The Digital Economy (DE) Bill, #debill on Twitter, will have its second reading in the House of Commons on 6 April. Second readings are general debates, always followed by a detailed committee stage attended by a representative sample of nominated MPs and which, in the case of the DE Bill, might reasonably be allocated 40 or more hours of debate. Bills pepper-pot between the Commons and Lords, and process depends upon whether the bill is introduced in the Commons or Lords. But in the end, the bill gets a Third Reading (less detailed that the Committee Stage but still clause-by-clause) in the Commons then goes back to the Lords, then Queen for Royal Assent. Then it’s an Act. The Law of the Land.
I sat on the Committee Stage of the Communications Bill a few years ago. It had the longest committee stage of any bill, ever, at the time. The DE Bill is its successor. It covers all the stuff every reader here will know about. It’s complex and important. It was put together by Stephen Carter, former head of OFCOM (which the Communications Act created) and a very capable businessman. Carter worked at no.10 for a short while, but it didn’t go well. Understandably, he lacked the political antennae. He was then popped into the Lords, in theory as a minister but in reality more like an official, to put the DE Bill together. In effect, OFCOM became part of the government for a bit. Some folk were a little uncomfortable with the idea of the immediate ex-head of OFCOM writing the law for OFCOM to implement. But in truth, Carter was probably the best man to do it. Not the best person, perhaps, but as far as I can see such jobs are for boys only.
The result of Carter’s labours was the DE Bill. It’s been tweaked a little since, but not much. On the whole, it’s a sensible and competent piece of work. Most people agree with most of what’s in it. That’s not enough to make law, of course. That’s the point of the Committee stage and the Third Reading, and indeed the scrutiny in the Lords. Scrutiny is partly about the opposition posturing and essentially being an opposition. But crucially, it’s also where flaws get ironed out. Without proper scrutiny there’s a risk, even with a small bill, that you’ll get bad law. And the DE Bill isn’t small. It’s huge. And it has flaws. I won’t rehearse the flaws here; that’s a bunch of blogposts in itself. Instead, the main flag I want to hoist here (although you need only check out #debill on Twitter for a myriad of reasons), is that it looks like the bill isn’t going to get proper scrutiny. And if it doesn’t, it will be bad law evidenced by the devil in the detail.
When we get to the end of a parliamentary term the party chief whips, business managers, get together. They look at the unfinished business, like stuff which hasn’t had a Third Reading yet, and agree what uncontentious business can go through on the nod. This process is called the ‘wash-up’. This ensures that decent legislation on which all the parties agree (i.e. there’d have been no vote during or after scrutiny in any case) can hit the statute books in spite of running out of time. The trouble in the case of the DE Bill, though, is twofold. First, it has flaws that need addressing. Second, it is patently obviously contentious.
The flaws in the Bill aren’t drafting errors; they’re about business and civil liberty politics. Ultimately, they’re about the values embedded into the clauses. And they’re where Carter, I think, misjudged the politics. Carter appeared on Newsnight with his finished product. Because he’s a media pro he probably thought he’d be fine. It wasn’t fine – it was a disaster. He didn’t get Paxman and he doesn’t get politics. His very competent piece of work should therefore have had a serious going over by an experienced politician. Had Sion Simon, the relevant minister after Carter’s departure, been allowed to do the job I think the flaws would have been fixed. Instead, he was pushed out of the way and the very able, and lovely, Stephen Timms was given the task part-time (in addition to being a very busy Treasury minister). So here we are. The bill is flawed and parliament has run out of time. What to do?
There are three options. First, Second reading followed by wash-up. Through it goes in its current form. Supported by all parties. Second, and i’m not sure if this is truly an option, the Second Reading is followed by a truncated (i.e. a couple of hours) of Committee of the Whole House (where the Speaker steps down and the main chamber in effect becomes a committee of the house), then a short Third Reading, all on 6 April. This way, some but surely not all of the trickinesses might be ironed out. The parties could also all agree that amendments will be brought forward in the new parliament in the form of Statutory Instruments (SIs, or tiny bills in themselves). Third, since all parties want to pass the bill, they could all agree to bring it back again in its entirety in the new parliament whoever is in power.
I don’t know if the second option above is available or would even work. My instinct is not. But, failing that, it should fall and be brought forward in the new parliament.
Fundamentally, I think, with most MPs understandably behind the curve on digital engagement, parliament hasn’t had a chance to truly internalise the interest-dynamics, the values, the principles behind this Bill. Most crucially, there are a lot of smart folk out there who have good reasons for objecting to it in it’s current form. Politicians spend a lot of time talking about engaging with the disengaged; of the importance of, for example, new digital media. If we truly believe in that, then the bill won’t go through on wash-up.