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Enabling clause in the new Digital Economy Bill

Posted by James Hammerton @ 11:41 pm on 20 November, 2009.
Categories privacy and surveillance, democracy and the rule of law, British politics.
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The government has finally published its Digital Economy Bill, which has started its progress through Parliament in the House of Lords.

This bill confirms earlier reports that it would contain proposals (sections 4 to 11) to disconnect users from the internet after they’ve received warnings for copyright infringement (but without any judicial process).

Exactly how they’ll detect whether a user’s downloads are illegal copyrighted material is unclear, but could easily be an excuse for introducing wholesale monitoring of the content of users’ internet traffic. Section 17 is a blatant enabling clause that it seems to me could be used for exactly this purpose:

(1) The Secretary of State may by order amend Part 1 or this Part for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur.

(2) The following provisions apply to the power conferred by this section.

(3) Subsections (4) to (6) do not limit that power.

(4) The power may be exercised so as to make new provision or to amend or repeal provision (whenever made).

(5) The power may be exercised so as to—

(a) confer a power or right or impose a duty on any person;
(b) modify or remove a power, right or duty of any person;
(c) require a person to pay fees.

(6) The power includes power to—

(a) make different provision for different cases;
(b) make transitional or saving provision;
(c) make any consequential amendment, repeal or revocation of provision (whenever made) contained in or made under an Act.

(7) The power does not include power to create or modify a criminal offence.

Thus these orders can be used to alter any legislation and confer any powers and any duties for the purpose of preventing or reducing copyright infringement, the only limitation being they can’t create or modify criminal offences.

These orders would be made by statutory instrument requiring a single vote in each of the Houses of Parliament. If this Bill becomes law, the Secretary of State will be handed considerable power which can be used with minimal parliamentary scrutiny. Sadly this is typical of much recent legislation which has weakened the roll of parliament and strengthened the power of the executive via such techniques.

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