The Digital Economy Act could be reviewed by the House of Lords next year, if peers are given the right to scrutinise legislation after it has been passed into law.
On Monday, the leader of the House of Lords, Lord Strathclyde, announced a review of the house's working practices that includes a proposal to give peers powers of post-legislative scrutiny. Legislation in the United Kingdom generally gets examined by the Lords before it goes to the Commons, which in turn passes it into law.
Shortly after Strathclyde's announcement, Labour's Baroness Royall of Blaisdon, the Liberal Democrats' Baroness Hamwee, the Conservatives' Lord Lucas welcomed the proposal and argued that the Digital Economy Act should be the first candidate for review.
The Digital Economy Bill was conceived in haste with a lot of questions left unanswered.– Lord Lucas
"Like many other noble lords who have spoken on this in the past, I believe that the house is particularly well suited to this scrutiny," Royall said, according to Hansard. "We have the expertise, we have the time, and it would be an opportunity to identify good practice in terms of process and content. One suggestion that has been made by my noble friend Lord Puttnam is that the recent Digital Economy Act 2010 should, in due course, be subject to post-legislative scrutiny. I believe that that is an excellent suggestion."
Hamwee agreed, saying in the Lords that the Digital Economy Act was a "prime candidate" because it was "only half-discussed before it was passed into law and is full of controversial stuff".
The Digital Economy Act was rushed through the tail-end of the last parliament in a process known as the wash-up, meaning it got mere hours' worth of scrutiny by the Commons before becoming law. Conceived largely as a way of defending the UK's creative industries against the effects of online copyright infringement, the legislation establishes the framework for suspected unlawful file-sharers to have their bandwidth throttled or even potentially for their internet connections to be severed.
Speaking at a copyright-related Westminster e-Forum on Wednesday, Lucas told ZDNet UK that the act would have to have been "running for a year" if it were to be scrutinised, meaning that scrutiny would come "about this time next year".
According to a draft code drawn up by the telecoms regulator Ofcom, only the largest seven ISPs — those with 400,000 or more subscribers — would have to participate in the crackdown at first. This would involve a three-strikes process of repeatedly notifying subscribers that their IP addresses have been used for unlawful file-sharing, before passing their identities and details on to rights holders for further action.
The timetable for this scheme would only have actual technical measures such as disconnection applied from late 2011, after it has been established that notifications have not in themselves reduced infringement by 70 percent or more. Therefore, the Lords want to scrutinise the legislation before technical measures kick in.
"This is a bill that was conceived in haste with a lot of difficult questions left unanswered," Lucas told ZDNet UK. "If the feeling is, in spring next year, that there are serious problems with the act, then it would be a good one to bring back. David Puttnam and I are saying, 'Let's get at this act; it's current, it's crucial, let's give it the scrutiny'."
Lucas said the only reason the Tories had not "sunk" the Digital Economy Bill was that Jeremy Hunt — at the time the shadow culture secretary — thought by backing the copyright crackdown bill "he wouldn't have to discuss [the copyright infringement issue] again for the next five years".
In the brief Commons debates, Hunt had described the bill as "a weak, dithering and incompetent attempt to breathe life into Britain's digital economy". He then went on — along with other Tory frontbenchers — to vote for the bill's passage into law. Hunt is now Secretary of State for Culture, Olympics, Media and Sport, putting him in ultimate charge of the act's implementation.
The act is already likely to be the subject of a judicial review, requested last week by TalkTalk and BT. These ISPs have said they are uncertain of the act's compliance with European laws on privacy and "the role of ISPs in policing the internet". The act is also a popular choice among those using Nick Clegg's Your Freedom website to nominate laws for repeal based on their conflict with civil liberties.