TELEVISION BILL

HL Deb 13 July 1954 vol 188 cc923-78

Committee stage resumed.

EARL DE LA WARR moved, in subsection (2), to leave out all words after "control" to the end of the subsection. The noble Earl said: This is an important Amendment, but perhaps your Lordships will allow me to open up the matter and then adjourn for dinner. It is an attempt to deal with an extremely difficult and complicated problem. Your Lordships have not had much notice about it and I should like to start by saying that I shall very much welcome the advice and opinion of your Lordships. We are faced with a very real dilemma here. On the one hand, I think we are all agreed that it is most undesirable that a certain limited number of events—it may be only nine or ten a year, like the Cup Final and certain Test Matches—can be bought up and restricted to a small number of viewers. On the other hand, it would be grossly unfair to take action which would depreciate the value of selected events solely because they are especially popular and important, and that is what may be done by embarking on restrictive legislation against them.

In facing this problem we have this happy advantage: that the sporting promoters, most of whom are businessmen, and all of whom incur considerable expenses in organising these events, have shown during the last few years that we have every reason to trust them. Certainly the Government feel confident that the programme contractors themselves will want to handle this matter in a wise manner. Therefore I can say straight away that the background of the Amendments I am venturing to propose is the decision that we should try to leave the matter to voluntary arrangement. We propose to give the Postmaster General powers to prevent the making of exclusive arrangements for broadcasting certain events to restricted audiences. What are the powers contemplated? First, the Postmaster General is given power to schedule a limited number of events—on the sporting side I would mention the Derby, the Grand National, the Australian Test Match and the Cup Final. The power to schedule these events will be subject to Resolution of both Houses of Parliament. Therefore, nothing could happen until the Postmaster General had come back to both Houses and laid a Resolution.

Secondly, there must be a request to the promoters to broadcast, both from the B.B.C. and from the programme company. That request must be made five months before the event. If the three parties are unable to agree on terms, or if the sum payable to the promoter has been agreed upon and they are unable to agree upon the allocation as between the B.B.C. and the programme company, they must go to arbitration. I should make it clear that right up to the point of going to arbitration the promoters will be free not to grant any facilities or, if they do so, to limit them to certain areas. Having agreed to negotiate, then all parties, including the promoters, will be bound by the arbitrator's decision. In skeleton form, those are the proposals which I propose to introduce into the Bill.

I have discussed them both with the B.B.C. and with the sporting promoters. Of course, the sporting promoters would prefer to have absolute freedom in the matter. Nevertheless, they note that it is not intended to operate this clause unless experience proves it is necessary. I would express the views of the Governors of the B.B.C. by saying that they have been consulted in the drafting of this clause and, being strongly in favour of the principle of non-exclusivity, they would be glad to see a safeguard in the Bill in these terms. They agree that it would be well to have such powers in reserve and that these powers should not be applied unless experience showed that they were necessary. I beg to move.

Amendment moved— Page 9, line 10, leave out from ("control") to end of line 22.—(Earl De La Warr.)

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)

I think it would be convenient for the Committee to adjourn during pleasure now and meet again at a quarter to nine.

[The Sitting was suspended at half past seven, and resumed at a quarter before nine o'clock.]

THE EARL OF LISTOWEL

The noble Earl, the Postmaster General, has just made—"just" is perhaps not strictly accurate, and I should say recently made—an interesting and important statement about the televising of sporting events. I think it would be rash to express a considered opinion about that statement until we have had an opportunity of studying it carefully in Hansard, but perhaps I might at this stage say two things. It looks to me as though the powers which the noble Earl wishes to take are powers which are essential to safeguard the interests of the public. I understand from what he said that the B.B.C. approves of the safeguards proposed. The essential thing is that, if a sporting event is televised, it should be available equally to a commercial company and to the B.B.C., and that position seems to be safeguarded by the powers which the noble Earl wishes to take. The second thing I want to say is this—and it is really in the form of a question. I cannot help wondering whether, as the promoters of these events will not be allowed to sell an exclusive right to televise whatever it may be for which they are responsible, they will, in fact, be willing to allow the Cup Final, the Derby, or whatever it may be, to be televised at all. I do not know whether the noble Earl, who has had discussions with the promoters of these events, reached a stage at which they made their intentions plain to him. Clearly, whatever their intentions may be, these powers are necessary, but I think it would be of interest to know whether the noble Earl has had any indication of how far the promoters of these important sporting events would be willing to allow television under the terms and conditions laid down in the new clause.

EARL DE LA WARR

It is only right that I should speak very tentatively here, because this is a ground over which we have to feel our way, and I want to be perfectly frank with the House. Briefly, the answer is that as the promoters will be under no obligation to sell their events, they are therefore in a position to state their own price. Therefore, it is up to them, before going to arbitration, to assess the price of their event, and if they open their mouths too wide and are unreasonably difficult, of course they will not sell it, and they will have to go without the money altogether. But if it is a reasonable price, then no doubt the two bodies will come together, and if they cannot come to an agreement, themselves go to arbitration.

EARL JOWITT

May I ask the noble Earl's guidance on this question? We want to do what we can in the way of time. This is a preliminary Amendment to the new Clause 5 and, after that, the Fourth Schedule. Whatever discussion we are to have, obviously we had better have it once, and not three times. Would this be a convenient time to have it?

EARL DE LA WARR

I think so.

EARL JOWITT

I understand the noble Earl has said that he has discussed this matter with the B.B.C. and they are satisfied?

EARL DE LA WARR

Yes. I actually read out the agreed statement.

EARL JOWITT

I am sorry. I was away for the moment but of course I accept that. I must say that I was in a state of alarm and despondency on reading the noble Earl's Fourth Schedule, because it seems to me that these things often have to be settled very quickly. I remember watching the Oval Test Match last year on television. We had finished here the day before the last day of the match and the broadcast was not due to come on, I think, until one o'clock. It was obvious that the Test Match might be over by one o'clock, and your Lordships will remember that it was arranged finally, with the consent of the cricket captains, that the broadcast should be started at eleven o'clock. Obviously that has to be done at the last moment. It was there done to the great satisfaction of those who, like myself, like watching cricket on television.

All this business in the Fourth Schedule about five months' notice seems to me to make matters very difficult. I am entirely at one with the noble Earl, and I hope that he will not think there is any controversy between us here—there really is not—if he would simply lay down this proposition: that where one of these two bodies, the I.T.A. as we call them for the moment, or the B.B.C., get some sporting event, then it should be open to the other to have it on reasonable terms. It seems to me that that would not be at all a difficult thing to arrange without all the elaborate machinery about five months and three months which is in the Fourth Schedule. If that is the substance of what the noble Earl wants, then I am entirely with him, because we are looking at the interests of the viewer and are not concerned about the sectional interests of one or other of these two bodies. If there is nothing between us there, I would ask the noble Earl to look at it and ask the Lord Chancellor about it, who I am sure will advise him as to whether it would not be possible to make a much simpler clause than this, simply by inserting that where one of these bodies gets the right then they must allow the other body to have it at a price arranged, whether by arbitration or anything you like.

Subject to that, I will not say anything about the new clause, about Clause 5 or about the Fourth Schedule. There is nothing controversial between us here. I am greatly disturbed about the rigidity of the noble Earl's Fourth Schedule, and I cannot think that it is really necessary, if that is all he wants to achieve. It seems so simple to say that where one of these people gets an event, the other must have a right to have it at a fair price. There is no political issue involved here, so far as I know. Perhaps the noble Earl could look at it from that point of view, to see whether he could not scrap his Fourth Schedule and perhaps his new clause, and achieve on the whole a desirable result. If he can do that I should be entirely with him.

EARL WINTERTON

I feel that in the discussions up to now the principal point has not been brought out. It is all very well to say that there should not be rigidity of arrangement, and that arrangements should not be made a long time ahead. The real position is that the promoters of sporting events, here and across the Atlantic, have not yet made up their minds whether it pays them to televise. They have experts working on it and astounding figures have been produced on the other side of the Atlantic. Thousands of dollars have been lost by sports promoters through sports televising.

It should be made plain in your Lordships' House that we cannot say to these people that they have to do this or that; they must have an absolutely free choice in the matter. Nobody has any right to say, "I am going to televise this thing whether you like it or not." It is important to bring out the fact that this is an unknown quantity at the moment, and no one can tell what consumer resistance there will be to the televising of popular sporting events.

EARL JOWITT

I agree with the noble Earl. I do not want to impose the right to televise. I do not think the Government contemplated it. I do not; nor, I think, does the noble Earl, Lord De La Warr.

EARL DE LA WARR

This is simply machinery for dealing with the situation when all three parties, the promoters and the two broadcasting entities, are willing to come together. There is a very genuine difficulty about value, and I cannot give quite so simple an answer as the noble Earl would like. When I started, it seemed to me very simple, and I put in Clause 5 and hoped that it would deal with the situation. But I am not giving away any secrets when I say that the Government draftsman produced something like ten drafts on this subject: it has been the most difficult problem in the Bill. The problem is this: that while we do not want exclusivity in regard to these limited number of events—probably at most there are nine or ten—on the other hand, it is not fair to say that, because the event is particularly popular and particularly important, we propose to do something which will depreciate the value of it. It might end by £10,000 being paid for the St. Leger but only £5,000 for the Derby, because there cannot be exclusivity with regard to the latter. That would obviously be wrong and unjust. The moment you have said that there is no exclusivity, by that statement you have depreciated the value of that property. That is really why we want this rather complicated machinery, and it seems to me that we do get to the right point by saying that on the whole we are dealing with extremely decent, sensible people. Let us give them a chance to work this machinery among themselves, on a purely voluntary basis; but let us have in reserve these powers, which are not unalterable. If we find they are unworkable we shall have to come back to Parliament.

EARL JOWITT

Will that not prejudice a last moment decision?

EARL DE LA WARR

Speaking generally, if arrangements for a match are made and then are to be varied, special arrangements will have to be made. I cannot see that it would prejudice the point. It is a very real point.

9.0 p.m.

VISCOUNT HAILSHAM

My noble friend has asked us, in a sense, to think aloud because we have not had much time to consider this Amendment. There are two or three points that I should like to suggest for his consideration. In the first place, I feel that in our desire not to impose upon promoters of sporting events we must not lose sight of the interest of the public to see and hear the events. Nor, I think, must we lose sight of the fact that some sporting events, like the Boat Race, if I may give a simple example, can be televised at the expense of the promoter. The universities might be considered, in a sense, to have something to do with the Boat Race. Owing to the terrain upon which some other sporting events are held, they cannot be televised without the permission of the promoter. I feel that, on the whole, it is quite a relevant circumstance that the Boat Race is held on a public waterway and that the Grand National, say, is held on private property, because the promoter of the Grand National has an advantage which is not shared by the two universities who promote the Boat Race and who are certainly equally in need of funds and have less of a "gate" than the promoter of the Grand National.

Secondly, there is a technical point in this Amendment, I take it that an Amendment of this kind is not in order unless it is within the Long Title of the Bill. I wonder whether my noble friend Lord De La Warr has considered whether this Amendment is within the Long Title which describes the Bill as: An Act to make provision for television broadcasting services in addition to those provided by the British Broadcasting Corporation, and to set up a special authority for that purpose; to make provision as to the constitution, powers, duties and financial resources of that authority and as to the position and obligations of persons contracting with that authority for the provision of programmes and parts of programmes; and for purposes connected with the matters aforesaid. In point of fact, the Fourth Schedule, which is ancillary to the Amendment now under discussion, provides considerable arrangements for the regulation of the B.B.C. in relation to these sporting events. That may or may not be intrinsically desirable, but I venture to think, with respect, that this Amendment could not be legitimately brought within the Long Title of the Bill without some Amendment to the Long Title. I should be obliged if my noble friend would consider that before he finally parts with the measure in this House.

There is a third point, and this, like my first, is a question of policy which I should like to submit for the consideration of my noble friend. This obviously requires interim provisions because, on any view, if the Amendment is passed the provisions of Clause 5 (2), which under the present Amendment are to be removed, will no longer be there. Clause 5 (2), on the whole, is designed—and it is, after all, the subsection which was originally provided, I think, by the Government and has survived the deliberations of another place—to safeguard the interests both of the B.B.C. and of all the television producers. It was designed to prevent what most of us would desire to prevent—that is to say, one particular television profiteer making a "corner." After all, you do not break a monopoly—and we are told that this Bill is designed to break a monopoly—by creating the opportunity to make a "corner."

The object of subsection (2), which is now to be amended, is to prevent anybody from making a "corner" in sporting events. It is now proposed to delete that provision so that, so far, there is no provision against making a "corner" in sporting events of this important kind. Nothing is to happen under the new code until first, the Postmaster General promulgates a statutory instrument and secondly, that statutory instrument is approved by Resolution of each House of Parliament. That appears from the new Clause 6, subsection (5) which is ancillary to the Amendment. It follows, therefore, that the safeguard is to be deleted, and that nothing new is to be substituted for it until there is a statutory instrument and a positive Resolution of both Houses of Parliament. That seems to me to be a little odd and, possibly, undesirable.

It seems to be odder still when we come to consider the nature of the new code. The purpose of the new code is, broadly speaking, to prevent exclusiveness —"exclusivity" was the word used by my noble friend, though it has a doubtful parentage. To prevent exclusivity in relation to these sporting events there is to be introduced an elaborate new code which is to be substituted for the principle contained in the provision which, by this Amendment, is to be deleted. I say nothing against the new code. I think it will require a great deal more time for consideration than we have had to give it, but it does strike me as odd that the interim arrangement, if that is to be the new code, should consist in the deletion of the principle of non-exclusivity from the Bill. If this Amendment is passed, it seems to me that all the sporting producers will be as free as air to do all the things the new code is designed to prevent, and which the Government themselves consider it desirable to prevent, owing to the fact that their existing Bill prevents it. I ask my noble friend between now and the Report stage to consider whether there may not be something in these criticisms.

EARL DE LA WARR

I thank noble Lords for their helpful remarks. I said at the beginning that I should be grateful for the wisdom of the House. If I may answer Lord Hailsham's question about the Title, I would say that I am advised that this would be within the Title, but, of course, if necessary the Title can be amended. I will make particular inquiry; but on my first inquiry I am advised that that is so. This makes quite a change in the nature of Clause 5 (2), because that was a provision—an extremely vague one, but still it was a provision—for taking immediate action. This did, as I stressed to your Lordships when I was putting this Amendment before you, say, to begin with, that we shall trust the promoters, the companies and indeed the B.B.C., and that nothing will happen until somebody starts making "corners." From the day this Bill becomes law, these people will be operating, knowing that the appointed day will be the moment anybody starts what the noble and learned Earl calls making "corners." It seems to me that on extremely new ground like this, that is really the right line to take, I can say that in so far as certain protection may seem to be removed from the B.B.C. by deferring these powers of non-exclusivity, they are themselves satisfied that this is definitely the wisest course to take. Perhaps I may suggest to noble Lords that if we pass this Amendment now, nothing prevents further comments on the Report stage; and I say also that if after the passage of this Bill into law we find on further examination of the problem that we have not taken quite the right course, then we will have to see whether we cannot work out the really best solution.

9.9 p.m.

VISCOUNT HAILSHAM moved, after subsection (4) to insert: (5) During the currency of a contract between the Authority and a programme contractor, who is a body corporate, no transfer of control of that body corporate shall be made without the previous consent in writing of the Authority.

The noble Viscount said: This is a technical Amendment designed to deal with the question of the transfer of control in a body corporate. As your Lordships will realise, it is obviously of the essence of this matter that the I.T.A. should be satisfied with the personality of the programme contractor with whom it deals. That is a familiar topic of the law and indeed of commercial practice. A landlord will always desire to be satisfied with the personality of his tenant, and indeed there are many kinds of contract which no commercial man will enter into unless he is content with the satisfactory nature of the person with whom he is doing business. I think we shall all be at one about that. It therefore follows, and I think it is already in the Bill, that a contract of that kind may be readily assignable without the consent of the person with whom the contract is made. That, again, I think will be common ground. Unfortunately, when you are dealing with a body corporate you are dealing with an entity which is sometimes strangely distinct from the persons who really control it, and the purpose of this Amendment is to ensure that control of a body corporate with whom the I.T.A. is in contractual relations shall not, without the consent of the Authority, pass to somebody whom the I.T.A. consider unsuitable. I should have thought that this was largely a technical Amendment, designed to give effect to what was already the policy of the Bill but applying it more specifically to the peculiar conditions in which the I.T.A. will operate when it is dealing with a body corporate instead of a flesh and blood human being or partnership. I beg to move.

Amendment moved— Page 9, line 33, at end insert the said subsection.—(Viscount Hailsham.)

VISCOUNT SWINTON

I think the noble Viscount is going a little too far in this Amendment. He is, of course, quite right in saying that you must not make a contract with a person who is obviously disqualified under the clauses of the Bill which lay down whether a person is a legitimate or an illegitimate contractor. But, as he himself said, you may get the position where a contract has been made between the Authority and a company which is absolutely legitimate at the start; and then, as the years go on, the shares of that company may become quotable, if it is a successful company, and it may be that, without the knowledge certainly of the Authority, who could not possibly know, and very likely even of the company itself, a majority of shares pass into the hands of a certain number of disqualified people. Obviously, when that is discovered, then is the moment at which the company has rendered itself unsuitable. It must then arrange to get rid of the disqualification; otherwise it renders itself liable to be cut out of its contract.

At the start nothing can happen. I think that is common ground. Certainly the people who have invested perhaps a couple of million pounds in these undertakings are going to take the greatest possible care that their investment is not put in jeopardy by something that happens on the stock market. What the noble Viscount is really seeking to do here is to ensure that control does not pass without leave of the Authority. As the noble Viscount has pointed out, one must observe what that means in practice. When you get a public company operating it would mean that no shares could be transferred by ordinary sale on the Stock Exchange without the leave of the Authority. The Committee will observe at once that that would make those shares entirely unquotable. I once made my living out of Company Law; that was a long time ago, but the simple principles have not changed since then. I am sure that the noble Viscount will agree that this Amendment, well-inten- tioned as it is, places on the Authority an obligation that the Authority could not possibly discharge, and puts upon the programme contractor a liability which it would be quite unfair to ask him to incur. I am sure that with that explanation the noble Viscount will withdraw his Amendment.

VISCOUNT HAILSHAM

I am disposed to think that there is a good deal in what my noble friend has just said, and for that reason at the close of these two or three sentences I shall certainly ask leave to withdraw the Amendment. At the same time, I think, with respect, that my noble friend has minimised the danger against which this Amendment was designed to guard. I was not primarily concerned with the question of controlling corporate bodies and others who, under the law as it will be under this Act, are actually disqualified. I take it that when that happens in one way of another the programme contractor will forfeit his time. I was looking at it from the point of view of suitability on more general lines. It is a fundamental right of persons who enter into business relations that they shall be satisfied in types of contract which depend largely upon the personality of the other party to it (and I give as an example the landlord and tenant, though there are very many other cases, such as one's tailor); it is a fundamental principle of law which must be considered that, where personality enters into the contract shall not be assignable without the leave or permission of the person Who is interested in the personality of the other party. In the case of a limited company that presents a difficulty of a kind on which the noble Viscount, with his experience as a company lawyer, can put his finger. But in a public matter of this importance some machinery ought to be evolved to guard against those difficulties. Therefore, although I now ask leave to withdraw my Amendment, I ask the Government also to consider the danger against which the Amendment was designed to guard.

Amendment, by leave, withdrawn.

LORD SILKIN had given notice of an Amendment, after subsection (4) to insert: (5) The Authority may require from time to time from the programme contractor such declarations, returns, documents and other information as the Authority, after consultation with the Postmaster-General, may consider necessar or advisable for the purpose of ensuring that the requirements of this Act are complied with.

The noble Lord said: I beg to move the Amendment standing in my name. The Bill so far as we have gone imposes a number of duties—

VISCOUNT SWINTON

I hesitate to interrupt the noble Lord, but perhaps I might make an agreeable interruption if I told him that if he will strike out from his Amendment the words "after consultation with the Postmaster General" which add another complication to it, I shall be delighted to accept it.

LORD SILKIN

Most disappointing!

Amendment moved—

Page 9, line 33, at end insert— ("(5) The Authority may require from time to time from the programme contractor such declarations, returns, documents and other information as the Authority may consider necessary or advisable for the purpose of ensuring that the requirements of this Act are complied with.")—(Lord Silkin.)

9.19 p.m.

EARL JOWITT moved, in the proviso to subsection (5), after the first "in" to insert, "paragraph 4 of." The noble and learned Earl said: This is a most astounding position. I hope that I am going to meet with similar success, but I am afraid that I am not. These five Amendments, of which I should like to discuss the first two together, are matters of importance but not in any sense going to the structure of the Bill. If the noble Earl, the Postmaster General thinks it at all important that he should have some measure of consent from the Opposition to the passing of this Bill, he can get it if he can give us some assistance with regard to these five Amendments. The scheme of the Bill is that there is the Authority, and the Postmaster General (because I know him well) will take the greatest care, in setting it up, to get the most responsible and reputable Authority he can; he will want to do that because they have a responsible job to perform. I confess that I do not like the set-up of the programme contractors, but obviously the whole scheme turns upon the responsibility of the Authority, and I am sure that it will be a responsible Authority.

This Amendment deals with this situation. The Bill has a Third Schedule which contains four paragraphs. The first enables the Authority to require the provision by the programme contractor of scripts and particulars of the programmes, including advertisements. The second enables them to ask for the making of visual and sound records. The third reserves to them powers to forbid recording of certain descriptions of matter; and the fourth, more drastically, reserves to them power to require that nothing shall be broadcast without the previous approval of me Authority. My plea to the Postmaster General is this. As he has this very responsible Authority, why cannot he trust them to make such agreements and take such steps as are reasonable and proper in all circumstances? They deal with the programme contractors by means of contracts. Why cannot they, as business men, put in their contracts what they like? Why must the noble Earl have this proviso—it will be understood, of course, that I am taking together Amendments Nos. 66 and 67. Why must the Postmaster General have the proviso that they are not entitled to stipulate for certain things unless they are frightened of an apprehended breach?

I think I am right in saying—there are many lawyers here—that the form of action in which you establish that you are frightened of a breach is called a quia timet action. It is so called because you are frightened, and you have to show that there are good reasons why you are frightened of a breach. I suppose the mere fact that in some other contract there has been a breach, or there have been breaches, is no reason why you should apprehend a new breach. I submit that this proviso is a very great limitation on the powers. What I want to do is this. At the bottom of page 9 your Lordships will see a proviso which, in effect, says that the Authority shall not be enabled by any such contract to exercise any such power as is referred to in the Third Schedule unless they are satisfied that it is necessary to do so having regard to a breach which they apprehend. I cannot see why you should not entrust this responsible Authority with complete freedom to make whatever contracts they like. I suggest that that is what is called for if there is to be happy working between the Authority and the programme contractors, and I appeal to your Lordships, many of whom have much more knowledge of business than I have, to support me in this.

Would not the Authority say to the programme contractor: "We should like to see what you are going to do about this or that particular thing. Will you let us have the script"—or whatever it may be? I should have thought that if you have a responsible body to whom you have given power, you ought not to tie them up and say to them in effect: "You may not do that unless you can establish that you apprehend a breach"—which means that there is reasonable grounds for apprehending a breach. We are setting up this Authority who are in some position of control over the programme contractors—and I am glad they are—and I beg your Lordships to appreciate the position. If we take this Amendment to a Division I know I shall be defeated. I have only once had a Division with the noble Marquess, Lord Salisbury, on the other side, which I won; and I have sat in this House for nine years. So I am accustomed to being defeated. The point of having a Division is really to show that the matter is one which we care about. I am going to suggest to my noble friends that on these five Amendments we do not divide, because that means that each Amendment would take about a quarter of an hour. But the fact that we do not divide does not mean that we do not care about these things; it does not mean that it is not desirable for the Government to try to meet us on the principle that it is always desirable to carry the other side with you if you can.

I believe I am right in saying that this proviso was put in during the proceedings in another place. I believe that as the Bill started out the proviso was not there. I regard the proviso as a very great misfortune and I suggest that if you want to have it (and I would rather have it out) you should make it plain that it relates only to the extreme powers in paragraph 4 of the Third Schedule. If you like, with regard to this matter, you could say that the Authorities must not, in their contracts, stipulate for certain things. I beg noble Lords to trust their own Authority. I cannot think it is desirable that the Authority should not be in a position to exercise some measure of supervision and control, if these programmes are to be the sort of programmes we should like, and that they should be able to ask, for instance, for a script, of what is going to take place only if they can establish that they apprehend a breach of contract. I do not believe it is on those lines that the business ought to be conducted or will be conducted. It would be very much better if either this proviso were struck out altogether—it was put in, most unfortunately, I presume under pressure, in another place: I do not know how it happened—or if you want it in, it were limited to paragraph 4 of the Third Schedule and the Authority enabled to make in all contracts with the programme contractors such terms and stipulations as reasonable and sensible businessmen, whom I predicate them to be, think fit and proper. I beg to move.

Amendment moved— Page 9, line 43, after ("in") insert ("paragraph 4 of").—(Earl jowitt.)

VISCOUNT SWINTON

The appetite grows with eating. Although we gave way to the noble Lord, Lord Silkin, on something which we thought improved the Bill, I say at once that I cannot hold out any hope of doing the same thing here. The noble and learned Earl said that what he proposes would make it better to conduct business: from all the business experience I have had, I think it would make the conduct of business extraordinarily difficult, and even impossible. We should not be putting it in for fun. The fact that we put it in would indicate that it would be frequently used. Why should the Authority have power to do this? And power implies something of a duty. What is the noble and learned Earl asking of these people? The Authority will select the most reputable programme contractors they can find, men of integrity, men who have sunk a million pounds in the enterprise they are conducting, and they are as interested as anybody else in seeing that it is properly conducted in accordance with the Act. We trust the B.B.C. over this: why not trust the people responsible in this case? The noble and learned Earl does not like the Bill. I know he does not want any alternative system. That we accept. But we decided that matter on Second Reading, and, having once decided that, do not let us cast a slur upon men of high repute who are going to conduct this business and treat them as if we assume that they are going to try and find a way round the Act in every possible way. I say that advisedly. I believe these people are going to maintain as high a standard and certainly have as high a moral integrity as the B.B.C., and that is saying a great deal.

EARL JOWITT

I accept that.

VISCOUNT SWINTON

Very well. Observe what you are asking these people to do—"these people" being the programme contractors. If the Authority are going to have the power to do something, presumably they are going to exercise that power, or it would be foolish to put it in the Bill. I presume it is going to be exercised. How are these people going to conduct the business? They have a six to eight hour programme to fulfil and they have to deal all the time with different advertisers who are going to pay advertising fees. Anybody who knows anything about how a broadcast programme is framed, knows that it cannot be done in a hand-to-mouth fashion: it has to be dovetailed in, in hours, in half-hours, and sometimes in quarter-hours. They have to be negotiating all the time with the people who are going to pay for advertisements. It is going to be a whole-time, daily job and the people engaged in it must have the broadest discretion and the greatest facilities to close here and there and make arrangements with an actor who is going to perform or an advertiser who is going to pay them a fee. The noble and learned Earl, who had a tremendous commercial practice at the Bar, will know that the essential of all business is that you can go on doing your business from day to day, and that at any one moment you can close with a contract, whether big or small.

EARL JOWITT

All I am asking is that these bodies—they are both responsible bodies; I am not saying a word against the programme contractors or the I.T.A.—shall have freedom of contract, to make such contracts as they like. What is wrong with that?

VISCOUNT SWINTON

You are not doing that at all. If they have this power, they obviously have a duty—the duty to require in advance provision of scripts or details of programmes, the making of records of programmes and their approval by the Authority. I say frankly to the Committee—and I am sure your Lordships will agree that I have treated you with frankness, because I do not regard this as a political Bill, once we have passed the Second Reading—that if you did that it would make it much more difficult to get the right kind of people to come forward and put up their money.

We must divide upon this Amendment, because I can tell the noble and learned Earl that it is no good asking us to consider it between now and Report. This is fundamental with us. If the Authority suspect that the programme contractors are guilty of a breach, or are likely to be (I hope that it will not arise), then they should have this power to require all these things, even though that would gravely interfere with the man's business and cost him thousands of pounds. That is a perfectly fair power to give to the Authority, if they have reason to believe—it is not a question of their going to the court; they have to be satisfied in their own minds—that there is a risk. We really ought not to put it in otherwise. The noble and learned Earl says, "Just put it in; it does not mean anything." But you do not put in things that do not mean anything. If you put it in, you mean the power to be exercised. I say that it ought to be exercised only if they suspect that the contractor is going to transgress the Act or the contract.

EARL JOWITT

The noble Viscount has been addressing his Back-Benchers, and I did not hear the last part of his remarks.

VISCOUNT SWINTON

I am sorry; I will repeat them. I say that it is a power which it is right the Authority should have if they have reason to suspect—and they are the sole judge of this—that the programme contractor with whom they have made a contract is likely to transgress the Act or the contract. It is not a power which ought to be given to them—a power costing thousands of pounds and interfering with the contractor's business—if there is no reason to suspect that he is not conducting his business in an honourable way. I have put the position fully and frankly to the Committee. As the noble and learned Earl has said, this is an important Amendment; it is one to which the Government attach great importance, and we must flatly stand on the principle as laid down in the Bill.

VISCOUNT HAILSHAM

I should not say that the noble Viscount who has just resumed his seat is unreasonable, but I would say that I have never heard from anybody a more explicit assurance that he is deaf to reason, and is going to remain so. Therefore, it is with some feeling of trepidation that I ask him to look again at the actual terms of the Amendment proposed. I thought that in his enthusiasm for the causes which he has at heart he was losing sight of the fact that there was an Amendment before the Committee. It is the merits of that Amendment—if the noble Viscount will hear with me, and give me his attention and his ears, even if his mind, as he has said, is wholly closed to anything that may be said—that I desire to canvass.

The noble Viscount seems constitutionaly incapable of believing that anyone can put down an Amendment without desiring to go back on the Second Reading of the Bill. But I can assure him that if he looks more carefully at this Amendment he will find that its merits are far more modest than a revision of the Second Reading. As the noble and learned Earl who moved it has pointed out, this proviso is an Amendment which occurred to the Government only as an afterthought. It was not in the Bill originally, and in spite of what the noble Viscount has told us. I still adhere to the belief that in some respects, at any rate, it was put in by mistake. I will tell the Committee why I think it was put in by mistake. Under the provisions of Clause 5 (5), without the proviso it was originally laid down that the Authority should have the right, by a provision in the contract (and, indeed, I suppose in some circumstances the duty, although I must join issue with the noble Viscount in his statement that when you have a right conferred by an Act of Parliament you have a duty to exercise it always and on all occasions: it seemed to me that that was going a great deal too far), to exercise the powers of the Third Schedule presumably if they thought it right to do so.

Just look, for instance, at Paragraph 3 of the Third Schedule. The Authority have the right to reserve to themselves power to forbid the broadcasting of any matter, or class or description of matter. I myself should have thought that that was an essential means of being able to discharge the duty imposed upon them by Clause 3 (1) (b) of the Bill, which provides that the Authority shall satisfy themselves that nothing is included in the programme which offends against good taste or decency … I should have thought it was inherent in that that they would have the ultimate right forbidding certain classes of matter. Whether that be so or not, it is, I submit, clearly necessary to the Authority to have that right in connection with Clause 4 (5) which provides that: Without prejudice to any of the duties incumbent on the Authority otherwise than under this subsection … it shall be the duty of the Authority to consult from time to time with the Postmaster General as to the classes and descriptions of goods or services which must not be advertised and the methods of advertising which must not be employed and to carry out any direction which he may give them in those respects. I cannot conceive how the Authority can, in Fact, comply with the provisions of Clause 4 (5) of the Bill as drafted if they are not to have the power conferred by Paragraph 3 of the Third Schedule.

Moreover, under Clause 6 of the Bill it is the duty of the Authority to provide two advisory committees, and maybe more, and when they have done so to comply with their requirements. I see, too, that one of those advisory committees is to be a committee representative of organisations, authorities and persons concerned with the standards of conduct in tie advertising of goods and services … to give advice to the Authority and programme contractors as to the principles to be followed in connection with the advertisements included as aforesaid. When I see that that is the committee which they have to set up, and with whose directions they are bound to comply, then I cannot conceive how they can, perform the duty imposed upon them by Clause 6 (2) (b) and the following provisions of the Bill unless they have the right conferred upon them by Paragraph 3 of the Third Schedule. If that be correct—and the noble Viscount has said nothing whatever to indicate that it is wrong—then why is it provided in the proviso to Clause 5 (5) that they cannot exercise that right unless they apprehend a breach?

After all, quite clearly, the obligation under Clause 3, the obligations under Clause 4 (5), and Clause 6 (2) (b), arise irrespective of whether the breach is apprehended or not. I know that the noble Viscount's mind is closed, but I wish he would do me the courtesy of listening to my argument, which is meant seriously. I am concerned as to how this Authority can do the things imposed upon them by the provisions of the Bill, as drafted, if they are to be fettered in the way provided by the proviso. When I was asking myself for what purpose the proviso came into the Bill I discovered that it was not there at all until Back Benchers in another place proposed it; and it was carried. It is for that reason that I genuinely came to the conclusion that the proviso in its present form, whatever form it might ultimately take, was inserted in the Bill per incuriam.

VISCOUNT SWINTON

Does the noble Viscount suggest that if an Amendment is moved by a Back-Bencher it is accepted per incuriam and is always to be struck out?

VISCOUNT HAILSHAM

The noble Viscount is to be forgiven for thinking that is what I said, for my last sentence was the only sentence to which he directed his attention. For the rest he was engaged in a happy conversation with the Leader of the House. The rest of your Lordships, I hope, thought better of my argument than that. If I may engage his attention for thirty seconds I would point out that I was not complaining that a Back-Bencher's Amendment was accepted in another place. Yesterday the noble Viscount said he had never been accused of discourtesy, but at least he is inattentive to a serious argument when it is presented to him.

I was designing to show, as I thought I had, that there were duties imposed upon the Authority by the Bill, namely, those in Clause 3, Clause 4 (5), and Clause 6 which could be carried out only if the Authority were given the right, irrespective of apprehension of breach, as it was given before the Bill was amended. If the noble Viscount really desires to take the House seriously and to listen to the argument, may I say that I tried to impress upon him the view that the obligation arises quite irrespective of breach. When I looked at the Bill and discovered the proviso was not originally in it I could only come to the conclusion that it had been accepted by way of Amendment and accepted in its present form per incuriam. To suggest that I ever put forward my argument because I had some deep-rooted objection to the acceptance of an Amendment from a Back-Bencher is frankly a travesty of what I was saying and it can be explained only by the urgency of Government business which prevents the noble Viscount from listening to the speeches of Back-Benchers in this House.

Let me point out the merits of this modest little Amendment. I think its exact purpose the noble Earl tried to put forward in his speech. The protection of programme contractors against the unreasonable use of powers under the Third Schedule would, in fact, be fully safeguarded if you retained the safeguard in respect of Paragraph 4 of the Third Schedule, which reserves to the Authority the power to require that nothing should be broadcast without the previous approval of the Authority. For my part, I should be happy to agree with the noble and learned Earl that it would be reasonable to trust the Authority with a matter of this kind. But if the Government are not prepared to trust their own child—well, after all, parents are the best judges whether their child is to be trusted or not, and I can see that Paragraph 4 might be a little difficult to give to an untrustworthy Authority. If the noble Viscount, instead of asserting without the smallest justification that these Amendments are proposed from some devious motive to get round the Second Reading, would carefully attend to Paragraphs 1, 2 and 3 of the Third Schedule and tell me which of those he thinks essential, no doubt we could come to a compromise. I should have thought that Paragraph 3 was not essential. Not a word has been said by the noble Viscount to justify the imposition of a fetter on Paragraph 3. If the noble Viscount closes his mind to any argument and tells us in advance that, whatever we say, he is not going to be persuaded, and shows us by his evident lack of interest that he is not going even to listen to what we say, no further progress can be made.

EARL JOWITT

I am not going to seek a Division. A Division takes a quarter of an hour and we want to save time on this Bill. I am disappointed with the attitude of the noble Viscount. He can beat me in the Division Lobby, I agree, but what I want him to do is to try to destroy my arguments. I do not think he has done that at all. Centuries ago a very distinguished judge, talking about public policy, said: It is a paramount feature of public policy that you are not likely to interfere with the freedom of contract, That I believe to be profoundly true. If you have a sensible body like the I.T.A. and, on the other hand, a sensible body of programme contractors, and you have certain duties cast upon the I.T.A., I cannot see why you should not allow them to make what contracts they like. I shall not carry this Amendment to a Division. Let it be negatived. That does not mean that I do not care about a Division. It means only that in the peculiar circumstances I am anxious to save time. And the only point of a Division in this House is to show that a matter is something which we regard as important.

On Question, Amendment negatived.

9.48 p.m.

EARL JOWITT moved, in proviso (a) to subsection (6), after "any" to insert "first". The noble and learned Earl said: This Amendment can be put shortly. The machinery of the Bill is this. It is provided in the Bill that the maximum penalty is to be £500. It seems to me that that is quite right in the case of the first breach, but if there is a second breach which may be a glaring breach, or even a third breach which may be still more glaring, I cannot see why the discretion of the arbitrator or judge or whoever it may be should be fettered in this way. I seek simply to make the £500 maximum penalty apply to the first breach. I ask your Lordships to say that with regard to the second and third breaches there is no reason why this limitation should apply. I beg to move.

Amendment moved— Page 10, line 14, after ("any") insert ("first").—(Earl jowitt.)

EARL DE LA WARR

The noble and learned Earl has put his point clearly and briefly. He feels that the present sanctions for a second and third breach are too slight. I think we have to look at the powers of the I.T.A. as a whole. The fact of the matter is that not only have the Authority already the power to fine a company three times, but they have much more drastic powers than that. We know that after three offences the contract may be terminated, but what I do not believe the noble and learned Earl has appreciated—and I am not sure that noble Lords opposite have; I only wish I could persuade them on this point—is just how drastic all the powers contained in the Third Schedule really are. The noble Lord talks as if paragraphs 3 and 4 are the only really drastic ones; but if only we could picture ourselves trying to run an organisation of this character and being asked, under paragraph 1, to show all our scripts in advance—just imagine what that really means, and the gravity of such a request. I hope, looking at the sanctions as a whole (and I make no apology for bringing in the Third Schedule on quite a different matter), that your Lordships will feel that the sanctions as they stand are really satisfactory. If we make them heavier all we shall do is to preclude really careful, reputable business from coming in.

EARL JOWITT

We will not spend more time on it. We realise now that the attitude of the Government is completely non-co-operative in regard to all these matters. What I say is that if you have a case where the breach is of such a grave character that the arbitrator decides that £500 is the appropriate penalty in the first case, and then you have a second breach, I cannot for the life of me understand why the same limitation should apply to the second breach as to the first; and if you have a third breach, I cannot for the life of me understand why there should be the same limitation for the third as for the second and the first. That is the point on which I should have thought the Government could easily have given way to us, because, obviously, we have here what every man will agree, apart from Party politics, is a case which ought to be met. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

EARL JOWITT moved, in subsection (6), to leave out paragraph (b). The noble and learned Earl said: I have not the slightest hope of getting this Amendment, but may I just say this about it. I had at one time in my life as much experience in arbitration as anybody ever had, and I have a very high regard for arbitrations. In certain classes of matters arbitrations are much better than lawsuits. I remember very well that I used to go to the London Corn Exchange, and there used to be disputes about the quality of a cargo of corn. After proper samples had been taken—and sampling is itself an art—experts would take some of this corn, look at it in their hands, blow on it and say, "I think you have to make an allowance of 5s. a quarter." If you had to have such matters decided by a court of law, you would have experts on both sides contradicting each other, and the unhappy judge, who knew nothing about corn whatever, would have to do his best to come to a conclusion. Let it not be said that I am opposed to arbitrations. I believe they are in proper cases most admirable institutions.

There are certain weaknesses, however, about arbitrations, and two occur to me. I am sure the Lord Chancellor will agree with me that where there is a point of law, then in an arbitration the arbitrator can be asked to state a case for the opinion of the court. Thereupon the case which the arbitrator states has to go to the court; there can be an appeal to the Court of Appeal, and if the Court of Appeal or the House of Lords give leave, if it is important enough, there can be an appeal to the House of Lords. Lord Reading and I had experience of this in the old days in the commercial court. Everybody knows that it is apt to be a very lengthy procedure; the mixture of arbitration and law takes a very long time. That is one disadvantage of arbitration, where you are dealing with what turns out to be a question of law as opposed to mere questions of fact about the quality of goods. There is another difficulty which I think makes me decide against arbitration, and that is that in arbitrations you do not have publicity. I am one of those who are old-fashioned enough to believe that publicity is of tremendous importance in the law. If it were not that our cases were reported in the papers and the fierce light of publicity beat upon us, I do not think our justice would be nearly as good as it is.

Of course, not having publicity in an arbitration is undesirable, but it is also undesirable in that you do not get points decided. If you have a case heard before a judge in court, then you get a decision on the case, which is reported and is available in other cases. If you have an arbitration you get no decision which can be relied upon in other cases. In the sort of arbitration that we are contemplating here, it seems to me that you may very well want guidance. You are not dealing with the quality of goods or anything of that sort; you are dealing with whether there has been a breach of contract, whether the programme is or is not in accordance with all the stipulations we have been discussing. That being so, I would ask the Committee to say this: not that we should stipulate either for arbitration or for law, but that we should leave it for the parties to decide amongst themselves. They can, if they are so minded, have arbitration, but if they cannot agree then they go to law. I believe that that would be by far the better method. I would therefore ask the noble Earl not to insist upon arbitration but to give the parties the right, unless they agree to arbitration, to go to law about this thing.

I welcome the fact that by going to law there is complete publicity. I welcome the fact that by going to law you get a decision that can be quoted in other cases. I cannot charge my memory for certain, but I believe that in many cases in the lifetime of the last Government the Opposition, as they then were, now the Government of the day, pressed for this particular point, saying that a man should not be deprived of his right to go to the law courts and to go before Her Majesty's judges. Therefore I would beg the Committee not to insist on arbitration here as a condition of getting three times over this £500, which cannot be increased. I do not for a moment suppose that the Amendment will be agreed to; perhaps it may not even be answered. I beg to move.

Amendment moved— Page 10, line 16, leave out paragraph (b).—(Earl Jowitt.)

THE EARL OF SELKIRK

In the first place there is no difficulty about going to law if the parties want to. I think it is worth while looking at the two Amendments that we have just considered. It is unusual in contracts to put in a penalty clause at all, and if it is put in it is unusual for the courts to recognise it. I think we are on common ground there. In the first Amendment that we had before this, it was proposed that the penalty which could be imposed should be unlimited—any amount at all, like the fortune of the Count of Monte Cristo. In the second Amendment which the noble and learned Earl has just moved, the I.T.A. is to be judge, jury and prosecuting counsel in one on fines—in other words to be the sole judge as to whether a breach has taken place and as to what amount is to be paid. That is the effect of the noble and learned Earl's Amendments. I do not know whether that is what he intended.

EARL JOWITT

It is certainly not what I intended.

THE EARL OF SELKIRK

I should be astonished if an ex-Lord Chancellor had said that it was what he had intended, but in fact that is what his Amendments mean. At the present moment, taken together, these Amendments are quite ridiculous, for the reason, of course, that no reputable company would join in a contract with a penalty clause in regard to which the amount imposed was controlled by the sole fiat of one of the parties to that contract. That is completely ridiculous. The noble and learned Earl spoke about arbitration taking a long time. I think the point is that either the company want to do the job or they do not. If they want to do the job, then, frankly, criticism will have some effect. If it does not have effect, then the whole force of the Third Schedule comes into play, for, at the moment there is any difficulty about it there is obviously apprehension about a breach of contract, so that the terms of the Third Schedule come into play. Such as it is, arbitration is there. If the noble and learned Earl has any proposal for hastening arbitration, I am sure we should be glad to hear it, although I do not know how we can do that. There is ample power for the I.T.A. to see that its duties are carried out, and the terms of the Third Schedule, paragraph 1, are fully fulfilled. But as the terms of the Amendments stand, I do not think we can consider them.

EARL JOWITT

I certainly never meant that this body should be the judge and jury—that is the last thing I wanted. If my phraseology is wrong, I will apologise. But this question is as between arbitration and going to law. That is a point that I made perfectly plain in my speech and, though this is what I anticipated in this Bill, it is rather ridiculous to take me up on that point. I did not mean that that would happen, and the whole train of my speech was to point out that this was a case for a judge, rather than for arbitration, because of the question of publicity. The point of principle was decided. I do say, with respect to the noble Earl who answered, that what he said is not in accordance with the best traditions of this House. I have, in conducting this debate, attempted in every way to shorten the time. I have done everything I can to help. To be answered in that way does not assist. It is hardly courteous.

VISCOUNT HAILSHAM

I reinforce what the noble and learned Earl has just said. After all, this is a Parliamentary discussion on an important matter and these Amendments are brought forward in good faith. We are asking for nothing more than courteous and fair consideration from the Government. I have come to expect rough handling from the noble Viscount, Lord Swinton, but I expected something better from the noble Earl, Lord Selkirk. Innocently, of course, he has completely misled this House as to arguments contained in these Amendments. I am not going back, as he found it necessary to do, to a previous Amendment which has already been negatived. Under the Bill as now drafted the Authority may say to a programme contractor, "You have broken your contract, you must pay the penalty"—which is any sum up to £500. The programme contractor says, "No, what I did does not constitute a breach of contract." The Government say that this is a fine—that word was used by the noble Earl, the Postmaster General. But fines are not exacted in private, in my experience, in any rational or civilized system of law. What the Government say is, "Although we call it a fine, we are going to enact by Act of Parliament that you shall not go to Her Majesty's judges. You are not allowed to." If the party breaking the contract, or alleged to have broken the contract, does not agree, neither side can go to Her Majesty's judges. I call that an insult to constitutional law in this country.

I do not know why Her Majesty's judges are not considered proper persons to discover whether or not there has been a breach of contract, and I wish the noble and learned Lord the Lord Chancellor, who is no doubt in charge of the legal side of this Bill, would tell me what is wrong with using Her Majesty's judges—the people he appoints—for this purpose, to say whether or not there has been a breach of contract. The noble Earl says that the Amendment would make the Authority the judge, jury and prosecutor in its own case. That is pure rubbish. There should be a clear statement from the Government, from those who are qualified in law to correct the false impression made by the noble Earl, Lord Selkirk. The effect of passing this Amendment, as was made plain by the noble and learned Earl, Lord Jowitt—and there is no excuse for misunderstanding—would be that the Authority would be in a position to issue a writ in the ordinary courts of law, in the ordinary way that any other party to a contract is entitled to do.

The effect of the Bill as drafted is to provide secret justice for contract-breakers, in order that the public shall never know what they are alleged to have done. That is the real difference between us here. It is quite ingenuous for the noble Earl to say that the effect of our Amendment would be to make the Authority the judge, jury and prosecutor in its own case, because in fact the opposite is true. I cannot tell your Lordships in too plain language that what the noble Earl has told us—no doubt in all good faith—is the opposite of the truth. The effect of this Amendment is to enable the Authority to go to the courts. The effect of the Bill as it stands is to forbid them to do so. What the Government are providing is secret justice. What the noble Earl has not said in his speech in support of this present situation is why he wants secret justice, why he wants arbitration. I am not suggesting that arbitration is not very suitable for settling disputes when both parties agree. The noble and learned Earl, Lord Jowitt, has spoken of the many advantages which follow when both parties agree to arbitration, though we have all known of many cases unsuitable for arbitration. I want to know why in this case arbitration is being imposed on the Authority by force of law.

The noble Earl, Lord Selkirk, says that it is extremely unusual for contracts to carry a penalty clause. With respect, the noble Earl is entirely mistaken about that. It is comparatively common for contracts to carry a penalty clause in the way in which this Bill proposes. The ordinary law with regard to the penalty clause is this. Under the ordinary law of contract a penalty clause is enforceable to the extent that actual damage can be proved. Obviously, in the nature of events, the Independent Television Authority will seldom, if ever, have suffered any actual damage, so the penalty clause under the ordinary law would be unenforceable. In return for that, the Government have properly inserted a provision to the effect that the original Common Law should be enforced, that a penalty clause should be enforced, with a penalty in a liquidated sum. What is wrong with letting Her Majesty's judges determine that question? Instead of telling us that, the noble Earl who has spoken for the Government has made a speech which might almost be described as insulting. As I have said, the noble Earl has told us what is really the opposite of the truth. He says that he does not want to go to the courts at all. It is all very well for the Government to ask for co-operation in Bills of this kind. None of us wants to protract business unnecessarily, but if in fact Peers of Parliament are to be treated in this insulting way, by having proffered to them the insolent kind of rubbish which the noble Earl has just given us. I can only say that the Government are not going about matters the right way to get co-operation.

10.8 p.m.

LORD CHORLEY

I think the noble Viscount who has just spoken has made an important point in drawing attention to the fact that in the ordinary way arbitration proceedings are conducted in private. It is well known in the legal profession that a certain type of insurance company which is proposing to rely on a release clause so to speak—a warranty—insists on having its disputes submitted to arbitration, for the very reason that by doing so it avoids publicity, publicity which it has good reason to fear will deter other people from seeking insurances with it. It is important that, if there are breaches of the kind to which the noble Viscount has drawn attention in connection with these contracts, there should be as wide publicity as possible, in order that people should know what is going on. These disputes ought not to be settled behind closed doors, completely away from the light of day and with no reporters present. I should have thought that there was obvious reason, in some of these cases at any rate, for providing that the matter should be decided in the ordinary courts of law. Apart from that, the problem involved in most of these cases will be whether or not there has been a breach of contract. That is a question of law which a lay arbitrator is not really competent to decide, and which can be carried, as a matter of law, from the arbi-trator into the courts. The noble Viscount, who is the author of one of the best-known books on the subject, might well have pointed that out in his speech. Therefore, it seems to me that there is a reasonable case for the acceptance of this Amendment, and I suggest to the Government that they should think about it again.

THE EARL OF SELKIRK

I do not know why the noble and learned Earl should think that what I said was insulting. I was arguing purely on the facts. If noble Lords feel strongly about this, we are prepared to consider that the amount of the penalty should be settled by the I.T.A., instead of by an arbitrator. Our purpose in referring it to an arbitrator—there was no question of being secret about it—was with the idea of making it more expeditious. This is quite a normal way of doing it; there is nothing unusual about it. There is no question of short-circuiting the courts. In the whole range of the contract the matter can be taken to law. If the noble and learned Earl wishes to discuss the possibility of making the amount of the penalty subject to the I.T.A., I am authorised to say that we are prepared to consider that.

EARL JOWITT

That is much more satisfactory. Never before have I thought the noble Earl was the least discourteous; in any observations he made. Maybe I took him wrongly, but I thought he was discourteous in the way in which he referred to me in my Amendment. His observation that he was surprised that an ex-Lord Chancellor should move this Amendment was lacking in courtesy. If I misunderstood him, I am very glad to say so. I am all for harmony being restored, and I gladly acknowledge what he has now said. I never had the slightest intention of letting these people be judge in their own cause, but I thought that the matter should be decided by a judge and not by an arbitrator. But this is one of the matters which we might consider between now and Report stage to see whether we can get harmonious agreement. I beg leave to withdraw my Amendment.

THE MARQUESS OF SALISBURY

I should like to make one point. I can assure noble Lords that it is not our object to be offensive in any way whatever, but in debate we all put our cases a little more strongly than we do in private conversation. I did not get the impression that my noble friend was in any way offensive in what he said. But I am afraid I can hardly say the same about the noble Viscount, Lord Hail-sham, who, rising to rebuke the noble Earl, said the Government's case was infamous rubbish.

VISCOUNT HAILSHAM

Not "infamous"; I said "insolent," which was exactly what the noble Earl had said. I should not have applied that epithet because my epithets, if intended to hit, are not intended to hit wildly. I said "insolent rubbish."

THE MARQUESS OF SALISBURY

That is a far more offensive phrase than that used by my noble friend or has ever been used by him. We are accustomed to the noble Viscount in this House and we do not pay too much attention to the words he uses, because his method of persuading us to his point of view is gratuitously to insult us in every speech he delivers.

NOBLE LORDS

Hear, hear!

VISCOUNT HAILSHAM

Perhaps the noble Marquess will allow me to say that the very last thing I want to do is to insult either him or his colleagues. Believe me, if I have said anything in the heat of debate which either wounded them or could be considered personal, I am very sorry. But let me tell the Committee this. I have put forward three or four Amendments, all carefully drafted; and on every one of them the Leader of the House—not the noble Marquess, but the noble Viscount, Lord Swinton—went out of his way to pay absolutely no attention to what was said, to talk loudly to his colleagues, to chatter with those on the right and left of him. When I begged him to pay attention, he did nothing. When the noble and learned Earl, Lord Jowitt, who after all is an ex-Lord Chancellor, proposed an Amendment, he was told by the Government representative something which, compendiously stated, though no doubt innocently, was the opposite of the truth and ridiculed him for his pains.

This is a House where there is a large Government majority which can carry its will whenever it wants to. I am in the painful position of differing from some of my colleagues in this respect. If I hit back, I hit hard, without the desire to be offensive. But for a minority to be treated as the Government have, I feel, treated us this evening, is enough to make us strike home when we feel they have been less than courteous. I may tell the noble Marquess at once that if I have hurt anybody's feelings, I am sorry for that. I do hope that the Committee will believe me when I say that, despite the last and rather—I was going to use the word "offensive," but the last rather savage remarks of the Leader of the House, and it is not the first time he has attacked me personally. After all, our debates are in a Parliamentary Chamber, and if all appeals to reason and good sense are ignored, then it is for the Government to be conciliatory to those who differ from them. I feel that the Government have been less than conciliatory and less than courteous to those who put down Amendments to-day, and less than reasonable in the use of their majority. I do hope the noble Marquess—while I say at once that I certainly do not want to pursue a personal quarrel, either with him, or with the noble Earl to whose assistance he came—will realise that if he persists in personally wounding Members of the House, he must expect them to hit back, because we are none of us going to be bullied in this way.

THE MARQUESS OF SALISBURY

think the noble Viscount is rather new to this House and he does not yet understand its ways, but no doubt he will in time. This House is not like another place. There is no Speaker in this House, and the rather invidious duty of maintaining the standards of the House falls upon the Leader of the House, although he is a Party Leader and is, therefore, often put in a position of some embarrassment. All I intended to say in my remarks was that there is a certain manner of speaking which is the custom in this House, and which has been scrupulously observed by the noble and learned Earl, Lord Jowitt, throughout this debate. But the noble Viscount, Lord Hailsham, says he speaks sharply, and he then says to me that I wish to personally insult. That is not so. All I am concerned to do is to maintain the general standards of this House, to which the House has been accustomed. As nobody else can do it but the Leader of the House, it is for that reason that I have spoken as I have.

VISCOUNT HAILSHAM

I should like to say one more thing to the noble Marquess. The last thing I wish is to pursue this matter. I do sincerely want the noble Marquess to believe that I speak from the heart when I speak, and I shall never speak very much otherwise. I tend to mean what I say. I have never tried, and never shall try, to curry favour with an audience, and I regard it as a courtesy to them not to do so. I am certainly not concerned to embitter feelings in this House. It is not altogether kind of the noble Marquess to remind me that I am comparatively new to the House—I have been here only four years. I have tried to take part in these debates, and I am bound to say that I have felt, perhaps wrongly, that the noble Marquess has not been altogether courteous in some of his dealings with me. However, I hope that now, if what he says is correct, we can put matters on a basis where things of this kind will not occur again. If only he would be conciliatory I should be grateful and would try and be so too.

THE MARQUESS OF SALISBURY

I can assure the noble Viscount that I have no personal feelings about this matter at all. Indeed, the position in which I am placed, or the noble and learned Earl, Lord Jowitt, would be placed if he were sitting on this side of the House, is not one which is very easy or pleasant. But I know that there has been a feeling in the House that, perhaps not intentionally, the noble Viscount has been rather too sharp, and the arguments that he has used, though perfectly legitimate, halve been barbed rather too acidly for the usual custom of this House. I am sure that the noble Viscount will take that remark in the spirit in which it is intended, and I assure him again, most sincerely, that there is nothing personal in what I say. I am merely acting as I felt it was necessary to act, as one to whom the general maintenance of the standard of the House is entrusted.

VISCOUNT HAILSHAM

May I accept that in the spirit in which it is offered? I do want the noble Marquess to realise that if my remarks have been barbed it is because I have felt wounded.

Amendment, by leave, withdrawn.

10.22 p.m.

EARL JOWITT moved to omit the proviso to subsection (7). The noble Earl said: Now that we have let off a certain amount of steam, I hope all of us will be happier. I think the opposition are entitled to this and this only: if they put their case simply and courteously, I think they are entitled to a simple and courteous reply. I notice the noble Lord is engaged in conversation. I was indicating that I thought the opposition were entitled to this: that so long as they put their case simply and courteously, they are entitled to a simple and courteous reply. I am sure that the noble Earl did not intend to be discourteous on the last occasion. I gladly accept his assurance, and I am sure that on this occasion he, or whoever is going to reply, will reply simply and try to meet the arguments, because although they can beat us in the Division Lobby the real point is, do they beat us in the argument?

I now come to Amendment No. 70 to which I attach great importance. Subsection (7) of Clause 5 provides a right to the Authority to give a notice determining the contract, so far as I am concerned, in the event of a breach. I should like it to be quite plain that I do not ask the Authority to be judge in their own case. Might I have the attention of the noble Lord who is to reply? I am addressing a serious and short argument, and it would be much more convenient if I might have the attention of whichever noble Lord is going to reply. I am saying that in the event of a breach they are entitled to issue a notice terminating the contract. As far as I am concerned, it certainly should be the fact that that notice should be issued only if a court thinks it proper. I presume that to be so. If it is an arbitrary notice I do not want it to be so decided. But there is a proviso to this clause, and the proviso is that the contract is to provide that no notice is to be given unless the contractor has been held liable in respect of breaches of the contract on at least three separate occasions. I have already indicated the length of time before the finality of the judgment—because it is quite idle to talk about the I.T.A. fining these people; it is the work of the arbitrator and possibly the court afterwards. It may be as much as a year, and, indeed, if you are going to have a case stated, that is not at all an excessive period. If you are going to have this happen three times as a condition of terminating a contract, that seems to me quite wrong, and I would ask the noble Lord to see whether he does not agree that that is so.

I am not suggesting for a moment that these programme contractors are irresponsible people, but I am suggesting that the duty of the I.T.A. is to supervise what they are doing, and if the programme contractor is guilty of a serious breach of contract then I cannot see why it should not be possible for the contract to provide that the I.T.A. may terminate the contract, if necessary going to the court to get a decision of the court. But to say it cannot be done until three breaches have been committed seems to me quite wrong and without precedent. I speak subject to correction, but I rather think that this is another of the Amendments which were put down in another place. I rather think that this was not in the Bill when it was first introduced. The Postmaster General will know. Whether that is so or not, I think it is a thoroughly bad provision and I would very much rather that it should not be limited in this way. It should be at large, without this proviso. In those few words—and I hope I shall have an answer which bears upon the question, for I am not in the least ashamed of this Amendment—I beg to move.

Amendment moved— Page 10, line 45, leave out the said proviso.—(Earl Jowitt.)

EARL DE LA WARR

I find it rather difficult to answer this because I do not want to be guilty of repetition. Naturally I want to give the noble and learned Earl a full and courteous reply, but I think he would agree that this Amendment comes within the orbit of the four or five stiffening-up penalties for breach of contract. This Amendment means that the I.T.A. can terminate a contract without three breaches of the contract having taken place. The answer is really the same. If we are going to stiffen up the penalties, we are not going to get reputable companies to come in. We feel—I feel it very strongly—that the termination of the contract ought to be the last resort, and I again ask the noble and learned Earl, at the risk of repetition, to read the Third Schedule which can be used as such a tremendous source of power, as a powerful sanction. Surely he will agree that it is very much better that the Authority should, by the use of these comparatively moderate powers—I say "moderate" only as compared with the termination of the contract—bring an erring company back on to the rails rather than terminate the contract in the very early stages of the erring.

EARL JOWITT

It is a contract we are talking about. I do not say that the I.T.A. will put this in the contract, but, being sensible business men, they will be better able to judge what is appropriate to the contract than I am. Therefore why prevent them from putting it in?

EARL DE LA WARR

If they do not put it in, or having put it in they do not operate the power, there is really no point in it. We feel that the termination of the contract should be the final step that is taken. By the nature of it, it is final, and it should be used only in the ultimate resort. That is definite Government policy. I do not see how, without a fundamental alteration of Government policy, the noble and learned Earl can ask us to make this very great change in the Bill.

LORD SILKIN

I do not think we are asking in this Amendment for anything that is at all unusual. The normal thing in any relationship between two business people making a contract is that if one party commits a breach the other has a right to put an end to the contract. There are, of course, minor breaches which are not material, but if there is a material breach of contract it automatically normally gives the right on the part of the other side to bring the contract to an end. I have never come across a case where one of the contracting parties is entitled to break a contract three times before the contract can be put an end to, however serious the breach may be. I feel that this is a matter which ought to be looked at again. This is the most unusual arrangement that I have ever seen in any form of contract that has ever been presented to me. Personally, I am not very much interested in the penalty. I do not think a maximum penalty of £500—it is a maximum—will be a serious deterrent or will be very important, having regard to the large sums that may be involved in the contract.

The noble Earl can visualise, I am sure, serious breaches of contract which ought in the public interest to give rise to the normal remedy, namely, for the Authority to be able to put an end to the contract. The thing which one fears is that there may be serious breaches, but the Authority will have to wait until those serious breaches have taken place on three occasions before the contract can be put an end to. I suggest that that is something that ought to be reconsidered. You could, if you liked, say that they had to be serious breaches. Of course, nobody would suggest that the Authority should put an end to a contract because of a minor or technical breach. It is quite a common thing to define what is a serious breach or even, if you like, to define the kind of breaches which would give rise to the remedy of terminating the contract. I certainly think that this matter should be looked at again.

LORD CHORLEY

I should like to ask the noble Earl who is replying for Her Majesty's Government whether the intention of this clause is, in fact, that the Authority should not be able to put an end to a contract in the event of one fundamental breach taking place. The noble Lord who has just resumed his seat has pointed out one elementary proposition of law, that in the ordinary way a fundamental breach of a contract gives the innocent party the right to rescind the contract. I am not quite clear whether the intention of this clause is to take that right away. If the noble Earl says it is, I ask him whether he has been advised that the proviso is effective to that purpose, because it is a very complicated proviso. It seems to me, as a lawyer, that it is questionable whether in fact it achieves that object.

EARL DE LA WARR

In answer to the question of the noble Lord, Lord Chorley, I would direct his attention to Clause 5, subsection (8), where he will see that that subsection preserves the Authority's Common Law remedies. I am afraid I cannot accept this Amendment. There is no question, from our discussion, that the noble Lords opposite are concerned about these provisions. I am not going to give any undertaking whatsoever, but, if they would like to talk with me on this matter between now and Report stage, I shall be happy to do so. We want to get this Bill through with a certain amount of mutual understanding, and I do not think there is any question that we must undertake to talk when we realise that the other side is really deeply worried on a matter.

EARL JOWITT

I should like to have a discussion with the noble Earl, if only to elucidate this question—I do not expect an answer now, but I mention it. It is the question Lord Chorley asked. Suppose there has been a fundamental breach of the contract which, under the normal contract law, would entitle the innocent contracting party to say, "You have breached the contract; you have repudiated it. I shall accept that repudiation and the contract is ended." Suppose that happened before there had been these three fines—because the three fines will generally cover a period of three years—is it, or is it not, within the power of the I.T.A. to terminate the contract? As subsection (8) of this clause is drafted at the present time it seems to me exceedingly difficult to know what the answer to that question is. I think it ought to be possible for the Parliamentary draftsmen to make that matter so plain that anybody can understand it. I do not ask the noble Earl to answer that question now, but I have raised it in the presence of the Parliamentary draftsman and I should like to discuss it, because, having raised this question now, the noble Earl will be able then to give me a perfectly clear and categorical answer. In the meantime, although I regard this as a question of importance on which I should normally have divided the Committee, in view of the lateness of the hour I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.37 p.m.

LORD MILNER OF LEEDS moved to add to subsection (7): Provided however that in any event the Authority shall not be bound to transmit any matter contained in a programme the transmission of which would, in the opinion of the Authority, constitute a breach by the Authority of any of the obligations imposed under Section 3 of this Act or expose the Authority to proceedings for defamation or criminal liability for the publication of seditious, blasphemous, or obscene matter.

The noble Lord said: This Bill, and Clause 5 in particular, confers a great many powers on the Authority, and of course lays down many conditions which should be included in the contracts with the programme contractors. But nowhere does there seem to be the power set out in this Amendment—namely, a power whereby the Authority shall not be bound to transmit any matter contained in a programme the transmission of which would, in the opinion of the Authority, constitute a breach by the Authority of any of the obligations imposed under Section 3 or expose the Authority to proceedings for defamation or criminal liability for the publication of seditious, blasphemous, or obscene matter. It would seem such a power should be conferred on the Authority, and that the Authority should have a complete discretion, within the four walls of the conditions laid down in this Amendment—that is, that in the opinion of the Authority there might be a breach or that there are possibilities about proceedings for defamation, et cetera.

It would seem reasonable and proper that the Authority should not be under any compulsion to transmit any matter which would come within those two conditions. I am aware that in the Third Schedule it is proposed that there shall be power in contracts to forbid the publication of certain matter, but that is not quite the same thing. Here, if your Lordships pass this Amendment, before any difficulty has arisen, it will be possible for the Authority to decline to transmit any matter coming within the purview of the Amendment. That would seem a very desirable provision. Your Lordships will know of cases in which the B.B.C. have been concerned—not many of them, because I think the B.B.C. must have some similar power—but in any event it is even more desirable that this power should be conferred upon the Television Authority than upon the B.B.C. I submit to your Lordships that there should be this overriding power, which is a moderate one and one which can be exercised only within the four walls of the conditions laid down. I beg to move.

Amendment moved— Page 11, line 3, at end insert the said proviso.—(Lord Milner of Leeds.)

EARL DE LA WARR

This is an Amendment that I had definitely marked down to accept, until I looked at it more carefully; then I felt that there were reasons that could influence not only myself but also the noble Lord, Lord Milner of Leeds. I gather that the Amendment does not involve a question of policy, of control of the companies; it is more a matter of protecting the I.T.A. I have looked into that, and I can assure the noble Lord that that is quite unnecessary, because the I.T.A. are already entitled, without incurring penalties, to refuse to lay themselves open to criminal prosecution or to civil proceedings for defamation.

LORD MILNER OF LEEDS

Where is that laid down?

EARL DE LA WARR

That, I think, is the general law of the land—that nobody need take steps that will render him liable to criminal prosecution. But if, contrary to the legal advice that I have received, the legal advisers of the I.T.A. take a different view, then they can doubtless advise the I.T.A. to insert additional safeguards in the contract. To put it shortly, that means that this Amendment is not necessary. Supposing that we were to say "although it is not necessary, it will do no harm; we will put it in the Bill," we should then have to ask ourselves exactly how it is to be operated. There are only two ways in which this can be done. One is by having a permanent monitor watching the programmes, and to arm that monitor with powers immediately to switch off a programme, which is turning him into a censor. The second way would be by allowing scripts to be demanded in advance, which would mean dropping the proviso to Clause 5 (5); and that would mean that scripts would be demanded as a general rule and without apprehension of the likelihood of a breach of the contract. There we really come down to policy. We should either have to say that we are going to have a permanent monitor, sitting as a censor, or that we are going to allow scripts to be demanded, as of right and as a normal procedure, from a perfectly respectable company that has never committed an offence and is never likely to commit an offence. Certainly those reasons convinced me that I should be wrong to accept this Amendment, and I trust that they have convinced the noble Lord.

LORD MILNER OF LEEDS

Whilst I cannot accept the first proposition put forward by the noble Earl, I think that possibly I must admit the accuracy of the difficulty arising on his second proposition. I fully appreciate that there may be difficulty, without recourse to scripts beforehand and so forth, in knowing whether anything which would constitute a breach is going to be shown on the television screen. I am not altogether happy about it, but, having regard to what the noble Earl has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.44 p.m.

LORD OGMORE moved, in subsection (8), after "prejudice" to insert: to the right of the Authority to accept as a repudiation by programme contractor any breach of contract by the programme contractor going to the root of the contract and

The noble Lord said: This Amendment has been put down in the hope of clarifying subsection (8). I am not at all sure that the Government did not mean in the subsection to cover the point of the Amendment. If they did mean that, I do not think it is clear. I understand that the noble Earl is going to accept this Amendment, in which case I need say no more.

EARL DE LA WARR

Perhaps I may say that I accept it in principle; I think I may need a little advice on the actual drafting.

LORD OGMORE

I am much obliged.

Amendment moved— Page 11, line 6, after ("prejudice") insert the said words.—(Lord Ogmore.)

EARL DE LA WARR

May I now move that Clause 5 be divided into two. This is a purely drafting Amendment for the convenience of Parliament. I need only say that the new subsection (5) moved by the noble Lord, Lord Silkin, and accepted by the Government will, of course, be included in the first part of the division. I beg to move.

Amendment moved— That Clause 5 be divided into two clauses, the first to consist of subsections (1) to (4) inclusive; and the second to consist of subsections (5) to (8) inclusive.—(Earl De La Warr.)

Clause 5, as amended, agreed to.

EARL DE LA WARR

I beg to move the new clause after Clause 5.

Amendment moved— After Clause 5 insert the following new clause:

Television broadcasting facilities in respect of certain sporting and other events

"6.—(1) If in the case of any sporting or other event of national interest it appears to the Postmaster General that it is expedient, in order to prevent the making of exclusive arrangements for broadcasting to a restricted audience, that provision should be made for regulating the grant of television broadcasting facilities, he may by order direct that the Fourth Schedule to this Act [Sporting events, etc.] shall have effect in relation to that event as from such date as may be specified in the order.

(2) this section and in the said Schedule 'television broadcasting facilities' means facilities for television broadcasting from stations in the United Kingdom, the Isle of Man and the Channel Islands; and for the purposes of the said Schedule 'the promoters' means, in relation to an event specified in an order under this section, such person or persons as may be designated in that behalf by the order.

(3) The provisions of the said Schedule shall not apply to the broadcasting of a record of any event specified in an order under this section unless the visual images are transmitted within seven days after the happenings represented by those images respectively (not exceeding hours) as may be prescribed by the order.

(4) The power to make orders under this section shall include power to revoke or vary any such order by a subsequent order made thereunder.

(5) The power to make orders under this section shall be exercisable by statutory instrument, and before making any such order the Postmaster General shall lay a draft thereof before each House of Parliament, and shall not make the order until a resolution has been passed by each House of Parliament approving the draft."—(Earl De La Warr.)

Clause 6:

Advisory committees

(2) Without prejudice to the generality of the foregoing subsection, the Authority shall in particular appoint, or arrange for the assistance of—

1. (a) a committee representative of the main streams of religious thought in the United Kingdom, the Isle of Man and the Channel Islands, to give advice to the Authority on any religious services or other matters of a religious nature included in the programmes broadcast by the Authority, or in any publications issued by the Authority; and
2. (b) a committee representative of organisations, authorities and persons concerned with standards of conduct in the advertising of goods and services (including in particular the advertising of goods or services for medical or surgical purposes) to give advice to the Authority and programme contractors as to the principles to be followed in connection with the advertisements included as aforesaid,

and it shall be the duty of the Authority to comply and secure compliance with the recommendations of the said committees, subject to such exceptions or modifications, if any, as may appear to the Authority to be necessary or proper having regard to the duties incumbent on them otherwise than under this subsection.

THE LORD BISHOP OF BRISTOL

Amendment No. 74 is consequential to the passing of Amendment No. 47 earlier in our proceedings. It is clear in Amendment No. 74 that the Committee set up to advise on religious matters will advise only on items under paragraph (3) of Amendment No. 47 and not on paragraph (b). I think this makes clear a question raised earlier in the debate by some noble Lords. I beg to move.

Amendment moved— Page 11, line 20, leave out from ("Authotrity") to ("other") and insert ("as to the exercise of their functions in relation to any such items as are mentioned in paragraph (a) of subsection (4) of section three of this Act, and on any").—(The Lord Bishop of Bristol.)

LORD MATHERS

This Amendment will have the effect of disqualifying Amendment No. 75, because it cuts out a word after which I wish to mention the time to be allowed to religious broadcasting. It seems that this particular Amendment should have been taken before the Amendment to leave out the words quoted, and I am wondering how my position can be safeguarded.

EARL DE LA WARR

I am not going to accept the noble Lord's Amendment, No. 75, but I accept Amendment No. 74.

THE CHAIRMAN OF COMMITTEES

The point raised by the noble Lord, Lord Mathers, is that if you accept Amendment No. 74 that would involve cutting out certain words on which he wants to raise a question on Amendment No. 75.

EARL JOWITT

The practice of this House is always that, in those circumstances, before we accept Amendment No. 74 we deal with Amendment No. 75, so as to preserve the rights of any Member wanting to raise a point on that subsequent Amendment.

EARL DE LA WARR

I am sorry, I did not appreciate that point.

THE MARQUESS OF SALISBURY

Is it suggested that we should take Amendment No. 75 first and, having disposed of that, if necessary return to No. 74? That seems to be a practical course.

EARL JOWITT

It seems the only way to preserve the rights of the noble Lord, Lord Mathers, on his Amendment.

LORD MATHERS

In that event I presume I can proceed with my Amendment?

THE MARQUESS OF SALISBURY

I now understand that it is improper for us to go backwards. Would it not be better to discuss the two Amendments together? That would get over the difficulty with which the Committee is faced.

LORD MATHERS

I beg to move Amendment No. 75.

THE CHAIRMAN OF COMMITTEES

May I point out that we are actually discussing Amendment No. 74. Amendment No. 74 has been moved, and the noble Lord should discuss Amendment 75 together with Amendment No. 74. The noble Lord cannot move No. 75 yet.

LORD MATHERS

Let me put it this way. I am explaining to your Lordships what is involved in Amendment 75. It seems to me that what is happening to this Amendment is that it is rather in the position of getting "Jeddart justice." I do not know if there are many Scots here, but no doubt they will recognise the expression. "Jeddart justice" was to hang a man and try him afterwards. It was a safe way of dealing with some of my forbears in the old wild days in the Border country. Clause 6 (2) (a) contains the words "any religious services or other matters." I claim that the amount of time to be allotted to religious broadcasts is not germane to religious services. What I want dealt with by this Amendment is the amount of time allotted to religious broadcasting. In view of the fact that there is some particularisation in the clause, I think that the amount of time to be allotted to religious broadcasting should be included in the categories of items that will be dealt with under this particular clause. That explains the point as I see it, and I hope that I may have at least some indication as to why, as I have been told, this Amendment is condemned to death.

EARL DE LA WARR

The reason why I find it hard to accept Amendment No. 75 is that we have made the I.T.A. responsible for the balancing of the programmes. This Amendment would mean giving what the right reverend Prelate the Lord Bishop of Bristol described as the C.R.A.C. the right to say how much time should be devoted to religious broadcasting, and I do not think that this is the proper body to advise on that matter. We must be clear in our definition of powers. We must give certain powers and certain duties to one body, and quite positive duties to the other. I should say that it will be for the Churches' Advisory Committee to advise as to the nature and conduct of religious services and propaganda, but when it comes to the allocation of time that must be the responsibility of the I.T.A.

LORD MATHERS

I have to accept that this is an advisory body. I have been contending with energy the desirability of leaving the Authority to be finally the responsible body. That has been established, and the Amendments from the right reverend Prelate have been accepted. I feel that on the argument as now presented to me I must give way. We will first of all dispose of Amendment 74 and then I shall be properly disqualified from moving Amendment 75, and I will not move it.

10.55 p.m.

THE EARL OF LISTOWEL moved, in subsection (2), after paragraph (a) to insert: (b) a committee representative of persons with experience of and special interest in the welfare and education of young persons and children to give advice to the Authority and programme contractors on any matters intended for young persons or children in the said programmes or publications.

The noble Earl said: I am glad that we have reached an Amendment on which those of us who are completely unacquainted with the law can speak without feeling that we are dunces. This Amendment deals with a purely human point, but I think it is of some importance, and I feel your Lordships will agree that it deserves careful consideration.

The object of the Amendment is simply to get the Authority to appoint another advisory committee. There are already two, on religion and advertising standards, and I am suggesting that they should appoint another advisory committee on educational matters, a committee that would deal with the contents of broadcasts for children and young persons. I should mention that a similar Amendment was moved in another place, but under the guillotine it was discussed for only about ten minutes, and this important subject has not been dealt with since, either on Second Reading or during the last two days. I hope your Lordships will agree that if it is essential to guarantee a healthy and sound influence of television on the minds of children and young persons, then there is an extremely strong case for the appointment of a committee of this kind.

Speaking in another place the Assistant Postmaster General said the objection to this Amendment was that the Authority could already appoint a committee of this kind if so desired, but surely it is far better to appoint the committee as soon as the Authority are appointed. That would enable them to avoid mistakes, probably disastrous mistakes, in broadcasting to children. Prevention is far better than cure. We ought not to wait until mistakes are made before they are corrected. I think we can draw conclusions from what has happened in America, where commercial broadcasts for children have been going on for a long time. I understand that in America Western films have been the most popular item on all children's programmes. Some of these films are perfectly suitable, but others are not; and, clearly, if films of this type are to be shown here in children's programmes it is essential for the experts qualified to judge these matters to advise on their suitability before the films are put on the television screens. It is only in this way that we shall know whether they are frightening or cruel, or whatever it may be.

I am strengthened in my view that such advice is desirable here before we launch into children's broadcasting under commercial auspices by the following message from the American correspondent of the Daily Telegraph, which I noticed in that paper this morning. Let me read two sentences: Increasing emphasis is being placed on crime in children's programmes on American radio and television, according to the annual report of the National Association for Better Radio and Televison of Los Angeles. It declares"— and this is a quotation from the Report— 'Murder, torture, sadism, morbid suspense and other fear and tension-inducing elements are saturating children's minds and physical senses to a degree never before experienced by any generation. 'Television more than any other medium is responsible for this crime deluge'. Then there is the last sentence, which I feel is rather an ominous suggestion of what may happen in the future here. It says: Many of the programmes, the report notes, are filmed for disribution abroad. I do not say that we should ever get anything like as bad here, but a risk is taken when we embark on this experiment in this country. If we are embarking on an experiment, then we should look elsewhere to get advice from people who have had experience. Therefore I think it is reasonable to suggest that this is a matter that deserves the sincerest consideration by the Government. Apart from anything else, I cannot help feeling that all homes in which people have or are likely to have television sets, where there are young children, will be reassured by a safeguard of this kind, and by the knowledge that every film and other items produced specifically for children are to be "vetted" by people who know what is good for children to see and hear. For that reason, I commend this Amendment to the Government. I do not expect them to decide it now—at least, I hope they will not decide against it, and I do not expect them to decide in favour of it—but I think it is a matter that deserves careful consideration. I beg to move.

Amendment moved— Page 11, line 23, at end insert the said paragraph.—(The Earl of Listowel.)

LORD PETHICK-LAWRENCE

My noble friend has so clearly stated the main object of his Amendment that there does not remain much to be said, and I have no intention of detaining your Lordships. However, I should like to add this. I am a Governor of one of the King Edward VI schools that specialises in the care of children from broken homes. The knowledge and experience which those who manage that school possess is something that makes me realise that a mere amateur in such a matter, dabbling in the education of children, may be quite unfitted to judge whether a particular broadcast or television programme is desirable for children generally. I therefore hope that the Government will see fit to give this proposal their earnest attention. If they cannot accept the Amendment now, I hope they will at least promise to give it their full consideration, and that, as a result, they will see their way to putting down a similar Amendment on Report.

LORD FAIRFAX OF CAMERON

I should like to say a word or two on this Amendment before my noble friend replies. I am a little perplexed. Does the noble Earl who moved the Amendment intend that a similar committee as this should also advise the B.B.C.? I do not want to repeat what I have already said, but I pointed out on Second Reading a number of programmes on the B.B.C. of a most acutely horrific nature. Admittedly, they were not in a children's programme, but they were on at times when a child could hear them. They were certainly enough to scare any child out of his or her wits. I cannot see the rightness of applying a provision like this to the commercial television while programmes such as we have heard are allowed on the B.B.C. It is a point which I feel the noble Earl who moved the Amendment should bear in mind. The Amendment as it stands would give rise to considerable inconsistency.

LORD SIMON OF WYTHENSHAWE

May I point out to your Lordships that the first and most important advisory council appointed by the B.B.C. was the Schools Broadcasting Council, which is a very representative body—and more than an advisory body: in fact, it is largely executive. It was appointed twenty years ago; it has been a great success, and nobody would dream of altering it. That was done by the voluntary action of the B.B.C.

THE EARL OF LISTOWEL

The noble Lord opposite asked me a question, and I am perfectly prepared to answer it. This Amendment has nothing to do with the B.B.C. I am therefore not proposing in this Amendment that a similar committee should be appointed by the B.B.C. We are dealing now with commercial broadcasting, and the dangers which I mentioned in the course of my remarks are dangers which are associated with commercial broadcasting. If the noble Lord says he does not consider some of the films shown by the B.B.C. suitable for children, then I should be the first to say that there should be a careful examination and inquiry into the desirability of such a committee for the B.B.C. But that is quite separate from this Amendment; it has nothing whatever to do with it. I should be the first person to associate myself with any suggestion that a matter of this kind should be examined exceedingly carefully in relation to the B.B.C. if anyone with the authority of the noble Lord opposite, or anyone who takes a serious interest in the affairs of the young, were to suggest that the B.B.C. was misusing or falling short of its responsibilities.

VISCOUNT SWINTON

I should like to clear my own mind on what the noble Earl is proposing. If he is proposing a committee which is to look at every programme which every programme contractor produces for those of riper years, like the noble Lord, Lord Pethick-Lawrence and myself—

THE EARL OF LISTOWEL

I can answer the noble Viscount straight off and spare him the trouble of talking at greater length. I do not propose anything of the kind. My intention was merely that this committee should see material intended for children and young persons; not material intended for adults.

VISCOUNT SWINTON

The religious people do not "vet" the general broadcasts to see whether they have an effect upon religion, but only the religious programmes. If a programme contractor wishes to put on something such as what we loosely call a "Children's Hour." he should have expert advice.

EARL DE LA WARR

The reason why I was not keen on this Amendment was that the Authority will need a great number of committees, and if we started elaborating every one it would be a big affair, and I think that in the end we should probably not have got anywhere. But this is a special circumstance. Perhaps I may be allowed to consider this matter and put something down on Report. I do not think we can accept this Amendment. We have to take out programme contractors and make this a committee which will advise the Authority. That is a matter we could discuss. I do not want an undertaking from noble Lords, but I should not like it to be thought that we should enumerate every committee that the Authority would have to appoint.

THE EARL OF LISTOWEL

I am grateful to the noble Earl for that reply. It exactly meets the point which I made—that the matter should be considered between now and Report. I was pleased to hear that the Government are likely to give this matter favourable consideration. In those circumstances, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD FAIRFAX OF CAMERON moved, in subsection (2) (b), after "contractors," to insert: with a view to the exclusion of misleading advertisements from such programmes, And otherwise.

The noble Lord said: This is a small but fairly important Amendment, and I hope that it may have some support. Clause 6 (2), paragraph (b), refers only in a very general way to the duties that the committee therein mentioned shall carry out in advising as to standards and principles in connection with advertisements. What is certainly implicit in the committee's terms of reference, however, is that it shall safeguard the public against misleading advertisements. To put some specification like that into this paragraph is the purpose of the Amendment. Nothing is mentioned so far. Some of your Lordships may feel that this Amendment is unnecessary since in a general way the paragraph already covers this particular provision, but I feel that more than that is required. This is a most important point indeed, and I consider that the committee should be specifically charged in the Statute with the carrying out of this duty. That is the first reason for moving the Amendment. There is another reason and it is something that the noble Lord, Lord Milner of Leeds, may have had in mind in an Amendment which he withdrew earlier this evening—that is, that existing legislation safeguards against misleading advertisements in matters other than television advertising. But it does not cover television advertising. This Amendment of mine is to stop the gap which exists at the moment. It is to rectify a breach which will occur in the existing law after this Bill is passed.

Amendment moved— Page 11, line 29, after ("contractors") insert the said words.—(Lord Fairfax of Cameron.)

THE EARL OF SELKIRK

This meets the requirement of the Retail Trading Standards Association, and is designed to prevent misleading advertisements. The next Amendment extends the same regulations to publications made on behalf of the Independent Television Authority. I am glad to accept both these Amendments.

LORD FAIRFAX OF CAMERON

This is consequential and I formally beg leave to move.

Amendment moved— Page 11, line 31, after ("included") insert ("in such programmes, or in any publications issued").—(Lord Fairfax of Cameron.)

THE EARL OF LISTOWEL moved, in subsection (2) to add to paragraph (b): and to prepare and submit to the Authority a code of such standards of conduct as aforesaid.

The noble Earl said: I think it would save time at this late hour if I were permitted to speak also to the two subsequent Amendments standing in my name while I am formally moving this Amendment, as all three are concerned with the same subject. I will not do it if it is inconvenient, but I think it might be a time-saving device, as all three are connected, and really follow one from another.

EARL DE LA WARR

If the noble Earl will forgive my intervention, I would tell him, in order to save time, that I shall be prepared to accept his first Amendment. I think that has considerable point. But I am afraid I could not accept the consequential ones.

THE EARL OF LISTOWEL

I am delighted with that acceptance, and I willingly withdraw this Amendment or, if he is satisfied with it in its present form—

EARL DE LA WARR

Would the noble Earl move the present Amendment and withdraw the other two?

THE EARL OF LISTOWEL

I should like to put the argument on the others and find out what the noble Earl's objections are.

Amendment moved— Page 11, line 31, at end insert the said words.—(The Earl of Listowel.)

VISCOUNT HAILSHAM moved, in subsection (2), to leave out "them" and insert "the Authority." The noble Viscount said: I do not want to take up the time of the House. This is a purely drafting Amendment. It was thought the word "them" might refer to the Authority or the committee, and the Amendment merely makes it clear that it is the Authority which is referred to. I beg to move.

Amendment moved— Page 11, line 36, leave out ("them") and insert ("the Authority").—(Viscount Hailsham.)

EARL DE LA WARR

I agree that it is better drafting to leave out "them" and insert "Authority."

11.15 p.m.

THE EARL OF LISTOWEL moved to add to subsection (2): and to submit to the Postmaster-General for approval and thereafter to publish and secure compliance with the said code as approved with or without modifications by the Postmaster-General: Provided that from time to time the Authority may after consultation with the said last-mentioned committee and with the approval of the Postmaster-General modify the said code and that the Postmaster-General shall lay before Parliament the said code and any modifications thereof made as aforesaid by the Authority.

The noble Earl said: I should like to speak on this Amendment and the next together. Their object is the same. It is this. The noble Earl has said that he accepts the desirability of having an advertising code. What I am trying to do by these Amendments is to secure that this code is subject to effective Parliamentary control. This is a matter on which a great deal of Parliamentary interest has been shown, both in debates in another place and, subsequently, here. The only way to make this control effective is the usual way of making a Minister responsible, and in that way enabling Parliament to criticise the Minister if any alterations are made in the code of which he does not approve. That is why I am suggesting that the code should be submitted by the Authority to the Postmaster General, as the Minister concerned in this matter, and should require his consent. Again, it is obviously essential that Parliament should know any alterations in this code of advertising which the Minister may decide to make, and that Parliament should know that at the time they are made, instead of having to wait until the end of the year, or whenever it may be, when it has the opportunity of seeing what they are in the annual report submitted by the Authority. This is simply a device to secure Parliamentary control. I imagine that the noble Earl will agree that some measure of Parliamentary control is desirable. As I gather he objects to this, I should like to know what alternative he has in mind. I beg to move.

Amendment moved— Page 11, line 37, at end insert the said words.—(The Earl of Listowel.)

THE EARL OF SELKIRK

I do not know whether the noble Earl regards Nos. 81 and 82 as alternative or supplementary, but if taken together they are powerful. We have agreed in the first place to No. 79, which means that the Advisory Committee on Advertisements can prepare a code and submit it to the I.T.A. Now the noble Earl wants to go a great deal further. He wants the I.T.A. to submit the code to the Postmaster General and the Postmaster General to submit the code to Parliament; and Parliament can, of course, annul it. What is the use of appointing an advisory committee if we do not trust it to do anything? First of all, it has to submit a code for the approval of the I.T.A.—and we are not to trust the I.T.A. Then, under the Amendment, the I.T.A. is to submit it to the Postmaster General—and we do not trust the Postmaster General. Then the code is to come to Parliament. That really is going too far.

Under the second Amendment the Postmaster General would be given exactly the same powers as the I.T.A. have under Clause 6—that is to say, he can the I.T.A. what committees they are to appoint, who is to be on the Committees, what terms of reference the committees are to have. In effect, it overrides the powers of these committees to give mandatory advice to the I.T.A. on religious or advertising matters and makes the Postmaster General responsible for the whole thing. This Amendment makes fools of those two committees and makes the provisions of Clause 6 ridiculous. I therefore hope the noble Earl will withdraw the first Amendment and will not move the second.

THE EARL OF LISTOWEL

I did not feel that my Amendments would have the disastrous effect which the noble Earl appears to contemplate. I was merely indulging in a perfectly harmless and, I thought, quite usual desire to ensure that Parliamentary control was effective. The last thing I wanted to do was to say that we were going to distrust the Authority or the people who are going to act in the spirit or letter of the code. I do not think that was intended at all. However, if the Government object to this Amendment, I very readily ask permission to withdraw it.

Amendment, by leave, withdrawn.

EARL JOWITT

I see the noble Marquess has returned. Having got those two Amendments, I do not think we have done badly. We have reached No. 83. I do not know what the Government think, but we should like to adjourn at this stage if we might.

THE MARQUESS OF SALISBURY

I think we might bring our discussions to a close now. We have covered a great deal of ground and I think everybody is rather tired. It has been a long day, and if it is agreeable to the Opposition I suggest that we should adjourn the debate now and continue it to-morrow.

Clause 6, as amended, agreed to.

House resumed.