Having received no substantive reply to the second e-mail I sent to my local MP, Michael Connarty, I contacted him again last week.
"Very many thanks for your letter copying the correspondence you forwarded to Lord
Mandelson regarding the above. I am very grateful to you for taking the time to write to
Lord Mandelson, and to send me the correspondence you forwarded.
I am aware that the Digital Economy Bill is to have its second reading on Tuesday 6th
April and have seen nothing from the government as yet to alleviate my concerns, nor to
address the matters identified in my earlier correspondence to you.
The proposed government amendment on clause 18 – which was released by Lord Mandelson’s
department last week – has a number of problems.
The proposed wording of (subsection(4))
"(a) a location from which a substantial amount of material has been, is
being or is likely to be obtained in infringement of copyright,
(b) a location at which a substantial amount of material has been, is
being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to
facilitate access to a location within paragraph (a) or (b)."
is incredibly wide. Paragraph (c) in particular is framed so broadly that it can include
any search engine (such as google); and paragraph (b) potentially covers something like
youtube. And while Lord Mandelson’s letter to the spokesmen from other parties attempted
to reassure readers – the reality is that what is said in background correspondence does
not determine how legislation is interpreted. In my day to day work I lecture first year
law students on statutory interpretation – and while under the case of Pepper v Hart is
it permissible to refer to parliamentary materials in interpretation (and that case has
been accepted as part of Scots law as well as the law of England and Wales), such a
reference is only permissible where legislation is ambiguous. Unfortunately, the wording
of subsection (4) seems very clear. I would be astonished if a judge permitted reference
to background material in interpreting that provision. Courts apply the law as passed –
not the position as government ministers claim it to be.
Given the time – and the likely lack of line by line committee scrutiny if it can be
assumed that the bill will go into the wash up procedure – there seems little opportunity
to the democratically elected house to respond to concerns and to remedy the drafting
The wording of the proposed amendments to clause 18 also give substantial enabling powers
to whichever government is in power after the election, but without giving Parliament the
opportunity to shape the factors that are to be taken into account in exercising those
I mentioned in my previous e-mail my concerns about the provisions of wi fi for my
employer and for public services such as libraries – where a sensible risk assessment
would see those providers potentially at risk of disconnection from infringement by
individual users. The likely reaction of providers of open wi fi (and this would
certainly be the legal advice they would be given by the lawyers I have spoken to about
this) is not to risk disconnection for your usual business purposes and accordingly to
restrict or close the wi fi facility.
I am not against much of the bill – but the substantive Lords amendments passed in
committee were not properly considered at Third Reading in the Lords and (if the bill is
given a second reading on 6th April and goes into wash-up) will then not be given line by
line scrutiny prior to passage. This concerns me where there are so many technically
For example, Professor Lilian Edwards of Sheffield University – the author and editor of
a leading textbook on law and the internet – has discussed various technical problems in
her blog (eg http://blogscript.blogspot.com/2010/03/more-trouble-at-tbill.html on a
provision that was passed, then not considered at third reading –
http://blogscript.blogspot.com/2010/03/day-democracy-died-deb.html – to the disquiet of
many, including Lord Whitty whose speech is extracted by prof Edwards
http://blogscript.blogspot.com/2010/03/yesterday-in-lords-deb.html ); and Andrew Murray,
a Scot who is reader in law at the London School of Economics, is author of a new
textbook on information technology and the law. In his blog supporting his new book he
has identified other problems (particularly in relation to the provisions affecting
orphan works http://theitlawyer.blogspot.com/2010/03/bad-law.html ).
As the bill only gives additional remedies for copyright infringement – but does not
detract from existing remedies that are available – I am not sure why there is a rush to
get this into wash-up procedure (which seemed to be the implication of the Leader of the
House’s comments to Tom Watson and others during the business questions that announced
the second reading). I would much rather see a properly debated bill – where defects are
tempered rather than a bill where the final wording is tied up by party frontbenches
without appropriate scrutiny. Given that there seems all party support for the basic
principles I think it would be sensible to bring the bill back after the election
(whoever wins) but properly consider its terms.
In my work I teach much legislation. Some is well drafted. Some is not. That which is not
tends to have been rushed through in late amendments (eg in conveyancing the Scottish
parliament introduced s 53 of the Title Conditions (Scotland) Act 2003 … during
passage at Stage 3, despite concerns from the Justice committee – the amendment caused
concern to the Scottish law Commission, the Law Society, and various other bodies but is
on the statute book and makes advising in relation to breaches of burdens affecting land
virtually impossible in practice; or the Land Registration (Scotland) Act 1979 which
seemed to go through on wash up in 1979 and introduced a technically defective system the
Scottish law Commission has recently recommended substantial overhaul of ). Technical law
tends to need proper scrutiny to allow identification of defects and appropriate remedial
action to be taken. The Digital Economy Bill falls into this category.
I am not a file sharer myself. I am not someone that downloads torrents of TV shows or
films, and I think that where people do that appropriate action should be taken (eg
damages). But, I am concerned when legislation doesn’t work, and am concerned when people
that are experts in the area are indicating there are serious technical deficiencies. I
am also concerned that this legislation could have a severely detrimental impact on my
employer – seriously affecting my ability to carry out my work properly if the sanctions
suggested are directed in the way that the bill currently suggests.
I am very grateful to you for expressing your general agreement with my earlier e-mail –
and trust that there is still time to persuade ministers that the bill should come back
for proper scrutiny after the election and not end up in the wash-up procedure. I do hope
that if the government cannot undertake that this will be the case that you can seriously
consider voting against the second reading rather than let it go into wash up on the
basis that the government can bring it back after the election. Bad law can take many
years to remedy. Better to delay the passage and get good law. It is better to get law
right, than to get it right now.
I received a reply over the weekend. Mr Connarty indicated that he has raised issues with ministers but there is nothing that can now be done if the frontbenches are intent on pushing things through. I beg to differ and have e-mailed again this evening,
"Dear Mr Connarty
I appreciate the difficulty with timing and the wash up procedure. However, it seems
clear that both front benches intend to push the bill through – claiming that matters
have been properly scrutinised in the Lords (according to the BBC news reports this
evening). This is despite the concerns expressed by the likes of Lord Whitty, and the
extensive amendments the government has indicated it is proposing to make to the bill.
It is ironic that both front benches intend to push through these changes to copyright
law – when each has violated BBC copyright in the past few days in relation to election
posters using the copyrighted image of the Quattro vehicle from the show Ashes to Ashes.
Of course had the Digital Economy BIll gone through those involved in violating this
copyright at the central offices of both main parties could have found their internet
It is clear that the only way to prevent the controversial aspects of the bill going into
wash up is for the bill to be voted down at second reading with encouragement to bring
back the bill in the new parliamentary session. I note that your neighbour Eric Joyce has
indicated that he is prepared to vote against the bill at second reading given his
concerns. His blog posts at
http://ericjoycemp.wordpress.com/2010/03/30/one-mps-view-for-what-its-worth-on-the-de-bill/ detail his own concerns (see his comments on the second post on his voting
I have noted your concerns and appreciate you raising matters with ministers but must
confess to being somewhat disappointed with your most recent response.
I will note the voting record tomorrow.
The election image I refer to is that used in the execrable Labour poster (where they decide to target David Cameron by using the image of one of the most popular characters in modern drama – although to be fair to the Labour party the image chosen was selected from those entered by punters in a competition) which has been mimicked by the Tory party. For the copyright issues see here.
I expect bad legislation to be passed. To some extent I make a living from that. What I don’t expect is bad legislation to be passed deliberately because Parliament can’t be bothered to make a half-gesture at scrutiny.
I appreciate that in a lot of issues my views won’t accord with those against the bill. I just want good law.
However, we’re not getting that. Some MPs seem to have given up, forgetting what their role is in the parliamentary process. This is not a huge surprise – but when they can’t see the impact that this will have on constituents at a time that the government is trumpeting a broadband revolution to engage with the electorate speaks volumes for their own disconnection with their voters.