The Digital Economy Act, or the BPI v Parliament?

It is disappointing that a couple of ISPs are trying to frustrate the Digital Economy Act which had been enacted by Parliament, says the BPI. Saskia Walzel argues that it was predictable that laws which had been forced through parliament without proper scrutiny would run into trouble

Image: CC-AT-NC Flickr: berrgovuk

Today the High Court starts to scrutinise the copyright infringement provisions of the Digital Economy Act 2010. Section 3 to 18 of the Act are subject to a judicial review, brought by the ISPs BT and TalkTalk. If successful, that part of the Act will be squashed by the High Court. Acts of Parliament are hardly ever judicially reviewed, but permission to judicial review has been granted because the Digital Economy Act potentially violates a string of laws governing telecommunications providers, privacy and human rights.

The hundreds of people who watched the parliamentary debate on the Digital Economy Bill online are likely to have been left with the impression that the Bill did not receive the kind of scrutiny a law with such fundamental impacts usually gets.

They are right – after completing all five stages of debate in the House of Lords, the Bill was introduced to the House of Commons on the 16th March 2010. The Bill’s 2nd reading was scheduled for the afternoon of the 6th April. On the morning of the 6th April Gordon Brown formally asked the Queen to dissolve Parliament on the 12th April, the general election being on the 6th May.

In a process known as “wash-up” the Commons Committee and 3rd reading were done on the 7th of April, with no report stage. The usual to-and-fro between both Houses was done on the 8th of April, the same day the Bill received Royal Assent and became law. Essentially the usual parliamentary scrutiny was cut short once the election was called, and a process that takes months was completed on a procedural basis within two days.

Hours before the bill received royal assent on the 8th April, the BBC reported that it had caused outrage on social networking sites and revolts by Labour MPs. Two days earlier, hours after the election had been called, Labour MP Fiona Mactaggart had stood up in an almost empty House of Commons to talk about how essential access to the internet is in creating a more equal and more informed society.

She went on to lambast the wash-up process for denying parliament the right to properly scrutinise the bill. As a commentator on YouTube later said “I literally applauded for this lady”, and I remember that was the sentiment of many who watched her online and tweeted about it.

The outrage on social networking sites had erupted just days before the bill entered the House of Commons, when an email by the then Director of Public Affairs for the BPI, Richard Mollet, from the 11th March 2010 was leaked. In “weekly minutes”, Mollet informed Warner, EMI and Sony, as well as PPL (a collecting society for music) and the IFPI (an international umbrella group for recorded music trade associations) about the bill’s progress through parliament.

At the time Mollet considered the outlook of getting the bill through parliament as “good and middling”. The principal threat at that point appeared to be the ”security services” which “imperilled” the web-blocking provisions (now section 17 and 18). Mollet was less concerned about the House of Commons, which was about to scrutinise the bill. He wrote:

“As for the House of Commons – which will be sent the Bill next week – there is a strange sense of detachment. MPs with whom we spoke back in Autumn are already resigned to the fact that they will have minimum input into the provisions from this point on, given the lack of time for detailed scrutiny. One leading backbencher has told us that there is “little point in meeting, since the Bill will be determined at wash-up”. That said, John Whittingdale – an inveterate “timing sceptic” (ie he’s for the Bill but doesn’t think it will get through in time) has said this week that he still thinks it could be lost if enough MPs protest at not having the opportunity to scrutinise it. Whilst true in constitutional theory terms, the hard politics of the situation makes it seem unlikely. And inveterate opponents like Derek Wyatt and Tom Watson continue to blog and tweet with critical comments, but there is not the sense of a groundswell of massive opposition to the Bill.”

Immediately after the leak, Glyn Moody’s call for a groundswell of massive opposition flooded Twitter after he was retweeted thousands of times. Speaking in the House of Commons after the election had been called, Labour MP John Grogan read out the above passage of the leaked email, arguing that “We should not take our orders from such a lobbyist... given all that has happened in the past few weeks and in the past year... this House should say, "No, we're not going to pass this Bill by means of a thinly attended debate tonight, and the wash-up tomorrow.”

In the end, parliamentarians and the people witnessed Mandelson’s Ministers forcing the bill through parliament. Parliamentarians predicted that the law would run into trouble, and declared their intention to subject it to further scrutiny. Soon after the general election, Lords and MPs started to set the wheels in motion to make the Digital Economy Act subject to a select committee inquiry and post-legislative scrutiny.

Nobody can pretend that the Digital Economy Act would by now have been implemented if it was not for BT and TalkTalk. Just before permission was granted to judicially review Section 3 to 18 of the Act, the Parliamentary Culture, Media and Sport Select Committee launched an inquiry into whether these sections established a fair and proportionate process. In February this year, the Secretary of State Jeremy Hunt announced that Ofcom would review Section 17 and 18 of the Act, the web-blocking provisions, to establish whether they “could work in practice”.

Asked recently why Section 3 to 18 of the Act had not yet been implemented, nearly a year after they became law, Hunt explained to the House of Commons that the sections are “very difficult to implement because many of its measures did not get proper parliamentary scrutiny as the hon. Gentleman's discredited Labour Government rushed it through Parliament in their final dying days.”

The reality is that the Digital Economy Bill would not have stood the test of full parliamentary debate and scrutiny. It should not be surprising that a law that was forced through parliament in such a brutal way would run into trouble. And neither should it be surprising that parliamentarians who had been denied the opportunity to fully consider the bill would seek to subject the Act to scrutiny. Those who threw constitutional theory out of the window have landed us with a Dangerous Dogs Act of a legislation – unworkable in practice, and lacking in public support.

 

Saskia Walzel is policy advocate at Consumer Focus. She tweets as SaskiaWalzel