MAKING AND ENTERTAINMENT OF COMPLAINTS (Hansard, 10 November 1980)

§ Dr. Shirley Summerskill (Halifax)
I beg to move, as a manuscript amendment, to the Lords amendment, after second "the" insert "first".

§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
With this we may take Lords amendments Nos. 13 and 14, and manuscript amendment No. 2 to Lords amendment No. 14, after "was" insert "first"

§ Dr. Summerskill
I quite understand if, now that we are approaching the hour of 6 o'clock, my hon. Friends find something more interesting to do than to discuss the Broadcasting Bill, but I am here to carry the flag for the Opposition.
I regret that the two amendments to which I shall speak are both manuscript amendments, Nos. 1 and 2, in relation to Lords amendments Nos. 12 and 14.
My manuscript amendments are the result of the Government's overloading of the legislative timetable and the mishandling of business, because the Second Reading of the Bill was not held until 18 February. We were rushed through the Committee stage, with afternoon sittings introduced by the Government, because the Bill had to be returned to the Floor of the House as quickly as possible. It was further rushed in the Lords until their Lordships objected strongly to the steamroller tactics and were given a little more time. It left the Lords only at 5 o'clock last Thursday, when it completed its Third Reading, and there were literally a few hours on Friday in which to table amendments to the Lords amendments. So hon. Members have had only today even to see the manuscript amendments and to consider what, if anything, they wish to say about them.
The manuscript amendments concern the making and entertainment of complaints. I welcome the fact that the Government have now amended the Bill to provide that the commission will be able to consider posthumous complaints only in cases where the relevant programme has been broadcast within five years of the death of the person affected.
There was great concern among historians and those who work on television programmes that the original provision in the Bill would indirectly impose serious restrictions and inhibitions on their work. These would have applied whether it was a historical or a dramatic account of the life and character of a dead person. Many examples have been given in both Houses, ranging from Shakespeare's "Henry VIII" to, more recently, a film about Lawrence of Arabia, and the television 80 film about the Duke of Windsor. I am glad that there is now wide appreciation by everyone, including the Government, of the serious concern felt about this matter by people who work in television.
6 pm
On the other hand, it is necessary, as I said when we discussed the matter in the House, to protect the feelings of the relatives and friends of the subject of a television programme who may have strong and justifiable grounds for complaint about the treatment of the deceased. Therefore, five years is a somewhat arbitrary compromise, but it is to be welcomed.
The two amendments seek to insert the word "first" before "broadcasting" and "broadcast". This is intended to ensure that the opportunity for complaint should not, in theory at any rate, go on for ever. As hon. Members will be aware, many television programmes, especially dramatic and documentary programmes, are repeated, and they may be based on people who have recently been alive. These repeats are broadcast sometimes a year or so after the programmes were first broadcast, and many may go into television archives for broadcasting in subsequent years. For example, "Testament of Youth" will surely be shown again many years from now.
The other purpose of the amendments concerns the fact that the clause as it stands relates to complaints about the presentation of a person who is alive at the time that the programme is first broadcast but dead when it is repeated. As Lord Gardiner said in the other place, when he was alive the dead man may have said that he did not care two hoots about the programme, did not propose to take any action about it, and thought that on balance it had probably done him good rather than harm. Therefore, we should ensure that if the person concerned has not complained when he or she has been alive, that should be the end of the matter. It should not be possible for relatives, employers and other categories of people to enter a complaint when the programme is repeated within five years of the death of the person concerned.
It is important to get this matter right, even at this late stage of this very hurried Bill. The drafting of the clause has been 81 criticised during the passage of the Bill in both Houses, but particularly in the other place. The terms of reference of the complaints commission are of great constitutional importance, and unless we take the time and trouble to make them fair and workable we can create serious problems for the future.

§ Mr. Brittan
I agree with the hon. Member for Halifax (Dr. Summerskill) that it is right and important that we should get these provisions right, and the amendments that have been passed in another place have assisted in doing so.
I see some force in the argument that if a person decides for some reason not to complain about a programme broadcast during his life, it should not be possible for a complaint to be made about his treatment in the programme when it is rebroadcast after his death. I understand that that is the intention of the amendment. That is particularly the case if, as the hon. Lady envisaged, the person concerned expressly indicated that he had no objection to the programme.
It would be difficult to cater for that purpose in detail in the Bill, and I am advised that the amendment does not achieve it. But the Bill enables the commission to refuse to entertain a complaint if it considers that it is inappropriate to do so. I think that it is likely that the commission will take the view that it would not be appropriate to entertain a complaint about the treatment of a person in a programme repeated after his death if the programme had first been broadcast before his death and he had an opportunity to complain. It is fortunate that we have had the opportunity to ventilate that possibility so that the commission will have its mind drawn to it.
I do not accept that the Bill in its original form would have had quite the devastating consequences that it was suggested would flow from it. It is significant that the more extravagant of those suggestions were not made in Committee, and were put forward at the latest possible moment. I am satisfied that the Bill provides more than sufficient opportunities, by means of filters given to the commission, to prevent the kind of abuse that has been somewhat extravagently postulated.
None the less, there are difficulties in the adjudication of complaints on behalf 82 of people who died a long time ago. The argument that I find most persuasive in this respect is that it is often difficult to get at the relevant facts. Therefore, we came to the view that a compromise was appropriate and a cut-off period was sensible. Any such compromise and cut-off period are bound to be arbitrary. However, the five years that we have suggested would seem to have been broadly acceptable elsewhere and here as well.

§ Dr. Summerskill
I trust that the commission will note the hon. and learned Gentleman's view that it would not be appropriate to examine a case in which the person himself or herself had seen the programme before death and had not complained and will accept that that is one reason for not accepting a complaint.
I do not think that the hon. and learned Gentleman has dealt adequately with my point about repeats many years ahead. The amendment is designed to prevent a complaint being made after, say, the tenth repeat of a programme. The idea is that one should be able to make a complaint only after the first broadcast. The hon. and learned Gentleman has not commented on that point.

§ Mr. Brittan
I have not commented specifically, but broadly the same considerations arise whether a person is alive or dead. I think that the commission will take into account the fact that even in the event of a complaint by a person who is alive the programme had already been broadcast many times before. It would not be appropriate to say that because the programme had been broadcast before it should be an absolute bar to a complaint. However, it is sensible that there should be a provision to allow the commission in all circumstances to consider whether it is appropriate to accept a complaint. Obviously the fact that the programme has been broadcast before will be taken into account.
The position is less strong than in the case of a dead man who, while alive, had seen the programme and approbated it. As in the law of libel, many considerations arise on the question why somebody did not complain the first time. It may not have been brought to his notice. If we were seeking to legislate specifically on this point it would be necessary to have elaborate provisions dealing with 83 the question whether the matter had been brought to the notice of the person concerned. In the absence of a complex provision of that kind it is wise to leave the matter to the good sense of the commission, provided that it has adequate powers not to entertain ridiculous complaints. I am satisfied that it will have such powers.
In fairness, I should point out that although the hon. Lady and I can express our views, and we may each, with due modesty, think that those views are or will be heeded, we cannot ensure that that will be so. Therefore, it would be wrong to say that we are doing more than expressing a parliamentary view. The commission will be guided by the Bill as finally enacted.