mere conduits. As such, they have an exemption. It is rather like the Royal Mail not having to censor all your mail to check that you are not sending bad stuff. If the ISPs tried to check everything that passed through them, it would kill the internet. There has to be a difference between people who host content and an ISP, which is just a conduit to get to content and does not check what is going through it. There has been confusion on that throughout the Bill. I have not worried about it in the past but it may help the noble Lord, Lord Puttnam, when he reads this later.

My Lords, I made the Government’s view of this clause clear on Report. I certainly agree that we should have a way of tackling online copyright infringement that will not be susceptible to the provisions in Clauses 4 to 17, but I am afraid that this clause is not it.

I have already outlined our primary concerns. At a purely practical level, despite the drafting in subsections (6) and (7), this is not compatible with the technical standards directive and will not be capable of being enforced. Furthermore, as the industry, public and media response over the past 10 days has made clear, this measure needs careful design if we are to avoid significant disadvantages and unforeseen and unwanted consequences to the internet and the digital economy. I reassure the noble Lord, Lord Lucas, that although I am a former employee of BT, I am not listening to the siren voices. I always enjoy listening to the noble Lord’s dulcet tones. We are no longer running away from this issue but, I hope, heading in the right direction.

As I said, there has been a lot of response in the media. I acknowledge that the noble Lords who proposed this clause share the Government’s aim of addressing online infringement of copyright, which is the intention behind this clause. Our intention as the Bill moves to another place is to try to bring forward a clause that would ultimately achieve the same effect, but one which could be enforced, by proposing a power for the Secretary of State to bring forward regulations to achieve the desired effect in relation to site blocking. This would allow for not only proper notification under the technical standards directive but also—this is important—proper consultation and consideration of the evidence for the need for and proportionality of the measure.

This is a complex issue, as has been acknowledged even in this short debate. I thank the noble Earl, Lord Erroll, for the clarification he gave about the role of ISPs as a conduit and the fact that they cannot check everything. Given that and the fact that we do not believe that this clause as drafted could be legally enforceable, it does not help for the Government to take a view on the amendments. I do not believe that amending the clause would be particularly productive. We need instead to look at something that would work legally by giving the Secretary of State a power to bring forward regulations to achieve the desired effect, while taking into account all the points made during the House’s consideration of the clause. That is a genuinely sincere commitment. This includes the need to ensure adequate protection for national security, which I am sure the whole House will agree is necessary.

On the points made by the noble Lord, Lord Clement-Jones, we recognise that these amendments are well intentioned. It can only be a good thing for subsection (4), for example, to be removed, though I am unsure about the proposed provision on costs. I acknowledge that the noble Lords have attempted to address the harm that could be caused by copyright owners seeking to get sites blocked by threat rather than by court action but I am uncertain that these amendments deliver that intention.

Amendments 19 and 23 seek to respond to a further concern, to which I alluded on Report, about the likely impact on the ability of our intelligence and law enforcement agencies to do their jobs properly. I am grateful to the noble Lords, Lord Howard and Lord De Mauley, for this attempt to resolve that concern. However, this amendment very much misses the point. We cannot support the notion that the Secretary of State should present evidence in relation to every injunction application when it may be possible to establish a consistent and foreseeable position. Separate consideration in relation to each application does not seem like a good use of taxpayer money, court time or, indeed, the time and money of the copyright industries, which might pursue any number of fruitless applications while waiting for a court to reach a different decision.

I reiterate the point that I made earlier. As the Bill moves to another place, it is our intention to try to bring forward a clause that ultimately achieves the same effect. That is a sincere and constructive commitment, and I have tried to address the genuine concerns that have been expressed. I give the noble Lord, Lord Triesman, the reassurance that a conversation and dialogue would of course be required to take place.

I think that there was one other point. Although my noble friend Lord Puttnam is not in his place at the moment, the noble Lord, Lord Razzall, rightly reminded me of the question of why ISPs are allowed to say that this has nothing to do with them. He rightly referred to the “mere conduit” defence from the e-commerce directive. In our view, ISPs are an important stakeholder and should be involved in taking this matter forward but within the e-commerce directive.

I trust that, in the light of the assurances I have given, the noble Lord will feel able to withdraw the amendment.

My Lords, first, I thank all noble Lords who have taken part in the debate and, in particular, the noble Lord, Lord Triesman, who it is nice to see again in his place in a more positive frame of mind. I also thank the noble Lord, Lord Lucas, for his very useful, rather forensic comments.

In response to the noble Earl, Lord Erroll, I do not think that during the course of the Bill we have had confusion about the role of ISPs; I think we have all been very conscious of their limited duties. That is why, as my noble friend Lord Razzall indicated, this amendment is so controversial so far as concerns ISPs, and has led to a letter in the Financial Times from quite a number of them. Let us not forget that a lot of the proponents in this are in business. Of course, many copyright owners are businesses—some large and some small, such as photographers—but some on the ISP side are also very large businesses, so this is not simply a case of big business against the small person. That has needed to be emphasised in this debate.

I thank the Minister, in particular, for his reply. Of course, there is many a slip between cup and lip, and the debate will now move to the other place. I take it from the Minister—and hope that this is the case—that this is not a reintroduction of Clause 17 but a much more targeted approach to consulting over regulations with a specific target.

In view of the controversial nature of the proposals that we tabled on Report, which I more than discovered in the reaction of members of my own party, I hope that, when drawing up the new regulations, Ministers will be very keen to observe one or two points. Perhaps the Minister will find these reasonably useful, certainly as regards the available research. I hope that the regulations will be very rooted in the evidence of copyright infringement and of the amount of downloading that takes place from the prevalent overseas websites.

I also hope that, when they consult, the Minister and his colleagues will respond to the concerns of those who believe that site-blocking is a serious step, both technically and legally. I welcome his undertaking to have an extensive consultation on the regulations. However, it is incumbent on those who are absolutely dead-set against this kind of measure to demonstrate just how these new models can be set up unless there is adequate protection against copyright infringement. I think that we have debated that matter throughout the past three months but the noble Lord, Lord Whitty, is clearly unconvinced that some incentive, apart from pure education, is needed to persuade people to download legally. I think that we need to be fairly clear on that score as well.

I also hope that the Minister will make sure, when the Government consult, that the safeguards which we have tried to build into this clause—both in the original amendment and in these ones—will very much be reflected in the regulations in order to make sure that the operation of any web-blocking mechanism is proportionately applied. Most importantly, we on these Benches have had many representations from all sides of the argument that there should be a full and proper consultation period. I hope that this will not be just a quickie in the course of the next few months but that all stakeholders will be consulted. I accept that as a criticism of the amendments which we put forward from these Benches and I hope that the Government do not make the same mistake. I beg leave to withdraw the amendment.

My Lords, I beg to move my Amendment 15, although I suspect that is a bit redundant after what I have just heard from the Minister. I need first to declare that I have a tiny interest in a search engine start-up that is for business purposes. It is not a rival to Google—it is not intended to be—and it is not worth a lot of money, but I have an association with search engines. Perhaps I may point out quickly that I agree with the noble Lord, Lord Clement-Jones. This is not one-sided—it is big business versus big business. Small business is not getting a look-in in this Bill at all. That is the problem which I, the noble Lord, Lord Whitty, and some others have with it.

My concern about the new clause—perhaps I may say this before moving straight on to Amendment 15, which encapsulates a principle, and I would like to know whether the Minister intends to incorporate this principle into whatever the Government are proposing—is that it will not be subject to any amendment, or discussion and then amendment, by either House. It will be inserted somehow between leaving this House and arriving at another place. Presumably it will be discussed on Second Reading there. I presume that it will then be dealt with during the wash-up. We have no idea what it looks like, and it seems to be an abuse of parliamentary process. I think that that is what I was hearing.

I may be wrong, but I thought that the convention on wash-up is that there has to be a Second Reading and one Committee stage on a Bill before it can be dealt with in the wash-up. Others may be able to give a better explanation of the position but I believe that that is the case.

My Lords, we are in somewhat deep waters here. However, if Second Reading follows on after one House has completed all stages, then the issues would be considered.

In that case, following my noble friend Lord Maxton, what mechanism do the Government have for introducing new material into the Bill? I appreciate that I am asking this question of the noble Earl, Lord Erroll, when it should probably be directed to the Government.

It might benefit the House if that question were dealt with. Perhaps I should first make my point on Amendment 15, which the Minister can deal with quite easily.

I asked for Amendment 15 and my other three amendments to be degrouped from the others—the noble Lord, Lord Lucas, has already spoken to my grouping—because I wanted them to be taken as a specifically different point. The point is slightly different and the amendments are very specific and targeted. There is a challenge for search engines. It became apparent after new Clause 18 was inserted into the Bill that most of the large search engines were worried they would be caught by it. This arose from the words,

“to prevent copyright infringement content”—

which is not really grammatically correct—

“being accessed at or via that online location”.

They were automatically caught by that. It does not really matter what the Minister may say—there is nothing there about producing regulations to define things more tightly; it is for the courts to decide later. It therefore seems important for this House to state whether or not we intend that general purpose, bona fide search engines should be caught by the clause. If they are to be caught, so be it, but it will affect Britain’s ability to take part in a global economy.

I tried to produce something that would do with a lawyer who kindly volunteered his services pro bono. It was an extremely difficult task to perform at short notice, but we tried to do it by inserting two references that go back to the Electronic Commerce (EC Directive) Regulations 2002, which largely deal with the issue. I also put in a bit that says,

“in the case of online search providers, the extent to which inclusion of, or access to, copyright infringing content is incidental to the main purpose of the search service”.

In other words, anything that was deliberately intended for the purpose of giving indirect access to copyright-infringing material would be caught. That is not excepted by this. The provision is supposed to exempt only the main search engines.

My Lords, I agree with the noble Earl that it is important to deal with the position of search engines, which are not directly addressed by Clause 18. Google is very good at blocking access to sites; it just relegates them to page 256. If it does not like something that comes up it just disappears in the rankings. There are mechanisms commonly used by search engines to make it inconvenient for people to find content that Google does not approve of.

To go back to what the noble Lord, Lord Puttnam, said, it is a question of taking ISPs and search engines and joining them in, so as not to let them think that in some way they are isolated and can act all on their own without any thought of how they fit into the mesh of copyright—the melding of the interests of the consumer and the producer that lies at the heart of it. All the players have a part and we should protect what search engines do assiduously. We must be careful not to start acting like the Chinese Government. On the other hand, as I am sure that they will not, they should not think that they can stand completely aside and act with complete freedom as if they do not have a role in how copyright is protected on the net.

My Lords, I have already reminded the House of the Government’s concerns on the legal status of Clause 18 and the lack of transparency and accountability with which it has been inserted into the Bill, and I have indicated our intention to bring forward a revised provision to deal with these problems. The usual channels will be dealing with that in the wash-up, when it has to be done by agreement. I also reassure the noble Earl, Lord Erroll, that we will ensure that the government amendment is compatible with the e-commerce directive.

These amendments seek to respond to a further concern: the need to ensure that search engines are not inadvertently affected by the measures proposed in this clause. The amendments highlighted potential risks that the service and public benefit offered by search engines may be at risk if, in the course of providing search results, they happen to inadvertently feature copyright-infringing material. The amendments proposed by the noble Earl, Lord Erroll, rightly address important points. Moreover, they underscore my initial point that this is a measure that needs careful design.

Again, a power for the Secretary of State to bring forward regulations to achieve the desired affect would allow for the full consultation, analysis and consideration necessary to ensure that we avoid these and other potential unintended side-effects or consequences. As I said in relation to the previous group of amendments, given that we do not believe that this clause as drafted could be legally enforceable, amending it is not particularly productive. In light of these comments and the assurances that I have given, I hope that the noble Earl withdraws his amendment.

I thank the Minister for those assurances. They go a long way to assuaging the fears of a huge swathe of the internet industry about what, as the Minister said, could come about as the result of the law of unintended consequences. The only thing that he did not answer that fascinates me is—what procedure is there for inserting or changing this legislation from now on? I am not quite sure how that can be done.

I answered that. However, the noble Earl is clearly as unfamiliar with the procedure as, I confess, I am. Nevertheless, I am reliably informed that the usual channels will see the proposed new clause and that an amended clause will then be dealt with in the wash-up. I cannot give any more details. My noble friend the Deputy Chief Whip is nodding in the affirmative. I rest on the assurance that we intend to do this. It is a viable way forward.

I am sorry to interrupt the Minister. He assumes, therefore, that the wash-up will take place at the very beginning of April. However, there may not be a general election until June.

Will the wash-up take place in the other place or in this House?

The other place.

I am in a difficult position. I am delighted that the Minister realises the shortcomings of this clause; that it has replaced the previous Clause 17, which I did not like either; and that, therefore, something better will appear. On the other hand, the method by which it is appearing is by a complete and absolute abuse of parliamentary process.

I am not quite sure why we bother to sit and debate any laws at all if the Front Benches in another place can get together and put whatever they like into a bit of legislation. That is for another time and another place. I have always found the whole area of wash-up very troublesome, particularly as a Cross-Bencher who does not get a look-in at all. I have seen some very funny things going through. When I see two Front Benches colluding, I usually think that we are in trouble.

With all those caveats, I welcome the Minister’s movement on this clause. I hope that what they propose will look good. I hope that he has listened to what I said about the super-affirmative procedure and that they would insert something like that so that we could have proper parliamentary scrutiny. I beg leave to withdraw the amendment.

The Government accepted an amendment tabled in Committee by the noble Earl, Lord Erroll, when he sought to ensure that all the directors of a registry were not unnecessarily replaced by the manager. We agree that some directors might be on the side of the manager and that therefore it would be useful to retain their expertise, which is the burden of the noble Earl’s contribution and amendment.

On reflection, we agree that the current text is unclear and could be read as meaning that we would replace either one director or the whole board. Therefore, we have tabled this small amendment merely to clarify the fact that the manager could retain the expertise of one or more directors if he so chooses. I beg to move.

My Lords, I added my name to this amendment, which shows perfectly what Third Reading is for. I was delighted that the Government accepted my amendment at the previous stage and saw that in principle it was good. But, quite rightly, they have spotted that it could be improved. With that, I am delighted to welcome the improvement and I thank the Minister for moving it in such a kind way.

My Lords, unfortunately, I have left my notes on this amendment downstairs because I was in rather a rush. From what I remember, it concerns a mismatch as regards spectrum and the spectrum cap. Spectrum released under the spectrum cap can be paid for in certain ways, but spectrum can also be divested voluntarily or under another arrangement. I sent a note to the Minister and the Bill team about this. There seems to be a mismatch between the two. In proposing these amendments, I am trying to be helpful and I hope that the two things will be brought into line. It would tidy up something which could otherwise be a block to the reallocation of spectrum in a sensible way. I beg to move.

My Lords, I am grateful to the noble Earl, Lord Erroll, for being more explicit in the note which he delivered to the department than he has been in proposing the amendment. We know exactly the point at which he is driving, although we are going to ask him to withdraw his amendment. I hope that he will listen carefully to the reasons why, because we have given it the fullest consideration.

Included in the Government’s spectrum proposals, now before Parliament, are temporary spectrum caps that apply to the planned combined auction of 800 megahertz and 2.6 gigahertz spectrum. These caps are designed to ensure that the acquisition of valuable spectrum is spread more equitably between existing operators and new entrants. In certain circumstances, operators may therefore have to release existing spectrum to be able to bid in the combined auction. In those circumstances, costs will be incurred by the releasing operator in clearing their released spectrum. To offset these costs, it is proposed that additional payments are made by any operator acquiring this relinquished spectrum to the operator releasing it.

At present, this additional payment relates only to spectrum released in order to stay within the limits of the caps. However, these amendments would extend that payment to any spectrum released into the combined auction. In particular, it would potentially include spectrum being released by T-Mobile and Orange, required by the European Commission as one of the conditions necessary to gain its approval for the joint venture.

In effect, these amendments would allow the joint venture to receive a payment from another operator to subsidise the cost of its obligations to the European Commission, which we do not consider to be reasonable. The two companies involved are likely to benefit considerably from the joint venture. Indeed, they would scarcely have thought about it and have embarked upon the venture if that were not the case. But there are costs associated with the joint venture and in obtaining the approval of the Commission it is only right that those costs are borne by the operators concerned and not by any other operator which will not benefit from the venture. That is why the Government have taken the position that they have. I hope that the noble Earl will feel that that is reasonable and that he can safely withdraw his amendment.

My Lords, I thank the Minister for that extremely informative and useful reply. I now understand that this is quite a complex issue, and as usual it is like an onion—there are layers within layers. I fully understand the Government’s reasoning. I beg leave to withdraw the amendment.

My Lords, this group of clarifying amendments is intended to tidy up drafting and correct unintended errors in this clause.

Amendment 27 has been inserted because “copyright licence” is now defined for new Section 116B by Amendment 31. The wording deleted by this amendment is therefore superfluous. Amendment 35 makes a corresponding change to performers’ rights. Amendment 32 inserts the words “by regulations” with the effect that the requirement to adopt codes of practice will indeed be by regulations. Amendment 39 removes the words “in accordance with regulations”, this is to ensure consistency with the definition of orphan works in new Section 116C of the Copyright, Designs and Patents Act 1988. Amendment 40 has been tabled so that the sources searched to determine whether a performer’s property right is orphan are sources which are likely to have details which can help trace the ownership of these rights. Amendment 41 corrects an error—the provision is dealing with performers’ rights and not copyright works, so the reference here should be to “recordings” and not to “works”, the amendment makes that necessary corrective change.

The substitution of “copyright owner” with “copyright interest” in Amendment 42 is again necessary because the provision is dealing with performers’ rights and not copyright. Amendment 43 corrects a cross-reference. Amendment 33 applies the definition of “member” inserted by Amendment 31 to Schedule A1 to the copyright Act and finally Amendment 44 applies the definition of “member” in Schedule 2A to the Copyright Act where Schedule A1 applies for the purpose of paragraphs 1A to 1D of that schedule.

It will have been deduced by the House that these are technical and necessary amendments and I beg to move.

My Lords, I briefly rise to recognise that these are drafting amendments. I very much hope that the Government’s mind is still not completely closed under Clause 43 generally, and I mean in respect to the orphan works provisions. Clearly, there are issues which photographers are still very cognisant of. It would not be in order for me to put down amendments again on that area but I hope the Government will consider this in another place.

That is a good try by the noble Lord. Here I am dealing with technical amendments and there he is opening up the whole operation of wash-up. Let us be clear about wash-up—and I hear what the noble Earl, Lord Erroll, said just a few moments ago. I cannot really help him about the extent to which he, as a Cross-Bencher in the upper House, is able to influence the democratic will that will be largely exercised, he will not be surprised to hear, at the other end.

It is the case that there will be clarification of these issues and full debate, we trust, on Second Reading. If the noble Lord, Lord Clement-Jones, has got his way and the election is in June—of course, he might well be right— then we will have a great deal more time in the Commons for more stages of this Bill to be considered. If we assume, however, that we do not have too much time and that there may only be a Second Reading, of course the consequences of the deliberations through the usual channels with regard to wash-up will still need to be considered by both Houses.

The noble Earl, Lord Erroll, will fully understand that in those circumstances what will go forward is an agreed position between the parties and that therefore the obvious expectation will be that the process in the Chambers will be a relatively straightforward exercise. That is the concept of wash-up. I only say to the noble Earl, Lord Erroll, he might not like it but the alternative is that every Bill that has not completed all its processes would utterly and totally fall. I am quite sure he would regard that alternative as even more unacceptable than the concept of wash-up.

My Lords, during our debate on Report, I agreed that the Government would consider Amendments 155A and 155B tabled by the noble Viscount, Lord Bridgeman. The Government had always intended that extended licensing schemes should be run by representative licensing bodies. While we were not able to accept the drafting of the amendments tabled on Report for reasons I will explain, the government amendments in this group achieve a similar effect.

Together, this group of amendments prescribes that the regulations must require that certain factors are taken into account before a licensing body’s application to carry on extended licensing is granted. These factors are, first, the likely effect of the authorisation on authors, rights holders, licensees, potential licensees and members of the licensing body applying for authorisation. This list is not exhaustive. The amendment will ensure that the interests of all those potentially affected by an authorisation under proposed new Section 116B of the Copyright, Designs and Patents Act 1988 will be properly considered before a decision to authorise is taken. I hope noble Lords will agree that this achieves the purpose of that Amendment 155A.

Paragraph (b) of Amendment 28 requires consideration of the extent of the applicant licensing body’s existing repertoire before any extension is allowed through authorisation under proposed new Section 116B. This would require consideration of the extent to which the body was already acting for the copyright owner—that is, the extent to which it is representative of copyright owners in that class of works. It is designed to tackle the same ground as did Amendment 155B. There are corresponding amendments for performers’ rights.

In exploring the amendments proposed by the noble Viscount, Lord Bridgeman, we encountered difficulties in having the requirement for the agreement of the majority of copyright owners in the Bill. There is no constant from which a majority can be defined as the number of works protected by copyright—and, therefore, the number of copyright owners—is constantly changing. The concept is also uncertain. We are doubtful that a simple majority would be in all cases equivalent to the critical mass of representation which the Government envisage would be required to extend a repertoire. We encountered the same problem with the concept of “substantial” in relation to Amendment 155B—this also applies to today’s Amendments 29 and 37—that is, its application is unclear.

Amendment 30 requires the Secretary of State to be satisfied on a number of things in relation to any licensing body applying for an authorisation to carry on extended licensing. The government amendments already require the Secretary of State to consider the representativeness of a licensing body before granting an authorisation. There is also now a requirement for prior consultation on the criteria for authorisation in proposed new Section 116F(4) of the copyright Act. There is equivalent provision for performers’ rights.

The government amendments also require the interests of member and non-member rights holders affected by an application for extended licensing to be taken into account before the application is granted. This may be achieved through consultation.

On fiduciary duties, licensing bodies are generally given mandates by their members. It follows, therefore, that they should already be acting in the interests of their members. The Government would certainly expect any well-run licensing body to be doing so. Where this is not the case, the Secretary of State can require a licensing body to adopt a code of practice. I hope that in the light of this explanation the noble Lords, Lord Razzall and Lord Clement-Jones, and the noble Viscount, Lord Bridgeman, will not move their amendments.

We have managed to find a workable solution which addresses the issues raised on Report in Amendments 155A and 155B, and those raised in Amendments 29, 30 and 37 today. I can assure the House that we absolutely agree that extended licensing should not be available in an area if it goes against the wishes of rights holders in that area. I hope that on consideration of the government amendments tabled today your Lordships will agree that we have managed to capture the spirit and effect of the amendments proposed by the noble Viscount, Lord Bridgeman. I beg to move.

Amendment 29 (to Amendment 28)

My Lords, it is always slightly disconcerting to get an answer before you have asked the question, but I shall do my best to respond on the hoof to the Minister’s statements. I took my basic text—I do not think that he has deviated very strongly from it—from his letter to the noble Viscount, Lord Bridgeman, of 11 March. I think that the Minister was exercised by the phrase “the majority of copyright owners”. He raised a number of points in the letter that were similar to what he has said today as regards authors not always being copyright owners but perhaps having an interest in the outcome of an application for extended licensing and the Government not believing that a simple majority would be equivalent to the critical mass of representation required. He said that including the concept of the majority of copyright owners in the Bill would not be right and that he had encountered the same problem regarding the concept of “substantial” in relation to Amendment 155B.

I understand some of those issues. However, the amendments that the Minister has put down may be similar in effect—the Minister used that phrase—but are not the same. In particular, the phrase,

“factors to be taken into account in deciding whether to authorise a licensing body to grant copyright licences”

is somewhat vague. Does it specify only factors to be taken into account before authorising a body to grant licences, or does it require consultation before an already authorised body grants a particular licence to a particular user? Certainly, many of those affected by these extended licences believe that both are required.

We disagree about the legal impact of “substantial proportion” in Amendments 29 and 37. Contrary to what the Minister thinks, we believe that these give clear instructions to the drafters of the regulations. For instance, in the context of the Copyright, Designs and Patents Act, “substantial proportion” has a clear meaning—for example, through judicial interpretation of Section 16. Therefore, we have a drafting legal issue but the more substantive point is that we do not believe that the government amendment fits the bill. I beg to move.

My Lords, I again declare an interest as a non-executive director of the Bridgeman Art Library, a photographic archive. I am most grateful to the Minister for his very comprehensive letter to me, to which the noble Lord, Lord Clement-Jones, referred. I join with the noble Lord in feeling that the Government’s amendment does not entirely fulfil their undertaking. There is too big an element of consultation and not enough of mandatory provision in it. Amendment 30, in my name, addresses the consent of authors, performers and licensees to each licence granted. This is an area in which the government amendment is seriously deficient. I hope that the Minister will be able to reassure me on that point. It is not sufficient to rely—as the government amendment does—on consultation at the stage when a body seeks authorisation because, from the point of view of a copyright owner, an individual author or performer or of a person holding an exclusive licence in a work, the effects of an extended licence being granted to different licensees can differ. I borrow an analogy from the film industry. It is one thing for an authorised body to negotiate and grant a licence to, for example, the British Film Institute. However, the Minister’s letter explaining the Government’s amendment appears to suggest that it would be all right to issue the same licence to, for example, Odeon Cinemas. The views of authors, performers and other rights holders would very likely differ on that point and should be taken into consideration when granting each licence.

Having said that, this group of amendments addresses a point with which I am sure the House is basically in agreement. I hope that the Minister will be able to reassure me on the points that I have raised.

I welcome government Amendment 28, which is the Government’s response to the important points powerfully put forward in Committee by the noble Viscount, Lord Bridgeman, and the Liberal Democrat Front Benches. It is clear that the Government’s proposition in the amendment does not command complete assent from the other side of the House, but it none the less represents an advance.

This is an instance of the excellent quality of scrutiny that the Digital Economy Bill has received in your Lordships’ House. I expect that, in a very few minutes, we shall send it to another place, but I do not have the same confidence that it will receive the same quality of scrutiny in the House of Commons; indeed, my noble friend Lord Davies just now anticipated that it was improbable that the Digital Economy Bill would proceed beyond Second Reading there.

I was startled by what my noble friends Lord Young and Lord Davies said about the wash-up, those negotiations between the Front Benches of the parties in the dying days of a Parliament before it is dissolved. I would like at least substantial elements of the Bill to go through on to the statute book, in particular Clause 43 as amended by the Government. We must contemplate the possibility that the view will be taken, as at the end of previous Parliaments, that measures contained in Bills which have not received a Committee stage in both Houses of Parliament should not be permitted to go forward on to the statute book. I would from the point of view of the need for this legislation be sorry if that were to happen, although I also recognise that there are important constitutional arguments as to why it should.

In the event that elements of the Bill that we want to see go forward and become law do not do so at the end of this Parliament, will my noble friend Lord Young instruct his officials to make the best progress that they can in the period following dissolution in continuing to refine the Bill, and in particular to draft the regulations that would eventually be published under the Bill so that they can be put out to consultation as soon as possible? We could then look forward to a new and improved digital economy Bill being published early in the first Session of the new Parliament—I do not think that there is any significant party political controversy in relation to it. All the interests affected would be able to have their concerns and views carefully considered in the consultation on the regulations. When the new Bill was introduced in the first Session, Parliament would be able to examine it with a great deal more assurance than has been the case this time around. We would look forward to the prospect of it relatively speedily and uncontroversially getting on to the statute book. It may be that the major parts of the Bill will go forward on to the statute book, but we should at least contemplate the possibility that they will not.

My Lords, we believe that the government amendments address a number of the concerns raised by the noble Lord, Lord Clement-Jones, and the noble Viscount, Lord Bridgeman. The Secretary of State will be required to consider the likely effect of an authorisation on a number of groups, including authors, members of licensing bodies, copyright owners, and licensees and potential licensees before making a decision on whether to grant an authorisation for extended licensing. The Secretary of State will also have to consider the extent to which the body already represents rights holders in the sector for which it is seeking an authorisation. We may not have addressed every dot and comma of noble Lords’ concerns, but we have tried to respond to them genuinely, and I am reliably informed that the consultation on which the noble Lord, Lord Clement-Jones, sought an assurance will take place.

On the point made by my noble friend Lord Howarth, we believe that we will be able to achieve the progress of the Bill. I do not want to hypothesise about a range of issues. To clarify the wash-up situation, I have been advised by someone very experienced that the Bill goes through all the stages—it is just in a telescoped manner. I cannot really say any more on that. I hope that in the light of the assurances I have given, and the Government’s amendments, the noble Lords will feel able to withdraw their amendment.

What the Minister had to say was very interesting. I understand that the points we make will be heard, if you like, on consultation and I hope that they will be very much part of the Government’s thinking when they consult. On that basis, I beg leave to withdraw the amendment.

I would like to add to the question of substantial. When the Minister is engaged in further refining this Bill, I suggest that this is carefully examined. It appears that the noble Lord, Lord Clement-Jones, and I have both received advice that Section 16 of the copyright Act is a valid test of proportionality. With that request, I shall not move the amendment.

My Lords, the Digital Economy Bill contains detailed provisions of a code of practice for licensed bodies. As currently drafted, it only provides obligations for a licensing body without any reference to licensees. Collective licensing is a commercial relationship between the licensing body and licensees. Given the nature of the relationship, obligations of the licensing body to licensees should be reflected by respective obligations of licensees to the licensing body, such as respecting the rights of creators, performers and rights holders and in particular, the right to receive fair payment for the use and exploitation of copyright material. Any code of practice should also oblige licensees to adhere to the terms of the licence and more broadly the provisions of the Copyright, Designs and Patents Act 1988 and other applicable legislation or other binding legal requirements as established by case law, conditions or guidelines. In other words, it is a two-way process. I beg to move.

I support my noble friend. It would be quite illogical for conditions to be imposed on one level of the chain and for those conditions not to pass through to the next one. Otherwise you could license somebody, put conditions on that licence and the next person down could simply ignore them. I hope that the Minister will therefore listen to my noble friend’s suggestion.

My Lords, the purpose of the amendment is to apply a licensing body’s obligations under a code of practice to those that it licences. This amendment misunderstands the purpose of the code of practice. Licensing bodies are natural monopolies; licensees are frequently individuals, small or micro businesses or sole traders, who lack bargaining power. The code of practice is designed to achieve a level playing field for licensing and to facilitate dispute resolution. When a licensee breaches obligations in its licence and infringes copyright, the licensing body has a right of action which it can pursue. It would be unusual for a customer buying a product—in this case, the licence—to be subject to regulatory requirements that are designed for its supplier. In the light of this explanation, I hope that the noble Viscount feels able to withdraw his amendment.

I beg leave to withdraw the amendment.

That the draft order laid before the House on 10 February be approved.

Relevant Document: 9th Report from the Joint Committee on Statutory Instruments.

In moving this Motion, I shall speak also to the Tax Credits Up-rating Regulations 2010, the Guardian’s Allowance Up-rating Order 2010 and the Guardian’s Allowance Up-rating (Northern Ireland) Order 2010. We shall debate the four related regulations and orders together. Tax credits, together with child benefit, deliver financial support to the vast majority of families with children in the UK and are vital in our commitment to tackle child poverty. I am pleased to introduce these regulations and orders, which increase certain elements and thresholds of tax credits and raise child benefit and guardian’s allowance. In my view, the regulations and orders are compatible with the European Convention on Human Rights.

I turn first to the Tax Credits Up-rating Regulations 2010. Tax credits play a major role in ensuring that work pays and in tackling child poverty. Overall, 6 million families containing 10 million children benefit from tax credits. These regulations increase the child element of the child tax credit by £20 above earnings indexation, which means that the child element will increase to £2,300 from April 2010. Since its introduction in April 2003, that element will have increased by £855, benefitting 7.5 million children.

For the first time in half a century, the retail prices index decreased, which means that all rates have increased in real terms. To provide additional support to households during the early stages of this economic recovery, the Government are bringing forward by a year a proportion of the increase expected in April 2011. From April 2010, rates will be increased by 1.5 per cent for those benefits and tax credits normally uprated by RPI. In April 2011, rates will be increased by the remaining amount necessary to make up the difference, locking in the real increase that arises from the fact that prices fell. These regulations therefore increase the disabled element of the child tax credit and most of the other WTC elements by 1.5 per cent.

I turn to the Child Benefit Up-rating Order 2010 and the guardian’s allowance orders. Child benefit is payable to around 7.5 million families for 13 million children and young people, providing almost all families in the UK with a worthwhile contribution towards the cost of bringing up their children. These instruments also increase rates by 1.5 per cent. From 12 April 2010, child benefit will be worth £20.30 per week for the first child and £13.40 for each subsequent child. Guardian’s allowance will increase to £14.30 per week.

With the increases introduced by these instruments, we will be delivering even more support next year. We remain committed to the Government’s goal on child poverty, of which tax credits will remain a key part. As a result of all the changes to the personal tax and benefits system since 1997, families with children in the poorest fifth of the population will be on average £5,000 a year better off. I commend these regulations and orders to the House.

My Lords, I thank the Minister for introducing these regulations and orders, which are among the highlights of the Treasury calendar. We shall not be opposing the instruments but I have a few points for the Minister.

As the Minister explained, these instruments, in one way or another, grant real increases in benefits and tax credits. Most but not all of the tax credits are being increased; because RPI fell in the year to last September, simply maintaining the value increases them in real terms. However, this analysis may not resonate with the average family. While prices fell in the year to last September, which is the reference period for the uprating, they are not falling at the moment. The latest year-on-year RPI figures show a 3.7 per cent rise and RPIX, which excludes mortgage payments, shows a rise of 4.6 per cent. The rate of increase is accelerating sharply, with annualised rates over a shorter period being very much higher. I would not like to be a Labour candidate, or canvassing for one, in a few weeks’ time, explaining the great munificence of a 1.5 per cent increase in, say, child benefit against inflation rates perceived as very much higher than that—but that is very definitely not my problem.

I will start with child poverty, which the Minister mentioned. The Minister and I have been spared dealing with the Child Poverty Bill and I shall not repeat all the analysis that noble Lords spent many happy hours debating in the Moses Room. One thing is now crystal clear, and even the Government cannot escape this analysis: the Government have failed to meet their 2010 target to halve child poverty. That required the numbers to fall to 1.7 million. At the last count, 2.9 million children were living in relative poverty. The statistics have been going backwards since 2004, with particularly worrying increases in the number of such children in working, as opposed to workless, households. We do not rejoice in any of this, because it is yet another problem that a new Government will have to solve.

The Government have often used the granting of real increases in child benefit and the child element of tax credits as a way of claiming an advance in the war on child poverty. Since the 2007 Budget, the Government have been claiming that their plans would lift 500,000, or sometimes 550,000, children out of relative poverty. I read very carefully the 2009 Pre-Budget Report, in which the changes included in these instruments were first announced, but I found no claims about the impact of the PBR, either on its own or cumulatively, since the 2007 Budget on child poverty figures. Will the Minister say what impact the child benefit and child tax credit changes in the instruments before us will make on the child poverty figures? If he cannot give an up-to-date estimate of the number of children who will be in relative poverty in 2010-11, can he say what impact these instruments taken on their own will have? If he cannot give that analysis, will he say why a Government who have bragged so much about their policies to reduce child poverty cannot calibrate one of their flagship PBR announcements on tax credits in those terms?

The other area that I want to confirm with the Minister is how these increases will be clawed back next year. The Government have made it clear that the 1.5 per cent increases will not be permanent but will be offset against the inflationary increase that they expect on the basis of the September 2010 RPI figures. Let us take the basic element of the tax credit, which is currently £1,890 and is being increased by the tax credits regulations by £30 to £1,920—an increase of just short of 1.6 per cent. When they come to the calculations based on the September 2010 RPI figures, will the Government knock that 1.6 per cent off inflation for the year to September 2010 in calculating the increase allowed for the following year’s tax credits? If, for example, inflation to September 2010 is 4 per cent, will tax credit recipients get 2.4 per cent? If we translate that into the basic element of the tax credit, a claimant will get £51 extra in 2011-12 rather than the £81 that inflation would indicate for the year. If inflation slumps to 1.6 per cent—it is unlikely, but let us assume that it does—will they get nothing? It is important to be clear about this: if this is happening, it is another of the poisoned wells being left for an incoming Government.