The Digital Economy Bill and the pre-election “wash up”

In Britain’s unwritten constitution, Parliament reigns supreme. Parliament can make any law it chooses. Britain also has agreed to respect certain fundamental rights under international and European law. Normally, Parliament amends Statutes that are found not to be compliant, say, with the European Convention on Human Rights (but Parliament is not obliged to do so).

With this radical conception of parliamentary democracy come special responsibilities of parliamentary scrutiny. It is conventional that at the end of the term of Parliament, when an election is called, negotiations take place between the main parties to decide which bills will survive: the so-called “wash up”. Bills waved through without detailed parliamentary examination ought to command consensus. Martin Bell (a former independent MP and BBC journalist) has characterised the “wash up” as “a secretive process, the modern equivalent of the smoke-filled room”. Officials from various government departments negotiate with party whips, business managers, and the front bench of the main parties, avoiding the scrutiny of public debate in Committee and Chamber.

The Digital Economy Bill is one of the bills caught in the “wash up”. According to the government, the proposed legislation (among many other measures) “imposes obligations on internet service providers to reduce online copyright infringement, and allows the Secretary of State to amend copyright legislation to the same end”. The Digital Economy Bill deals with fundamental aspects of what it means to be a digital citizen, including access to digital services and freedom of expression.

The copyright related provisions of the Digital Economy Bill are unprecedented in many respects, devising new rules of enforcement and appeal, in fact a new regime of what constitutes due process in the digital environment. Not only does the legislation give the Communications Regulator OFCOM a central role in assessing and regulating alleged online infringement of copyright, the legislation delegates powers to future Secretaries of State to force Internet Service Providers to block internet access.

Threatening to cut off an internet connection because someone (be it a family member, friend or free–rider) has used it for downloading is grossly disproportionate. As recently as 21 March, Gordon Brown referred in his “Digital Future” speech to those who do not have internet access as being “trapped in a second tier of citizenship, denied what I increasingly think of as a fundamental freedom in the modern world: to be part of the internet and technology revolution”. The European Parliament has voted against internet blocking as an appropriate response to copyright infringement. It is constitutionally outrageous that in Britain, such measures could be waved through in two hours of backroom dealings, without proper debate in the elected chamber of Parliament. We urge MPs of all parties to refuse to pass the bill on the nod unless the disconnection measures are removed, or to reject it so that the bill may be reintroduced in the new parliament and subjected to proper scrutiny.

Members of the Intellectual Property Foresight Forum (IPFF, coordinated by AHRC Law and Technology Research Centre, University of Edinburgh) Public Law and Internet Law academics.

• Professor Martin Kretschmer (Professor of Information Jurisprudence, Bournemouth University, and member IPFF)
• Professor Lionel Bently (Director, Centre for Intellectual Property and Information Law, Cambridge University, and member IPFF)
• Dr Ian Brown (Senior Research Fellow, Oxford Internet Institute) Dr Howard Davis (Reader in Public Law, Bournemouth University)
• Professor Lilian Edwards (Professor of Internet Law, Sheffield University)
• Professor Ronan Deazley (School of Law, Glasgow University, and member IPFF)
• Professor Dawn Oliver FBA (Professor of Constitutional Law, University College London)
• Daithi Mac Sithigh (Internet Law, University of East Anglia)
• Burkhard Schäfer (Edinburgh University, Co–Director SCRIPT and Director, Joseph Bell Centre)
• Professor Charlotte Waelde (Edinburgh University, Co-Director SCRIPT, and member IPFF)