§ '(1) The Secretary of State may by order amend this Act to such extent as he considers appropriate to give effect to the provisions of—
- (a) any Royal Charter granted to the BBC after the commencement date;
- (b) any licence granted by the Secretary of State to the BBC after that date;
- (c) any agreement made by the Secretary of State and the BBC after that date.
§ (2) In subsection (1) "the commencement date" means the date of commencement of section 193.
§ (3) An order under this section shall not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House.'.—[Mr. Whittingdale.]
§ Brought up, and read the First time.
Mr. Deputy Speaker
With this it will be convenient to discuss amendment No. 199, in page 171, line 22 [Clause 193], at end insert—'() the BBC Charter:'.
§ Mr. Whittingdale
We have made it clear throughout that, in the main, we are supportive of the general provisions. We support the liberalisation of the ownership rules and the establishment of a new single regulator, Ofcom. As has been demonstrated in all the debates in the Chamber and in Committee, there is no doubt that Ofcom will be a powerful body. It brings together five existing regulators and will have considerable powers to oversee all the broadcasting organisations with one exception. It is that exception 206 that the new clause is designed to address. The glaring omission from the Bill is the fact that the biggest and most powerful broadcaster—the BBC—is not fully within the scope of Ofcom.
The first part of the Bill deals with the regulation of the telecommunications sector. If one draws a comparison between that part of the Bill and the section dealing with broadcasting, it is like arguing that the telecommunications sector should be subject to regulation so that all the small companies seeking to compete are subject to scrutiny and regulation, but the biggest, in the form of British Telecom, is not subject to the oversight of the regulator. In the same way, the Government propose that all the broadcasters competing and operating commercially should be subject to oversight and regulation, but the BBC should not.
That would seem an extraordinary proposal at any time, but it is particularly so now, when the dominance of the BBC has continued to grow. As we discussed in the previous debate, in recent years the amount of resources available to the BBC has been growing steadily and now stands at more than £2.5 billion, with a further £100 million coming from the next increase in the licence fee. At the same time, other broadcasters have been subjected to a considerable squeeze as a result of the downturn in the advertising market, which has meant that many of the independent commercial broadcasters must make cuts. Channel 4 is now loss-making.
§ John Robertson
If the independent television companies had been receiving the same amount of money as in the past, would the hon. Gentleman still attack the BBC as he has done during our consideration of the Bill?
§ Mr. Whittingdale
I should like to think that I have not been attacking the BBC. I should like to think that my suggestions are helpful to the BBC. However, even if the commercial companies were not subject to a financial squeeze, it would not change the position: the BBC would still be the biggest and most powerful broadcaster in British broadcasting. Given that, the argument would still be overwhelming that it should be subject to the same scrutiny and oversight by Ofcom as other broadcasters are.
The overwhelming dominance of the BBC is not just financial. In recent years it has undertaken a programme of expansion that is still continuing. As new opportunities have arisen for broadcasting, both digital television programmes and digital audio stations, in each case the BBC has felt it necessary to enter those areas and to match the activities of the commercial channels. There are therefore concerns about the way in which the BBC is competing with some commercial broadcasters, and a more general concern that has been growing over many years about the way in which the BBC meets its public service remit.
There will be programmes that nobody could argue are not public service broadcasting in the fines tradition. We have covered some of them this evening. Some have also been highly successful. "The Blue Planet" was not just a wonderful programme that would certainly meet the public service remit; it was also 207 extremely successful in terms of the number of viewers that it attracted and in terms of overseas sales. I am not by any means arguing that the BBC should not make successful programmes. The BBC has demonstrated that it is possible to make high-quality public service programmes and extremely successful programmes which command a very wide audience. However, there have been other activities by the BBC which, in my view and the view of many other people, have strayed a long way from the BBC's original public service remit. I do not want to give a great catalogue of examples, but I shall cite one or two. ITV developed an extremely successful concept in the form of "Pop Idol", which has been repeated in the form of "Popstars—The Rivals" and other reality music shows. I still do not understand why the BBC felt it necessary to try to emulate that by making "Fame Academy", particularly as it seemed to be a rather pale imitation.
At the same time, the BBC spends a great deal of money seeking to buy Hollywood blockbuster films. In bidding for those rights, it often finds itself in competition with commercial broadcasters. The overall effect of that is to increase the price that has to be paid to the American distributors. It also means that the British licence fee payer is having to spend a lot of money on purchasing American-made movies that would be shown anyway, since the commercial broadcasters have made clear their wish to purchase them. The effect is therefore simply to increase the amount of money that goes into American pockets from the licence fee payer. That, too, seems difficult to justify, particularly when we consider the BBC's record of showing British films, which is not that impressive. That issue is covered by amendments that we might debate later.
§ Mr. Simon Thomas
Surely there is a public remit for the BBC to bid for blockbuster films. If the BBC did not go for them, they would possibly be available only on pay-per-view or satellite television. While it remains the case that the majority of people in this country have access only to analogue television, is it not right and proper that the BBC should provide the widest range of entertainment, including blockbuster films?
§ Mr. Whittingdale
Almost every film is first shown on a box-office channel, which is pay-per-view. Normally, they are then shown on a premium movie channel and finally end up on terrestrial television. So this is not a question of people being denied the possibility of seeing them because they are being shown on a pay channel; it just means that they usually have to wait a little bit longer. In the cases that I am describing, however, ITV was seeking to buy the films in question. The most recent example was "Harry Potter and the Sorcerer's Stone", over which a bidding war took place between ITV and the BBC. That seemed wholly unnecessary and simply meant that we ended up having to pay more for it than we otherwise would have done.
The BBC and, indeed, other broadcasters should be concentrating their efforts on screening British films, if they are to meet their public service remit. In this regard, the BBC's record is not at all impressive. In one study that I have seen recently, out of the total of 186 films broadcast by the BBC, only 44 were UK films, and only 208 six were less than five years old. That means that recent British films only formed 3.2 per cent. of the BBC's output, yet one would hope that the BBC, above all, would be willing to give a platform to British film makers, rather than screening a constant succession of Hollywood movies that are easily available on other channels.
§ Michael Fabricant
I have considerable sympathy with my hon. Friend's argument about English—not just English, but British—films being shown on BBC television. But surely he cannot be arguing that the public service remit means that the BBC cannot also seek large audiences. If the BBC became a small ghetto with a tiny number of people watching it, there would be no justification for it at all.
§ Mr. Whittingdale
That is an interesting debate that could occupy the rest of the evening. The BBC should obviously not set out to become a ghetto broadcaster or to attract only very small audiences. "The Blue Planet" is a very good example of a high-quality public service programme that can also attract very large audiences. I differ to some extent from my hon. Friend in that it has always seemed to me that the prime purpose of—indeed, the justification for—the BBC is to provide programming that is not otherwise available. Its motivation should not be to attract audiences, but to make high-quality programmes that meet its public service obligations. If it does that well, it can also expect to win substantial audiences. The BBC has produced programmes that cannot by any definition be described as public service broadcasting. One recent example is "Celebrity Boxing"—which not even commercial channels would claim met their public service remit. At a time when the general view is that there is dumbing down and that many programmes cater for the lowest common denominator, there has been a growing lack of high-quality programming of the kind that the public think the BBC is designed to broadcast.
Much concern has been expressed in all parts of the House about the BBC's coverage of Parliament and politics in general. When that coverage was recently subjected to considerable change, we were given reassurances that the extent and depth of political coverage would not be diminished. Although it is early days, I do not believe that those reassurances have been met. The programmes that I have seen of the BBC's current political coverage do not provide anything like the depth of some of the programmes that they replace.
Considerable concern has been expressed also about the BBC's coverage of the arts—particularly the recent decision to drop "Omnibus", which for 35 years was the UK's premier arts programme. Jonathan Miller commented that unless one's idea is for a programme about decorating houses or chopping up vegetables, it is impossible to get anyone at the BBC to commission it. There is widespread concern that the BBC is straying from its central public service remit.
That matter is currently for the governors of the BBC. Unlike the other channels—which are required to report to Ofcom and are at the same time subject to monitoring and scrutiny by Ofcom to ensure that they meet their 209 public service remit—the BBC, which should have a stronger public service obligation than any other channel, is excluded from scrutiny. Responsibility for that rests with the governors, which seems entirely wrong. The BBC above all, because of the strength of its public service obligation, should be subject to external scrutiny.
My hon. Friend the Member for Sutton Coldfield (Mr. Mitchell) spoke earlier of the BBC's capacity to compete with commercial broadcasters, take advantage of its privileged position, being funded by the licence fee, and offer unfair competition. One needs to distinguish between activities funded by the licence fee and others. A number of new BBC ventures have already given rise to complaints from commercial broadcasters that such developments represent unfair competition and replicate existing commercial programmes. The launch of BBC3 was delayed while the Secretary of State built in stronger safeguards against unfair competition. Even now, having watched BBC3, it does not seem to be a great innovation in public service broadcasting but competes head on with existing broadcasters such as E4 and Channel 4. Reviews of some BBC3 programmes shown to date do not justify the large sum of money that has been committed to that channel—including "Tories with Talent", despite the fact that about 1 o'clock this morning, I enjoyed watching my hon. Friend the Member for Gainsborough (Mr. Leigh) punch through a wooden log.
Similarly, BBC4 should in many ways define public service broadcasting, being dedicated to arts coverage. There have already been complaints from Artsworld, an existing broadcaster, and Digital Classics—which directly blames BBC4 for its closure after making losses in the last year. Digital Classics has said that the BBC's free digital cultural channel has distorted the digital market. Moreover, concern about BBC News 24 was so great that the Secretary of State felt it necessary to commission an independent report on its activities, which led to new requirements being placed on the channel to ensure that it was "distinctive and different".
It should not have been necessary for the Secretary of State to intervene. The fact that it was necessary demonstrates the inadequacy of the current arrangements, and the lack of action on the part of the governors. It would have been far better if an external body had been there to monitor the BBC's output constantly. Such a body could have ensured that the BBC was not breaching its fair trading commitment, and was providing channels that were both "distinctive and different" and in line with the public service obligation.
We already have eight children's television channels. The BBC has launched two of its own, CBBC and CBeebies. In many ways those channels are distinctive and different, but it is a cause of great concern when their controller says that his ambition is to create the biggest children's channel and to take over those currently watched on the commercial channels.
My hon. Friends have mentioned UK History, whose creation gave rise to complaints from the existing broadcaster, The History Channel, that it would merely replicate a channel that was already being provided commercially. UK History is not funded by the licence fee; it is part of the BBC Worldwide activities that are supposed to be separate and insulated from the licence 210 fee. I agree, however, with my hon. Friend the Member for Lichfield (Michael Fabricant), who asked whose assurance we had that that was the case. Any complaints relating to whether the BBC is properly maintaining an arm's-length relationship between its licence-fee-funded and its commercial activities are subject to adjudication by the governors: only they can look into such complaints.
We now understand that there are to be two new channels, UK Comedy and UK Nature, on top of all the existing UK television channels. We have heard complaints about the BBC's provision of educational software: existing manufacturers of that software have complained vociferously about the unfair competition. The latest revelation is that the BBC has just acquired a stake in an Anglo-Dutch music and television production company, and will produce classical DVDs. There is already a thriving classical DVD market in this country, and I see no need for the BBC to move into it. The move is likely to prompt more complaints from those who are already in that area of the market, and who also consider that the BBC is engaging in unfair competition.
Whether or not those complaints are justified, if the public are to be reassured that the BBC is meeting its public service obligations and is not engaging in unfair competition with commercial operators, there must be a mechanism allowing independent examination of the complaints. There must be a public assurance that they will be properly examined; it is not enough to rest on the assurances given by the governors of the BBC.
The governors are, in fact, in an impossible position. They represent the overall management and control of the BBC, while at the same time being expected to act as independent adjudicators when complaints are made. A number of people think it is increasingly difficult for them to fulfil both remits. Many besides Conservative Members believe that Ofcom needs to extend its activities to cover the BBC. In recent years there has been a growing chorus of complaints from people who are certainly not the BBC's enemies. Lord Puttnam, a strong supporter of the BBC, says that there is a danger of "everyone's favourite Auntie" being turned into "an abusive Uncle". Barry Cox, a distinguished broadcaster and a great friend of the Prime Minister, has described the BBC asa cultural tyranny—a … benevolent one, but a tyranny none the less".Lord Lipsey, another Labour peer, said that the current director-general of the BBC has failed to graspthe emerging threat … if the BBC is just doing the same thing as other broadcasters, what is the case for it? Why should it get public funding, regulatory privileges, legislative protection?Finally, in commenting on the current arrangements for oversight of the BBC, David Liddiment, ITV's director of programmes, said:If the BBC is, as it claims, the most regulated broadcaster in Britain, this must happen invisibly, because I can't see it. There's little evidence of the governors having an objective perspective on the organisation for which they are accountable.So the truth is that many people feel that the existing arrangements for the oversight and control of the BBC are inadequate. The governors are trying to do two different jobs, and it is becoming increasingly difficult for them to do so. There is a need for an independent 211 regulator, and Ofcom has been set up for that purpose. The purpose of new clause 10 is not necessarily for Ofcom immediately to take over the job of overseeing the BBC; it is to lay the ground for that to happen. In particular, it would allow the Secretary of State to make an order to extend Ofcom's powers to cover the BBC.
The Government have said that this matter should be considered in the run-up to charter renewal, and we are grateful for that concession. Nevertheless, we know what will happen. If the Government conclude that Ofcom should indeed take greater control over the BBC, we will be told that that is not possible without primary legislation, and that we will have to wait until a suitable opportunity arises. New clause 10 would give the Secretary of State the power to amend the legislation in order to give effect to any changes to the charter, or to the agreement, at some future date, without having to return to this House. We believe that such change will be necessary at some point, and the new clause is designed to ensure that it can be achieved easily.
§ Mr. Grogan
It is a great pleasure to follow the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale). I shall try to be brief, because, although we have heard a lot about the power of the BBC, we have yet to discuss media ownership and the powers of those such as Mr. Murdoch. I shall not be tempted to reply to the hon. Gentleman by making a complete tour of last month'sRadio Times, but I shall respond to a few of his comments. The BBC's new children's channels, which carry no advertising, show very few cartoons and have a largely British content, do provide something very different for parents and for children. They are a prime example of public service broadcasting. Many of the new digital radio channels—such as BBC 7 and Radio Five Live Sports Extra, which broadcast comedy and drama, and additional sports coverage respectively—add something to the BBC's firmament.
The hon. Member for Maldon and East Chelmsford is obviously a man of very fastidious tastes. I quite enjoyed the celebrity boxing, and as for the new politics shows, the contributions of the right hon. Member for Kensington and Chelsea (Mr. Portillo) on the late-night Thursday show have been as incisive as his contribution to the debate on the future of the Conservative party.
I agree with the hon. Member for Maldon and East Chelmsford when he says that the BBC should try to encourage original British films. Indeed, since the demise of Film Four, BBC Films is the only company that is involved in the co-production of British films. In that regard, "Billy Elliot" stands out. In the debate about dumbing down, there is a danger of looking back to a golden age. One must not forget that in the 1980s, "Kojak" and "Dallas" were very much prime-time BBC1.
§ John Robertson
Does my hon. Friend agree that Ofcom perhaps needs to look at the provision and showing of British films?
§ Mr. Grogan
Indeed, and it is a pity that we will probably be unable to discuss the amendments relating to that issue today. On the question of exactly what the 212 BBC should do, I would argue that blockbuster films on Christmas day, top quality sports coverage and good quality popular drama—all without adverts, which viewers seem to like—have a place in public service broadcasting. The BBC, in a way, exists to distort the market. Some Tory Members appear to think that the only thing that it should show is BBC Parliament. No one could argue with it showing that, but in every other sphere it will always have a commercial competitor somewhere.
Under the Bill, the BBC will come under the auspices of Ofcom. The BBC will be under Ofcom on tier 1 regulation of taste and decency, and on tier 2 regulation of quotas for regional production—introduced for the first time—as well as original and independent production. On tier 3, the BBC will be influenced by Ofcom, because periodically it will have to review the whole firmament—I had better not say ecology—of public service broadcasting, and that will include the BBC. It is only the back-stop powers of judging whether the BBC is fulfilling its programme policies and remits that will remain with the governors, and with good reason. Ofcom is meant to be a light touch regulator of public service broadcasting in commercial television. It would be a very different role for it to perform the heavy touch regulation that is needed for the BBC. If the BBC were completely under Ofcom, we could be sure that every 10 minutes some commercial opponent would complain to the regulator that the BBC should not be doing something or other. Before we embark on that course, which will be considered when the time comes for charter renewal, the least we should do is revisit the debate in primary legislation, not have the changes slipped through under an order. On those grounds, I oppose new clause 10.
§ Nick Harvey (North Devon)
I am sorry that the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) has felt it necessary to go over this ground yet again, because we have had these debates several times before. He has heard the response from Ministers that charter renewal will be the time to consider the big issues for the BBC, and that is a reasonable position for the Government to take.
One cannot help but feel that the hon. Gentleman would like the BBC to provide for minority tastes and fill the gaps that the market does not otherwise fill. However, the point was made—correctly—by the hon. Member for Lichfield (Michael Fabricant) that if the BBC was penned into providing only for the minority tastes for which the market would not otherwise cater, it would inevitably become a ghetto and could not build the substantial audiences that it needs to fulfil its public service remit. By definition, everything that the BBC does distorts the market, because it has unique access to a privileged flow of income to which no one else has any equivalent.
It is a matter of public policy, not regulation, as to when and to what extent the BBC should be allowed to use that money to distort the market. The BBC is a market maker. If the BBC were not there, providing high quality programmes for large audiences, the overall quality of broadcasting would be much the worse for it. It is having a well funded and highly professional BBC 213 setting the pace that means that the market forms around the lead that it gives. It is right and proper that that should continue.
The hon. Member for Selby (Mr. Grogan) makes the point, which has been made many times, that the Bill will put the BBC under the supervision of Ofcom in a substantial and meaningful way. What remains outside Ofcom is simply the test of whether the BBC has met its public service remit. The huge amount of money it has and the variety of television and radio channels it operates would mean that Ofcom's role would be completely distorted if it were tasked with the detailed supervision of the BBC in all its range and breadth. Some other apparatus has to be there for that purpose. The charter and the governing arrangements will be reviewed and revisited in the next few years. That would be the logical time to introduce such an apparatus.
The purpose of new clause 10 is to allow any changes that might emerge to be made on the nod—by order of the Secretary of State. I am by instinct usually opposed to Secretaries of State being allowed to act by order, and this is no exception. Substantial changes must be effected by primary legislation, and any short delay in their introduction would not matter much. Parliament must retain the right to decide such things through primary legislation. For that reason, I strongly oppose new clause 10.
§ Mr. Lansley
I rise to speak briefly to amendment No. 199, tabled in my name, and to express my general support for new clause 10.
My hon. Friend the Member for Maldon and East Chelmsford (Mr. Whittingdale) did not have the opportunity to set out at length his view of the purposes and structure of the BBC, but I do not believe that the BBC's role is to provide the broadcasting that the commercial sector is unable or unwilling to provide. The BBC is a public service broadcaster, not a residual broadcaster. It can do many things that extend beyond the residual approach.
Under the residual approach, one might leave the networks and the channels in the hands of commercial providers, which would package them together. That would leave the BBC as simply a provider of programmes, handing them out to anyone willing to show them. The BBC is subsidised through the licence fee, and programmes would be provided as a result.
The BBC is more important than that. It provides channels that, in themselves, help to shape broadcasting, especially in the public service sector. For example, the programme "EastEnders" is ground breaking in drama terms but, along with key sporting events and certain films, it also renders the channel on which it is still shown attractive to a large number of people. They want to watch it regularly. If the BBC did not run channels, public service broadcasting would not have the reach and public impact that it has at present.
We can have a debate about what the BBC is for, but all of us accept that that debate will take place in the runup to charter renewal in 2006. That is what amendment No. 199 is about, and new clause 10 does not interfere with that. The amendment would simply ensure that the decision could be given proper effect, in legislation and in relation to the function of Ofcom.
214 The difference between new clause 10 and amendment No. 199 is that new clause 10 would allow the Secretary of State to alter the legislation, by order, and place the BBC in a position analogous, in various respects, to that occupied by the licensed public service channels. As a result, the BBC would become the creature of statute, as distinct from being a charter body.
At present, the BBC is bounded by statute in some respects, but it is primarily a charter body. The Bill means that the BBC will be regulated by Ofcom and that it will put itself in the analogous position that I have described, notwithstanding its charter obligations. That will happen because it will come to that agreement with the Secretary of State. We saw in Committee the draft of such an agreement. I might say in parenthesis that the reference to the difference relating only to the public service remit is insufficiently precise. Matters such as impartiality will remain strictly the province of the governors and will not be subject to scrutiny by Ofcom. In substantial areas—the public service remit is the most important—Ofcom will not be able to exercise its function.
My continuing belief is that a major discontinuity will arise over time in relation to Ofcom's pursuing its objective of examining regularly, within five years at most, the overall public service broadcasting obligations of the BBC and other organisations. It will be able to enforce the conclusions that it reaches on that basis in relation to every public service broadcaster apart from the BBC. If the governors continue down the path of trying to be independent of the BBC management, as they profess to be at the moment, it is difficult to believe that that independence will not be manifested in their having their own distinctive view of the BBC's remit and how it discharges it. Over time, the governors are bound to seek to manifest that independence as independence from Ofcom, as well as from the BBC. We will have to decide whether the governors are effectively the board of directors of the BBC, as in the case of the board of directors of Channel 4, which is a perfectly acceptable solution, or, as new clause 9 suggests, trustees of the licence fee. Those are two different functions that will need to be separated.
Either way, it will not suffice, when it comes to charter renewal, to leave it in the hands of the BBC to come to an agreement on the extent to which it is bounded by Ofcom's powers. No matter how we move forward, it is likely, under the constitution of the BBC, that Ofcom will need to have a role if it is to be able to give proper effect to its scrutiny of public service broadcasting obligations as a whole, and that that will appear in the charter. To include in the Bill a reference to the possibility that Ofcom will have functions bestowed on it through the charter, as distinct from an agreement made consequent on the charter, would he an accurate reflection of the likely situation at the end of 2006. Furthermore, it would preclude the possibility of the BBC believing that it can resist an agreement, or aspects of an agreement, by arguing that it was inconsistent with the obligations placed on it in the charter and that it would be unable to delegate to any other body its responsibilities for the BBC's functions. We should be clear now that, under the charter, Ofcom may have those responsibilities.
215 On the basis of that abstruse, quasi-constitutional argument, I profess my preference for amendment No. 199, but, in respect of the objective, I am sure that my hon. Friend and I are on exactly the same territory.
§ Michael Fabricant
I rise in support of new clause 10.
It was argued that the National Audit Office should be allowed to examine the operations of the BBC, partly to protect the organisation so that it can be seen not to be its own judge and jury. The same argument applies to Ofcom having control over the BBC, ultimately to demonstrate, as my hon. Friend the Member for South Cambridgeshire (Mr. Lansley) explained, that the BBC board of governors cannot be its own judge and jury when people make complaints against the corporation. I do not hold the view that the BBC, in order to hold its public service remit, should be prevented from putting out popular programming. In an earlier exchange, I said to the hon. Member for Ceredigion (Mr. Thomas) that a fine balance must be struck between broadcasting specialist programmes and those of general public appeal. If the BBC has a small audience, not only will it fail to justify the way in which it is funded, but it could be argued that it does not provide a public service because it has few viewers and listeners.
The unique way in which the BBC is funded means that it is different from other broadcasters. That is apparent in the programmes that it transmits, including its news output. It is worth repeating a point that was made in Committee. The BBC has more journalists than ITN, ABC News, CBS, NBC, FOX News and CNN combined. The reason for that is demonstrated in the quality of its overseas as well as its United Kingdom news coverage. If one visits the United States or Australia, one sees that BBC reporters often appear on television stations there. They are ambassadors not only for the BBC but for the United Kingdom. The corporation does that well.
The corporation is not well served by being perceived as its own judge and jury. Being in the ambit of Ofcom would protect the BBC. The Bill is a culmination of legislation. If we consider the Radio Authority and the Independent Television Commission, it is clear that we would create an imbalance if the Bill did not have equal control over the BBC. Such control is in the BBC's interest and in our national interest.
§ Dr. Howells
As the hon. Member for South Cambridgeshire (Mr. Lansley) reminded us, amendment No. 199 would allow the BBC charter to contain Ofcom's functions in relation to the BBC. He will not be surprised to learn that I shall resist the amendment because I do not believe that the charter is the appropriate place for setting out such provisions.
When the amendment was discussed in Committee, the hon. Gentleman pointed out that the way in which the charter is renewed could lead to inconsistency with the agreement. He suggested that it would be better to proof the legislation by specifying in the charter Ofcom's role in relation to the BBC.
216 I assure the hon. Gentleman that circumstances in which the charter and the agreement were inconsistent would not arise. The two documents should be considered as a package. A renewed charter would include a new corresponding agreement. The Government's policy has been to set out the BBC's regulation in the agreement. The agreement, not the charter, establishes the BBC's obligations and remit. It is therefore appropriate that when Ofcom has a role in relation to the obligations, it is woven seamlessly into the provisions in the agreement.
An agreement between the BBC and the Government is just that—a document to which both parties have signed up. It is valid only when the House has approved it. The agreement does not give the BBC carte blanche to interpret the charter as it chooses, as the hon. Member for South Cambridgeshire suggested in Committee.
By setting out the BBC's relationship with Ofcom in the agreement, we will bring the BBC into the overall regulatory framework while preserving its special position and its constitutional relationship with Parliament. That is a fundamental principle to our approach to the BBC's regulation.
The hon. Gentleman is right that I cannot pre-empt the outcome of charter renewal any more than anyone else can. There will be plenty of time for that during the debate on the review. The charter review itself could have any number of outcomes, many of which might require legislation. I am not convinced that it would be appropriate to single out a possible outcome for special recognition by catering for it expressly in the Bill.
New clause 10 would give the Secretary of State a Henry VIII power to amend the Bill after it is enacted when he considers it appropriate to do so to give effect to any new BBC charter, licence or agreement. As policy relating to the BBC is generally set out in the charter and agreement rather than in the Bill, no amendment of the resulting Act would generally speaking be necessary in practice to enable a new charter or agreement to have effect. Following the charter review, if the current system of regulation through charter and agreement were to be turned into something so radically different as to involve amendments to the Act, I would expect Parliament to be given the opportunity to debate those amendments fully in the context of fresh primary legislation rather than measures implemented under the power that new clause 10 would confer. That point is particularly important given the wide scope of the proposed power, which could, for example, be used to put the BBC on to an almost wholly statutory basis without any new primary legislation.
As my hon. Friend the Member for Selby (Mr. Grogan) pointed out, it is simply not true to say that the BBC governors will be judge and jury under the proposed regime. As he told us, in relation to most things, including most programme code standards, original productions, regional programme making, provision for the deaf and visually impaired, international obligations, equal opportunities and training, the BBC will not be judge and jury. In most cases, it will be Ofcom that decides whether the BBC has 217 breached any requirements, as well as what those requirements will be. I therefore hope that Opposition Members will see fit not to press the new clause further.
§ Paul Farrelly (Newcastle-under-Lyme)
Will the Minister join me in expressing regret about the fact that the Opposition have turned this debate solely into a determined onslaught against the BBC, so we have had no opportunity to discuss on the Floor of the House very important issues of media ownership that were not discussed in Committee either?
§ Dr. Howells
I understand my hon. Friend's ire about that. To be fair—I am a very fair person, except when I am watching England beating Wales at rugby—many defences of the BBC have been made, and they have come not only from the Labour Benches, but from the Opposition Benches. A sustained attack was made by the hon. Member for Maldon and East Chelmsford (Mr. Whittingdale), but he had been behaving himself throughout the debate, so it had to come out sooner or later, as my hon. Friend saw. There is general agreement in the House that the BBC does a pretty magnificent job in most respects, but there is no question but that there is room for debate. As I said, that debate will be focused on charter renewal and renewal of the agreement with the Secretary of State.
§ Mr. Chris Mullin (Sunderland, South)
I think that my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) was inviting the Minister to share the regret of a number of people in this place and, no doubt, outside the Chamber that no time has been found today—and nor will any be found—for any discussion about the enormous changes to ownership of ITV and Channel 5 that the Bill proposes. Is that not an extraordinary situation that reflects badly on this House?
§ Dr. Howells
I am sure that my hon. Friend knows that there were 65 hours of Committee sittings on the Bill. There has been very rigorous scrutiny, including that of the pre-legislative scrutiny Committee, which was chaired by Lord Puttnam. This Bill has been crawled over like no other Bill that I have known in 14 years of having the privilege of being a Member of this House. There was a moment—I will not point any fingers at anyone in the Chamber—when certain amendments should have been moved, but it was very early in the morning, so they were not spoken to and we did not get around to the discussion that that would have involved. I regret that very much, as I think that we have a substantial and strong case to make with regard to our proposals about ownership.
§ John McDonnell (Hayes and Harlington)
For the benefit of hon. Members who were not members of the Committee but who wish to enter the debate on media ownership, does my right hon. Friend agree that we should re-examine the programming motion so that the matter can be brought back for discussion?
§ Mr. Whittingdale
We remain unconvinced by the Minister's arguments. We feel strongly that this is the 218 biggest omission in the Bill. We hope that the Government will, in time, come round to that view. The purpose of the proposed new clause 10 was simply to allow that omission to be rectified without recourse to primary legislation. However, we have failed to persuade the Minister.
Bearing in mind the remarks of Labour Members to the effect that we do not have much time left, I am willing to withdraw the new clause to allow a little time to discuss the next group. However, in withdrawing it, I do not in any way suggest that we do not still feel that the case for it is overwhelming. I beg to ask leave to withdraw the motion.
§ Motion and clause, by leave, withdrawn.