Blog Author: Tony Ballard
Those who are familiar with the Legislative and Regulatory Reform Act 2006 will not be entirely surprised by clause 17 of the Digital Economy Bill or the amendments to it that Lord Mandelson has proposed. They may, however, share some of the concerns that were expressed in 2006 about increasing the powers of Ministers and the erosion of Parliamentary functions.
The Legislative and Regulatory Reform Act controversially conferred on Ministers wide powers to legislate by statutory instrument to reduce legislative burdens (apart from tax) and to get regulators to comply with better regulation principles. It was described by some at the time as the Abolition of Parliament Bill. David (now Lord) Pannick QC wrote in the Times that it would confer astonishingly broad powers on Ministers to make the law of the land. In the face of such criticism, the government gave an undertaking that the Act would not be used to implement highly controversial reforms.
Where an Act gives a Minister power to make an order by statutory instrument, it normally provides that the order takes effect unless one of the Houses of Parliament passes a resolution against it (this is known as the negative resolution procedure). Exceptionally the Act may require resolutions of both Houses (known as the affirmative resolution procedure). The 2006 Act went further. It added what it called a super-affirmative procedure, which involved a 60 day period for representations, debates and recommendations by House Committees. It was an enhancement of the affirmative resolution procedure but it still fell far short of the procedure normally required for primary legislation, which involves line by line scrutiny by both Houses and the opportunity to amend.
Clause 17 of the Digital Economy Bill would give the Minister a wide power to amend copyright law by statutory instrument for the purpose of preventing or reducing the infringement of copyright by means of the internet, subject to the affirmative resolution procedure. The procedural safeguard is therefore already at a relatively high level. The power has nevertheless been described by Google and others in an open letter to the government as unprecedented and sweeping and opening the way for arbitrary measures.
In response, the government has tabled amendments to clause 17. First the amendments raise the bar to some extent by requiring the Minister to be satisfied (note the subjective test) that the infringement is having a serious adverse effect on businesses or consumers and that the amendment is proportionate. But second, the procedural safeguard has been raised from affirmative to super-affirmative. This has been done by copying and pasting into the bill two large chunks of the 2006 Act. It means that the Minister will not be able to change copyright law without going through all the hoops of that procedure, including laying a draft of the order and an explanatory document before Parliament, allowing 60 days for Parliament to react and not making the order if either House or a committee of either House charged with reporting on the draft recommends against it.
The power is not therefore entirely unprecedented although it goes a step further than the 2006 Act. That Act was essentially retrospective, aimed at tidying up existing legislation. In contrast, clause 17 is now aimed at actively creating new legislation. It is designed to enable the Minister to write new law. If the new law is controversial, is it appropriate without full Parliamentary scrutiny?
On the face of it, the constitutional need for assurance that the power will not be used to implement highly controversial changes is even more acute than it was in 2006. Then, the government gave an undertaking (for what it was worth) but is the Minister going to give anything similar now? There is no sign that he intends to do so. Even if he did, or wrote something to the same effect into clause 17 of the Bill, it would be of limited value where what is highly controversial is likely to depend on a subjective point of view.
The question for those concerned with clause 17 must be how to weigh the balance between the undoubted benefits that would flow from speeding up the legislative process to meet online challenges to copyright on the one hand and the erosion of Parliamentary scrutiny on the other. The power under the clause would not be as sweeping or arbitrary as some have described it in recent commentaries since Parliament would still have powers to countermand a Minister’s decision and there would even be opportunities for judicial review. But while the amended clause 17 would not entirely abolish Parliament’s function it would pre-empt much of Parliament’s role in changing copyright laws in relation to the internet which is likely to be, if it is not already, the dominant medium for exploitation of copyright works. Is it appropriate for this huge new medium to be ruled by Ministers with a reduced role for Parliament? That is the question that Parliament must wrestle with in considering clause 17.