My Lords, I am deeply grateful that the noble Baroness, Lady Miller, has spoken in the way that she has. Until that point, I thought that this was becoming a dangerously unbalanced debate, with the notable exception of the noble Lord, Lord Lucas, and, to some extent, my noble friend Lord Maxton. There was acceptance of the approach of going down the line of sanctions to transform the position on illegal file-sharing and downloading.
In the interests of balance and, possibly, of time, I have scrapped the part of my speech which was supportive of many of my noble friend the Secretary of State's proposals. However, I assure him that there are large parts of this Bill and the objectives of the digital Britain programme that I strongly support. There are also significant parts which I find very difficult to support and I will raise these issues as we go through the stages of the Bill. I do so in part-I declare this interest-as the chair of Consumer Focus and thereby speak on behalf of millions of consumers, who do not really understand copyright law, who do not know whether what they are doing is legal or illegal and who, to some extent, as my noble friend Lord Maxton, has said, now expect a free service and will be resentful of and resistant to attempts to curb that. That is not to excuse it, but to face up to the reality of the modern age.
I do so in part in relation to my role with Consumer Focus. But I do also-this is why I am slightly surprised at the balance of the debate-simply as a Member of the House of Lords. Normally, your Lordships' House is deeply diligent about issues of human rights, privacy, due process, the rule of law and the need to provide proof in cases of criminality and the equivalent. It is also very insistent on the principles of better regulation, which this Government and many opposition parties have embraced, relating to proportionality, transparency and enforceability of the regulations that we have passed.
This law is ultimately not enforceable in the sense that it will get rid of illegal downloading. The background to this Bill refers to 6.5 million illegal downloaders. My rather limited understanding of the teenage world suggests larger numbers than that and that the number of transactions which each of them could be accused of engaging in illegally will amount to hundreds of millions of individual transactions. You will only ever scrape the surface of that. As the noble Baroness, Lady Miller, has just said, those who are making serious money out of it will be able to engage in encryption and other ways to avoid detection and enforcement. I agree again with the noble Baroness, Lady Miller, that the Government should have chosen a different road.
There have been many references, including that of the right reverend Prelate, to this being the equivalent of theft. It certainly falls under the context of the commandment, "Thou shalt not steal". I am told by the noble Lord's officials, and I made the analogy myself, that technically it is not theft because, at present, it is enforceable through the civil courts and not the criminal courts. But even if we accept that it is theft, the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage and then as a result of strong counterlobbying by among others my own organisation. There is a real problem about the impact assessment and about how much you could actually recover for rights holders. The noble Lord, Lord Lucas, made the point that the £200 million -or the £400 million which is allegedly the figure the rights holders are missing out on-is a purely notional amount. If you actually enforce this and the downloading finishes, not a penny automatically goes back to the rights holders. It is not a figure equivalent to any other area where we use sanctions in order to recover money on behalf of those to whom it is due.
I recognise there ought to be some return to rights holders. I am not denying that. But I am saying that the way forward must be to develop education and alternative business models and technical models on the lines of iTunes and Spotify and the very many other-I think one noble Lord referred to 35 now-different providers in this field of legal downloading. They have higher quality, are easier to use, easier to do and are relatively cheap compared with illegal downloading.
Surely the main way forward should be to develop legal ways in which the interests of rights holders can be met and to which consumers can relate, not engaging in sanctions that raise serious issues of consumer rights and human rights. That is happening but it is happening slowly and, as other noble Lords have said, it is happening far too late. The main focus of this debate and the main focus of this Bill should be to develop those alternative measures. Instead, the headline of this part of the Bill regrettably is on sanctions. It is on criminalising people who are unwittingly engaged in downloading and it is setting in statute and through the regulations that Ofcom will be required to produce sanctions that are not proportionate to the loss to the original rights holders. They are not necessarily the original rights holders because, as the noble Lord, Lord Lucas, said, most of the rights are actually owned by monopolistic companies, not individual creative persons. The sanctions are disproportionate in the sense that not only is the individual who actually committed the breach of copyright likely to be affected but also his or her whole family and in some cases businesses. It is also not clear whether there are exemptions to this in relation in libraries and schools and institutions which provide multiple access on the same e-mail address.
You are not simply penalising the individual who breaches the copyright but a whole range of other people whose livelihoods may well depend on access and unthrottled access to the internet. I am profoundly concerned about provisions in Clauses 4 to 17. I accept very much that the Government have moved from the position which was originally being urged on them, principally by the industry. I am prepared to accept that the first stage of the process that they outlined, which places the duty on Ofcom to look at how we can develop more legal ways of provision, is sensible but that is the provision that ought to be the main part of resolving this problem, not the sanctions. I still have profound objections to the sanctions as they stand in stage two of the process.
I hope that we can look at some of these issues in Committee. We may be able to move the Government further towards emphasis on developing alternative business models and the introduction of a fair use provision in copyright law that would enable most users to escape from being criminalised and ensure that where sanctions still apply they are in line with the principles of law and of protection of the citizen which are normally central to the concerns of this House and rightly so.