§ House again in Committee.
Lord Howard of Henderskelfe moved Amendment No. 108A:
After Clause 21, insert the following new clause:
§ .—(1) Any person who—
- (a) dishonestly obtains one or more of the programmes included in a pay service with intent to avoid payment;
- (b) by the reception and re-transmission of any such programme or programmes, dishonestly distributes a pay service to any other person or persons with intent to avoid or permit or facilitate the avoidance of payment; or
- (c) imports, exports, sells, lets on hire, offers for sale or hire, publishes or otherwise makes available to any person by way of trade any apparatus of information designed or adapted to enable any person to do one or more of the acts described in paragraphs (a) and (b) of this subsection and with intent to enable him so to do,
§ (2) A person guilty of an offence under subsection (1) above shall be liable—
- (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum or to both;
- (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
§ (3) Any person who, without the consent of a broadcasting authority or, as the case may be, the provider of a pay service as part of a cable programme service—
- (a) obtains one or more of the programmes included in the pay service;
- (b) by the reception and re-transmission of any such programme or programmes, distributes the pay service to any other person or persons otherwise than in circumstances to which the provisions of section 12(3) of this Act apply: or
- (c) imports, exports, sells, lets on hire, offers for sale or hire, publishes or otherwise makes available by way of trade any apparatus or information designed or adapted to enable any person to do one or more of the acts described in paragraphs (a) and (b) of this subsection,
§ (4) In this section, "pay service" means a broadcasting service or a licensed service by virtue of which the broadcasting authority or, as the case may be, the person authorised by the Authority to provide the licensed service, receives money or other valuable consideration in respect of the service from those to whom the service is provided.
§ (5) Where a body corporate is guilty of an offence under this section and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
§ (6) Where the affairs of a body corporate are managed by its members, subsection (5) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
§ (7) Where a person is convicted of an offence under paragraph (c) of subsection (1) above, the court by or before whom he is convicted may, if it thinks fit, direct that any apparatus and any article in which information is embodied which is designed or adapted to enable any person to do one or more of the acts described in paragraphs (a) or (b) of subsection (1) above and which is in the possession or control of the defendant (whether or not the offence of which he was convicted concerned that apparatus or information), be forfeited.").
§ The noble Lord said: The new clause is necessarily long and somewhat complex and, inevitably, the Government spokesman will say that it does not do what it sets out to do and will have to be reworded to achieve that. This is one of the penalties of not having the massive support of parliamentary counsel which is available to others. The thinking also breaks some new ground which makes matters a little difficult, because it is a cross between provisions covering the theft of services and provisions covering the theft of intellectual property is a relatively new concept, the law on which is not yet fully developed. Most of it has hitherto been dealt with through copyright, but it is recognised that the copyright law does not cover all we seek to cover.
§ In this case the broadcasting of a subscription service, whether that be an ordinary pay service covering everything that is coming down the line or 833 through the satellite, or whether it be pay per view, poses some unique problems which are not covered by the present law. I am certain that there is no effective legal means in this country to prevent the unauthorised reception of subscription services or the production and sale of gadgets or apparatus, whatever one may call it, or information published in papers about the design of such equipment, which enables such interception to take place—in other words, the design of decryption devices.
§ The absence of any legal remedies against what amounts to the theft of services, or the marketing of the means to steal them by these gadgets, could undermine the commercial viability of a DBS service or of any other pay service. It would affect not only the amount of income to be collected, but also the willingness of those who own the rights of films, for example, to licence films for those services. We all know that one of the most attractive features of any service, whether it be cable or DBS, will be the availability of newer films than those which have hitherto been available on ordinary terrestrial television.
§ It is true that a broadcast pay service is likely to be much more vulnerable in this respect than some cable services where subscribers, especially of any form of star switch system, can readily be cut off from the signal if they do not pay. I say "readily" but this is one of the chief problems that has been encountered in the United States—finding out that people have not paid for so many weeks and managing to cut them off. It has been found that people can obtain services for a substantial length of time without having paid.
§ The broadcast signals both in DBS and satellite which may deliver signals to cable heads will be encrypted so as to make unauthorised access much more difficult. But it is almost impossible to achieve a standard of security which cannot be relatively easily defeated, except at absolutely prohibitive cost. Even so, it seems unlikely that even the most expensive and sophisticated systems are wholly incapable of being decrypted. What we believe to be happening at GCHQ illustrates that even the most sophisticated governmental services can eventually be broken.
§ It is true that when we come to addressable converters—I am sorry to use all this jargon but it is essential in this context—we shall reach a position where absolute security can be obtained. But it is also true that electronic ingenuity, particularly of the very young, knows almost no bounds. Almost as soon as a device is produced which it is believed cannot be defeated, someone will produce a device which can defeat it. There must be special measures to combat this form of theft.
§ In the past we know that the Post Office, before it became British Telecom, was constantly faced with this problem of people devising methods to ring up, say, the United States and talk for several hours with a girl friend at what should have been enormous cost to the person making the call; but because the person had discovered a way to defeat the mechanism of the call box—not by jamming it but by electronic means—he was able to make the calls for nothing.
§ The new clause that I have put down as an amendment defines not only criminal penalties but 834 civil remedies. The civil remedies are important because they provide the broadcasters with the means to take anti-piracy actions with Anton Pillar orders and injunctions, which have proved surprisingly effective in the video field where they have resulted in a substantial diminution in the amount of piracy which was such a worry as little as 18 months ago. It is still a worry, but it is not as great a worry as it was.
I have been encouraged in proposing this to discover that in California, where they have more experience than we have of pay services, state laws have been introduced in the last few years which have created both criminal and civil remedies in relation to the theft of pay cable services. I believe that New York may also have done so. Of course, each of these states has some years' experience of pay cable services and it would seem also that Florida has similar laws. I will not detain your Lordships for too long but I would briefly like to read an extract from the Entertainment Law Report of December 1983, a report of Storer Cable Communications, Inc. v. Rodrigue which states:
Dade Cable Television, Inc., an affiliate of Storer Cable Communications, has been granted permanent injunctive relief against two companies which were engaged in the unauthorized sale of equipment intended to intercept Dade Cable's transmission of programming to its subscribers and to decode the transmissions for reception on a standard television receiver. Upon installing the equipment, a purchaser would be able to receive Dade Cable programming without paying the requisite fee for the service.
A Florida county court first found that state statutes proscribing the theft of pay cable television service had been violated. The court noted that in decisions under the frederal counterpart to one of the applicable Florida statutes, the 'overwhelming weight' of authority suggested that the Florida companies had violated the law. Further-more, the companies were causing substantial and irreparable damage to Dade Cable's business by the loss of potential as well as existing customers. And Dade Cable had shown that it had no feasible means of detecting non-subscribers who were receiving programming via the use of the unauthorized devices.
The court concluded that an injunction would serve the public interest in that the possible discontinuance of Dade Cable's services would be prevented. Therefore, a permanent injunction was issued, and the court also ordered that the companies provide Dade Cable with all customer lists and other material which would aid in identifying any purchasers or suppliers of the unauthorized descrambling equipment".
I read this out only because it shows that I am trying to consider a practical problem and not something which may occur in the future, "maybe". It is something which will be with us as soon as we have cable services in this country.
§ The noble Lord, Lord Elton, said in the course of the Second Reading debate that the Government were aware of the difficulties over pay television services and were considering whether there was a need to bring forward additional provisions during the passage of the Bill, and the noble Baroness, Lady Trumpington, repeated the substance of that statement on the first day in Committee, but went a little further. But we have no indication when this will happen or as to whether the requisite legislation will be written in time, before the Bill leaves your Lordships. I would hate it to leave this Chamber without some such provision in it. I do not say that I am in any way distrustful of the other place, but the pressure of legislation upon the Lower House may be such that if we could be certain that it was included before it left us then I, for one, would be very much happier.835
§ I think it is worth adding that the new clause proposes not only that the importing of decoding information should require the consent of the provider of the pay service, for which precedents exist (for example, the importation of articles embodying copywright works is an infringement of copyright), but also that their export should be restricted in this way. It may sound a bit hard to do that, but it is to prevent unauthorised access to the pay services in satellite overspill areas which are beyond the jurisdiction of our courts and therefore beyond the reach of the provider of the services. It is unusual, but not unprecedented, for exports of particular items to be restricted or prohibited. They may be, for example, military equipment or items as diverse as the national heritage, cattle and cocoa products, which are all subject to control and/or licensing.
§ Without controls of this sort persons overseas, such as French cable operators, might have ready access to decoding equipment and might distribute the decoded signals in satellite overspill areas to large numbers of viewers. If the service were a film channel, this would undermine the market for the films in that part of France. The result would be that the film companies would make their films available to the cable services instead of broadcasters, which would give cable an unfair competitive advantage. Finally, there is also at least one precedent for the forfeiture provisions at the end, which are modelled on Section 4 of the Game Laws (Amendment) Act 1960.
§ I was able to suggest that this should be included as a result of knowing that in Scotland a poacher can forfeit a car from which he has carried out his poaching. That is a considerably greater deterrent than the fines he would otherwise be liable to pay. In other words, you could lose not only your little black box but the television and aerial system which goes with it. I beg to move.
§ Lord Elton
The noble Lord, Lord Howard of Henderskelfe, is perfectly right in saying that the advent of cable television will create a whole new area of opportunities for dishonest and unacceptable behaviour. Those investing in these new developments will want to be sure that there are appropriate legal safeguards to deal with those people who try to acquire services without paying for them. In particular, they will wish to see effective provisions against those who try to make a business out of supplying pirate decoders and the like. The phenomenon of video piracy is certainly a warning that where there is money to be made out of using new technology for dishonest purposes people are going to make it unless we provide adequate safeguards.
The Government are currently considering what needs to be done, and I can give the noble Lord an assurance that before this Bill reaches the statute book we shall want to ensure that new provisions are in place to deal with the problem. Whether they can be ready for inclusion in your Lordships' House is another matter, because the Report stage itself would be a late stage, with none of the free to-ing and fro-ing in discussion that we have at Committee stage when introducing a major new provision without the precise notice that I think ought to be given. If we are able to 836 do it, we will. But before the Bill leaves the Palace of Westminster we expect to have a provision in the Bill that will extend the protection that the noble Lord is looking for.
The BBC, who have I think given the noble Lord some assistance in his drafting, have already had discussions with the Home Office, and further work is now in hand. The exact form of the new safeguards is not yet decided, but before we create new offences or new civil rights we need to think carefully how they might fit into the existing framework of the law.
One area which needs to be explored further is the interaction between the offence provision which already appears in the Telecommunications Bill relating to the dishonest use of a telecommunications system and any provision we put in this Bill to cover the specific dangers to which the noble Lord has referred. I can reassure him that we shall be taking steps to deal with the substance of his concern. We are grateful to him for his valuable contribution to our consideration of this problem, which we shall study with care. I hope that he will be content with that to allow us to get on with this work and that he will not
§ Lord Howard of Henderskelfe
I have certainly no intention of pressing the amendment. We tried to lay it out in full in order to show the various aspects that need to be dealt with. I think a shorter amendment would not have dealt with the problem in quite the way we believe it ought to be dealt with, because it is very important that we should have both civil and criminal remedies. That is an essential part of what we should seek in order to safeguard the interests of the cable operators and of the broadcasters who provide the pay services in the future.
§ Lord Mishcon
Before the noble Lord sits down, may I express the gratitude of my noble friends and myself for his having raised this point. We did not think of it, and we are most grateful to him for having brought it before the Committee.
§ Amendment, by leave, withdrawn.
§ 8.29 p.m.
Lord Campbell of Alloway moved Amendment No. 108B:
After Clause 21, insert the following new clause:
§ ("Procedural Measures of Safeguard.
- (a) consultation shall have ensued between the Authority and the Director:
- (b) written observations as to terms and conditions of grant, variation, or grounds of proposed refusal shall have been exchanged between the Authority and the Director;
- (c) a copy of such written observations together with all subsequent relevant correspondence between the Authority and the Director shall have been supplied to the applicant; and
- (d) the Applicant shall have been afforded an opportunity of making written and oral representations on such observations and correspondence in support of his application.
§ (2) The decision mentioned in subsection (1) above shall be a reasoned decision in writing which shall be subject to full review on the merits by appropriate judicial process.").
§ The noble Lord said: I beg to move the new clause which stands in the name of the noble Lady, Lady Saltoun, and myself. Already, on Amendment No. 108, there has been much discussion germane to the subject of this amendment, and so I shall be brief. It is quite plain from what has already been said that this Committee is indeed most uneasy about the situation, and rightly so.
§ The noble Lord, Lord Howard of Henderskelfe, has rightly said—I quote his words because I took them down as he said them—that there must be a decision. If there is to be a decision, there must be due administration. If there is to be due administration, there must be some rules of the game laid down in order to ensure fair play for the applicant and some revisory or appellate machinery. At this hour, I lack the hubris to seek to foist my do-it-yourself drafting upon your Lordships' Committee, particularly in view of the fact that the noble Lord, Lord Howard of Henderskelfe, with his experience, has said that the drafting is perhaps not appropriate. I am fully prepared to accept that the wording may not be appropriate, but what I shall never accept is that the principle behind it is unsound.
§ I wish to canvass your Lordships' general support on the question of the principle at stake, in the hope that my noble friend the Minister may consider the position and give some measure of comfort and assurance. The principle is so simple that it hardly needs stating. I ask your Lordships to forget the argument about words. The principle is simply this. The applicant must know what are the objections that he has to face after this so-called consultation. The applicant must be entitled to make representations in support of his application, knowing what those objections are. The applicant must be entitled to a reasoned decision and there must be some form of review procedure.
§ My noble friend the Minister seemed at one time to think that this was just a question of whether a dud is put into business—it is not. The question is whether a worthy applicant is unfairly ousted or refused, contrary to the established principles of natural justice, because the Minister would have it that this is within the realms of absolute, unchallengeable executive discretion, and that I, for one, will not have. That is the principle which is at stake before your Lordships. It is the elementary principle of fair play. It must be built into the statute. Ministerial assurances as to how such an absolute discretion will be exercised afford no substitute for building the minimum appropriate provisions, whatever they may be—forget about the wording—into the statute, and nothing less than that, as a matter of principle, will be acceptable to your Lordships' Committee. I beg to move.
I am far from expert in technological advances in the fields of telecommunications and television; but I know that such future developments as tele-banking and tele-shopping, which we do not already have, and Prestel, which we do already have, involve a combination of telecommunications and cable and they are inextricably entwined. For this reason, it is a great pity that the Cable Authority and 838 Oftel cannot be a joint body, but if they cannot be married it is quite vital to the consumer's interests that they should be obliged, and obliged by law, to maintain close contact with each other.
In view of the fact that lack of co-operation between Government departments is, to put it mildly, rather frequent, I consider it absolutely necessary that a duty to co-operate should be clearly written into both this Bill and the Telecommunications Bill. I would add that British Telecom themselves have told me that, while they are in general happy with the Telecommunications Bill as it stands, they are not at all happy with the proposed dichotomy for the very reasons which I have briefly given. I therefore hope—and it is a very forlorn hope—that the Government will accept this amendment.
§ Lord Mishcon
We have already debated the question of whether there should be two-way consultation between the Cable Authority and what I have called the Part II authority of the Telecommunications Bill. I do not think that your Lordships would welcome at this time a repetition of any of the arguments and we can, at least, spare the noble Lord the Minister a further reply on that issue, because he will have heard what was said in the previous debate.
If I may limit myself, therefore, to the observations of the noble Lord, Lord Campbell of Alloway, which are always received with respect in this House, and certainly received by fellow lawyers with respect, I can well see—if I may say this with deference—the worthiness of an amendment which tries to secure that all applicants for licences have a fair deal. If the wording were to that effect and there was no more in this amendment, I do not think that the Committee would have very much difficulty in finding in favour of that principle, and any safeguards that there might be of a practical nature to procure that that principle was honoured.
I do not think that my objections to the amendment moved by the noble Lord and supported by the noble Lady, Lady Saltoun, are merely to words. I am afraid that my objections are to principles in the amendment. The first principle that I come across is that the worst thing you can do in a Bill is to put down so many detailed requirements, which are a burden upon two authorities, so that the mere slip-up of one of them, or a legal argument in relation to something that has been directed by this Bill to be supplied, can give every single applicant a right to go to the court in an attempt to set aside the grant of a licence to a competitor.
I give these examples in fairness to the noble Lord, Lord Campbell. He said that all correspondence which is relevant must pass between the authorities. What a lovely opportunity for a lawyer to say that a letter which is worded, "We are in receipt of your letter of the 14th instant for which we thank you" was relevant but did not seem to have found its way from one authority to the other! But on top of that, the correspondence and all documents, including privileged communications—I have no doubt bank references and goodness knows what in regard to financial strength—must be supplied to the applicant. What an embarrassment that is in regard to an authority which is trying to get all the information it 839 can, confidential and otherwise, in regard to an application.
But my major objection, if the noble Lord will forgive me, is my third and, I promise the Committee, final point. He wishes to make the final arbiter in regard to this matter some judge, by virtue of a judicial process. I have no doubt that there are some licences which could go through a process of that kind. But it is not just a question of going to the judge on the impropriety of the way in which the authority has behaved.
The amendment says that you can go to the judge on the merits of the case, which makes a judge in those circumstances the arbiter as to whether or not a cable licence of this kind should be given. I can envisage many of the very notable members of the judiciary resigning immediately upon hearing that they are to be given a job of this nature, which is completely outside their experience and quite outside the area with which our judges would normally be expected to deal. And I am not so sure that applicants would be so very happy to have a judge of the High Court decide, as between various applicants, whether or not one of them ought or ought not to have a licence. It is on those major objections, if the noble Lord will forgive me, that I quarrel with his amendment; but if he comes before the House at Report stage with those considerations in mind and purely in order to get, by his amendment, real fair play, as he put it, for the licensee in a practical way, I am sure that he will have much more support from these Benches.
§ Lord Mottistone
I should like to give a certain amount of support to my noble friend. Whether the noble Lord, Lord Mishcon, supports him in principle I am not sure. Without wishing to return to the argument which we had on Amendment No. 108, I have to say that I am still uneasy about the requirement for communication on one side or the other. I have put down an amendment, a mirror image of this, on the Telecommunications Bill, because the weakness, I believe, lies in this area. When arguing his case on Amendment No. 108 my noble friend said that in the Telecommunications Bill there are licences to cover such a wide area that to pick out just the cable connection would be unjustifiable. I suggest to him that that is not quite right.
I know that my noble friend will not be taking the Telecommunications Bill through its various stages; but I wish to put it on record that cable will be an important new development in the application of telecommunications, which itself needs to be specially considered in this general area of intercommunication. It is complicated by the ridiculous business of having two ministries dealing with similar subjects. We all know that there is no immediate answer to that problem, which is where the difficulty lies. In the meantime, the legislation has to take care of the anomaly of two almost autonomous republics, known as departments of state, which, when dealing with the same subject, are faced with this problem. I do not support my noble friend's argument that the Telecommunications Bill does not need to take special note of the relationship between the director general of Telecommunications and the director of the Cable 840 Authority. I believe that it does. We shall return to the charge.
Law is needed in order to create fairness. The noble Lord, Lord Mishcon, said that we are all agreed about the need for fairness for the person who is ultimately to be covered by this law. It is in that area that my noble friend's amendment is more relevant than some of the others. It tries to bring in the power of the law to introduce fairness. Although its wording may be totally wrong—though who am I to comment on legal luminaries?—the fact is that, somewhere there, there is an important point which has not yet been picked up but which needs to be picked up. Whether it is picked up in this Bill or the other Bill I do not know, but it needs to be picked up in one of them. If I had my way, I would get hold of the officials of the two ministries, bang their heads together and tell them to produce something useful.
§ Lord Elton
My noble friend is too modest about his drafting. It is extremely good and clear and answers the limited purpose which he has given it, of setting out the principle. It is to the principle that we are addressing ourselves, not to the drafting, so I congratulate my noble friend on his lucidity. He wishes, first, to introduce a legislative requirement for consultation between the two departments of state. Secondly, he wishes to codify the procedures which have to be gone through before a decision is taken on the granting of a licence. Thirdly, he wishes to make what is decided after that process, and therefore the process itself, justiciable on its merits.
Saving the grace of the noble Lady, Lady Saltoun, we covered, I believe, the matter of consultation at great length, and on my part with some vigour, before dinner. I say to my noble friend Lord Mottistone, who has put his own feelings very clearly and helpfully after dinner, that I have undertaken that my noble friend who is to take the Telecommunications Bill through your Lordships' House will be made aware of the strength of feeling all round the House on the matter. I shall also make sure that my noble friend's postscript to that debate will be included in what is brought to his attention. Whether that will produce the results which my noble friend on the Back-Benches requires in the mind of my noble friend on the Front Bench, obviously I cannot say.
This brings me to the codification of procedures. I do not wish to elaborate upon what the noble Lord, Lord Mishcon, has said about it. Although I do not often pray in aid speeches coming from the other side of the House, who, indeed, am I to intervene between legal luminaries? I think that the severe difficulties of detail and the endless litigation which could arise from the codification of procedures, and their being wheeled before the judges to decide, are dangerous. We are trying to produce a compact, efficient body which will come to practical solutions quickly. But of course we want it to be done fairly. We have already discussed that to some extent.
The third thing which my noble friend would like to do is to make the decisions of the authority not just justiciable but justiciable on their merits, which means that they can be called upon to decide, not whether the authority went beyond its powers or failed to observe the letter of the law in its proceedings before it came to 841 a conclusion but whether the conclusion itself was right. I would add just this to what the noble Lord, Lord Mishcon, said. His comment assumed that there was only one applicant. I read it as that and probably I was wrong. But it could be taken to mean that there was only one applicant and he was protesting that he had not been given a licence. There may, however, have been 63 applicants, 62 of whom will not have been given a licence. All of them could say that they ought to have been given licences. That will not speed things up and make them cheaper. Therefore it is not going to be in the interests of either the consumer or of the cable companies.
May I reassure your Lordships that I have taken not only the question of consultation firmly on board. There is also no question of our trying to shelter the authority from the law. There are procedures in the statute which we are now passing that we have discussed in detail in the various clauses as we came to this point in the Bill, all of which are a legal requirement on the Cable Authority in coming to its conclusion. And the law is what the courts enforce. If, therefore, the authority does not observe the due procedures that we in Parliament have said that it should, the courts are there to put it right. That is the reassurance which is already in the Bill. I hope my noble friend will feel that that, shall I say, distillation of the rather lengthier view I was going to put before your Lordships had we come to it before dinner is in fact an answer to his case.
§ Lord Harris of Greenwich
Before the noble Lord, Lord Campbell of Alloway, replies, may I say that I hope he will not be put off unduly by the Minister's fairly predictable response to his amendment. The Minister's case is—and I speak as someone who has a high regard for those who work in Whitehall and around it—that the gentlemen in Whitehall know best. He is defending a situation whereby the authority will be given an absolute discretion. Without in any sense supporting every particular subsection of what the noble Lord, Lord Campbell of Alloway, is putting forward, I believe that we need to look at this matter far more seriously; I hope we shall have an opportunity to do so at Report stage.
The noble Lord, Lord Campbell of Alloway, said that the applicant must know what the objections in reality are. The Minister did not deal with that point at all. It seems to me wholly reasonable that an applicant should know what the real objections to his application may be. Also he deserves to have a reasoned decision; a reasoned explanation from the authority, if he fails in his application, as to why that has happened.
As the noble Lord, Lord Campbell of Alloway, said, this is a matter of natural justice. I assume that he will not press his amendment tonight. I believe it would be desirable for him to look again at the last part of his amendment, dealing with the judicial process; and that was a point made by the noble Lord, Lord Mishcon. I hope that we shall not rule out ultimate judicial review of cases of this kind. If the authority were to decide, for instance, not to renew a licence after a particular organisation had held it for a number of years, it seems wholly reasonable that, first, the authority should be compelled to explain why it has found against the applicant; secondly, in the final analysis, that, as in 842 Australia, there is an opportunity for recourse to the courts.
§ Lord Campbell of Alloway
I really should like to thank all noble Lords who have spoken to this amendment. I shall take the advice offered by them all gratefully. I shall think about this matter again, consider and consult—with a view to bringing back to your Lordships' House an amendment which might be acceptable on Report. It may even be acceptable to the inconceivable unholy alliance between the noble Lord, Lord Mishcon, and my noble friend the Minister. On the understanding that this matter will receive objective consideration on Report, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 [Copyright in cable programmes]:
§ 8.54 p.m.
§ Lord Lovell-Davis moved Amendment No. 109:
Page 19, line 15, after ("in") insert ("the transmissions of").
The noble said: In moving this amendment in the names of my noble friends Lord Mishcon and Lord Ardwick, with your Lordships' permission, I will speak also to a whole battery of consequential amendments which number 15 in all. This is a course of action which I feel will commend itself to the Committee at this stage in the Bill and at this hour. The additional consequential amendments are Amendments Nos. 110, 125 to 131 inclusive, 133 to 137 inclusive, and 139.
Amendment No. 110: Page 19, line 43, after ("in") insert ("the transmissions of).
Amendment No. 125: Page 42, line 24, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 126: Page 42, line 27, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 127: Page 42, line 30, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 128: Page 42, line 34, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 129: Page 42, line 38, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 130: Page 42, line 42, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 131: Page 42, line 45, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 133: Page 43, line 28, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 134: Page 43, line 32, leave out ("a cable programme service") and insert ("the transmissions of a cable programme service").
Amendment No. 135: Page 43, line 36, leave out ("those programmes in a") and insert ("the works in the transmissions of the").
Amendment No. 136: Page 43, line 40, after ("in") insert ("the transmissions of").
Amendment No. 137: Page 44, line 19, leave out ("a cable programme") and insert ("the transmissions of a cable programme service").
Amendment No. 139: Page 44, line 34, leave out ("a cable programme") and insert ("the transmissions of a cable programme service")
Schedule 3(6)(1) to the Bill, together with various consequential amendments I have mentioned, replaces the expression in the Copyright Act 1956:
causing the work to be transmitted to subscribers to a diffusion service
by the new expression,
the inclusion of the work in a cable programme".
By virtue of Schedule 3(5)(2), a cable programme means,
a programme included in a cable programme service".
The term "programme" itself is not defined, and it is far from clear that it would include all forms of sounds or visual images which may be transmitted via cable service. For instance, what about copyright work such as music which might be played during the interval in a cable programme service? Is the linking material itself—which may be just fill-in music, as I have said, or even an announcement about a forthcoming programme—a programme?
§ Similar difficult questions could arise in respect of services such as Oracle, Ceefax and Prestel. When a cable operator retransmits the broadcast made by the BBC and the IBA, as he will be required to do under the "must carry" franchise requirements, his subscribers will have access, through their television sets to the Oracle and Ceefax services. It is not clear that copyright works contained in those services will properly be regarded as having been included in a cable programme.
§ The transmission of the Prestel service raises similar problems, but perhaps it illustrates the central difficulty more clearly. As your Lordships will know, the Prestel service is a cable transmission service and so the problems of interpretation are not complicated by the broadcast element which is present in the Oracle and Ceefax services. In the case of Prestel, subscribers have access to information held in some central data bank which is transmitted on the demand of the subscriber, via cable, to his television set. In a Prestel-type service there is no constant transmission to which the subscriber may tune in; it is the subscriber using equipment made available to him by the Prestel service who activates the transmission by an electronic request to the central data bank which generates the transmission to him.
To avoid all these doubts, it is not only desirable but essential to amend the description of the restricted act. One way of removing the doubts which I commend to the Committee will be to expand the new description of the restricted act in the way I have indicated in these amendments by re-wording the relevant phrase to read:
the inclusion of the work in the transmissions of a cable programme service".
However, in proposing Amendment No. 109, I have to recognise—not least because the noble Lord the Minister in his reply may deploy the argument in his reply—that the definition in the Bill and that proposed in the amendment are affected by the fact that the class of cable operators to which they will apply would, by reason of Clause 2(1) and 2(7) of the Bill be entirely
dependent upon the provisions of the new Telecommunications Bill which deals with the licensing, in the regulatory sense, of telecommunications systems. I do not believe, however, that it is desirable for copyright control to be linked with a separate Act regulating telecommunications licensing. I still consider that this is a necessary amendment, and I beg to move.
§ Baroness Trumpington
I have listened with great care to the words of the noble Lord, Lord Lovell-Davis, because he is talking about a matter with which, however technical, we are in broad agreement. The noble Lord's amendments deal with the scope and terms of the rights of copyright owners under the Copyright Act 1956 to control the inclusion of their works or other subject matter in cable programmes, and thereby negotiate remuneration for their use in such programmes.
The Bill amends the terminology in which these rights are expressed in the 1956 Act to bring it into line with the terminology of the Bill. It also extends them to broadcasters and makers of sound recordings who have not previously enjoyed the right to control the diffusion of their broadcast and recording in cable programmes. The fear has been expressed that the way in which the right is drafted—namely, the right to control inclusion of a work, et cetera in a cable programme—leaves room for doubt as to whether copyright protection extends to certain categories of works when diffused through a cable system, because the transmissions in question cannot be called programmes in the ordinary sense of that word. Examples of such transmissions are Prestel and other text services, and linking items, such as short musical excerpts that may be interposed between scheduled programme items. The 1956 Act, as amended by the Bill, states that a cable programme is a programme included in a cable programme service, but does not define the word "programme" itself.
I can confirm that it is the Government's intention that such cable transmissions should come within the expression "cable programme" and that copyright works, films, sound recordings or broadcasts should only be included in them with the copyright owners' consent, unless, of course, the transmissions take place in circumstances which are specifically exempted by other provisions of the 1956 Act (for example, subsection (3) of Section 40). The Government's belief is that the noble Lord's apprehensions are unfounded and that the meaning of the term "cable programme" can be construed widely enough to embrace the types of transmission he has referred to. If this were not so, then not only would there be a need to amend the copyright provisions of the Bill: the terms "cable programme" and "programme" are used extensively elsewhere in the Bill in a sense which includes all the transmissions of a provider of a service, as indeed the word "programme" is used in broadcasting legislation generally. Even in the sphere of copyright the noble Lords' amendments would not be sufficient to correct matters if their premise is accepted, since they do not cover all the copyright instances where the term "cable programme" appears, for example, Clause 23, page 20, line 38 and Clause 23, page 20, line 42.
As I have said, I do not believe there is in fact any 845 danger that reliance on the word "programme" will allow certain types of cable transmission to escape either copyright liability or other controls provided by the Bill. I am, however, prepared to consider the matter further in the light of what the noble Lord has said to ensure that this is in fact so. If the noble Lord is correct and what I have said is not, I can undertake to consider what adjustments might be made to secure the objectives on which we are all agreed. In the light of this undertaking, I would invite noble Lords to withdraw the amendments.
§ Lord Mishcon
I am sure we are all very grateful for what the noble Baroness has said. May I ask whether she will give possibly added attention to what my noble friend has already said in support of this amendment in the knowledge that it has the full support of the British Copyright Council, whose views have been paraphrased by my noble friend? In those circumstances, of course, he has a very weighty source. May I also ask the noble Baroness whether in the course of her consideration, without wearying the Committee with arguments for the necessity of it, she would consider the words:the communication of the work to the public by any means of cable diffusion"?These are words, too, that have been advocated by the Council and she may therefore like to give attention to what they have to say. I know that they have been in communication, possibly not only with the noble Baroness's own Ministry that she so adequately represents but also the Department of Trade and Industry.
§ Baroness Trumpington
I thank the noble Lord for his remarks. As I said, these are very complex and technical issues. If the noble Lord reads in Hansard the very carefully prepared statement which I have just made I think he may find an answer to his question; but, if not, we can return to the subject at a later date.
§ Lord Lovell-Davis
I am most grateful to the noble Baroness, Lady Trumpington, for that reply. The purpose of this amendment, as I am sure she appreciates very well, is to redefine the new description of cable use as one of the restricted acts under the control of the copyright holder. The matter of definition is a key element in this Bill. I feel that something along the lines of my amendment or the suggestion put forward by my noble friend should be considered. It was my intention to draw attention to this matter. I am very glad the noble Baroness has heard me. I think the matter should be given further consideration. At this stage I shall not press the matter, but beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 110 not moved.]
§ Lady Saltoun moved Amendment No. 111:
Page 19, line 45, at end insert (", if it is seen or heard by a paying audience.")
§ The noble Lady said: The words which this amendment adds to Clause 22(8)(c) appear earlier in the clause in subsection (56)(c). I am at a loss to understand why they do not reappear, unless it is a drafting error. I wonder whether there is some explanation. I beg to move.846
§ Baroness Trumpington
The purpose of the new Section 14A of the 1956 Act is to give cable operators a copyright of their own in programmes which they themselves originate and transmit, separate from and additional to any copyrights which may subsist in the material included in those programmes. Since the position of cable operators putting out original programmes will be very much akin to that of broadcasters, the drafting of Section 14A follows closely the wording of Section 14 of the 1956 Act, which deals with broadcasters' copyright in their broadcasts. Thus the inclusion in Section 14A(5)(c) and the omission from Section 14A(8)(c) of the words,if it is seen or heard by a paying audience",will be seen closely to mirror a similar inclusion and omission in Sections 14(4)(c) and 14(7)(c) of the 1956 Act. The inclusion of these words both in Section 14(4)(c) and in Section 14A(5)(c) derives from the need to avoid institutions such as hotels and clubs having to clear a multiplicity of public performance rights whenever they switch on a TV set in, say, a lounge or a bar.
However, Section 14(7) of the 1956 Act, which is mirrored as to cable diffusion by the new Section 14A(8) introduced by Clause 22, is for a different purpose. It is designed to make clear the limits of the "private purposes" for which video or sound recording of broadcasts is allowed without the broadcaster's consent, under Section 14(4)(a) and (b). There was never any suggestion that recording of broadcasts should be allowed for purposes of playing or showing in public, in hotels or anywhere else, without the broadcaster's consent. The purpose of Section 14(7) was to make clear that a film or recording of a broadcast made "in private" could not truly be said to be "for private purposes" if the real intention was to sell it, broadcast it, or cause it to be seen or heard in public. The new Section 14A(8) applies the same principle to recordings of cable programmes.
I hope that the noble Lady, and indeed noble Lords, will feel reassured to know that the whole question of exceptions, both to public performance rights and to other copyright, is under review as part of the general revision of copyright legislation which the Government hope shortly to introduce. I hope that in the light of my explanation and final remarks the noble Lady will feel able to withdraw her amendment.
§ Lord Mottistone
I do not think that my noble friend has answered the noble Lady's question at all. She has answered the question that she thought the noble Lady was asking, and it did not relate to what was asked in the first place. It is an awful pity, and perhaps my noble friend can help us.
§ Baroness Trumpington
First, I should like to say to my noble friend that I answered the question put, I thought, by the noble Lady when she asked whether there was a drafting error. Perhaps if my noble friend would care to read Hansard tomorrow he may think of writing to me.
I personally am immensely reassured by that explanation, and I am most grateful to the noble Baroness for the trouble she has taken to give it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.847
§ Lord Howard of Henderskelfe moved Amendment No. 111A:
§ Page 20, line 35, at end insert ("save that that expression shall include any such service where the matter sent is data whether alone or in combination with any sounds or visual images".").
§ The noble Lord said: We have a series of amendments here which I need not dwell on for very long because many of them arise, in a different context, from points I have made earlier in the proceedings. We are, or have been, talking about copyright, and I start with my well-known act of trying to make sure that the definition of what is included shall include what I have now started to call "data"; in other words, things which are not moving images and are not sounds. It is my endeavour that that should be included at this point.
§ I do not think that it would be totally helpful at this stage to try to pick up from the rest of the amendments, of which there are a great many, those which directly relate to this amendment. I think I should move them one by one in order not to get into too much of a muddle. However, if the Minister prefers to deal with them in a batch, I have no objection.
§ Lord Elton
I wonder whether I can help the Committee. I do not want to prevent the noble Lord from being specific about his concerns, but I think I probably know what they are. I shall respond now, if I may, with what I propose to say, and at the end of my intervention the noble Lord can decide whether or not he need go on.
I was going to start by saying how grateful I was to him for raising an important matter—
§ The Deputy Chairman of Committees (Lord Ampthill): Amendment proposed:
"Page 20, line 35, at end insert",
§ the words as printed.
§ Lord Harris of Greenwich
I realise the amendment we are discussing, which is the one that has just been put to the House, but what other amendments are we taking at the same time? I am not wholly clear what we are discussing.
§ Lord Elton
I should like to apologise to your Lordships for the gaucherie of my earlier intervention. My understanding was that we should probably be addressing ourselves not only to Amendment No. 111A but to Amendments Nos. 112A, 112B, 112C, 116ZA and 132A.
I wanted to give a very douce answer, and, having said how grateful I was to the noble Lord, Lord Howard of Henderskelfe, (and only in parenthesis saying that I wished he had given us rather longer to consider such a complicated matter) to say that the broadcasting of what he terms data is a new phenomenon. It is not surprising that neither the Copyright Act nor the Bill explicitly allows for it. The Government agree that when computer programs and other matter falling outside the terms "sounds" and "visual images" are broadcast, the broadcaster should receive the same copyright protection as he would in relation to anything else that he puts out over the air. Cable operators should be similarly treated when they 848 include such matter in cable programmes. We shall certainly consider how best to ensure that this is achieved. I think this was the objective of all the amendments in the group, although I am open to correction.
As they stand, the amendments raise a number of questions, The noble Lord will not be surprised to hear that in their present form we are not entirely happy with them. One obvious question to be looked at is the implication of the amendments for the rest of the Bill and, indeed, for broadcasting legislation generally. The amendments bear only upon the Copyright Act; but of course the terms "sounds" and "visual images" are used elsewhere in the Bill—for example, in Clause 2—and also in the Telecommunications Bill. Where the expression "cable programme service" is used in contexts other than copyright, is the term to be understood as excluding or including what the noble Lord calls data, and so on? Also, the definition of data is itself a highly intricate matter, which we discussed at great length during debates on the Data Protection Bill—as the noble Lord, Lord Harris of Greenwich will remember—which is still to solidify onto the statute book and with which we may well find that we need to remain consistent.
I am a little anxious at the idea of committing ourselves to a specific definition at this stage of the Bill, but we are very much aware that this really rather new phenomenon ought to be embraced in legislation in terms which are clearly understood. I hope the noble Lord will find that helpful.
§ Lord Howard of Henderskelfe
I find both sections of the noble Lord's reply extremely helpful. The only other point that comes under the same heading is the question of other rights owners such as the authors either of computer programs or books. They ought not to be deprived of copyright protection against the cable distribution of their works if the transmissions do not consist of sounds, and so on. It is the same old point. If a computer program is downloaded over a cable, or where a book is accessed by a subscriber from a data base which is controlled by a cable operator, there ought to be copyright protection. It is I think one of the most difficult areas in which we are dealing in the whole Bill. If your Lordships will allow me to continue on this basis, because we seem to be getting the answers as we go along, the other point is contained in Amendment No. 113, but your Lordships may prefer to leave that until we have dealt with the amendments up to Amendment No. 112C. May I withdraw Amendment No. 111A, and also not move the other amendments up to Amendment No. 112C?
§ Amendment, by leave, withdrawn.
§ Clause 22 agreed to.
§ Clause 23 [Other amendments of 1956 Act]:
§ 9.19 p.m.
§ Lord Howard of Henderskelfe moved Amendment No. 112:
Page 20, line 38, at end insert—
("( ) Paragraph (a) of subsection (1) of section 14 of the 1956 Act is hereby amended by the addition after "the Authority" of the words "or any other person licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception".").
§ The noble Lord said: I have to move Amendment No. 112 in order to be able to move Amendment No. 113. The point here is that at present the only people who have so far been regarded as authorities or broadcasters have been the IBA, the ITC companies under it and the BBC. In the future I think it is almost certain that consortia will be formed, whether between the various ITCA companies and the BBC, among the various ITCA companies themselves or between the IBA and the BBC, in connection principally with DBS. Your Lordships all know what the problems of DBS have been and are likely to continue to be.
What we are anxious about is that, in addition to the BBC and the IBA, we should have a class comprising,
any other person licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception".
I hope that that is clear. Indeed, I shall now sit down in order to find out whether I have made myself clear on this matter. I beg to move.
§ Baroness Trumpington
I think that the noble Lord, Lord Howard of Henderskelfe, has made himself crystal clear. I believe that the ground of this amendment was covered during discussion of a number of amendments that the noble Lord, Lord Howard, sought to make to earlier clauses. The principal purpose of those amendments was to pave the way for the future by replacing the references in Clause 12 to "DBS services" by references to "pay services", and by replacing references to the BBC and the IBA in all other statutes by references to people,licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception".As the noble Lord has explained, the present amendment is consequential on the second of those changes and would ensure that copyright subsisted in programmes broadcast by anyone licensed to broadcast.
As was explained during the discussion of the noble Lord's earlier amendments on this subject, the developments foreseen by the noble Lord are entirely hypothetical. I have no doubt that if in the future an organisation other than the BBC or the IBA were authorised to broadcast—as the noble Lord has suggested—it would be possible at that time to make all the necessary adjustments to the Copyright Act and to other relevant pieces of legislation. But that is something for the future. On that basis I would invite the noble Lord to withdraw his amendment.
§ Lord Howard of Henderskelfe
With all respect to the noble Baroness, I would say that there is a precedent for this kind of definition, which is contained in the British Telecommunications Act 1981, and it also appears in Clause 6(5) of the Telecommunications Bill, which we are shortly to consider.
§ Baroness Trumpington
That is as may be; but the point is that if the supposition which the noble Lord earlier presented materialised in the future, there would have to be new legislation.
§ Lord Howard of Henderskelfe
I cannot say that I find that an entirely satisfactory reply, when we already have such a definition in other legislation 850 produced by a different Ministry. I do not see the difficulty in inserting in all the appropriate places this extra definition to which I have referred at various stages. I am not quite sure whether I have withdrawn the amendments concerning it—this is one of the problems—because the point to which it relates occurs so often throughout the Bill, and one has to keep on trying to insert the definition in all the appropriate places. I think the fact that the definition occurs in the British Telecommunications Act and in the Telecommunications Bill is a very good precedent for it to be included in this Bill.
§ Baroness Trumpington
While I accept that in the context of DBS the possibility of new arrangements in our broadcasting structures may not be quite as hypothetical as I may have suggested, nevertheless I think that we should be unwise to provide for the future until we know a little more clearly what it will look like. I take the point about the definition having appeared in other forms elsewhere, but I still do not see any reason to anticipate a point that can easily be legislated for prior to its occurrence.
§ Lord Howard of Henderskelfe
I am sorry; the noble Baroness says that it could easily be legislated for, but I know how long Ministries have to wait for legislation. It may well be that, by refusal to accept such a definition, it will not be possible to get DBS on the air. The only hope of getting DBS on the air may be to have some type of consortium of this nature between either the commercial companies in ITV or the IBA itself and the BBC. There may be no other way of doing it. If we are going to do it we have got to move fast. It is no good waiting for further legislation to allow us to do it.
§ Baroness Trumpington
I bow to the noble Lord's very superior knowledge on this issue. I would be glad to take the matter back and to have a look at it.
§ Lord Howard of Henderskelfe
I thank the noble Baroness for saying that she will take the matter back and have a further look at it. In those circumstances; I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Amendments Nos. 112A, 112B and 112C not moved.
§ 9.27 p.m.
§ Lord Howard of Henderskelfe moved Amendment No. 113:
§ The noble Lord said: This amendment again arises as regards copyright. It concerns circumstances where Clause 12(3) does not apply and it does not apply in certain specific cases where the cable is being provided on a limited basis. There are so many definition of cable services that I shall try not to use one of the technical ones. But where, for example, we have a block of flats and a single aerial on the top and a down lead to each individual flat, it is likely to be an 851 exempted service as regards which Clause 12(3) will not apply.
§ Clause 12(3) enables the broadcaster to get into a relationship with the cable operator who is covering his DBS service. It enables him to come to terms with him as to how they share out the payment for that service. But where it does not apply, there does not appear to be any means or mechanics whereby the broadcaster can get into that relationship with an operator who is distributing his "pay" service.
§ This amendment would provide the necessary protection. I believe that the detail relating to this matter was sent to the Home Office a considerable while ago and the Home Office, therefore, is not without knowledge of the difficulties which will be faced here. I beg to move.
§ Baroness Trumpington
It is simply lovely for me to be able to agree that the noble Lord, Lord Howard, has raised an important point. We are willing to take the matter back and to have another look at it. I should give our reasons for not being able to accept the noble Lord's amendment and also flesh out the information that he gave us from the Government's point of view. The Government agree that it would be inappropriate for cable operators to enjoy the right to diffuse broadcasts within their intended reception area free of copyright royalties, where the broadcasts so diffused are subscription broadcasts and where the operator, because exempted from the need for a Cable Authority licence, is not subject to the operation of Clause 12(3). I do not envisage that there will be many such cases but it is right that they should be provided for.
There is a problem here which needs to be tackled and we would like to reflect further on whether the approach in the noble Lord's proposed amendment could provide the basis for a solution. We do, however, see certain difficulties in the amendment as drafted. First, it bears only upon the right of broadcasters to control the inclusion of their broadcast in cable programmes. But authors and other copyright owners have (or will shortly have) similar rights in respect of the inclusion of works, sound recordings and films in cable programmes, and these are suspended in respect of simultaneous cable diffusions of broadcasts within the intended reception zone by virtue of Section 40(3) of the 1956 Act, just as broadcasters' rights are so suspended by virtue of Section 14(8A). Thus, for consistency a similar amendment would also be required to subsection (4) of this clause. Secondly, I question whether the noble Lord's amendment is correct in referring to DBS services to which Section 12(3) of the Cable and Broadcasting Act does not apply; the reference should, perhaps correctly be to Section 12(1). In the light of what I have said and my undertaking to consider the point, I hope that the noble Lord will be prepared to withdraw this amendment.
§ Lord Howard of Henderskelfe
As the night advances, the noble Baroness becomes more and more accommodating. Therefore, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.852
§ Lord Howard of Henderskelfe moved Amendment No. 114:
Page 21, line 14, after ("comprising") insert ("or including the whole or any substantial part of").
§ The noble Lord said: This is largely a drafting amendment. It is intended to improve the drafting of the proposed new subsection (3) of Section 40 of the Copyright Act 1956, which is set out in subsection (4). That says that the copyright is not infringed by its inclusion in simultaneous "in-area" broadcasts. However, this applies only where a programme comprises the work, and there is some doubt about what that word "comprises" means. For example, where only part of a work is used or the work constitutes less than the whole programme it might be possible for the author to contend that the programme did not comprise his work and that no infringement had occurred. It is not dissimilar to something we were discussing only a few minutes ago. We recognise that similar wording in the existing subsection (3) of Section 40 has not led to challenges of this kind in the past, but in the present circumstance, where commercial interests are becoming of ever greater magnitude, I fear that it may lead to problems and I hope that they might be avoided by my amendment. I beg to move.
§ Baroness Trumpington
The Government share the objective of this amendment, but believe that the apprehensions of the noble Lord are unfounded. Government drafting is often mysterious, but in this case it is surely unduly narrow to interpret the word "comprise" so as to rule out the sense "include". To support this contention the word "comprise" is specifically listed as one of the meanings of the word along with "embrace", "contain", "extend to" and "cover" in the Shorter Oxford English Dictionary. The word is used in the wider sense in other intellectual property legislation, notably the Patents Act 1977. To add the word "including" in line 14 would therefore be unnecessary repetition.
As to the remaining words contained in the noble Lord's amendment, I suggest that these are rendered unnecessary by Section 49(1) of the 1956 Act. This makes clear that:Except in so far as the context requires otherwise—which in this case it does not—any reference in this Act to the doing of an act in relation to a work or other subject matter shall be taken to include a reference to…a substantial part thereof".In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
§ Amendment, by leave, withdrawn.
§ Lord Howard of Henderskelfe moved Amendment No. 115:
Page 21, line 14, after ("an") insert ("adaptation of such a work, or an")
§ The noble Lord said: This next amendment may seem pettifogging, but we are supposed to be revising and getting these things absolutely right because we know we are going to get them "righter" than the other place, so let us make sure that we do. This deals with adaptations of copyright work. They are mentioned in 853 the penultimate line of the subsection, and they are therefore presumably meant to be covered. They ought to have been mentioned earlier in the subsection as well as at or near the end. I beg to move.
§ Baroness Trumpington
In order to go speedily, may I hastily say that with regard to Amendment No. 115 the noble Lord, Lord Howard, is quite correct, and I am happy, therefore, to accept the first of his amendments.
I submit that the noble Lord's second amendment is not necessary. Apart from the addition of the word "recording", the words "infringement of the copyright (if any) in the work, recording or film" repeat without changing the words of the 1956 Act. No reference to an adaptation is necessary at this point because infringement of the copyright in an adaptation of a work involves infringement of the copyright in the work itself. I hope, therefore, that the noble Lord will feel able to withdraw his second amendment.
§ Lord Howard of Henderskelfe
The answer to the first amendment was absolutely splendid; the answer to the second I shall read in Hansard. As to the second amendment, when we reach it, I shall not move it.
§ On Question, amendment agreed to.
§ [Amendment No. 116 not moved.]
§ [Amendment No. 116ZA not moved.]
§ Clause 23, as amended, agreed to.
§ Clause 24 [Amendment etc. of law relating to obscene publications.]:
§ Lord Howard of Henderskelfe moved Amendment No. 116ZB:
Page 22, line 16, leave out from first ("programme") to ("of") in line 17 and insert ("consisting")
§ The noble Lord said: I beg to move Amendment No. 116ZB as printed. This ensures that once a programme has been broadcast by the BBC or the IBA it will retain its privilege against liability under the Obscene Publications Act in the event of a subsequent non-simultaneous transmission on a cable service.
§ The wording, I suggest, goes a little further than this and extends the privilege to video sales in Amendment No. 116ZC. I am not altogether sure about this myself. I mean, I am moving an amendment in which I have not absolute confidence. I have complete confidence in the first part of it; that is to say, the non-simultaneous broadcasting by cable companies. I think we are still in considerable difficulties over videos, and I, for one, find it extremely difficult to make up my mind about exactly what we should do. I think I know what I shall have to do when it comes to it, but at the moment I should like to move No. 116ZB.
§ Lord Elton
It seems to me that in fact amendments Nos. 116ZC, ZD and ZF hang inextricably with this one, and I shall speak to these as well on the assumption that I shall dispose of them all at the same time. The Government, I regret, cannot accept that this extension of the broadcasters' special position under the Obscene Publications Act is either necessary 854 or desirable. So far as the broadcasts themselves are concerned the broadcasters have their own particular obligations to ensure that what they put out does not offend against good taste and decency. That is a more stringent requirement than simply having to avoid what is obscene.
The broadcasters have to have regard to the way in which taste can change over the years. In addition, they are in a position to ensure that material which might perhaps be acceptable for transmission at midnight is not shown at six o'clock in the evening when large numbers of young people are watching. None of this applies when the broadcasters supply a programme for subsequent showing on cable or for distribution through video shops. They can then have no direct control over how and when the material is made available to the public, and it would seem inequitable therefore to treat it any differently in law from material supplied by other programme sources.
Clause 24(2) is merely designed to avoid the anomaly which would exist if a broadcast were exempt from the Obscene Publications Act when it was transmitted over the air direct to the home but within the scope of the Act as soon as it was relayed over cable. That is a perfectly reasonable proposition and is in effect merely making sure that the existing position in relation to broadcasts is not altered as a result of the introduction of cable. To go further and extend the exemption to anything which had ever been broadcast would in the Government's view be wrong, and I do see why the noble Lord did not have full confidence in his amendment.
§ Lord Howard of Henderskelfe
This is a case where I am particularly glad to have the Government's reasoning and thoughts on it because they are to me quite convincing, particularly those in relation to the different timings of particular programmes. No doubt all broadcasters will consider carefully when it is suitable to repeat a programme which has been originally broadcast very late at night, but they cannot be at all sure that cable programmers will necessarily exercise the same care. In any event, they have no control over what they do with the thing when they have got it. With your Lordships' leave I will withdraw Amendment No. 116ZB.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 116ZC and 116ZD not moved.]
§ Clause 24 agreed to.
§ Schedule 2 [Application of the 1959 and 1964 Acts to Northern Ireland]:
§ [Amendments Nos. 116ZE and 116ZF not moved.]
§ Schedule 2 agreed to.
§ Clauses 25 and 26 agreed to.
§ Clause 27 [Incitement to racial hatred]:
§ [Amendments Nos. 116A and 117 not moved.]
§ Clause 27 agreed to.
§ Clause 28 agreed to.855
§ 9.44 p.m.
Lord Harris of Greenwich moved Amendment No. 118:
After Clause 28, insert the following new clause:
§ ("Freedom of Expression
§ .—(1) Nothing in this Act shall be construed as authorising or requiring any act to be done by the Secretary of State or the Authority which infringes the right to freedom of expression of any person within the jurisdiction of the United Kingdom.
§ (2) In this section the right to freedom of expression means freedom to receive and impart information and ideas.
§ (3) For the purposes of this section an act shall be taken to infringe the right to freedom of expression if and only if it interferes with such freedom in a manner or to an extent which is not necessary in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.").
§ The noble Lord said: I beg to move the amendment standing in my name and that of my noble friends Lord Aylestone and Lord Winstanley. Our purpose today is to begin a debate on this issue. Particularly in the light of the lateness of the hour I do not think it would be appropriate to try to press this matter today. We shall obviously decide in the light of what the noble Lord, Lord Elton, says subsequently what action we shall take at a later stage of the Bill.
The central purpose of this amendment is to ensure that the Secretary of State and the new Cable Authority exercise their powers in full conformity with United Kingdom obligations under Article 10 of the European Convention on Human Rights. I will deal first with the precise terms of the amendment. Subsection (1) refers to the right of,
any person within the jurisdiction of the United Kingdom"—
because Article 1 of the convention obliges the high contracting parties to,
secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention"—
including the rights and freedoms defined in Article 10.
§ Subsection (2), in defining the right to freedom of expression, uses the relevant part of the definition in the second sentence of Article 10(1) of the European Convention on Human Rights. Subsection (3) adopts the test of necessity contained in Article 10(2) and the grounds set out there upon which it is permissible for the State and for public authorities to interfere with the right of free expression.
§ I turn now to the merits of the case. I recognise at the outset that it will be argued by critics, "Why not leave the Bill precisely as it is because", it will be said, "the powers of the new Cable Authority are similar to those already possessed by the Independent Broadcasting Authority". To that argument I will reply in advance. First, the IBA model is not an appropriate one to adopt in the context of cable broadcasting which, as has been repeatedly said in the course of the debates in Committee, differs in important respects from public service broadcasting. Secondly, it is possible that some of the practices of the IBA, even when they had the benevolent leadership of my noble friend Lord Aylestone, in some respects contravene Article 10, as I will attempt to demonstrate. It is no justification for a policy which breaches the international obligations of the United Kingdom that those obligations are 856 similarly contravened by the United Kingdom in other respects.
§ I deal first with the comparison between the IBA and the new Cable Authority. As I have indicated already, the powers accorded to the IBA under the Act and the powers accorded to the authority under this Bill are similar. The basic position is that in each case Parliament establishes a body to control access to broadcasting and gives that body wide discretionary powers to regulate the identity of licensees, the content of broadcasting, and the quantity and the quality of advertising. The powers given to the new Cable Authority in the Bill largely replicate those possessed by the Independent Broadcasting Authority, and in Clauses 4, 9, 10, 11 and 15 the authority is given sweeping powers which are defined only in the most general terms—a point touched on in the debate on an earlier amendment. I do not believe that the IBA model of broad discretionary powers to impose limitations on freedom of expression is appropriate for cable broadcasting.
First, the IBA is providing public service broadcasting. Section 2(2) of the Broadcasting Act imposes on the Independent Broadcasting Authority a duty,
to provide the television and local sound broadcasting services as a public service for disseminating information, education and entertainment".
To achieve these purposes the IBA needs closely to regulate programme content. We know the IBA devotes an immense amount of time and resources to that. By contrast, cable broadcasting serves a different purpose. The Government's White Paper points out in paragraph 5, that Cable technology,
poses a particular and exciting challenge because it has the potential both for removing many of the previous limitations on the number of programme services, television and sound, which can simultaneously be transmitted to the home and for increasing the range of interactive telecommunications services available both domestically and at the office.".
Whereas Section 2(2) of the Broadcasting Act sets out the objectives which the IBA is asked to attempt to achieve, this Bill does not explain for what objective the Cable Authority is given such broad powers of regulation.
Secondly, in cable broadcasting, by contrast with public service broadcasting, the White Paper says:
It will be consumers from their own purchasing power who will decide whether they wish to buy the range of new services which cable will offer".
If I may say so, I think that is entirely right but, that being so, the Government should aim to leave it to the consumer to decide whether to purchase the service. I think that regulation should be designed to facilitate choice and not to exercise that choice for the consumer.
As I have already indicated, even if it is appropriate to compare the IBA with the new Cable Authority for the purposes of developing a regulatory régime for cable broadcasting, it is likely that it could be argued that in some respects the IBA itself is in breach, in terms of the power conferred upon it by Parliament, of some of the requirements of Article 10 of the European Convention. For example, the IBA code prohibits advertising by charities or advisory services related to consumer problems. I believe that these
existing restrictions are difficult to reconcile with Article 10 of the Treaty, to which this country has subscribed. Yet the White Paper, in paragraph 100, goes no further than to say this:
It may be possible for some products or services to be advertised on specialist cable channels which would not be appropriate for independent television".
§ To the extent that the Government ask us to believe that the IBA's powers and the new Cable Authority's powers are already consistent with Article 10, they cannot logically object to the Bill containing a provision requiring an authority to comply with Article 10 in the exercise of its powers. Of course, the Government may be satisfied that these powers will not be abused in the near future; but I think it is desirable to impose legally binding restrictions to prevent any possible future abuse.
§ Lastly, let me say this to the noble Lord, Lord Elton. I hope that we will not hear from him those bland reassurances that have been given by Ministers of different Governments in the past. This Chamber and another place have been constantly assured that various pieces of legislation favoured by the Government of the day are entirely consistent with our obligations under the European Convention on Human Rights—and just as consistently they have been proved totally wrong. In case after case this country has been dragged to the Commission and subsequently to the European Court, and has lost. No other country which subscribes to the Treaty has lost so many cases of such high importance.
§ To take only one example to demonstrate this, 80 cases have been declared admissible against the United Kingdom and only 37 against West Germany. And the disparity is a great deal greater than that, because West Germany accepted the right of individual petition 11 years before the United Kingdom. Most recently, as will be within the recollection of the Committee, the British Government assured us that the foreign husbands' rule in immigration cases was entirely consistent with the European Convention on Human Rights, but, as we all know, the European Commission found against us. Today, we are seeking to avoid a repetition of further episodes of this character which have, I believe, in the last few years quite needlessly damaged the reputation of this country. We are seeking to ensure today that the new Cable Authority is specifically required to observe the terms of the Convention. I beg to move.
§ The Deputy Chairman of Committees
Before putting this amendment, may I reassure the noble Lord, Lord Airedale, that Schedule 1 was agreed to some days ago?
§ Lord Elton
The noble Lord, Lord Harris of Greenwich, has raised an extremely important question concerning freedom of expression. As the noble Lord has made clear, his new clause is based on Article 10 of the European Convention on Human Rights. The convention was ratified by the United Kingdom many years ago, and for some time now individuals have had the right to address petitions alleging violation of the rights and freedoms defined in the convention to the Commission of Human Rights. 858 We also recognise the compulsory jurisdiction of the Court of Human Rights.
The noble Lord has eloquently elaborated both his motives and the effects of his amendment, and, if I can summarise what we see as those effects, they would be to incorporate a part of that convention into a part of our law. As to incorporation of the whole convention, the Select Committee of your Lordships' own House, which examined the possibility of a Bill of Rights in 1978, was divided on the desirability of legislation to incorporate the convention. We do not think that it would be right, on a matter of such constitutional importance, to proceed without a broad measure of agreement to the principle.
The whole question of incorporation into domestic law of the convention raises profound issues which go far wider than the scope of our present, modest Bill which we are considering today. This may not therefore be the occasion for considering the underlying questions of principle concerning incorporation. But whatever the outcome of such reconsideration might be, I think your Lordships will agree that it would be quite wrong to incorporate parts of the convention into domestic law piecemeal, as the noble Lord's amendment seeks to do.
Let me add very emphatically that the Government's disagreement with the amendment does not result from any lukewarmness on the question of freedom of expression. We entirely accept that people should have the right to express themselves freely, subject to the constraints of the law, on cable as elsewhere, and to do so under the shelter, as it were, of the convention. The new clause talks in terms of acts done by the Secretary of State or the Cable Authority which might infringe the right of individuals to freedom of expression. In fact, the Bill gives the Home Secretary no locus at all in the area of programme content except in so far as he may issue directions concerning classes of advertisements or methods of advertising which may not be employed.
I do not know whether the noble Lord regards that as an addition to the series of bland assurances from successive Governments. As he stood at this Dispatch Box, speaking with the authority of a member of the same department as I speak for now, in that succession, I am sure he will not want to press me further on that. Neither will the Cable Authority be in the business of censoring cable, although it does perfectly properly have duties to enforce programme standards in areas such as taste and decency.
We are firmly wedded to the principle of free expression. It is one which I rather think we in this country were committed to as a nation long before other European countries got around to considering this convention at all. Indeed, we exported it to America before the United States or the European Communities had come into existence. I am much obliged to the noble Lord for the opportunity to reaffirm that commitment on the part of Her Majesty's Government; but the Government's view is that the question of incorporating it in statute goes very much wider than a Bill with the limited purposes of that which is now before us, and that it would be quite wrong now to embed a reference fragmentarily in such a Bill without a debate which could not possibly 859 be confined within the limits of the Order Paper to which we are now addressing ourselves.
§ Lord Houghton of Sowerby
I agree with what the Minister has just said, It would be a mistake to continue to reproduce different definitions of "free speech" in different statute law dealing with different aspects of our affairs, If we are going to do this, we should do it comprehensively arising from the convention and let it be the general umbrella under which our freedom of speech is centred.
My objection to the amendment as it stands is that while subsections (1) and (2) are all right, subsection (3) gives far too much away. It begins to qualify in numerous directions the extent of free speech. If noble Lords will underline them, they will see how many there are.
What is more, one has to refer back to Clause 9 of the Bill which deals, under the duties of the authority, with the general provisions as to programmes. What do the authority have to do? They have to ensure that nothing is included in the programmes which offends against good taste—if anybody knows what that is—or decency, or is likely to encourage or incite to crime, or to lead to disorder, or to be offensive to public feeling—all that, plus what is in subsection (3) of the amendment which deals with national security, territorial integrity, public safety: the lot. If you are to be confined by all these restrictions, there is nothing left to say except "Boo" to the goose. And if you said "Boo" to the gander you would probably be caught, because it would be an incitement to disorder. It is so ludicrous, it seems to me, to come forth like a knight in shining armour with "freedom of speech" emblazoned on the shield and then, at the back of it, to have a whole string of qualifications which seem to reduce the right of free speech to the conventional exchanges of goodwill between one man and another.
There are aspects of the censorship of broadcasting which need to be examined in relation to other aspects of free speech. I believe that the chief culprit here is the IBA rather than the BBC. However, at this hour I do not intend to stand between the Committee and the noble Lord, Lord Howard of Henderskelfe, who is entitled to unimpeded progress, as they call it, and to the resumption of the debate on more meaningful amendments. However, I hope that my noble friend Lord Harris of Greenwich will not press his amendment. It does not do what he intends it to do. There is far more involved here than can be dealt with either in this amendment or in this debate. On another occasion I shall outline to this or to another committee some of my grievances against the IBA—the subtleties of the censorship of broadcasting and all the rest. That is a joy to come.
After four hours of saying nothing in this Committee I was reflecting upon what might be 'a parliamentary heaven and came to the conclusion that, as a Minister in charge of a Bill, it would be where there was no more moving of amendments: and my idea of a parliamentary hell would be where the Minister in charge of a Bill was faced with no limit to the number of amendments and with no withdrawal of any of those amendments.
§ Lord Harris of Greenwich
As I indicated earlier, I do not propose to detain the Committee at considerable length; I realise that it is the general wish of the Committee to make as much progress as possible. But I look forward at some stage to debating this matter at rather greater length with the noble Lord who has just resumed his seat. He and I are allies on most issues, though not, unhappily, on this. I repeat to him that if we do not move in the direction in which this amendment endeavours to move—towards incorporating in the Bill our treaty obligations so far as the European Convention on Human Rights is concerned—this country will continue to have the worst record in Europe of being dragged to Strasbourg in one civil rights case after another. That, as we all know, is the reality of it. Having made that point, the hour is late and I beg leave to withdraw the amendment. We may well return to it, however, at a later stage of the Bill.
§ Amendment, by leave. withdrawn.
§ Clauses 29 to 31 agreed to.
§ Clause 32 [Power to make copies of scripts and records]:
§ On Question, whether Clause 32 shall stand part of the Bill?
§ 10.5 p.m.
§ Lord Howard of Henderskelfe
New as I am to the procedures of your Lordships' Committee, I am not sure whether this is the correct moment for me to rise, but at the nod of the Deputy Chairman of Committees I believe it is, to tell your Lordships why I believe that Clause 32 should not stand part of the Bill.
The only precedent that I have been able to discover for the powers which are described in this clause are those contained in the Theatres Act 1968, where similar powers are given to the police in relation to the production of scripts. The Obscene Publications Act does provide for powers of search and seizure, and these can be issued by a magistrate to allow a constable to search premises and various stalls and vehicles, and to seize and remove articles which a constable has reason to believe are obscene and kept for publication for gain.
Presumably the mischief with which those powers are intended to deal consists of large stocks of obscene articles which, if not seized, would find their way into circulation. Indeed, in a sense they work in the criminal law in the same sort of way that the Anton Pillar action and judgment acts in civil law.
The Public Order Act 1936, as amended by the Race Relations Act 1976, contains no such powers or any similar power. The Theatres Act 1968 is not and has not been assimilated into either the Obscene Publications Act, the Race Relations Act, or the Public Order Act. Obscene performances and threatening, abusive or insulting words which are likely to stir up racial hatred are subject to specific provisions under the Theatres Act 1976—although that, of course, relates only to stage plays.
What is being suggested is that if the obscenity laws are applied to cable, then it follows—although I do not quite see why—that the enforcement provisions 861 applicable in obscenity matters should also apply to cable. If that is the reasoning behind this clause, then the force, if there is any, must come from the existence of the Theatres Act 1976 as a precedent. It does not come from the principal Acts because no such provisions appear in them.
It is perfectly true that there is greater similarity between theatre and cable than between books and cable, but there is not necessarily all that much similarity between a live theatrical production and a cable production, even if the cable production is in itself live. Whether one is seeing a filmed version or an immediately staged version of a play makes very little difference. It may do so in the case of sporting events; but there some different psychology applies, because one wants to know who is going to win. There are differences anyhow between theatre and cable. It is not necessarily right to control cable in the same way as the stage, and the one is not necessarily a guide to the other.
Broadcasting has developed in this country to a very large degree independent of Executive interference. My experience as both a governor and chairman of the BBC—and I spent 11½ years in those two positions—was that virtually never was pressure brought to bear, either overt or covert, upon the broadcasters to change what they were proposing to do. I can remember very few instances indeed, and those very few instances, which certainly could be counted on half a hand, were in fact all connected with the Foreign Office and the effect the Foreign Office, always wrongly, thought particular programmes might have upon subsequent foreign relations. "Death of a Princess" was not, of course, a BBC production, and may have had a different effect.
The great strength of our broadcasting has been the fact that it has been free of pressures, political pressures in particular, and because of the wisdom of excluding directly sponsored programmes it has been to a very considerable extent free also of commercial pressures. One of the reasons why independent television as it has grown up has been able to produce some marvellous programmes has been the lack of pressures upon it, as well as having plenty of money to produce them, but that is another matter.
If that has been so—and it is perfectly true that neither the BBC nor the IBA have ever been required to show scripts or tapes of programmes to anyone before broadcasting—we are about to have a third force in that market and cable is to be that third force. They will be competing with the BBC and the ITV for viewers, with unforeseen results, which we can none of us predict, upon the quality of our programmes. But in regard to what the viewer sees, it does not matter to him whether it is delivered by cable, DBS or from a terrestrial station. However it arrives, it is still the same television picture at the end of the day.
It is a sister service, and we have to regard it as such, to those which broadcast and supply. Because it is a sister service what applies to it will sooner or later—and I am absolutely certain of this—be proposed for broadcasters. If it applies to cable, cable will be given as a precedent to support its being applied to broadcasters just as much as to cable operators. So the fear is that giving the police powers to require the 862 production of scripts and tapes will be the thin end of a wedge which will be driven into the principal pillar of broadcasting independence.
On both sides of this Committee we have had those who have been responsible for broadcasting who have been very zealous in defending its independence and its ability to work for itself. I have frequently heard Ministers say, "That is not for me to answer; the BBC (or the IBA) is responsible for the contents of its programmes". Parliament receives a report once a year from those authorities. Ministers are not directly responsible, nor are the police. If I sound rather pompous it is because I believe passionately in what I am saying; it will be a sad, sad day if that independence is interfered with by giving the police certain powers in relation to cable which inevitably would lead to what I can only call a slippery slope leading to the same powers being given over broadcasters.
§ Lord Harris of Greenwich
I agree with the noble Lord, Lord Howard of Henderskelfe. There are some important issues here relating to broadcasting freedom, not only to the cable authority but the BBC and the IBA. We are conferring extraordinary powers for which, so far as I am aware, there is very little precedent. In Clause 32(1) we are giving a superintendent of police the power to,make an order in writing under this section relating toa particular programme and a particular person.
First, I certainly have a warm regard for superintendents of the police but I would be interested to know what precedent there is for the police to be given such a power. Is there one? I am sure we would all like to hear about it. Secondly, I assume that the Association of Chief Police Officers has been consulted about this, but I am sure we would all like to know whether that is so.
Although in this Bill we are only talking about cable, I believe that the noble Lord who raised this matter, with all his wide broadcasting experience, is entirely right. In years to come there is a real risk that people will refer to the power conferred in this Bill and use it as an excuse to recommend similar powers being used in other areas of broadcasting. That seems to me to be a pretty serious matter and I hope that the noble Lord, Lord Elton, will be able to reassure us on this matter.
§ Lord Mishcon
I am sorry that such an important matter as this is being raised at this late hour. It is not a subject which can be properly debated, if I may respectfully say so, in such an attenuated Committee. The obvious fear of the noble Lord, Lord Howard of Henderskelfe—and he expressed it clearly—is that this is the thin end of the wedge and that the broadcasting authority and independent television may be faced with precisely the same powers which many of us might think in those circumstances to be somewhat objectionable. We must obviously endeavour to see whether there can be some assurance in that regard upon which one can rely.
There is obviously a great difference between the multifarious channels that may be let loose upon this island of ours as a result of this Bill—the commercial elements involved; often the lack of responsibility, subject of course to what is said in this Bill, about the sort of things which will be televised which in many 863 cases will be contracted for from outside—and one can therefore see that there are dangers in the two fields of obscenity and race relations which the Government may well want protection against by a Bill of this kind.
As I have said. I do not think this is the time fully to debate this but I throw one thought at the Government which could perhaps be considered between now and Report if, in their kindness, the Government are prepared to do so. If it is found that such a power should be in the Bill—and I can see the need for it, although I share the fears of the noble Lord, Lord Howard of Henderskelfe, and the noble Lord, Lord Harris of Greenwich—then I would hope that this power will not rest upon the discretion of a superintendent of police but that at least an order of a magistrate will need to be procured. With that thought, I will not detain the Committee any longer on what is undoubtedly an important debate.
§ 10.19 p.m.
§ Lord Airedale
I should like to throw one more thought to the Government very much following what the noble Lord, Lord Mishcon, has just said. There is a contrast between this clause and Clause 30, which we passed on the nod just now, Clause 30 being the clause about entry and search of premises. Both clauses begin with the supposition that there is reasonable ground to suspect that something is wrong; but, whereas in this clause it is the police officer himself who decides whether his grounds of suspicion are reasonable, in Clause 30 ("Entry and search of premises") it is the magistrate who decides whether there are reasonable grounds for suspicion.
I should have thought that any police officer would have been only too pleased to go before the magistrate for a warrant, because, if any question subsequently arose upon a complaint that the police officer had not reasonably suspected an offence, he would have the support of the magistrate in defending himself against that complaint. I should think that in almost every case there would be time to go before a magistrate for a warrant, but if in an exceptional case there was not time, conceivably one might have a clause allowing the police officer to act without a warrant expressly when there was no time to go before the magistrate. Otherwise, I should have thought that there was every reason for bringing Clause 32 into line with Clause 30 and requiring the police officer to go before the magistrate for a warrant. For the reason that I gave, I think a sensible police officer would be only too glad to go before the magistrate.
§ Lord Elton
This has been an interesting debate on an important point. May I start by making two things clear, which I think the noble Lord, Lord Howard of Henderskelfe, will find very relevant to what he said when he reads through Hansard, as perhaps will other noble Lords. First of all, and as a background, we must recognise that Clause 25 creates a free-standing offence provision of sending an obscene live cable programme. It is not part of the Obscene Publications Act and so separate enforcement provisions are necessary in the Bill. Similarly, in Clause 27 is the free-standing offence of incitement to racial hatred. It is not part of the Public Order Act. There again we have to have the 864 enforcement provisions in this Bill. That is what makes the analogy with the Theatres Act so relevant. I am glad that that is the springboard of much of what the noble Lord said.
The Theatres Act has been on the statute book for some 16 years. What is proposed is not, as the noble Lord, Lord Harris of Greenwich, said, so extraordinary as all that, with respect. Section 10 of the Theatres Act gives a police officer of the rank of superintendent or above the power to require the person suspected of having committed or of being about to commit one of those offences to produce a copy of the script of the play, and failure to comply with the order is an offence. So this is not new. I am not aware that the police have ever yet had cause to invoke the power; but it seems entirely right to us that when we create offences we should also provide sufficient powers to enable the enforcement authorities to enforce the legislation.
Clauses 25 and 27 of the Bill create new offences for cable which are analogous to the provisions in the Theatres Act relating to obscenity and incitement to racial hatred. We have therefore provided for analogous enforcement in Clause 32, which gives the police no greater powers in respect of cable than they already have in relation to the theatre under the 1968 Act.
Your Lordships fear that this is rather draconian. I should like to reassure your Lordships. I think that the assurances that the noble Lord, Lord Mishcon, was looking for can be found in the Bill. First, a prosecution under Clause 25 can be brought in England and Wales only with the consent of the Director of Public Prosecutions. For an offence of incitement to racial hatred under Clause 27, under subsection (8) the consent of the Attorney General is required, and that suggests that we are not dealing with the kind of offences where prosecutions would be numerous, or even vexatious. These are serious offences where prosecutions can be initiated only with the consent of the DPP, or the Attorney General, as the case may be. If cable licensees are staying within the bounds of what the Cable Authority permits, it is hard to believe that they will come anywhere near falling foul of the criminal law.
The second consideration is that Clause 32 does not confer any powers of entry—I hope that that is noted. It does not confer any powers of search, it does not provide any powers of seizure, it does not permit fishing expeditions for undesirable material. The police must not only have reasonable suspicion; they must address the order to the person suspected of the offence, and they must then wait for him to hand over what is specified in the order. They cannot just go and get it, and that is why it is not necessary to go to a magistrate. If they want to go to get it, they need a warrant, and that means going to a magistrate.
I do not expect Clause 32 to be invoked often or other than on very serious occasions. But we are rightly providing that if ever there are cable programmes which are obscene, or which incite to racial hatred, they ought to be caught by the criminal law. That means that we have to make sure that the police are in a position to be able to take the necessary steps to bring the offenders to court. There is no way 865 I think in which on reflection your Lordships will find this a draconian measure, one which invades privacy, one which is likely to get out of hand, or one that is likely to be used more than very rarely, if ever.
§ Lord Mishcon
Before the noble Lord the Minister sits down, perhaps I may say that the assurance that I sought—and I borrowed the point from the noble Lord, Lord Howard—was that this was not the thin end of the wedge, and that it would not be used as a precedent for a similar provision to be used at some time against the BBC and ITV. This is not my point—I bow to the noble Lord, Lord Howard, for it—but that was the assurance that I in turn sought.
§ Lord Elton
I am obliged to the noble Lord. If I may first deal with the point raised by the noble Lord, Lord Harris, I am not aware of consultations with ACPO. But of course the police are being asked to do no more and no lesss than they have been asked to do under the Theatres Act, which, when one looks up the record, appears to be remarkably little.
The noble Lord, Lord Mishcon, asked for an assurance. I would certainly give the assurance that the provision is not intended as the leading edge, as an opening up of the law in other areas, but as I have striven to make clear, it is not a precedent. On cable we are merely doing what we have done on the theatre. It seems to me that that is fairly innocuous and is not the way that the type of tyrant which, at another stage, on another day, I was accused of being, would address himself to that kind of campaign.
§ Lord Airedale
The noble Lord the Minister does not mean that this is not a precedent; he means that this is not breaking new ground, that it is not unprecedented. No Minister can ever say that a particular matter shall not be taken as a precedent because that belongs to those who follow us.
§ Lord Elton
Of course the noble Lord is right. I do not seek to bind successive Governments, or even colleagues. All I can assure the Committee of is that this is not part of a plan on our part to open up broadcasting to new regulations.
§ Lord Howard of Henderskelfe
For my part, I have been very interested to listen to the answer by the noble Lord who has spoken for the Government, and I shall certainly want to consider very carefully what he has said. At this hour I should not wish to invite any of your Lordships to proceed through the Lobbies.
§ Clause 32 agreed to.
§ Clause 33 agreed to.
§ Clause 34 [Interpretation of Part I]:
§ [Amendments Nos. 119 to 121 not moved.]
§ Clause 34 agreed to.
§ Clause 35 [Provision of DBS services]:866
§ [Amendments Nos. 122 and 123 not moved.]
§ Clause 35 agreed to.
§ Clauses 36 to 42 agreed to.
§ Clause 43 [Amendments and repeals]:
§ Lord Howard of Henderskelfe moved Amendment No. 124:
Page 35, line 18, at end insert—
(" ( ) It is hereby declared that neither the sending as part of a cable programme service nor the broadcasting for general reception of sounds or visual images or both is an exhibition to the public for the purposes of the Cinematograph Films (Animals) Act 1937.").
§ The noble Lord said: I thought that by moving this amendment we might at least come to something of an oddity at the conclusion of our proceedings this evening—at the conclusion of a lot of hard work whereby we have received a lot of assurances of great interest to the Cross-Benches, the Opposition and, indeed, the Government themselves. It has been very much an all-party argument.
§ This is a very odd point. The Cinematograph Films (Animals) Act 1937 prohibits, as a criminal offence, the exhibition to the public of any film organised or directed in such a way as to involve the cruel infliction of pain or terror on any animal, or the cruel goading of any animal to fury. I suspect it is an Act which has been honoured more in the breach than in the observance. It is not clear whether it would apply to cable programme services. If it did, it would indeed present the cable programme operator with considerable problems. This is because the offence relates to things done in the course of the production of a film or other programme which, in the vast majority of cases, would be quite outwith the cable operator's knowledge or control.
§ A cinema operator has a similar problem, but it is manageable because he deals with wholesalers who have to look at the films beforehand, and he only shows one or two films a week; and, anyhow, they have been through the British Board of Film Censors. With a cable service with a mulitplicity of channels and an extensive programme schedule, it would be quite unmanageable.
§ Similar considerations apply to broadcasting, and increasingly so as the number of channels increases with the advent of DBS. It is thought that the Act does not apply to broadcasting, although it has never been entirely clear. There has never been a test case. I submit that this Bill is an admirable opportunity to make it clear that the Act does not apply either to cable or to broadcasting.
§ Lord Houghton of Sowerby
This is the amendment for which I have been waiting, because I have a very close interest in what it wants to achieve. I have encountered the problem of the 1937 Act and the broadcasting of scenes which, in a film-showing, would contravene the 1937 Act, but the BBC, particularly, have claimed that it did not bind them.
I complained bitterly on one occasion to the BBC when they were running a series of programmes relating to novel careers upon which adventurous young people might embark. One such career was to 867 go in for rodeos which I found, both in Canada and elsewhere, particulary disgusting. I complained to the BBC that had it been shown in a cinema I thought that there was a pretty strong case for saying that it was a contravention of the Act. I received a suitable letter from the BBC about it and a promise that they would not show that sort of film again.
Just recently there has been a film—I did not see it myself, but I saw it referred to in very disparaging terms by critics—entitled "I Want To Be a Matador", and it is about the aspirations of the Spanish youths who want to become bullfighters. The criticism that I read was that it was particularly disagreeable. That is one aspect of the matter.
However, there is another. There are some things that one would like to see in broadcasting, particularly in regard to experiments on animals, particularly in regard to conditions in slaughterhouses, particularly in regard to other forms of cruelty to animals which need to be exposed for the public to understand what is involved in commonplace activities which very frequently are not fully revealed either to the public's vision or even, apparently, to its imagination.
Recently there have been some films dealing with animal experiments. They are relevant because the Government are now considering the updating of the Cruelty to Animals Act 1876, and there is an increasing interest in nature, in wildlife, in domestic animals and in animals generally throughout the community. Animal books, animal films, animal pictures and animal calendars galore have a good sale. I think that every firm of publishers wants to have a good animal man, naturalist and traveller—a Bellamy—on its list of authors.
Obviously there is some advantage in this. This is not all evil, and although some of it may be disagreeable it is probably desirable that the public should try to steel themselves to see it so that they cannot discard this shrug of the shoulders, "I don't want to know; don't show it to me" attitude that one encounters on matters of this kind. Of course, the BBC and the independent broadcasting companies have been concerned at the point of tolerance; they say that if you show scenes of extreme suffering of animals, the knobs will be turned off throughout the country, people will not be able to stomach what they see and, therefore, it defeats the object of what you are trying to convey to the public about the use of animals under modern conditions. So there is a dilemma here.
In certain circumstances I think that it would be a pity if the conditions laid down in the 1937 Act restrained the broadcasting authorities from doing some things with a good aim in mind: for purposes of enlightenment, though not pleasant viewing. On occasions of this kind people would naturally be warned that some of the scenes will be unpleasant to watch and that those who do not wish to continue viewing should turn off. I think that all that is perfectly legitimate.
Therefore, the dilemma is that we have the 1937 Act on the statute book; we have the broadcasting authorities which probably, as of now, cannot be said with certainty to be covered by the 1937 Act; and we have before us an amendment which wants to remove 868 that uncertainty. I am very loath indeed to agree to removing that uncertainty under this amendment at this time without being sure where this would lead. Will it lead to making the 1937 Act virtually obsolete, or will it place restrictions on cinema film-showing that are not imposed on the broadcasting authorities?
There is one particularly long and difficult film which was shown in cinemas to the public, but which was advertised for that purpose, and those who went there knew that they were going to see a very unpleasant film indeed. I do not know whether, in technical terms, that was an infringement of the 1937 Act, but I do not think it is a good idea to take a step on a new situation which virtually renders a previous Act of Parliament obsolete but which is still there and under which prosecutions can take place. Presumably no court could decline to hear or even decline to convict if a charge was made under the 1937 Act against cinema showing of animals suffering. It does not talk about unnecessary suffering; it is cruel infliction of pain or terror upon any animal or the cruel goading of any animal to fury, which means that you cannot show a bullfight at a cinema. Not that I would want to see bullfights on television, except to dissuade people who go to Spain for their holidays from going to look at a bullfight to see what it is like. This is the dilemma, so all I can suggest to the noble Lord is that he might withdraw his amendment now, and give us an opportunity of considering the matter a little further before we come to a subsequent stage of the Bill.
As a matter of fact, I had seen this only today and I am saying this completely off my own bat because I am personally involved in so much of this that I thought this was the step I ought to take at this stage. I would not like to see a clearance given to the broadcasting authorities, much as I want them to be able to do constructive work, however unpleasant. So long as it is acceptable to the viewer and to a civilised attitude towards the animal kingdom, I am all for it, and would not want the broadcasting authorities to be stopped by the literal terms of an Act of Parliament of 1937. On the other hand, I think we really ought to clear this up for cinemas, too, if we are going to do it for the broadcasting authorities.
That is my point of view, and I respectfully suggest to the noble Lord that he might leave us a little more time before pressing the matter. There is no haste about it. This Bill has to go to another place, so there is even more time for us to consider how this dilemma, which certainly exists at the present time, might be resolved.
§ Lord Elton
We have a long tradition in this country of protecting animals from ill-treatment, and it seemed to Parliament in 1937 that specific protection was necessary to prevent the showing of films in this country which had been made here or abroad and included scenes organised or directed in such a way as to involve the infliction of cruelty or pain or terror on any animal, or the goading of it to fury.
That is a strong test, although it does not catch films which involve cruelty to animals which would have existed even had the film not been made, and the noble Lord, Lord Houghton of Sowerby—who spoke off his own very impressive and elegant bat at short notice—referred to one or two examples of that.
869 The point about the Act, however—and this is why the amendment of the noble Lord, Lord Howard, seems, if I may say so, not quite right to us—is that it applies only to the exhibition of a film, and I quote from the Act,when and only when it is exhibited in a place to which for the time being members of the general public as such have access whether on payment of money or otherwise".That seems a very good description of what happens in a cinema but not a very good description of what happens in broadcasting or the provision of cable services to the home.
I realise I have addressed myself to the mechanics of the amendment rather than to its merits or intentions, but I think the intentions do need to be clear before I can address myself to them. Like the noble Lord, Lord Houghton of Sowerby, I feel that they range rather wide and may be fairly evenly balanced. In view, therefore, of the inappropriateness of the amendment, I hope that we need not pursue it further at this late hour.
§ Lord Howard of Henderskelfe
I certainly would not wish to press this amendment. I thought the matter needed clarification, but it has been suggested—particularly by those many societies and associations which do admirable work in the protection of and prevention of cruelty to animals—that this Act does apply to broadcasting. This is one of the reasons why we wish to see this matter clarified.
I suppose it is just possible to suggest that where people are gathered together in a pub watching a large screen television, they could be said to be gathered together for the purposes which the noble Lord the Minister has just described, particularly if it is a film rather than a video transcription which is being shown on the screen although broadcast by us.
I do not think that the Act is intended, or ever was intended, to apply to what one might call (I hesitate to call them crusading programmes) programmes which endeavour to show what cruelty there is to animals, to argue the pros and cons of vivisection, and so on, many of which have been broadcast both by the IBA and the BBC and some of which have caused protest and some of which have not. Nor has it anything to do with even greater cruelty practised on human beings by their fellow men. Under the circumstances, I do not wish to press this matter. However, I would ask the Government to look themselves and decide whether they think the Act covers broadcasting, and, if so, whether cable and broadcasting should be exempted from its provisions.
§ Amendment, by leave withdrawn.
§ Clause 43 agreed co.
§ Schedule 3 [Minor and consequential amendments]:
§ [Amendments Nos. 125 to 131 not moved.]
§ 10.47 p.m.
§ Lord Lovell-Davis moved Amendment No. 132:
Page 43, line 1, leave out sub-paragraph (8).
§ The noble Lord said: In speaking again in the names of my noble friends Lord Mishcon and Lord Ardwick, 870 I should like, with your Lordships' permission, to speak not only to Amendment No. 132 but also to No. 138, since No. 138 follows on by stating what we feel should replace sub-paragraph (8) of paragraph 6 of Schedule 3, which we ask to be removed by Amendment No. 132.
Amendment No. 138: Page 44, line 24, at end insert—
("( ) In section 48(2) of that Act, for the words from "broadcasting by wireless telegraphy" to the end of the subsection, there shall be substituted the following—
transmitting, by the emission of electomagnetic energy otherwise than over a path that is provided by a material substance, visual images or sounds, or both, for reception by the public, notwithstanding that—
§ Sub-paragraph (8) of paragraph 6 of Schedule 3 amends Section 14(10) of the 1956 Act, apparently to clarify the question whether the up-leg of a broadcast by satellite is to be treated as an act of broadcasting for the purpose of copyright. So far as the proposed change goes, I welcome it, but it appears to be unsatisfactory in three respects. First, it is contained in a section of the 1956 act which is exclusively concerned with defining the rights in a broadcast as a matter protected by copyright as opposed to defining the restricted act of broadcasting, control over which is given to the copyright owners of literary, dramatic, musical and artistic works under Part I of the 1956 Act.
§ Secondly, the expression "technique known as direct broadcasting by satellite" is so imprecise as to be quite unhelpful as a definition. It should not be beyond the skill of parliamentary draftsmen to devise a clear description of broadcasting by satellite. Thirdly, and most important, the change relates only to direct satellite broadcasting, whereas the need for clarification is just as great, and perhaps greater, in the case where programme-carrying signals are transmitted via a satellite to a receiving ground station and then are distributed to the public either by cable or wireless for onward transmission. In this form of communication via satellite the owners of the rights in copyright works will be seriously prejudiced if they have no right of control over the initial transmission to the satellite.
§ An example of the serious prejudice which would be suffered by copyright owners if they do not have control over the initial transmission to the satellite would appear, for example, from the following case. An enterprise in the United Kingdom may transmit programmes via satellite to a cable distributor in another country. Virtually the entire income for the United Kingdom company will come from the sale of advertisements, and will be paid and received in the United Kingdom. The United Kingdom enterprise will in fact make its transmissions available to the foreign distributor by providing the necessary decoding equipment for a nominal charge. This means that the cable operator will not need to increase the charge it makes to its subscribers, save perhaps by a nominal amount.871
§ In such a situation the owner of the copyright in a work included in such transmissions may have no enforceable rights against anyone. If he proceeds against the overseas cable operator, the cable operator will contend that the commercial value to him of the programmes contained in the copyright work in question were nominal, that he has received little or no income from his transmission of them to his subscribers; and therefore any payment to be made to the copyright owner should also be nominal. If, on the other hand, the copyright owner proceeds against the United Kingdom enterprise, he is likely to be met by the argument that the latter is not broadcasting and, therefore, has no liability whatsoever.
§ This is clearly an intolerable and unacceptable position for the copyright owner to be placed in. If his interest is to be properly protected by law, the clarification in the Bill relating to direct satellite broadcasting should be extended to cover point to point communication by satellite, as expressed and recommended in the Whitford report.
§ Having regard to all considerations it seems essential that a comprehensive definition of "broadcasting", covering both kinds of satellite communication, should be included in the Bill for incorporation in the 1956 Act. That is what this amendment is designed to achieve. I beg to move.
§ Lord Elton
More haste, less speed. The noble Lord has proposed an extremely interesting solution to an extremely difficult problem. It is a fairly new problem and the Government accept that it is important that authors and other copyright owners should have copyright protection in respect of the communication to the public of their works by means of point to point satellite transmissions which are included in cable programmes. Unfortunately, there are a number of difficulties with this solution. In the first place it is a general solution for a problem which may in practice be fairly limited.
When such transmissions are received and communicated to the public in countries in which the broadcasting or cable diffusion of copyright works is a restricted act, such an approach is unnecessary. Even where such countries exempt cable operators from the need to obtain copyright clearance when they are diffusing broadcasts within the so-called service area, it is still generally a restricted act to diffuse by cable point to point satellite transmissions originating abroad. This is the case with the United Kingdom and most West European countries and in those countries, if the amendment proposed had the intended effect, it would create a double liability for copyright payment—once at the point of injection to the satellite and again when the signals were distributed by cable.
I am not at all sure that the noble Lord's scheme would have that effect. The new definition of "broadcasting" for copyright purposes contained in Amendment No. 138 relies on the concept of transmission of,visual images or sounds, or both, for reception by the public".But point to point satellite transmissions are not themselves directly receivable by the public at large nor are they intended to be. That is not altered by the fact that they may be intended for reception and 872 subsequent diffusion. Nor would I think that the qualifications in the subsections in Amendment No. 138 would suffice to counterbalance that.
The result would be to render the scheme inoperative. We are in new and difficult country. Noble Lords have made a highly imaginative and determined attempt to plot a path through it. The degree of difficulty is illustrated by the number of snags the proposal has turned up and I must mention one more because there are implications in it.
The last is that any definition of broadcasting for copyright purposes, which included communications satellite transmissions, would risk including a wide range of everyday transmissions between broadcasting organisations and even within a single broadcasting organisation not intended for public reception. That would create grave difficulties for the broadcasters, I mention this because it would mean there would have to be wide consultation by the Government before they could accept this approach to the problem.
I hope I have said enough to persuade the noble Lord not to go ahead with this amendment. The Government will certainly look further into this to see whether the problem can be solved. If, in spite of the many difficulties we have already encountered, it proves possible to bring forward amendments during the course of the Bill's passage, we will do so. But there are wide issues and we may have to wait until we come to the general reform of copyright legislation which we are hoping to introduce before long. The noble Lord has tried and we have tried. We have both failed, and we are going to go on trying, and I hope that he will let us do so.
§ Lord Lovell-Davis
I am most grateful to the noble Lord the Minister for what he has said; I hope I have followed and understood it. I certainly recognise the difficulties. These are very complex issues—all copyright matters are—and I will not delay your Lordships at this stage by going further into that area. They are vital to copyright holders and to everyone involved, not least because the Bill should make the situation absolutely clear wherever it can, if only to avoid unnecessary litigation in the future. Failure to achieve clarity is going to lead us into great complication.
I raised the matter so that it could be looked into. As I understand the noble Lord's reply, not only has he been looking into it in considerable detail but he intends to continue to try to resolve the matter. I must say I am very pleased to know that. I greet it with great satisfaction and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.57 p.m.
§ Lord Howard of Henderskelfe moved Amendment No. 132A:
Page 43, line 1, leave out sub-paragraph (8) and insert—
(" (8) In that Act "television broadcast" means visual images or data broadcast by way of television, together with any sounds broadcast for reception along with those images or that data, and "sound broadcast" means sounds or data broadcast otherwise than as part of a television broadcast; and for the purposes of this Act a television broadcast or sound broadcast shall be taken to be made by the body by whom, at the time when, and from the place from which—
§ The noble Lord said: I think, but am not sure at this hour of the night, that this is probably the exact opposite of the previous amendment and has exactly the opposite effect. It is certainly concerned with the up-leg and the down-leg—I shall restrain myself from any ribaldry at this hour of the evening. It is certainly concerned with the complications of point-to-point satellite broadcasting. I shall be very content if the Government, in common with much else, would have another look at the problems involved here. I beg to move.
§ Lord Elton
If memory serves, the noble Lord and I both spoke to this amendment on No. 111A, and I would refer him to my answer in Hansrad, which applies to this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 133 to 139 not moved.]
§ Lord Elton moved Amendment No. 140:
§ Page 46, line 39, at end insert—
(a) after the definition of "television dealer" there shall be inserted the following definition—
'television programme' means a television programme broadcast for general reception or included in a licensable service within the meaning of Part I of the Cable and Broadcasting Act 1984"; and
§ (b) in the definition of "television set" the words "wireless telegraphy" and "broadcast for general reception" shall be omitted.").
§ Amendment No. 142: page 47, line 42, leave out ("cease to have effect") and insert ("be omitted").
§ The noble Lord said: Amendments Nos. 140 and 142 are technical amendments to adjust the definition of a television set to make it appropriate where it is adapted to take signals over cable. I beg to move.
§ On Question, amendment agreed to.
§ Baroness Trumpington moved Amendment No. 141:
Page 47, line 25, leave out ("cease to have effect") and insert ("be omitted").
§ The noble Baroness said: This amendment is purely a technical one, and I beg to move.
§ On Question, amendment agreed to.
§ Baroness Trumpington moved Amendment No. 142:
§ [Printed above.]
§ The noble Baroness said: I beg formally to move Amendment No. 142. This also is a purely technical amendment.
§ On Question, amendment agreed to.874
§ Baroness Trumpington moved Amendments Nos. 143 and 144:
Page 50, line 36, leave out ("complainant") and insert ("a broadcast").
Page 51, line 21, leave out ("complainant") and insert ("a broadcast").
§ The noble Baroness said: Both of these amendments are technical. I beg to move.
§ On Question, amendments agreed to
§ Schedule 3, as amended, agreed to.
§ [Amendment No. 145 not moved.]
§ Schedule 4 [Repeals]:
§ Lord Elton moved Amendment No. 146:
§ Page 55, line 5, at end insert—
|("1967 c. 72.||The Wireless Telegraphy Act 1967.||In section 6(1), in the definition of "television set", the words "wireless telegraphy" and "broadcast for general reception".").|
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 4, as amended, agreed to.
§ Clause 44 agreed to.
§ Clause 45 [Short title, extent and commencement]:
§ On Question, Whether Clause 45 shall stand part of the Bill?
§ Lord Mishcon
The Committee stage of this Bill—which has taken quite a long time—has now come to an end—I hope a gracious end. I should like, on behalf of my noble friends and myself, to thank the noble Lord the Minister for his very courteous attention to this Bill and to all of us who have tried to help amend it. I include the noble Baroness, Lady Trumpington, in that word of appreciation.
I was not quite sure that I understood the noble Lord, Lord Howard, when he said "as the night advances, the noble Lady becomes more and more accommodating". I had extraordinary visions of what might happen at 11 o'clock, when the noble Lord made that remark about an hour and a half ago. But I thank both of them. I also thank noble Lords on all sides of the Chamber, who have participated with us in trying to improve the Bill—and may I be allowed to include my noble friend Lord Ardwick, who has helped me so much in regard to the various amendments that we have put forward.
§ Lord Elton
The noble Lord is more than kind. In this unusual little ceremony, I should like to reciprocate what he said and to say that we could not have got to where we are without support from all round the House—that certainly goes for me—and, on two occasions, without support from the noble Lord, Lord Mishcon, himself. I am grateful to your Lordships for your patience and courtesy. I do not wish to delay the proceedings further.
§ Clause 45 agreed to.
§ House resumed: Bill reported with amendments.
§ House adjourned at three minutes past eleven o'clock.