My Lords, Amendments 29 and 30 stand in my name. I fully appreciated, as I prepared my thoughts ahead of this short speech, that a large part of what I was going to say might be rendered redundant by the noble Lord, Lord Allan of Hallam. I have not had a discussion with him about this group at all, but it is clear that his amendment is rather different from mine. Although it addresses the same problem, we are coming at it slightly differently. I actually support his amendment, and if the Government were to adopt it I think the situation would be greatly improved. I do prefer my own, and I think he put his finger on why to some extent: mine is a little broader. His relates specifically to public information, whereas mine relates more to what can be described as the public good. So mine can be broader than information services, and I have not limited it to non-commercial operations, although I fully appreciate that quite a lot of the services we are discussing are, in practice, non-commercial. As I say, if his amendment were to pass, I would be relatively satisfied, but I have a moderate preference for my own.
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Wikipedia has been mentioned frequently, and the Government cannot say that they have not had notice of this problem, because it was frequently mentioned in Committee. The fact that the Government have not come forward with any suggestions or amendments to address this at all—I can summarise what I think is their response in a moment—is truly remarkable. There has been an open letter signed recently drawing attention
to this problem, which includes not only OpenStreetMap, which the noble Lord referred to, but the Heritage Alliance; INSPIRE, which is a physics research platform operated by CERN; the Wellcome Sanger Institute; the Chartered Institute of Library and Information Professionals in Scotland; and Liberty. They are all concerned about how they are going to operate. They will be caught. Curiously, the Taliban will not be caught, because the Taliban will benefit from the exemption that exists in paragraph 9(1)(c) of Schedule 1 for a “foreign sovereign power”. So the Taliban will not be in Ofcom’s scope at all, but all these organisations doing perfectly decent work are going to be chased down by our regulator.
The Minister has said from the Dispatch Box that he does not think that Wikipedia would be in scope. But when pressed on this, both at the Dispatch Box and in private conversation—for which I am grateful—he said that that was his opinion but it was going to be decided by Ofcom; his assurance at the Dispatch Box, in other words, carries no weight, because the decision is to be made by Ofcom. When I say that we can still pass these amendments, he says we cannot tell Ofcom what to do because it is independent. But the entire Bill is telling Ofcom what to do, and of course Parliament can tell it that services of this character are not in scope. The Bill specifies what services are and are not in scope. So I think it is pretty much a nonsense answer.
Although these organisations, in many cases, are non-profits, that does not mean they are not businesses, and businesses have to plan, invest and think about what they are going to do next. They are hanging there, waiting and absolutely uncertain until Ofcom make a regulatory decision of an existential character, because we in Parliament cannot possibly take a stance on it and the Government cannot have a view. I know that businesses are constantly subject to the possibility of regulatory change in the future, but I do not know of any regulatory changes that, in the normal course of events, threaten the entire business model. They might threaten how it is you plan to make a particular product or what insulation you might have to put in a house you are building; they do not put you entirely out of business, which is what this threatens to do. So I think there is a very strong argument indeed for an amendment that takes these services out of scope, not only because it is a nonsense not to but because it really does threaten investment, planning, jobs and the things that go with that.
My Amendments 29 and 30 should be taken together. Amendment 29 creates an exemption, the terms of which are stated very plainly so I do not need to read them out. Amendment 30 creates what is being referred to as a “rescue clause”; in other words, it says that Ofcom has the discretion to withdraw the exemption if it sees that it is in the public good to do so. If any of these services were to start going rogue and behaving in a way that was contrary to the public interest, or objectionable in terms of how the Bill operates and is intended to operate, Ofcom would be able to intervene and say, “That exemption no longer applies; if you get the exemption under Amendment 29, we can take it away under Amendment 30”. This is not unprecedented.
This rescue clause has been almost cut and pasted from the Gambling Act. This process of creating an exemption which can be withdrawn is not unprecedented and has great merit. This is why I recommend Amendments 29 and 30 while not wanting to be exclusive to Amendment 28.
This is not going away. Germany exempts non-profit organisations. France has recently passed laws with similar scope to ours and has exempted those entities which operate in the public interest. There is nothing strange about doing what I and the noble Lord, Lord Allan, want to do. This will not go away, because the consequences could be very severe. It is not a question of whether Wikipedia will close. Wikipedia in the English language will probably survive all of this. It has a lot of people supporting it and a lot of volunteers working for it. However, what of many of the minor languages? Wait until the Government find out whether Welsh Wikipedia, the largest Welsh-language website in the world, will survive and the consequences. What will the Government say when they start getting letters? “Oh, it’s nothing to do with us, we have no answer for that, it’s all a matter for Ofcom”. This is a completely unsustainable position. It is indefensible for us in Parliament to let it pass and it is completely unsustainable for the Government. Some action must be taken.