HC Deb 02 July 1996 vol 280 cc736-45

'.—(1) No programme against which the BSC has entertained a fairness complaint shall, without the prior consent of the relevant regulatory body, be repeated in full or in part within the United Kingdom nor included in any service intended for reception outside the United Kingdom until the complaint has been adjudicated upon and the BSC's decision made known to the complainant.

(2) For the purposes of subsection (1) above, a complaint shall be deemed to have been entertained by the BSC if on a preliminary examination it appears to the BSC to disclose a reasonable case to answer.

(3) Where the BSC has upheld a fairness complaint in respect of a programme the relevant broadcasting body or, as the case may be, the relevant licence holder, shall not cause the programme to the repeated within the United Kingdom nor permit the inclusion of the programme in any service intended for reception outside the United Kingdom until it has been edited to remove the part or parts of the programme which the BSC has adjudicated to be unfair.'.—[Sir Michael Marshall.]

Brought up, and read the First time.

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Sir Michael Marshall (Arundel)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 137, in clause 101, page 91, line 26, at end insert— '(2A) It shall be the duty of each broadcasting or regulatory body, when requested by a person or body of persons with reason to believe that their privacy has been, is being, or is about to be infringed in connection with the obtaining of material for a forthcoming programme, to investigate and satisfy themselves that the relevant code in force under subsection (2) above in respect of privacy has been properly applied; and any such request by a person or body of persons shall not prejudice any rights they may have under section 105 of this Act.'.

Sir Michael Marshall

I believe that it would be more convenient to discuss amendment No. 137 first. It is related to clause 101 and covers complaints by aggrieved parties of unjust or unfair treatment or unwarranted infringement of privacy. It is concerned with the role of the broadcasting or regulatory authorities and their relationship with the new Broadcasting Standards Commission, which I shall refer to as the BSC. It is concerned about a situation where complaints are made before a programme has been broadcast. It will become apparent that new clause 19 is about the handling of complaints after transmission.

I make the point at the outset that the new clause and the amendment have been tabled by my right hon. Friend the Member for North Wiltshire (Mr. Needham) and myself in the light of our experience and that of our constituents in respect of the film entitled "Beyond Reason", which was shown on 20 February 1995. The scale of the problems and the distress caused to our constituents can be judged by the Broadcasting Complaints Commission's subsequent adjudication of 12 October 1995. It said: The Broadcasting Complaints Commission have upheld complaints about the drama, 'Beyond Reason' commissioned by Carlton Television and shown on the ITV network last February. The film tells the story of the killing four years earlier of Penny McAllister. wife of Captain Duncan McAllister, an army officer serving in Northern Ireland. Her throat had been cut by her husband's mistress, Susan Christie, a private soldier in the Ulster Defence Regiment, who was given a sentence of five years—increased to nine on appeal—for manslaughter. The BCC found that the film unwarrantably infringed the privacy of Duncan McAllister and his family, and that of Penny McAllister's parents, Mr. and Mrs. Desmond Squire. Both families had repeatedly pleaded with Carlton Television not to go ahead with the film they had commissioned about the tragedy. The Commission found that, although there had earlier been widespread reporting of the tragedy, there was no public interest justification for showing the film, which had been made as a television drama for public entertainment. The BCC also found that the programme showed Duncan McAllister as a man far more heartless, selfish and uncaring than could be supported by all the evidence. The portrayal of his seeming callousness when told of Susan Christie's reported pregnancy and miscarriage was particularly unfair. Finally, the Commission upheld complaints from Mr. and Mrs. Squire that the film's opening captions did not make it clear to viewers that the programme was made despite their strong objections and without any co-operation from them. I have quoted that in full because it is important to understand the thrust of the new clause and the amendment. I should add that the dead girl's parents, Mr. and Mrs. Squire, are my constituents, and that the interests of Mr. Duncan McAllister and his parents were handled by my right hon. Friend the Member for North Wiltshire as their constituency Member of Parliament.

It may also help to put the matter in context if I refer to the 1994 report of the chairman of the Broadcasting Complaints Commission. I had the opportunity during an Adjournment debate on 8 March 1995, to which my hon. Friend the Minister of State responded, to quote the remarks of the chairman of the BCC—then Canon, now Lord Pilkington—to whose work I pay tribute, as I do to the work of the BCC. In 1994, he said: We continue to be concerned by crime reconstructions particularly when they are based on cases which have occurred in the recent past. We feel it is very important that in the making of such programmes consideration is given to the position of the relatives of the victim."—[Official Report, 8 March 1995: Vol. 256, c. 435.] Against that background, I shall explain why my right hon. Friend and I—because of our experience and that of our constituents—suggest that our amendment and new clause are necessary. When we were first approached by the families concerned, a year before the screening of "Beyond Reason", we used every opportunity to persuade the Independent Television Commission, as regulator, and Carlton (UK) Television Ltd., as the company commissioning the film, to give full weight to complaints of unjust and unfair treatment and of invasion of privacy, which we could see that the project represented.

We stressed in particular the distress caused to our constituents in recreating that tragedy—including the murder in 1991 and the trial in 1992—so soon after the events, and that the outrage and distress were compounded by recreating the dead girl, her parents and Duncan McAllister by look-alike actors. Our appeals were rejected. The ITC said that the project did not breach its current guidelines and codes of practice for drama documentary.

Carlton relied on public interest and other arguments, which our constituents found totally unacceptable—as, clearly, did the BCC in the adjudication that I quoted.

That was in the recent past. What is the situation today? My right hon. Friend the Member for North Wiltshire and I have engaged in a long series of discussions and correspondence with the Department of National Heritage, the ITC and the BBC. The significance of all those parties is worth a few words.

My right hon. Friend the Secretary of State and my hon. Friend the Minister of State have shown considerable sympathy with the case that we have made. Clearly, we have been determined to ensure that, as far as possible, there should be no repetition of the suffering inflicted on our constituents—or on the constituents of any hon. Member.

On the general principle, we believe that there must be an advance opportunity to influence programme makers to prevent unfairness rather than merely being able to complain about it afterwards. However, the Department of National Heritage seems to be impaled on the hook of protecting the principle of self-regulation.

I outline the situation as explained by my hon. Friend the Minister of State in a letter to me of 12 June 1996. He wrote: the programme in question led to a number of concerns being raised, even before its broadcast, not just by the Broadcasting Complaints Commission but also by the Independent Television Commission (ITC). I understand that the ITC was, at the time of broadcast, preparing to publish a revised Programme Code, containing new guidelines to be followed in respect of dramatised reconstructions. The ITC had no doubt that 'Beyond Reason' breached those guidelines, but was unable to take action, given that the revised Code was not, at the time, in effect. Nevertheless, the ITC made its views clear to the broadcaster, and made clear its intention to prevent any repeat, as a breach of the new Code, using its powers under the 1990 Act. It is not entirely clear whether that means a repeat of the offence or a repeat of the programme, for reasons that I shall mention later.

My hon. Friend the Minister continued: At the time of publication of its revised Programme Code, the ITC wrote to broadcasters, highlighting the new guidelines and explaining their implications. Coming to amendment No. 137, in the terms before us, my hon. Friend the Minister then commented: If I may turn now to … the amendment, my understanding here is that the measures you propose are unnecessary. There is nothing to prevent an individual from approaching a regulator in connection with an allegation that a broadcaster has infringed or is likely to infringe his or her privacy. In such circumstances, the regulator, even without the power of preview or veto, is free to approach the broadcaster or licence holder informally to remind them of their responsibilities under the relevant codes or guidelines. If the broadcaster ultimately ignores this warning, he does so in the knowledge that severe sanctions may result. That was the view put forward by my hon. Friend the Minister, which I have discussed with him, as has my right hon. Friend the Member for North Wiltshire. I shall return to the points that he made in a moment, but for the sake of completeness I want to refer to the arguments against the amendment put forward by both the BBC and the ITC, and which clearly have had a strong influence on the Department's thinking.

I emphasise that it is important to note the problems of principle about which I am arguing, because they are not confined to the ITC. Discussions with the Broadcasting Complaints Commission show that examples of actual and potential problems in this area could affect BBC television and the Radio Authority. I want to concentrate my remarks on television, as the medium about which my right hon. Friend and I have been most concerned during recent months. I shall summarise the reactions of the BBC and the ITC to amendment No. 137, of which they were given advance notice. Perhaps, in these rigorous days, I should declare my interest as a former BBC cricket commentator. The chances of getting such work again in this egalitarian age, with women commentators—something I am sure the hon. Member for Wallasey (Ms Eagle) welcomes—are rather narrow. In passing, I point out that, as a strong proponent of the need to sustain the BBC World Service, I can generally be taken to be a fan and supporter.

Having said that, I can only describe the BBC's reaction to the proposals in amendment No. 137 as one of, "Auntie knows best." I shall quote from a letter that I received from the BBC's parliamentary liaison officer, dated 21 May 1996: The proposed amendment … would impose an additional burden on the BBC quite separate from the BSC complaints procedure. The question of whether the BBC's Code had been complied with will arise in any event as part of the consideration of the complaint. It is important to remember that the BBC's duty is to 'reflect the general effect of the BSC code as it is relevant to the programmes in question'. The amendment would give complainants an unnecessary and potentially alternative procedure. The ITC has consistently shown a greater willingness to address our concerns. Indeed, through correspondence with its chairman last January, it stated that the ITC was ready to accelerate the process of sanctions against those breaking relevant codes. I shall not detain the House with the detail, but that is a welcome assurance. However, the ITC, like the BBC, argues that amendment No. 137 is unnecessary because the procedure is already open to a potentially aggrieved party. In its letter of 28 May, the ITC also expressed fears that to formalise the procedure could lead to a flood of appeals to the ITC, some of which might be self serving and mischievous. With that background, I shall now make the case for amendment No. 137. I have tried to give the full flavour of the objections from the BBC and the ITC and of the way in which they have been reflected in the preliminary responses of the Department of National Heritage. Let us consider them in turn.

First, all three parties—the Department, the BBC and the ITC—agree that the procedure outlined in amendment No. 137 is already open to those who wish to complain. Why then discourage its formal incorporation in the Act? Surely the argument that such formalisation would lead to a flood of complaints applies whether the powers are voluntary or statutory. Secondly, experience shows that the viewing and listening public have little or no idea of to whom they can turn. They cannot distinguish between the Broadcasting Standards Council, the regulatory authority, the ITC, the BBC board of governors, the broadcaster, the programme maker and so on.

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My right hon. Friend the Member for North Wiltshire and I became involved through handling our constituents' complaints and acting as advocates for them at the hearings of the Broadcasting Complaints Commission. We found the process lengthy and complicated. It was difficult for the ordinary citizen without full administrative support to make any headway. I have little doubt that many people have been deterred in the past.

On amendment No. 137, I fear that I cannot accept the assertion of my hon. Friend the Minister and the regulatory bodies that such problems cannot recur. There has been some tightening: the ITC recognises that there are circumstances in which it would be difficult to justify programmes such as "Beyond Reason", where the likely distress to the people concerned is greater than the public interest. However, there is no certainty in the matter.

What about the temptation facing a licence holder whose franchise may not be extended? Is there not a danger of a sensationalist end to the franchise designed to maximise final advertising revenue? As for the BBC, recent experience with the broadcast interview with the Princess of Wales shows that even the board of governors is not necessarily au fait with the corporation's production activity. For those reasons, I cannot understand why there should not be a clear statement in the Bill, which would emphasise the regulator's role in providing some public reassurance. Above all, it would give some hope to aggrieved parties that action may be possible before the damage is done. I commend amendment No. 137.

New clause 19 logically follows amendment No. 137 in seeking to curtail the apparent disregard of the upholding of fairness complaints. I gave the House an outline of the Broadcasting Complaints Commission's adjudication on "Beyond Reason", which could not have been more damning. But what followed? Within days of the adjudication, the programme was broadcast again in Australia. That raises the question whether the ITC was correct to advise my hon. Friend the Minister that it had exercised its power to prevent repeats. I shall return to that point later, but I ask the House to consider the effect on constituents of yet another round of publicity and correspondence, which added to their distress.

New clause 19 addresses the prevention of repeats at home and overseas and would give additional teeth to the proposed Broadcasting Standards Commission to remove material that is judged to be offensive from such repeats. I emphasise that new clause 19 has been changed to try to take account of what I accept were genuine objections to it. I should outline briefly the actions of the three main parties before I explain how we have amended it.

The BBC's parliamentary liaison officer wrote: Regrettably the proposed New Clause on Restriction on Re-Broadcasting of Programmes forming subject of complaint treads on essential editorial freedom and independence. The BBC is established and governed by a Royal Charter and Agreement as an independent broadcaster and is not subject to the editorial decisions of any other body. This is a matter of fundamental principle. The integrity and responsibility of BBC programmes are not just well attested. The new Royal Charter and Agreement specifically requires that independence. Impartiality and standards of good taste and decency and accountability are also required. No additional regulations are needed to guarantee these principles and practices. Does not that fly directly in the face of all the arguments put forward by those who have shown that the BBC cannot automatically count on the form of regulation suggested? Interestingly, no reference is made in those comments to the invasion of privacy. Many may feel that that shows the BBC at its worst, with an apparent declaration ofindependence from any future role of the BSC.

By contrast, the ITC showed a desire to help. I quote again from the chief executive's letter of 28 May 1996. On the new clause, it said The ITC is entirely sympathetic to the wishes of a legitimate complainant that a programme should not be repeated while the BSC adjudicated on the matter. However, current Broadcasting Complaints Commission processes may take many months and in some cases more than a year to reach adjudication. A mischievous complainant, who took exception to a programme (but had no legitimate grounds to do so) could block its repeat during this period. This clause would therefore have the unintentional side-effect of placing a significant block on broadcasters' legitimate freedoms. On restrictions on overseas use, it said: The difficulty with this … is that it assumes that the UK broadcasting body or licence holder will also control secondary rights for overseas use. That is not always the case. In both correspondence and meetings, my hon. Friendthe Minister related our original draft new clause to one moved in another place by the noble Baroness Dean, who sought to help us in taking the new clause through the other place. I pay tribute to her work in that regard. However, the proposal was rejected, largely because of the ITC's objections, which I mentioned earlier. In fairness to all concerned, I therefore stress that the new clause moved this afternoon meets the genuine concerns put to us.

The key element in the new clause is that it is covered by the words: without the prior consent of the relevant regulatory bodies". Subsection (2) defines the basis on which the BSC will be deemed to entertain a complaint. With those changes, we have reasserted the principle of self-regulation, by confirming the power of the regulatory body to say yes or no to repeat programming. Thus we also meet the flooding and mischievous complaint concerns.

I accept that overseas repeats will sometimes be beyond the powers of the regulatory body, but clearly not in all cases. Many broadcasters control both UK and overseas distribution. That sanction should be in place. The moral case must apply to those who seek to beat the system, because I assume that they must look to a longer-term relationship with the regulatory authorities, as current and potential licence holders.

For those reasons, new clause 19 would meet the needs that are plain for all to see. I wish to end on this thought. I have tried to present the arguments of the giants in this field of endeavour—the ITC, a major Department of state and the BBC—dispassionately. But I ask all hon. Members to consider how they and their constituents would feel against the background of an appalling piece of drama documentary such as represented by "Beyond Reason".

In a spirit of seeking to prevent and deter such suffering, as well as to present a genuinely clearer statement of the options open to aggrieved parties, both before and after the transmission of a television programme, I urge the adoption of the new clause and amendment.

Mr. Richard Needham (North Wiltshire)

In his usual dispassionate way, my hon. Friend the Member for Arundel (Sir M. Marshall) has put the case against the film "Beyond Reason" and expressed our concerns. They are simply that no such film should be made or shown again. To achieve that, something must happen to ensure that such films do not appear on television.

This was a disgraceful and disgusting film, which started with the dead wife's blood being shown through rainwater pouring through ferns. The producers of the programme agreed with my hon. Friend's constituent that that was the least that they could do to show how the murder took place, and they took out the scene of the murder.

It is not as if that film—a faction drama mixing fact and fiction—is unique. There are similar scenes in other documentaries made in this country and elsewhere. It is an absolute abuse of a modern producer's power, and its effects were devastating on those to whom it applied.

My hon. Friend and I have the single concern that there should be sufficient provisions in the BBC and ITC codes to ensure that that does not happen again. The ITC tells us that, in its view, the new code should ensure that it does not happen again, although I have read the new code and found that some holes remain to be blocked.

One of the most chilling aspects of the new code is that it says that, in considering whether such a film should be broadcast, Consideration should be given to taking professional advice about the likely effects of the dramatisation. Of particular relevance would be the views of clinical psychologists specializing in this area, or of Victims Support organisations or, with the agreement of the individuals concerned, those counselling them. Madam Deputy Speaker, can you imagine the feelings of my constituents and those of my hon. Friend, the parents of the murdered girl and the parents of the husband—who were themselves traumatized—on being told that the decision whether the film should be seen should depend on clinical psychologists and those who counsel them? It is unthinkable that it should be allowed to happen.

Does the Minister feel that enough is being done? Although my hon. Friend and I accept that the ITC has moved a long way, we are not sure that the BBC has done so. It still appears to believe that the principle of editorial freedom means that such films should not be considered until they have been shown. Amendment No. 137 is a belt-and-braces measure, so that those involved have adequate recourse to prevent the film being shown the first time.

We can clinically and objectively debate the issues and perhaps the remedies, but we should never forget that we are dealing with desperate tragedy. In this case—there have been many similar cases in the past few years—two families were first traumatised by a vicious murder and then further devastated by the ruthless, careless men who were determined to make prurient entertainment by embellishing and exaggerating the horror that befell the families. As a result, the lives of both those families, not least the mothers of the murdered girl and of the husband, have been damaged.

The House cannot allow innocent families or mothers to be damaged and scarred, perhaps irretrievably, by those who have neither feeling nor understanding. My goodness, how my hon. Friend and I and others spent time trying to persuade the bosses of Carlton, those who were making the film and everyone who was involved that the film should not be shown, but they could not have cared less. As my hon. Friend said, the day after the adjudication by the BCC, it was decided to show the film in Australia.

In those circumstances, it is hardly surprising that we are dubious about anything that comes before the House which involves self-regulation—shoulds, maybes, mights, coulds and woulds—instead of enabling us to be sure that such a thing cannot happen again.

We believe that our amendment will achieve that and exactly that. If my hon. Friend does not mind my saying so, it is up to the Minister to prove us wrong.

Mr. Sproat

My right hon. Friend the Member for North Wiltshire (Mr. Needham) and my hon. Friend the Member for Arundel (Sir M. Marshall) know that I am extremely sympathetic to their concerns. The example of "Beyond Reason", which they cited, was especially shocking, in that the Independent Television Commission had already taken steps to deal with the problem, but the revisions to its code, especially on drama documentaries and faction, came into effect only after the programme was broadcast. The ITC was therefore unable to take action against the broadcaster. It has since, however, made clear the responsibility of its licensees in respect of programmes of this kind.

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Although it obviously has an important role to play in such matters, the Broadcasting Standards Commission is not a regulatory body; indeed, its independence from the regulatory framework is essential if it is effectively to perform its functions. New clause 19 would effectively, indirectly, establish the BSC as a regulator, which, by virtue merely of entertaining a complaint, regardless of whether that complaint was ultimately upheld, could prevent a broadcaster repeating the programme in question. However, although the BSC should not have such responsibilities, the ITC should, and does.

The ITC has the power under the Broadcasting Act 1990 to prevent the broadcaster, or any other licence holder, repeating a programme which it judges to be in breach of its code. The ITC has the powers, including robust sanctions, to enforce compliance. It should use them to ensure—by making crystal clear its views and the likelihood of any breach resulting in the most serious sanctions—that never again should there be a case such as that of "Beyond Reason", and certainly no repeat.

Regarding amendment No. 137, there is at present nothing to prevent an individual approaching a regulator in connection with an allegation that a broadcaster has infringed, or is likely to infringe, his or her privacy. The regulator would then be free to approach the broadcaster informally, reminding it of its responsibilities. Any subsequent breach could be met with severe penalties.

The Government do not, however, consider it appropriate for the BSC, as opposed to the ITC, to involve itself in such matters. The BSC is concerned with complaints about programmes after they have been broadcast. To play a role before that would, in effect, be to become entangled in the regulatory process. I have already explained why that is undesirable.

Moreover, although the BSC's code must be reflected in the regulators' own codes and guidelines, it is with the regulators' codes that the broadcaster is obliged to comply.

The Bill has given additional powers to the BSC, which will have an impact in that area. The code on fairness, which, as I explained, broadcasting and regulatory bodies will be obliged to reflect, will allow the BSC's acquired knowledge and experience to feed into the regulators' own expertise. In addition, the BSC will have the power to commission research into issues relating to unfair treatment and infringement of privacy, which will further add to the understanding of those issues.

My right hon. Friend the Member for North Wiltshire mentioned the BBC. The new BBC charter and agreement, which came into effect on I May, gives the governors specific responsibilities, equivalent to those of the ITC, to maintain standards, and those, if not fulfilled, could be subject to judicial review. The new chairman, Sir Christopher Bland, has made clear his determination to enforce those obligations. The corporation is also committed to a thorough review of the producers' guidelines, which include detailed advice on matters of privacy and fair treatment.

I believe that much has been done to prevent further programmes offending in that way, but I fully understand the fear of my right hon. and hon. Friends that that may not be enough. Although the Government do not believe that a legislative solution is called for, I hope that the regulators will take great notice of the concerns expressed today. The Government want never to see again what happened in the case of "Beyond Reason". I hope that, having heard those comments, my right hon. and hon. Friends will not press their new clause and amendment.

Sir Michael Marshall

I thank my hon. Friend the Minister of State for outlining the present position, and particularly for updating us on the BBC's consideration of those matters. I am sorry that he did not feel able to address the thrust of the arguments that we put forward. If an aggrieved person can raise any such matter with the BBC or the ITC—and they have assured us that they will take such concerns into account—it is a shame that we do not have something in the Bill that reiterates the significance of those activities and alerts members of the public to what is available to them at law.

I recognise that there are genuine technical difficulties in drafting something that becomes statute law and that meets those situations precisely. I have detected sympathy in this regard from hon. Members on both sides of the House. Hon. Members' opinions will go on the record, and I hope that they influence the regulatory authorities when they look at those matters.

I ask my hon. Friend the Minister to take on board the need to keep the matter under constant review. It is all very well for us to create a fuss, but there is the danger that the issue will slip in a year or two. There is no certainty in such matters. I recognise that my hon. Friend and the regulatory bodies have moved in that regard; we shall do our part and keep an eye on those matters.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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