Cable and Broadcasting Bill [H.L.]

HL Deb 27 February 1984 vol 448 cc1043-98

3.5 p.m.

Report received.

Clause 2 [Meaning of "cable programme service" etc.]:

Lord Howard of Henderskelfe moved Amendment No. 1: Page 2, line 4, leave out ("or both") and insert ("or such signals as are described in paragraph (c) of section 4(1) of the Telecommunications Act 1984 or any combination of such sounds, images or signals").

The noble Lord said: My Lords, this amendment was moved in Committee. I hear that the somewhat complicated points that were involved were not formally aired in Committee by the noble Lord, Lord Elton, speaking from the Front Bench. I had occasion to refer to this in what I had to say after his answer, and in that case I said I thought I would have to return to this when I had read what he said. This is not just a matter of definition of cable programmes and their implications. It says that the definition should not be limited to the sending of sounds and visual images alone (as is provided for in Clause 2(1) of the Bill) but should include sound, visual images and other matters, thereby bringing it into line with Clause 4(1) of the Telecommunications Bill, which is also passing through your Lordships, House.

It raises a general issue which I raised on a number of my amendments at Committee stage as to whether this Bill should follow the Telecommunications Bill by including this third category of matters within its scope. To do so would involve a number of amendments at other points in the Bill. I have not attempted to do so on Report because I believe that if the Government were to accept my amendment or to promise to introduce an amendment similar to it, all the consequential amendments which would flow are perfectly capable of being put down by the Government and their able advisers.

It raises a particular issue which was not properly dealt with in the various debates at Committee stage, and that is the copyright issue. I speak with considerable trepidation on copyright matters, which are somewhat uncharted, are certainly a morass, and over which (mixing my metaphors as far as possible) we are all liable to trip into the brambles without any trouble at all—and, particularly, copyright lawyers. It arises in the following way. Paragraph 6 of Schedule 3 to the Bill provides, in effect, that the owners of copyright in literary, dramatic and musical works should be able to control the inclusion of their works in a cable programme. A cable programme is defined in the new Section 14A of the Copyright Act 1956 which is to be inserted into that Act by Clause 22 of this Bill as a programme included in a cable programme service. That expression is defined by Clause 2(1) as a sending of sounds or visual images by cable.

If a literary work such as a computer program (if such could be called a literary work), or perhaps, indeed, even a novel or short story which is stored in a computer data base, was sent over a cable system in a form which did not consist of either sounds or visual images but was capable of being translated by the computer into such sounds or visual images, and was indeed intelligible to the computer, then the copyright owner would have no control over it. I believe that this is unsatisfactory and my amendment attempts to remedy this.

The noble Lord, Lord Elton, during the Committee stage said: The Government agree that when computer programmes and other matter falling outside the term "sounds or 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 include such matters in cable programmes. We shall certainly consider how best to ensure that this is achieved".

My amendment makes the point that it is not only cable operators and broadcasters who need this protection but also other rights owners. I cannot see any amendments dealing with this issue which are to be moved by the Government on Report, and so this amendment gives me the opportunity to inquire what the Government's intentions are in this respect, so that it is not only the copyright of the broadcasters and the cable operators which is protected but also that of other rights owners.

I apologise if what I have said sounds extremely complicated, and if for that reason I have had to look rather more closely at what is written down in front of me than I would normally do in making a speech before your Lordships it is because I do not want to chance any possibility of getting these highly complicated matters wrong. I beg to move.

Lord Winstanley

My Lords, I rise to support the noble Lord's amendment and to express the hope, as he has already done, that the noble Lord, Lord Elton, will accept the amendment or at least deal sympathetically with the points included in it. I rise in the hope of getting an assurance from the noble Lord, Lord Elton, that this amendment would cover one matter with which I am concerned. As the noble Lord, Lord Howard, told the House, this amendment is complicated and it deals with a number of important matters. If the amendment is to be accepted, I should, like an assurance that it would deal with one important matter which has been brought to my attention by somebody involved in cable services. It has been pointed out to me that Clause 2(1) defines "cable programme service" and in Clause 2(2) we have "licensable service" and so on; but nowhere in that clause is there any reference whatever to interactive services. It seems to me that if such services are not included there might be a presumption that they are in fact excluded. Bearing in mind that the justification for cable at all in many of our minds concerns the future benefits of interactive services, I am very anxious that those services should be properly protected.

If we turn back to the Hunt Report from which so much of this arose, we see that it refers to various functions such as authorising and regulation information services, for example, home shopping and telebanking. There is no reference at all to the interactive services, so far as I can see, in the Bill. Looking at the Telecommunications Bill, to which the noble Lord's amendment refers, and taking the particular section that he wishes to be incorporated into this Bill, there we have referred to on page 4, Clause 4(1)(c): Signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the forms of sounds or visual images". It would seem, from my reading of that analysis and referring to the noble Lord's amendment, that if this amendment were accepted in principle, interactive services would be protected. It seems very important that people seeking franchises for cable services, bearing in mind future interactive services, are necessarily going to make very substantial captial investments with regard to those interactive services here and now and they cannot be expected to make such investment unless they have an understanding that they are going to be protected. I should like to hear from the noble Lord, Lord Elton, whether this amendment would protect them. If so, that is fine, so long as the amendment is accepted by the Government. If not, perhaps there may be the possibility of putting down some other amendment at Third Reading.

Lord Elton

My Lords, before the noble Lord sits down—because convention allows him to speak only once—I should like to be absolutely certain that I have got his question right. The protection with which the noble Lord, Lord Howard, is concerned is the protection of copyright; that is, the protection of material travelling over a network. When the noble Lord says that investors would not want to invest in interactive systems which were not so protected, I presume he means that items travelling over that system would not be protected by the Copyright Act. That, again, leads me to wonder what sort of traffic he would expect where copyright could be seriously infringed on a one-to-one communication basis. I am saying all this so that the noble Lord may have a moment to put his thoughts in order, as I know how valuable it is to have a moment to do so before returning to one's feet.

Lord Winstanley

My Lords, I am very grateful to the noble Lord and perhaps I might explain a little further what I had in mind. It seems to me that if a group get a franchise for the establishment, in the end, after broadcasting, of interactive services, they need to know that they are going to be protected just as, for example, when Capital Radio are awarded a franchise to do local radio in a certain area, they do not want to discover suddenly that someone else is going to be working in the same area. Similarly, interactive services need the same kind of protection. If these people are to make the investment which is necessary in order to mount the interactive services which we all want to see and from which we believe great benefits will flow, it is clear that they must have some kind of protection; otherwise they will not make that investment.

Lord Elton

My Lords, I do now fully understand why the noble Lord, Lord Howard, regards us all as people who are going into the marshes to pick blackberries. I hope that we emerge without getting either scratched or stuck. In moving his amendment, the noble Lord seeks to amend the definition of "cable programme service" to include as well as sounds and visual images certain types of signals defined in the Telecommunications Bill. The new definition would not affect what was licensable by the cable authority but it would have implications for the various provisions of the criminal and civil law which are to refer to cable programme services and in particular for the Copyright Act.

I appreciate the concerns that have given rise to this amendment and I repeat the assurance that I gave in Committee. First, we entirely agree that the "must carry" rule should extend to those broadcast signals such as Teletext and computer programmes which are associated with the main television signals. It will not be acceptable for the cable operator to remove these signals before he relays the broadcast over cable. Secondly, we agree in principle that there should be copyright in the broadcasting or the diffusion by cable of computer programmes.

So far as text services are concerned, the noble Lord suggested in Committee that these might not have copyright protection, but in fact text services are cable programme services under Clause 2(1) even though they are not licensable under Clause 2(2). This is the case because the reference to "moving pictures" in subsection (6) applies only to subsections (2) and (4) and not to subsection (1). So I do not think that there is a problem with text. The difficulty arises only in the case of data where there are no sounds or visual images.

We are agreed on the principle; our difficulty is only one of finding the means by which to achieve our objectives. I am afraid that this is, as he has acknowledged, somewhat complex. It is perhaps a pity that we should start our proceedings this afternoon on quite such an esoteric problem. The difficulty about the noble Lord's amendment is that, although it is really conceived for copyright purposes, it deals with one of the key definitions in the Bill by seeking to broaden the definition of a "cable programme service". This would have implications far wider than the copyright law and the "must carry" rule. I am afraid that the Government cannot therefore accept the amendment as it stands. What I can say to the noble Lord is that we are considering very carefully how best to resolve this complicated problem in the most appropriate way, and we will bring forward amendments of our own in due course. I fear though that the difficulties are such that I cannot offer the noble Lord the satisfaction of seeing them in the Bill before it leaves this House; but he can expect to receive them in a message from the Commons when it has completed its passage there.

The noble Lord, Lord Winstanley, drew my attention to an issue which I find very difficult. The question of interactive services raises a number of very complex matters, some of which are covered by the Telecommunications Bill. Clause 6(2)(e) refers to "related services" and these would include interactive services; and the Cable Authority will, under Clause 6 and Clause 4(8), be able to encourage them as well. They will not however be licensable. I am not certain whether I am fully seized of the noble Lord's anxieties about protection because this is a wide concept that he has invited us to consider, and the best that I can do is to pay very careful attention to anything he may say to me after our exchanges this afternoon.

Lord Mishcon

My Lords, I am sure that we are all very grateful to the noble Lord the Minister for his reply. It is a little difficult to have to wait for the Bill to have a passage throughout this House, before proper words can be found to give this very essential definition. But that is a matter for the noble Lord, Lord Howard, to comment on, since it is his amendment and not mine. The only reason why I rise is that others have expressed precisely the same anxiety to me as was expressed by the noble Lord, Lord Winstanley, I hope that in any exchange of correspondence that may take place with the noble Lord. Lord Winstanley, on that matter I might be included.

Lord Elton

With pleasure, my Lords.

Lord Howard of Lienderskelfe

My Lords, the problem really arises because all of this is so new. The thought of a novel existing not on the printed page but on a data base is new to us. The thought of a film existing as a string of noughts and ones is very curious; but it is perfectly possible that this should be so. After all, we already have video discs which are encoded by digital means, and we have that in both musical and picture form. There is no reason why this should not also be so for all other forms of literary activity.

I entirely agree with the noble Lord that it is very difficult to know how to bring this in and I sympathise with his difficulties in this respect. I have made an attempt to do so. If in doing so I have so enlarged the scope of what becomes a licensable service that this is quite unacceptable, I see that this presents problems. I did not quite appreciate what the noble Lord, Lord Winstanley, was seeking to do when he stood up, but the form of protection which I think he is seeking is not the form of protection which I am seeking. I am seeking protection for individuals' rights in what they have created. He is seeking protection of a rather different kind. In other words, he is seeking monopolistic protection in a particular area. I hope that that is not too cruel hut that is what it sounds like to me.

So on the confident and clear understanding that the Government will introduce—probably not in your Lordships' House, though I regret that, but in another place—suitable amendments, I shall seek to withdraw the amendment. I hope the noble Lord can let me see the amendments before they are put down, even if they are put down in another place, so that we can—helpfully, I hope—comment on them. I have no axe at all to grind and am merely seeking the protection of the rights of creative people. Maybe we should in this House, or in another House, try to do it by way of rewriting certain sections of the Copyright Act itself—I do not know. But in the confident hope that we shall see something which will give this protection, and which the Government did not perhaps fully appreciate is in danger in the form in which the Bill at present exists. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.26 p.m.

Lord Elton moved Amendment No. 2: Page 2, line 20, leave out ("which is not within a dwelling-house").

The noble Lord said: My Lords, this is a minor amendment designed to remove words from Clause 2(2)(b) which we now think at best do no good and might even create a possible loophole. Clause 2(2)(b) deals with what the Bill terms "restricted services"; in other words, the sort of television for public presentations on large screens which happen from time to time in cinemas or clubs. These are of relatively marginal importance compared with the rest of the Bill, but they are of some consequence so far as live sport is concerned. Clause 2(2)(b) is at present confined to the case where the presentation takes place other than in a dwelling-house. Although presentations are inevitably going to occur in places where a substantial number of people can gather, there seems to be no reason of principle why the licensing requirement should depend on whether or not the premises constitute part of a dwelling-house.

We would not wish such accommodation to be used for this plainly commercial purpose, nor would we wish the authority to have to spend time on arguing with service providers about the nature of particular sets of premises, before they can exercise their licensing powers. The words seem to us, therefore, to do more harm than good and I hope that your Lordships will allow us to take them out. My Lords, I beg to move.

Lord Howard of Henderskelfe

My Lords, I want to ask a simple question, if I may. I gather that this does not overlap with broadcasting because presumably the service will not be for general reception.

Lord Elton

No, my Lords. This is merely a restricted service.

On Question, amendment agreed to.

Clause 4 [Power to license services]:

Lord Elton moved Amendment No. 3: Page 4, line 2, leave out ("(5)") and insert ("(7A)").

The noble Lord said: My Lords, in moving Amendment No. 3, it may be to your Lordships' convenience if I also address myself to Amendments Nos. 4, 6 and 9. Amendment No. 4: Page 4, line 6, leave out ("(5)") and insert ("(7A"). Amendment No. 6: Page 4, line 19, leave out subsection (5).

Amendment No. 9: Page 5, line 6, at end insert— ("(7A) The Authority may, after giving the holder of a licence a reasonable opportunity of making representations, vary the licence by notice in writing served on him.").

When we were in Committee, we discussed the question whether the Cable Authority's powers to vary the licences which they issue might be circumscribed in some way. I undertook without commitment to look at the principle of the matter. The Government have looked at this matter very carefully since the Committee stage, and have come to the conclusion that it is only fair that the licensee should have advance warning that his licence may be varied, and that he should have a reasonable opportunity to make representations about the proposed variation. That is what the amendments before us would achieve. In addition, and partly as a consequence, these amendments would remove the authority's ability to vary licences by publishing a general notice: any variation would have to be effected by an individual notice in writing served on the licensee in question. My Lords, I beg to move.

Lord Mishcon

My Lords, in the midst of the discussion which took place on this very clause, I ventured to make the suggestion on behalf of my noble friends which the noble Lord the Minister has very graciously adopted. Therefore, I should like to thank him very much for having considered what we have said and for acceding to it.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 4:

[Printed above.]

On Question, amendment agreed to.

Earl De La Warr moved Amendment No. 5:

Page 4, line 18, at end insert— ("(4A) For the purposes of subsection (4) above there shall be disregarded the provision of a prescribed diffusion service authorised by an installation licence. (4B) In subsection (4A) above and section 5 below "installation licence" means a licence for the provision of a prescribed diffusion service to which the following conditions apply—

1. (a) the period during which the licence continues in force does not exceed two years; and
2. (b) the provision of the prescribed diffusion service authorised to be provided is for experimental and testing purposes only.").

The noble Earl said: My Lords, this amendment deals with the need to make an allowance for the period of installation before a network can get into proper operation. Your Lordships will remember that in paragraph 72 of the White Paper there was a reference to this. There will inevitably be"— it said— a gap between the grant of a franchise and the start of services to the public, given the time needed for the initial installation work. The period will not count against the 12-year period". In fairness, I should add that it went on to say: The Cable Authority will, however, have the power to prevent unreasonable delay in the commitment of services by setting the operator's targets when awarding the franchise".

We discussed this question in Committee and I suggested that there should be a standard time of three years. The Government did not feel disposed to accept the suggestion, perhaps because of the length of time involved. I understand why the Government did not wish to accept a fixed period. If there is a fixed period it appears to be too close to extending the length of the licence. Nevertheless, the Government accepted that there is an installation time problem, although my noble friend did not undertake to come forward with any suggestion. Nor has he. Therefore I am so bold as to come forward with a suggestion for him.

The amendment introduces the concept of an installation licence which would cover the period while trunk routes are being laid and experimental connections are being made at the same time in order to test pictures, the strength of the signal and all the engineering features. I have sought to help in particular by suggesting that the length of period should be entirely at the discretion of the Cable Authority. It could be for a period of up to two years, it is true, but it would not have to be two years. In short, it would put upon the authority the duty to take each case individually and to decide, with the operator, how long they would reasonably need to carry out their installation work. No doubt there would in time grow up what I call case law to back them up.

I urge your Lordships to agree with me that this is very important indeed for operators. In order to test their system and equipment they must get a few subscribers on to trunk routes which are spread in various directions around the town. There will, or should be many experiments of this type. All we want is the certainty that the authority is bound by statute to take into account the requirement to allow, by the technique of an installation licence, each operator to have such time for the installation of the system as, after discussion with the operator, the authority believes is reasonable. Let me say, as I have said before, that we want a hard assurance from the Government. If they do not like this wording, all we want the Government to do is to tell us what they propose to put in its place. I beg to move.

Lord Glanusk

My Lords, I rise to support my noble friend. Obviously it is essential that during the period of installation the cable operator should be able thoroughly to test the entire system, from head end to customer. The Government may believe that this is a method of extending the licence time or the operating time of the operator, but this could be avoided if a third paragraph—(c)—were added: that during the period of the installation licence no charges could be made to the customer.

3.38 p.m.

Lord Elton

My Lords, we spent a little time discussing this problem in Committee. I am grateful to my noble friend for bringing us back to it now by means of this amendment, which is rather different from the one which we had before us last time. It shows a good deal of imagination. I am not sure that there is very much between my noble friend and myself on the objectives. Where we may differ is on the means necessary to achieve them. I am entirely clear that this point is an important one for the cable companies. On the last occasion when we discussed these matters there was some suggestion that the Bill was not sufficiently clear on this matter as it stood. Perhaps I ought, first, to spell out how we believe that things will work under the Bill as drafted.

First, the Cable Authority will advertise its intention to consider licence applications for a particular area, whether off its own bat or because somebody has already and spontaneously, as it were, submitted an application. After the necessary consultations and deliberations, the Cable Authority will announce that it has decided to issue a licence to company X, and the Secretary of State will announce his willingness to issue a telecommunications licence. At that point, three things have got to happen before the public actually start to receive services in their homes. First, the telecommunications licensee has got to arrange for holes to be dug and cables to be installed; secondly, the telecommunications licensee has got to test the system by way of conveying signals, sounds and pictures over it to see that it works satisfactorily; finally, the Cable Authority licensee has got to start sending programmes for people to receive. No doubt in practice these stages will overlap to some extent. The operator may well judge that he is in a position to start providing a public service to part of his area even though holes still have to be dug and tests carried out in other parts. But the different stages are, in principle, separable.

The question which the amendment requires us to address is this: at what stage does the cable operator need a licence from the Cable Authority? The authority may wish to issue the licence soon after announcing the result of its deliberations, or it may choose to wait until nearer the start of the service, but in either case it will need to specify in the licence the date when it is actually to come into operation. That determines the date at which it expires. There is no need for us to spell out this procedure in the Bill. It is standard practice with licensing arrangements for the licensing body to state, when granting the licence, when it is to come into force. The gap may be of days, weeks or months. It does not matter. The authority will want to take account of the schedule for installing the system and may, up to a point; wish to leave the licensee some freedom in deciding when to start a public service, though, as paragraph 72 of the White Paper said, it may wish to set targets to prevent unreasonable delay.

A Cable Authority licence will not, however, need to come into force until the operator actually starts providing cable programme services to people in their homes. I know that my noble friend is not very enamoured of the distinction which we draw between conveying, which is the telecommunications activity, and sending, which is what the Cable Authority authorises, but it is a very important distinction in this context. While cables and apparatus are being installed, the telecommunications licensee will obviously need to convey sounds and pictures over part of the system to check that everything is in order and that the right thing comes out at the other end. But the cable operator actually has to start providing a service by sending programmes for people to watch before he needs a Cable Authority licence. He will not of course do that until the system is in working order.

It seems to us that there is not a need to provide in this Bill for a specific installation licence, because the programme service will not be operating while the installation is in progress over the whole area—although I again acknowledge that my noble friend is concerned where the service may be going out to part of an area and holes are being dug elsewhere. It is certainly the case that a telecommunications licence may be needed before the Cable Authority's licence comes into effect—and obviously there will need to be close consultation between the two licensing bodies to ensure that this does not lead to the ultimate expiry dates getting unnecessarily out of step. We shall have more to say about consultation when we reach Amendment No. 19.

I hope that what I have said will at least reassure your Lordships that the Government do recognise the reality of the installation period while believing that under this Bill and the Telecommunications Bill the matter can be taken care of without creating a new kind of Cable Authority licence.

I regret to rebuff such an interesting proposal and one so courteously advanced. I do accept, as my noble friend Lord Glanusk has said, that time is needed to test the system right through from head-end to customer. What I am trying to show is that that is not a function of the cable company but that, under this Bill, it is a function of the cable company to lay the cable in order that those licensed under this Bill—who may or may not be the same people—will be able to use it.

Perhaps I ought to remind your Lordships of something which may already be perfectly obvious: that we do recognise that in the first years of a service there will be difficulties which will not be repeated; and that the need to run a service for part of an area before the whole of the area has been cabled might perhaps be one of them. It was for precisely this reason that we decided that the initial licence period should be 12 years rather than the 10 years recommended in the Hunt Report, and which is all together four years longer than subsequent licence periods will run for. To provide those four extra years, the Cable Authority is, as my noble friend wishes, bound by statute—as appears in Clause 4(4)(a) and Clause 4(4)(b) of the Bill as printed.

Earl De La Warr

My Lords, I am extremely grateful to my noble friend for his helpful reply and, although he did not accept it, for his kind comments about the technique I have suggested. In the course of his remarks, he indicated pretty thoroughly that the Cable Authority will have the right to date the start of a licence forward, presumably on the considerations which I have enumerated. I am very happy about that.

I am a little less happy about my noble friend's comments on the vexed question of the two licences, because I am talking about the Cable Authority licence specifically. But he said enough about the Cable Authority licence for us to be satisfied. One always tries to get into the statute everything that one wants, but frequently one has to rely on reassurances—and in this case I am happy to rely on what my noble friend, for the Government, has assured us of. For those reasons, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 6:

[Printed earlier: col. 1048.]

On Question, amendment agreed to.

The Duke of Portland moved Amendment No. 7: Page 4, line 19, after ("(5)") insert ("Subject to subsection (5A) below").

The noble Duke said: My Lords, the Cable Authority has power to vary a licence by a notice in writing served on the licence holder at any time during the currency of the licence. In Committee, it was argued on behalf of the Government that it would be undesirable to proscribe that power on the part of the Cable Authority by limiting its exercise to matters specifically reserved to those subject to variation in the licence itself—that to do so might diminish the authority's ability to react to unforeseeable events and detract from its flexibility. There is some force in the argument that the Cable Authority's power should not be fettered to that extent, and that licence holders are protected to a degree by the general duty on the part of the authority in subsection (8)(a) to use its licensing powers to promote the provision of prescribed diffusion services".

However, I wish to submit that the power of variation should not extend to any material alteration of the length of the licence or to the geographical area in which the service is authorised to be provided, unless the prior consent of the licence holder is first obtained. To allow variation in such fundamental matters without prior consent would be unduly oppressive and would surely detract from the value of the licence. I beg to move.

Lord Mishcon

My Lords, when we were dealing with the Minister's own amendment, I ventured to remind him—although I believe he needed no reminding—of the debate which took place on this matter at Committee stage. It was as a result of that debate, when we were considering the possible unfairness of a variation suddenly confronting a licence holder and, on the other hand, the necessity for a variation to be made in certain circumstances, that I ventured the suggestion at the bottom of col. 61 of the Official Report for 23rd January 1984. I said there: I respectfully suggest to the Minister that the way in between"— that is, between those two principles— may be a consideration of the fact that a clause should be inserted in the Bill which says that if there is to be an intended variation of the licence the licensee has the right to make representations, on proper notice being given to him, as to the intention to vary. Those representations have to be considered by the authority before the variation takes place. Then it seems to me that one has a just situation With his usual courtesy, the noble Lord the Minister replied that my suggestion would be given consideration, and indeed he brought forward an amendment precisely along those lines for the consideration of the House today.

To put a further shackle on the authority will amount to a graver injustice than that which I was trying to mend on the last occasion. There is an ability to make representations. Indeed, if the representations made to the authority convince the authority that they are acting unfairly, and are depreciating the value of the licence in the way which the noble Duke has indicated, then it will be a matter for the authority to consider. However, to put into an Act that the authority can never vary a licence when there is such a material factor involved, whatever be the justice of the case and whatever be the circumstances, and in spite of the fact that there is full provision for representations to be made, would in my view be wrong. I say that with great respect to the noble Duke, the Duke of Portland, and I am sure he did not take it amiss when I quoted my own words which I uttered on the last occasion.

3.50 p.m.

Earl De La Warr

My Lords, I am very grateful to the noble Lord, Lord Mishcon, for what he said in Committee. He is right that his suggestion does seem to have been taken on board. It will be very helpful to licensees and would-be licensees. He says that it would be quite wrong to shackle the authority so that it could never vary a licence; but may I say with the greatest respect to him that that is not really what we are trying to do, save in two steps which are so fundamental that I believe they deserve special treatment. The noble Lord will be aware that Clause 4(4) deals here, in statute, with the period of the licence. That is one of the two points which we wish to preserve as unalterable. The other one, although it is not to be found so clearly in the statute but by implication is there, is the area that the licensee, when he makes his application, asks permission to cover.

With great respect to the noble Lord, I do not think that that can be said to be shackling the authority. In everything else it could vary the licence provided it gives notice. For that reason, although we are very pleased with what the Government have done with their Amendment No. 9, we do not think that it goes far enough in respect of those two absolutely basic subjects, which we believe to be so much a part of the fabric of the licence that they should not be susceptible to variation at the discretion of the authority. Therefore, I strongly support my noble friend the Duke of Portland in what he said.

Lord Hawke

My Lords, as a complete outsider on this Bill I am a little worried about a situation which appears to me to pertain; but perhaps I have misread the situation. The authority is apparently going to be able to vary a licence, and that might be a great financial blow to the licensee. There seems to be an argument going on as to whether or not the licensee can make representations to the person who has given the licence in the first place and is varying the licence. Surely representations ought to be made to the outside body—the Minister—otherwise the licensee is merely appealing to the authority to reconsider, and if its mind is made up he will not get justice.

Lord Ardwick

My Lords, I have a good deal of sympathy with the noble Lords opposite who have proposed this amendment. Nevertheless, it is difficult to see what further compromise there could be between the rights of operators to refuse unwelcome variations and the rights of the authority to impose what changes it thinks are essential. But surely, given this time which they now have to formulate their views, the operators have an opportunity for uttering public cries of agony if they feel that they are unjustly treated. They can subject the authority to public and political criticism if their cause is just and if the authority became unreasonable and ceased to exercise its powers in a manner best calculated to promote the provision of a prescribed diffusion service; if instead of the light hand it is supposed to use it actually imposed a dead hand. Surely the authority must have this power to vary. Therefore, one must support the Government in this case.

Lord Elton

My Lords, we have just added to Clause 4 a new provision which will require the authority to give notice to any of its licensees and enable them to have a reasonable opportunity of making representations before making any licence variations. I think the authority is the right recipient of the representations, if I may say so to my noble friend Lord Hawke. The amendment which my noble friend has moved would go somewhat further and preclude the possibility of any licence variations on two particular points without the cable operator's consent. Since the noble Lord, Lord Mishcon, has introduced the idea of shackles, I would say that this is an amendment with two legs and I shall deal with each in turn.

Before I come to the substance of the amendment, I should just like to draw the attention of your Lordships to Clause 4(8), which featured in our discussions on a number of occasions at the Committee stage. That subsection requires the authority to use its powers under Clause 4 in the manner best calculated to promote the provision of cable services. It is not confined to how the authority behaves when it issues a licence. It extends to any exercise by the authority of its powers to vary licences while they are in force. While therefore I can appreciate the desire of cable companies to be spared any, undue uncertainties about the future, I think that it is a misreading of Clause 4 to suggest that the authority could lawfully use its power to vary licences in a restrictive manner unless it was satisfied that that was in the best interests of cable. The authority will be there to try and make cable succeed, and that means individual cable companies must succeed as well.

Turning now to the matters specified in the amendment, I agree with my noble friend that these are probably the two key considerations for the licensee. In drawing up his business plans, he needs to know how long he can expect and what area he is going to serve. Taking the area first—the first leg of the amendment—I think that the circumstances in which the authority might be able to issue a variation notice are extremely limited. In the case of any extension of the area for a prescribed diffusion service, the authority's margin for manoeuvre is limited by Clause 5(2) which requires it to advertise its intention to issue a licence and to to seek competing applications. While the authority might be able to add to the original area without going through the full procedure in a special case—for example, where a new housing estate was built at the edge of the area—it certainly could not go in for wholesale additions.

So far as reducing the service area is concerned, the authority would first have to satisfy itself that such a step would be in the best interests of cable. On the face of it, it would be rather difficult for the authority to show that denying an area the possibility of cable services was best calculated to promote cable. But what if the authority thought someone else was going to do the job better than the original licensee? Here we are at the heart of the issue. It seems to me that where a company has been granted a licence and is performing a satisfactory job, it would be wholly unreasonable for the authority to seek to lop off part of its area simply to join it on to a neighbouring service area.

But supposing the licensee was not behaving satisfactorily. Perhaps he had undertaken to serve a quarter of a million homes but had only brought his services within reach of a hundred thousand. The authority would seek to persuade him to honour his promises and might even threaten to revoke the licence for breach of conditions. Revocation, however, is an extreme step and the authority might take the view that in the interests of the unserved population it would rather serve notice of variation on the licensee reducing his service area so that the rest of the area could be read vertised and perhaps be taken over by a more dynamic company. I am not suggesting that this is likely to be a very common state of affairs; but some noble Lords were expressing concern last time about the intermediate sanctions available to the authority, and the effect of this amendment would be to remove one which would currently be available in the Bill as drafted. That is the first leg of the amendment, which we should prefer to leave unshackled; but from here on in, as the Americans say, I may perhaps find myself going rather further than the noble Lords. Lord Mishcon and Lord Ardwick, would approve.

In principle we are sympathetic to the proposition that the authority ought not to be able to change the licence period without the licensee's consent. If a licensee has behaved so badly that premature termination of the licence is justified, the right course is to embark on the revocation procedure under Clause 17 and not to vary the length of the licence. If my noble friend would, therefore, agree to withdraw his amendment, I am willing to consider a Government amendment either on Third Reading or, failing that, in another place which would remove from the authority the power to vary the licence period unilaterally. This may not be quite the whole loaf which my noble friend was seeking, but I hope that he will agree that it is a good half and that the licence authority, if not shackled, is at least hobbled in this respect.

Lord Mishcon

My Lords, I know that I must ask the leave of the House even to make this intervention before the noble Lord the Minister sits down. Before he commits himself to the obligation possibly to remove the question of the period of the licence, would he not agree that it might be the finding by way of experience that this period is either too long or too short? Would he want to bind himself and the authority so that in the light of experience they could not vary the period either way?

Lord Elton

My Lords, I see the temptation that the noble Lord is putting before me to renege on what I have just said, but in fact we have given so much and such protracted thought and consultation to the appropriate length of the licensing period that I think the issue really is the one that my noble friend has put before your Lordships, and that is where it affects an individual licensee and not where it affects the whole spectrum of licences. I think that what he has proposed is quite acceptable, and I am glad to accept it, but not in the terms on the Marshalled List.

Lord Aylestone

My Lords, in the proposed amendment of the noble Lord the Minister (which we shall no doubt see later, or perhaps in the other place) has he got it in mind to retain the provision that the variation requires the consent of the licensee? Is the idea that the authority could not vary a licence at all without the consent of the licensee?

Lord Elton

My Lords, it is always very unwise to commit yourself to one word in a piece of drafting before you have seen the rest of it.

The Duke of Portland

My Lords, I wish to thank the noble Lord the Minister for what he has said and for the action that he intends to take. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Elton moved Amendment No. 9:

[Printed earlier: col. 1048.]

The noble Lord said: My Lords, I spoke to this amendment together with Amendment No. 3. I beg to move.

On Question, amendment agreed to.

Clause 5 [Applications for licences and prior consultation]:

4.3 p.m.

Baroness Trumpington moved Amendment No. 10:

Page 5, line 22, leave out from ("they") to end of line 25 and insert ("consider appropriate—

1. (a) a notice stating that they propose to grant a licence for the provision of such a service in that area and inviting applications for the licence; and
2. (b) in the case of each application received, the name and address of the applicant and such of the information included in the application in pursuance of subsection (1) above as they consider appropriate.")

The noble Baroness said: My Lords, with this I should like to speak to Amendment No. 11. Amendment No. 11: Page 5, line 28, leave out ("appear to them") and insert ("they consider")

When we were in Committee we discussed an amendment moved by the noble Lord, Lord Mishcon, which would have had the effect of requiring the Cable Authority, before granting a licence for a prescribed diffusion service, to publish a list of the applications received, together with extracts from the applications dealing with the matters listed in Clause 6(2). We agree that it is desirable, to assist the authority in its duty of public consultation, for the names and addresses of applicants to be published, along with certain information from the applications, and my noble friend undertook in Committee to bring forward a Government amendment to this effect.

Our only reservation so far as the publication of material from the applications is concerned is that we think it essential for the authority to be able to receive information from applicants in confidence. For example, applicants may wish to include in their applications details of possible contracts with programme providers which for perfectly good reasons they would not wish to be made public at the application stage. The amendments therefore give the authority discretion as to what information from applications relating to the matters listed in Clause 6(2) they decide to publish. I beg to move.

Lord Mishcon

My Lords, I am sure that the House is grateful to the noble Baroness for the way in which she has introduced this amendment and for the very courteous way, too, that she referred to the amendment that I moved at Committee stage. I remember that, when the noble Lord the Minister indicated that he agreed in principle with what had been said but wished to consider the way in which this matter should be brought forward to your Lordships at Report stage, the time was shortly after nine o'clock, and I said: It is absolutely wonderful what a dinner recess can do to the noble Lord the Minister in making him so agreeable."—[Official Report, 23/1/84; col. 96.] I hope that lunch has the same effect on the noble Lord the Minister as dinner has.

On Question, amendment agreed to.

Baroness Trumpington moved Amendment No. 11:

[Printed above.]

The noble Baroness said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 6 [Matters to be taken into account]:

Baroness Faithfull moved Amendment No. 12:

Page 6, line 26, at end Insert— ("( ) the extent to which the applicant or each applicant proposes to include programmes provided by local voluntary organisations and to assist such organisations in the preparation and production of programmes;").

The noble Baroness said: My Lords, in moving this amendment on behalf of my three fellow Peers may I first thank the group called Concern on Cable, which is based on the volunteer centre at Berkhampsted, for drawing our attention to the advisability of this amendment.

This amendment first of all asks cable authorities to give time and consideration to voluntary organisations in the area of the cable authority. A large section of our community is involved in voluntary organisations and in voluntary work. The second point of the amendment is that voluntary organisations are skilled in many ways but they are not always skilled in the production of programmes. Therefore, the amendment seeks the help of the Cable Authority in producing programmes. Thirdly, equally, the voluntary organisations are not what one might call wildly wealthy. Many people will watch the Cable Authority programmes if they involve people from the voluntary sector and voluntary organisations generally. Therefore, we ask that this amendment he considered and accepted in your Lordships' House.

If I may, I shall also speak to Amendment No. 13:

Amendment No. 13: page 6, line 29, at end insert— ("(3) In this section "local voluntary organisation" includes a local branch of a national voluntary organisation."). This provision could apply both to simply local organisations, locally based, and to national organisations with a local branch. I thank my noble friend the Minister for the help that he has given over this amendment, both in its drafting and content. I beg to move.

Baroness Carnegy of Lour

My Lords, I should like to support my noble friend Lady Faithfull in speaking to these two amendments. Both at the Second Reading and during the Committee stage, when I put my name to a similar amendment which was subsequently withdrawn, I expressed to your Lordships my belief, which was based on wide consultation among voluntary organisations, that there is enormous potential in cable for an extension of the operations of many voluntary organisations in a way that will appeal to countless potential members and customers of those organisations. This means that if local voluntary organisations participate in the way envisaged, there will in fact be many more potential customers of cable than would otherwise be the case.

The possibility of taking up new interests and joining clubs, societies and classes partly by watching programmes put on by local voluntary organisations and responding by going to local meetings and getting involved will appeal to many people as new work patterns emerge and as we have many more retired people living for longer.

It seems that for older people a subscription to cable may come to take a high priority in their budget. It may take the form of a Christmas present from their family, so that they can enjoy programmes put on for or involving them by, for example, Age Concern. For teenagers and young people cable may become an extension of their membership of youth clubs or voluntary youth organisations and a chance to develop new interests and hobbies, and it might become linked with local groups for that purpose. To make certain that local branches of voluntary organisations can put on adequate programmes we must ensure that the franchise holder is enthusiastic about itself becoming involved with them and is willing to help them to prepare and mount programmes.

At the Committee stage the amendments suggested that the percentage of resources of an operator which were to be involved with voluntary organisations should be quantified. The spirit of the amendment was regarded as satisfactory in all parts of your Lordships' Chamber, but the notion that the amount that was to be devoted to the cause should be quantified was not. So my noble friend has returned with these two amendments, Nos. 12 and 13. Amendment No. 12 is intended to add an extra criteria to the list in paragraph (b) of the subsection of considerations to be taken into account in granting a franchise, and Amendment No. 13 is intended to ensure that the activity can be local, because it is local activity that involves most people.

I wish to add one other important point. If the amendment is to work, and if voluntary organisations' involvement is to be as important an element in cable as we would hope, it will be essential that the members of the Cable Authority include people with experience and understanding of the working of voluntary organisations and that they are advised by members of staff who have that experience and understanding. I hope that the noble Lord the Minister will be prepared to advise his right honourable friend of the importance of that point when the Cable Authority is set up. I hope, too, that your Lordships on all sides of the House will favour these two amendments and that the Government my perhaps accept them.

Lord Elton

My Lords, when we were in Committee we had a long discussion of the needs of the Community and of the voluntary sector in relation to cable. We were I think in general agreement about the principle, but we had some difficulty in defining, even in ordinary conversational language, what was required. Since then I have been in correspondence with my noble friend (which she has been kind enough to acknowledge) about the drafting of the amendment, and I have been very glad to have been able with her to find a solution which is acceptable on all sides. I shall certainly bear to my right honourable friend the particular concern of my noble friend Lady Carnegy, but what I wish to say now to your Lordships is that we are happy to accept the amendment which my noble friend Lady Faithfull has moved.

Lord Mishcon

My Lords, I had reserved what small contribution I had to make on behalf of my noble friends until after the Minister had spoken because I feared that there might not have been the happy response to the amendment that there has been. I believe that on all sides of the House we are delighted that the amendment has been accepted and that people who have the reputation which its movers have for being so much concerned with voluntary organisations have had an opportunity to persuade not only the Minister, but also this House.

Baroness Faithfull

My Lords, I should like to thank the noble Lord, Lord Mishcon, for his words, and in particular I wish to thank my noble friend the Minister, who has indeed been most helpful over the drafting of the amendment and its acceptance. I commend the amendment to your Lordships.

On Question, amendment agreed to.

Baroness Faithfull moved Amendment No. 13:

[Printed earlier: col. 1058.]

On Question, amendment agreed to.

4.15 p.m.

Lord Mishcon moved Amendment No. 14:

Page 6, line 29, at end insert— ("(f) whether the applicant is (either alone or in partnership with one or more other persons) entitled to the benefit of one or more existing Licences granted under the Act and; (g) where the applicant is a body corporate whether that body corporate or any associate of that body corporate or any participant in that body corporate or in any such associate is—

1. (i) entitled to the benefit of one or more existing Licences as aforesaid; or
2. (ii) a participant in a body corporate so entitled or included among the persons so entitled; or
3. (iii) a participant in an associate of a body corporate so entitled or so included;

and having regard to any matters ascertained by them under this subsection, the Authority shall consider whether, if the proposed licence was granted, any one person would, in any one or more of the capacities mentioned in paragraphs (f) and (g) above or in any combination of any such capacities, have an aggregate interest in the benefit of two or more licences. If in such circumstances it appears to the Authority that an applicant would have such an aggregate interest and that having regard to the nature and extent of that aggregate interest and any other circumstances appearing to the Authority to be material to the existence of that aggregate interest it would constitute an undesirable monopoly either regionally or nationally, the Authority shall refrain from granting the licence to such an applicant. ( ) In this section "participant", in relation to a body corporate, means a person who (whether alone or jointly with one or more other persons, and whether directly or through one or more nominees) holds or is beneficially entitled to not less than one-twentieth of the shares in that body corporate.").

The noble Lord said: My Lords, in moving this amendment I wonder whether I may he permitted to remind your Lordships of what happened at the Committee stage. The amendment was then moved in precisely the same form as it is now, and its whole purpose can be put very simply indeed. When the Broadcasting Act 1981 was being passed—and it was a consolidation measure—it was made abundantly clear that questions of monopoly must be borne in mind. One imagines that on occasions monopoly can he desirable, but on other occasions it may be most undesirable. Therefore there was put on the statute book a provision that where two licences or more were applied for by someone or some corporation which already had a licence, the authority which was in charge of granting licences should have the right—indeed the duty—to consider whether the grant of a further licence would be an undesirable monopolistic conferment.

As I say, that provision was put on the statute book, and I borrowed it for this amendment, though obviously I had to adapt it. When the matter was considered at the Committee stage, the noble Lord the Minister (as reported at col. 110 of our Official Report of 23rd January 1984) summarised my amendment in the following way—and I cannot do better than employ his words: The noble Lord's amendment seeks to ensure that these unavoidable local monopolies do not become the launching pad for regional or national monopolies which might operate against the public interest".

Bearing in mind—if I may say this in parenthesis—that the amendment merely says that the authority concerned has the right and duty to consider this matter, but that it is not mandatory upon the authority to refuse two licences, the noble Lord went on to say: I am glad to see that the noble Lord has put in the hedges and has said that this is not to be mandatory—that everything has to be properly considered".

Then at the conclusion of his remarks in col. 110 the noble Lord spoke about it being doubtful whether the authority would consider that the interests of cable and consumers were best served by the sort of situations which concern me and my noble friends. He then added: But that said, I am ready to concede that there may be scope to deal with the point rather more specifically in the Bill. I congratulate the noble Lord"— those were very touching words, which I value very much— for the care with which he has drafted the amendment and the diligence with which he revised it this morning".

The amendment comes in a form which met with the praise of the noble Lord the Minister in regard to the wording, or at least the care which had been taken in regard to it. The spirit of the amendment contained what he thought was a proper point for consideration, and he indicated that it would have consideration. I do not observe that the Government themselves have put down an amendment to improve upon the amendment which I ventured to place before your Lordships on the last occasion. Therefore I wonder whether the noble Lord the Minister is on his way to performing a hat trick on behalf of the Government in accepting amendments. If that is so, I hope that my own amendment will be the second part of the hat trick. I beg to move.

Lord Elton

My Lords, more a cloth cap, I think. In Committee, I said that the Government accepted the principle underlying the noble Lord's amendment and would bring forward one of our own to deal with it on Report. That the Government amendment has not appeared is not because we have had any second thoughts about the principle but because we want to get the new provision right and that has proved a difficult matter. In fact, it has not been possible to achieve it in the time. I must apologise, in all sincerity, to your Lordships for having failed to meet this deadline. In my own defence, may I say that of the 83 or 84 amendments on the Order Paper, almost 45 are in my name. Nearly all of those are in response to points made in Committee. Your Lordships would not believe the amount of work that this has generated. So we have not been exactly idle. This is, however, quite a complex matter and we need longer to work on it.

I accept that the noble Lord's amendment is based on a provision in the Broadcasting Act dealing with shareholdings in different independent local radio companies. But, within the structure of this Bill, our provisional view is that there may be other and preferable approaches to the problem. For example, Clause 7 already contains restrictions on the holding of licences and on the holding of shares by certain interests in licensed companies. It may be that we shall be able to deal with the matter in that clause. We shall certainly be bringing forward the necessary amendment in due course. If it proves possible, we shall do so on Third Reading. If it is not possible, I hope that it will not be thought we are going back on what we have said because we shall certainly bring in such an amendment in another place. I hope that, in the light of that apology and that assurance, the noble Lord will be happy to withdraw his amendment.

Lord Mishcon

My Lords, I am deeply grateful to the Minister. I want him to realise that we on this side appreciate that there may be difficulties in dealing with so many amendments in the comparatively short period between the Committee stage and the Report stage. I am obliged to the noble Lord for saying that the principle of this amendment is accepted by the Government in general terms. There is only one request I would make of the Minister. For the second time, we have heard today—I say this with all the understanding that I have previously expressed—that an amendment, which is a fairly important one, may not come before your Lordships before this Bill leaves the House. I believe that our revising duties are best carried out when we can, if possible, complete our task before a Bill goes to another place. That is especially true where a Bill originates in this House. I would therefore plead with the Minister, if it is humanly possible, to produce an amendment by Third Reading, in order that the Bill leaves this place and is seen in another place properly revised by your Lordships' House; that would be a favour to the House in general.

Lord Elton

My Lords, with your Lordships' leave, we shall, of course, do everything possible to meet the noble Lord's wish. It is not altogether unknown for amendments, which arise on a Bill and which are not got right at Committee stage, to be taken eventually in another place when we are the originating House on the Bill. I should like to assure the noble Lord that we are doing everything we can to keep up with the work. Your Lordships are so productive and imaginative in bringing forward amendments to the Bill that I have to tell the House that there are only seven days in the week and that we are working all of them.

Lord Mishcon

My Lords, upon the understanding that I believe exists between the noble Lord the Minister and myself, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ardwick moved Amendment No. 15: After Clause 6, insert the following new clause:

("Code of Standards.

.—(1) Within one year from the enactment of this Act the Authority shall draw up and cause to be published a Code of minimum standards for the matters mentioned in section 6(2) above: and they shall not thereafter grant a licence for the provision of a prescribed diffusion service to an applicant who fails to meet the standards established in that Code.

(2) The Authority may from time to time revise the Code drawn up under subsection (1) above.

(3) Before drawing up or revising the Code provided for in this section the Authority shall consult with such interested persons as they consider appropriate and shall take steps (including the holding of public meetings)—

1. (a) to ascertain the opinions of the public; and
2. (b) to encourage the making of comments and suggestions by members of the public,

about the standards proposed to be set by the Code, and shall take into account those opinions and any such comments and suggestions received by them.").

The noble Lords said: My Lords, the amendment standing in the name of my noble friend Lord Mishcon and myself is the insertion of a whole new clause after Clause 6. We are proposing that within a year of enactment the authority, in the light of its experience, should publish a code of minimum standards for all those matters referred to in Clause 6(2) about the range and diversity of programmes. It should be noticed that the code we are demanding is not one based upon the highest standards. We are not seeking to ensure high attainment, much as that is to be desired. We are simply seeking to ensure that there is a minimum standard below which the performance of cable operators should not be allowed to fall.

We propose that anyone who does not meet these minimum standards should not be granted a licence for a prescribed diffusion service. We then go on to suggest that before drawing up or revising the minimum code, the authority should consult with interested persons, that is, people who might vary from local authorities and voluntary organisations to those who have been in the business of providing or administering television, films and other entertainment. The authority should also tap public opinion which, after 12 months, may have experienced what cable can give at its best and perhaps, unfortunately, what cable can give at its worst.

There is, of course, a provision in Clause 10 for a code. But this is concerned with rules about violence, particularly when children are known to be watching. It is concerned with rules about donations and other matters, concerning standards and practice for programmes as the Authority may consider suitable for inclusion in the code".

Clause 10, desirable though it is, has some shortcomings. It does not mention consultation with the public and it fails specifically to relate to the positive proposals in Clause 6 about the range and diversity of programmes. Clause 10 is essentially concerned with a negative code. It deals with prohibitions and exclusions. It is not setting standards, albeit minimum standards, of positive achievement, especially in the realm of local, educational and access programmes.

When this question was raised on Committee, the noble Lord, Lord Elton, referred rightly to the problem that we had particularly in mind—the situation where there is no competition among the applicants for a licence, just a solitary bidder for the franchise. The noble Lord reminded us that the question for the authority is not just to whom to give a licence, hut, "Shall we give a licence to anyone at all?" and, in the event of competition, "Who is the best qualified?" The question, "Shall we give a licence to anyone at all?" implies that there is a notional minimum standard and that if an applicant falls, or all applicants fall, below it, then no licence at all should be given.

All that we seek to do is to take that minimum standard out of its notional concept and define it in the terms of a code developed in the light of practical experience. We think that this makes sense. We are not asking for pie in the sky but merely for a ration of earthly bread. In Committee, the noble Lord, Lord Elton, feared that the amendment might introduce inflexibility into the authority's remit. Exactly. That is the intention. That is the virtue of the amendment. We are introducing a minimum that is a hard floor. The noble Lord feared that the floor would be too low for some parts of the country and too high for others. Surely, we are not such a divided heterogeneous nation as that: a nation where one man's minimum is another man's maximum. Surely, the minimum standard that we are demanding is wholly compatible with the principle of the light hand and the loose rein—the gentle, permissive authority that the Government visualise to tempt the investor and the entrepreneur.

Lord Airedale

My Lords, subsection (3) of the proposed new clause contains the words that the authority shall, take steps (including the holding of public meetings)". I would not quarrel with the authority holding a public meeting in a particular case if it thought that appropriate. However, in many cases public meetings are not the best way to find out public opinion. Public meetings tend to get packed with pressure groups and people with extreme opinions. A much better way of testing public opinion in some cases is to do what I believe the BBC do a great deal: stand in the street and accost passers-by at random and ask them to answer a series of questions. I feel that to require the authority to hold a public meeting every time would not get the desired result, so I hope the public meeting will be voluntary and not compulsory, as it appears to be in the subsection.

The Lord Bishop of Wakefield

My Lords, I should like to support the intention of this new clause, particularly subsection (3), because I think that one of the things that it is important to strengthen in this Bill is the whole area of public accountability, and anything that we can do in order to ensure that members of the public can express their views to the Cable Authority about the standards of programmes that are being received and about the way the cable services are being provided will surely enrich the quality of broadcasting and also greatly increase the sense of public involvement in what is taking place. I therefore welcome the thrust of this amendment, and even if the noble Lord the Minister is unable to accept it in these words I very much hope that he will take the intent of what lies behind it.

Lord Howard of Henderskelfe

My Lords, may I confine my brief remarks to the question of public meetings. I have been to a good many of them in connection with the BBC, and it has not been my experience that you get nothing but extremists and pressure groups there. You get some people with eccentric opinions, you get some people with complaints, but you also get a lot of genuine public participation where people feel they can actually question directly those mysterious people, the broadcasters, who are responsible for programmes which they see over the air. Some of those people are themselves public figures, others are the so-called grey-faced bureaucrats who are responsible for the programmes that are produced.

I believe that, in addition to the BBC, the IBA has itself greatly encouraged the holding of public meetings in connection with the grant of franchises, and so on; and though by their very nature such meetings can touch only a comparatively small number of people directly, they do get reported in the local press, they do tend to draw good audiences—several hundred strong even in remote places—and I think they are a very good way of broadcasters and "narrowcasters" keeping in touch with their audiences.

So far as cable is concerned, in due course we shall no doubt have some form of answer-back down the cable, which already exists in the United States; though this has its own dangers of instant public opinion polls, for example. Nevertheless, the public meeting as such is not something that I think ought to be run down or regarded as an unnecessary gilding of the ornament.

Lord Elton

My Lords, the noble Lord, Lord Ardwick, has once again argued most eloquently in favour of this amendment, which would place a duty upon the Cable Authority to draw up a code of minimum standards to apply to those matters covered by Clause 6(2) of the Bill, and has initiated thereby a fascinating debate on the merits of open meetings. I think one's opinion of open meetings depends very much on what open meetings one has attended. If they are planning meetings against which there is a desperate campaign, they are of one nature; if they are open house for broadcasting studios, they are of another.

The noble Lord, Lord Airedale, suggests that people should go out into the streets and accost people, but I would remind him of the experience of one intrepid interviewer, the results of which were extremely unlooked for. To the right reverend Prelate the Bishop of' Wakefield I must indeed say that we recognise the importance of public opinion and its pressures being brought to bear on the authority. Indeed, it is our present intention that the complaints procedure will involve a continual review of public opinion of how they and the companies are performing. The noble Lord, Lord Howard of Henderskelfe, in a later amendment, is going to seek to persuade us that this is not the best way; but there is a channel for this in the Bill.

The purpose of the amendment before us, as noble Lords opposite see it, is to ensure that standards are maintained even where only one applicant for a licence comes forward; and, in addition, to give to all applicants some idea of the standard they need to reach if they are to be successful in obtaining a licence. I mentioned in Committee that I did not think the noble Lord and l were necessarily all that far apart on the question of standards. The Government, too, of course, hope that a satisfactory standard will be maintained in relation to all those matters covered by Clause 6(2).

I am sure, too, that in considering applications the authority will come to look for certain basic elements in the generality of applications. They may even decide to give advice to prospective applicants on what they might hope to see in each case. What we wish to avoid, however, is the placing of these considerations into a rigid mould, imposing upon the Cable Authority a list of positive duties of a kind which may he wholly appropriate to public service broadcasting but not so appropriate to cable.

The Cable Authority will be faced with applications from diverse companies in diverse areas where the needs of the consuming public will not be the same. The range of related services which are appropriate or viable may be different in London and Manchester from what is possible or appropriate in, say, a small town. The authority needs to be able to respond to these applications flexibly, and a minimum standard appropriate to one area may not be appropriate to another.

Another important consideration is the duty imposed upon the Cable Authority under Clause 4(8) to promote cable services. That means that they will have a duty to the consumer; and they will have to use their licensing powers in the manner best calculated to further that duty. In some cases they will be faced with a difficult choice. Should they refuse a licence to the single applicant in the knowledge that that will mean no cable in that particular area at all unless and until better proposals are submitted? Or should they grant it even though in certain respects the applicant does not offer everything that the authority might have hoped for? In these circumstances, a code of minimum standards would, we think, be unnecessarily rigid. It could provide an adequate threshold in one area and he quite inappropriate and, indeed, obstructive in another.

I appreciate, of course, the objectives behind this new clause, but I repeat that cable is not public service broadcasting and we should not attempt to bring in by the back door the sort of positive objectives that are appropriate for the latter but not for the former. For these reasons, therefore, I cannot commend this amendment to the House.

Lord Mishcon

My Lords, I would ask most respectfully that your Lordships regard this amendment as one of the most vital that we shall be considering in regard to this Bill. I doubt whether there is one Member of your Lordships' House who has not got a duality of feeling about this Bill. The first feeling is that one does not want to try to do what King Canute was asked to do, which is to restrain the tide of development. All of us feel that it would be wrong to say, "No cable". We have seen what has happened elsewhere. We feel it would be wrong to say: "No cable; this is going to bring down the whole reputation of this country in broadcasting, and is going to do an awful lot of harm in spite of the restrictions in this Bill". We do not want to adopt that attitude. But, at the same time, if we do not adopt it and we allow slipshod language to go on to the statute book, I believe, if I may say so, that we are not fulfilling our duty to ourselves or to the public.

At present there is a clause in the Bill which merely says that the authority shall draw up a code. It does not say when, and if it does it in 10 years' time, it will be complying with that statutory duty. As my noble friend has said, it then deals with questions of violence, and so on, and then, with regard to those guidelines, right at the very end it says: as to such other matters concerning standards and practice for programmes as the Authority may consider suitable for inclusion in the code". There is no time limit for the drawing up of the code; there is no question of taking public opinion in order to ensure that this is not a doctrinaire decision by the authority but that there is a proper democratic way of trying to get hold of guidance as to what is to be in the code; and the most vague and generalised language is employed in regard to standards. Once having issued the guidelines—whenever they are issued—there is no obligation upon the authority to ensure that there are any minimum standards when, in particular, there is only one application for a licence from a cable user in a certain area.

In regard to this Bill, I cannot repeat often enough that if anybody finds any politics anywhere in it, he must have a most extraordinarily analytical mind because there is no politics in this Bill. We have not even allowed (and very properly so) political propaganda of a certain nature to be used in the cable programmes; nor is it to be allowed that political organisations can run them. There is no politics in this Bill.

All of us are minded to do one thing. We believe that it is our duty to ensure that there are minimum standards. I repeat, under this amendment those minimum standards are not to be sought from any bureaucrat, not even from some body or organisation which has certain ethical standards very deeply embedded in its constitution. It must be after proper consultation with the public through the holding of public meetings in appropriate areas and at appropriate times. It does not say that there must be public meetings in every area for which a licence is to be considered.

If we do not pass this amendment, there could be an avalanche of the cheapest possible rubbish because we have not taken on board the duty of ensuring the following. First, that within a limited period a code will be published; secondly, that that will be done after proper consultation with the public; and, thirdly, that the discretion is left to the authority as to what it includes in the code.

The noble Lord the Minister says that that is not flexible enough. All I can say is that if we do not put something of this kind into this Bill, we will have turned flexibility into complete and absolute licence, and we shall not have done our duty by ourselves or by the public. I believe that that is what the right reverend Prelate was saying, and I believe that it is also the wish of those who sit on the Cross-Benches. I would hope that it is the wish of those who sit on the Government Benches, apart from my noble friends. I have considered the position between the Committee stage and the Report stage. If the Minister cannot concede at least the principle of this amendment, and if he objects to any words about including public meetings, I would not agree with him; hut I am perfectly happy to say that I shall withdraw the amendment on an undertaking. But if there is no undertaking about a clause which embodies this principle in the Bill, I shall ask your Lordships to express a view.

Lord Mottistone

My Lords, before the noble Lord sits down, may I say that I appreciate his argument. But could he explain why he is including a totally new clause instead of proposing to amend Clause 10, which seems to go a long way towards what he wants in matters of detail to which he drew our attention?

Lord Mishcon

My Lords, I regard that as a very fair question. I shall tell the noble Lord where my difficulty lay. The earlier clause did at least provide a code to deal with violence and matters of that kind. If I had proposed this amendment at that stage, unfortunately it might have meant that I would have sacrificed the provisions dealing with violence and suchlike. Therefore, I thought it better to table this amendment in order that the House would know categorically what the time period was for this code, the limitation of this code to standards and the basis upon which the code was to be laid down—namely, that unless those standards, as distinct from guidelines, were reached no licence would be granted. If this amendment is defeated (as I hope it will not be) at least I am left with the provision in the Bill in Clause 10 which does something—although, in my judgment, not enough.

Lord Mottistone

My Lords. I have the greatest respect for the noble Lord, Lord Mishcon, hut I find that answer very complicated. One might have been encouraged to support his theme, although of course the detail would need to be left to my noble friend on the Front Bench. If he was tightening up Clause 10, in whatever area he wishes, I would be right behind him, but I think that he has duplicated matters, because both Clause 10 and his new clause provide for a code of practice, and we do not want two codes of practice.

Lord Mishcon

My Lords, I ask for the leave of the House to be allowed to answer because I am permitted to speak only once. However, according to the noble Lord, Lord Mottistone, who has very good eyesight, I am still supposed to be on my feet and not to have resumed my seat. The principle that I am trying to enunciate is different from that in Clause 10. Clause 10 speaks in terms of guidelines and does not make it a standard by which licences are to be granted. In our amendment my noble friends and I have made it a prerequisite that those standards must be reached before a licence is granted. I suggest that if there has to be a Division on this amendment, we wait and see the result; and then, obviously, we can tidy up the situation under Clause 10. I have told the noble Lord my difficulty; I cannot do more.

Lord Elton

My Lords, with the leave of the House—because the noble Lord opposite asked a question upon the answer to which his next move depends—I am afraid that I cannot offer him much comfort because we are not dealing with public service broadcasting aiming at very high ideals originally enshrined by the late and noble Lord, Lord Reith; we are aiming at something very different.

As my noble friend has said, a code of practice is referred to in another part of the Bill, but it deals with other matters. The noble Lord's amendment deals with matters which are dealt with in Clause 6(2), and include the range and diversity of the programmes, the extent to which the applicant or each applicant proposes to include in the programme matters which originate within the European Economic Community, the extent to which they intend to incorporate educational programmes, programmes calculated to appeal specially to the taste and outlook of persons living in the area, and so on. Your Lordships are familiar with the drafting.

These are very different from the matters with which my noble friend is concerned. We honestly believe that the authority will be presiding over a market place, and that market place will address itself to selling, as it were, different parts of the country, some of which have large ethnic minorities and some of which have not, some of which have scattered communities and others of which are composite; some of which are provincial and some of which are metropolitan, and some of which are economically recovering faster than others. The considerations will be very different in every respect.

If the code of practice is to act as the noble Lord, Lord Ardwick, has suggested, as a threshold—or I think the word was "floor"—then in order not to obstruct there being any franchise in areas where in any particular aspect only a small requirement by the nature of things exists, then it will be totally useless in any other area. If, on the other hand, it is made to be useful in the generality of places, then it will rule out forever the introduction of cable into the areas where the needs are minimal and the cable companies would not wish to go to the expense of providing more than that. This is as much a commercial as an ethical matter. In fact, I think it is much more a commercial than an ethical matter. I hope that my noble friends will see it like that and agree with me that this is not the right way to amend the Bill.

Lord Mishcon

My Lords, in view of the Minister's courteous but unsatisfactory reply, I think that the House would wish to express its view.

4.51 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 106; Not-Contents, 107.

DIVISION NO. 1
CONTENTS
Airedale, L.	Jenkins of Putney, L.
Alport, L.	John-Mackie, L.
Ardwick, L.	Kaldor, L.
Attlee, E.	Kearton, L.
Aylestone, L.	Kilmarnock, L.
Banks, L.	Kinloss, Ly.
Barnett, L.	Lawrence, L.
Barrington, V.	Leatherland, L.
Beaumont of Whitley, L.	Listowel, E.
Beswick, L.	Llewelyn-Davies of Hastoe, B.
Birk, B.	Lloyd of Hampstead, L.
Bishopston, L.	Lloyd of Kilgerran, L.
Bottomley, L.	Longford, E.
Briginshaw, L.	Lovell-Davis, L.
Brockway, L.	McCarthy, L.
Brooks of Tremorfa, L.	MacLehose of Beoch, L.
Bruce of Donington, L.	Mayhew, L.
Carmichael of Kelvingrove, L.	Melchett, L.
Chitnis, L.	Mishcon, L.
Cledwyn of Penrhos, L.	Mulley, L.
Collison, L.	Northfield, L.
Cooper of Stockton Heath, L.	Oram, L.
David, B.	Paget of Northampton, L.
Davies of Penrhys, L.	Peart, L.
Dean of Beswick, L.	Phillips, B.
Diamond, L.	Ponsonby of Shulbrede, L. [Teller.]
Donaldson of Kingsbridge, L.
Donnet of Balgay, L.	Rea, L.
Edmund-Davies, L.	St. Davids, V.
Elwyn-Jones, L.	Saltoun, Ly.
Ennals, L.	Seear, B.
Ewart-Biggs, B.	Shinwell, L.
Ezra, L.	Somers, L.
Fisher of Rednal, B.	Spens, L.,
Fitt, L.	Stallard, L.
Gaitskell, B.	Stedman, B.
Gallacher, L.	Stewart of Alvechurch, B.
Glenarmara, L.	Stewart of Fulham, L.
Graham of Edmonton, L. [Teller.]	Stoddart of Swindon, L.
	Stone, L.
Hale, L.	Strabolgi, L.
Halsbury, E.	Taylor of Blackburn, L.
Hampton, L.	Taylor of Gryfe, L.
Hanworth, V.	Taylor of Mansfield, L.
Harris of Greenwich, L.	Tordoff, L.
Hatch of Lusby, L.	Underhill, L.
Hill of Luton, L.	Wakefield, Bp.
Howard of Henderskelfe, L.	Wedderburn of Charlton, L.
Howie of Troon, L.	Wells-Pestell, L.
Hunt, L.	Wigoder, L.
Hylton-Foster, B.	Wilson of Rievaulx, L.
Ilchester, E.	Winstanley, L.
Irving of Dartford, L.	Winterbottom, L.
Jeger, B.	Wootton of Abinger, B.

NOT-CONTENTS
Airey of Abingdon, B.	Croft, L.
Aldington, L.	Cross, V.
Allerton, L.	Cullen of Ashbourne, L.
Auckland, L.	Daventry, V.
Avon, E.	De La Warr, E.
Bauer, L.	Denham, L. [Teller.]
Belhaven and Stenton, L.	Digby, L.
Belstead, L.	Drumalbyn, L.
Blake, L.	Ellenborough, L.
Broadbridge, L.	Elliot of Harwood, B.
Cairns, E.	Elton, L.
Caithness, E.	Enniskillen, E.
Campbell of Alloway, L.	Faithfull, B.
Campbell of Croy, L.	Forester, L.
Carnegv of Lour, B.	Fortescue, E.
Chelmer, L.	Fraser of Kilmorack, L.
Cockfield, L,	Gainford, L.
Cottesloe, L.	Glanusk, L.

Glenkinglas, L.	Nugent of Guildford, L.
Gormanston, V.	Onslow, E.
Gowrie, E.	Orkney, E.
Gray of Contin, L.	Pender, L.
Gridley, L.	Peyton of Yeovil, L.
Grimston of Westbury, L.	Plummer of St. Marylebone, L.
Hailsham of Saint Marylebone, L.
	Porritt, L.
Harmar-Nicholls, L.	Portland, D.
Hawke, L.	Rankeillour, L.
Home of the Hirsel, L.	Renton, L.
Hornsby-Smith, B.	St. Aldwyn, E.
Kaberry of Adel, L.	Sandford, L.
Killearn, L.	Seebohm, L.
Kinnaird, L.	Selkirk, E.
Lane-Fox, B.	Sempill, Ly.
Lauderdale, E.	Sharples, B.
Long, V.	Skelmersdale, L.
Lucas of Chilworth, L.	Stamp, L.
Lyell, L.	Strathcarron, L.
McAlpine of Moffat, L.	Strathclyde, L.
McAlpine of West Green, L.	Strathcona and Mount Royal, L.
Macloed of Borve, B.
Mancroft, L.	Swansea, L.
Margadale, L.	Swinton, E. [Teller.]
Marley, L.	Terrington, L.
Massereene and Ferrard, V.	Thorneycroft, L.
Maude of Stratford-upon-Avon, L.	Trumpington, B.
	Vaizey, L.
Melville, V.	Vaux of Harrowden, L.
Merrivale, L.	Vickers, B.
Mersey, V.	Vivian, L.
Milverton, L.	Ward of Witley, V.
Molson, L.	Westbury, L.
Mottistone, L.	Whitelaw, V.
Mowbray and Stourton, L.	Wise, L.
Murton of Lindisfarne, L.	Young, B.
Northchurch, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 7 [Restrictions on the holding of licences]:

4.59 p.m.

Lord Glanusk moved Amendment No. 16: Page 7, line 30, after ("if") insert ("in the opinion of the Authority a material proportion of the").

The noble Lord said: My Lords, I beg to move Amendment No. 16, and I should like to take with it Amendments Nos. 17 and 18. Amendment No. 17: Page 7, line 31, after first ("or") insert ("material"). Amendment No. 18: Page 7, line 36, leave out from ("(d)") to end of subsection (4) and insert ("any other person carrying on a business").

Subsection (4) of Clause 7 lays out a specific and exhaustive list of the classes and persons who may be prohibited from holding shares in an operating company. It is so written that even the holding of one share can be exclusive. We believe that this is unnecessarily restrictive and will create a great burden on both the company and the authority in trying to keep track of every single share in the business and the business background of every single shareholder. But Amendments Nos. 16 and 17, if carried, would mean that the alarm bells would not ring unless a particular shareholder obtained a material interest in the company. Some of your Lordships, particularly my noble friend the Minister, may object to the phrase "material interest" on the grounds that it is too subjective, but for this reason we have added the words so that the authority is the sole arbiter of the definition of the word "material".

Amendment No. 18 is on the same subject. In subsection (4) the categories of the companies mentioned in paragraphs (d) to (h) include one of the principal shareholders in each of the consortia which have been granted the first 11 franchises. This means that from the beginning at least one of their shareholders is suspect. Also included in these categories are those companies which have exactly the right knowledge and experience most needed by a cable programme company. It therefore seems unnecessary to discourage them from being shareholders.

We believe there is also a need for a catch-all category, where the authority has the power to take action if any person or company obtains a significant shareholding which is considered to be not in the interests of the general public in that franchised area. This is what we have tried to do in this amendment, but no doubt the Government will want to change the wording, though I hope not the sense. I beg to move.

Earl De La Warr

My Lords, I should like to support my noble friend in this amendment. I believe that it is as wrong to include as suspect people television contractors and people in the entertainment business who can do so much for cable—as long as they do not seek to dominate it—as it is right to give the authority the powers to consider every sort of shareholder, whoever they may be, who might seek to do something contrary to the public interest.

For example, while I include television contractors and leave out the gambling casino companies, that is because I do not see any sense in this clause, which I take it is a sort of anti-monopoly clause, in picking out certain people, whereas any company with a certain power can, if it exceeds itself, do damage to the affairs of the cable company. It is extremely sensible to try to put this right.

Lord Elton

My Lords, I am grateful to my noble friends Lord Glanusk and Lord De La Warr for providing us with the opportunity of discussing further the provisions of Clause 7(3) and (4). To summarise again the purpose of these provisions, it is to guard against three main things: first, the possibility of undesirable religious or political influence over local cable companies; second, the over-concentration of editorial control in any one area; and, third, anticompetitive practices in companies engaged in activities related to cable. I think that my noble friends accept the first proposition. As to the others, we entirely accept that the ITV and ILR companies, local newspapers and other interests in the media and entertainment fields listed in Clause 7(4) may have a great deal to offer to cable. We are not suggesting that their involvement is undesirable, indeed in many cases their experience may make all the difference between a mediocre performance and a very good one. Equally there is a risk of undesirable practices emerging precisely because the interests of companies in those fields are so close to those of cable. My noble friends' third amendment throws the scope of Clause 7(4) completely open in that the authority could find themselves having to consider whether shares in a cable company owned by any company whatever might act against the public interest. I do not think that we should impose on the authority a duty which is cast as wide as safeguarding the public interest and at the same time requiring them to consider every commercial participation. That would, in our view, place the authority under a duty which would be very difficult to interpret and more difficult to implement. The list in Clause 7(4) is meant to be exhaustive and we believe we have covered all the types of company where there are potential dangers of the sort which I have mentioned. If my noble friend can provide me with an example of something he thinks we have left out, we shall certainly he prepared to consider it. But I think there are very serious drawbacks to my noble friends' third amendment.

I turn now to Amendments Nos. 16 and 17. Under the Bill as it stands, any shareholding coming within Clause 7(4), however small, would require the authority to apply the public interest test in Clause 7(3). My noble friends' first two amendments would raise this threshold to where the authority considered there was a material shareholding in a cable company by one of the types of company or organisation in Clause 7(4).

I am not sure that that particular formulation would be appropriate, nor whether we need to build in any further qualification here. If a shareholding is very small it is unlikely to lead to results which are adverse to the public interest. Equally if it does lead to such results, it does not, arguably, matter how small the shareholding is. It is still undesirable. None the less, in view of what my noble friend has said. I am willing to think further about whether there might be a case for building some kind of threshold into these provisions, so far as some of the organisations in Clause 7(4) are concerned, so that the authority will not have to consider every shareholding in cable companies however small; that I take it is what my noble friend is seeking and he rightly predicted my anxiety about the terminology used. If we were to decide that something could be done— I hope this is the last time I have to say this in view of our previous exchanges—I am in some doubt whether we should now be able to make the changes in this place. However, I will let my noble friend know how our reflections go and whether we are able to bring something forward in another place when the opportunity arises.

Lord Glanusk

My Lords, I am grateful to my noble friend for those remarks. The people I was thinking of in my catch-all question were overseas companies and overseas Governments which are not on the present list and which might possibly create a threat at a later date. But, in view of my noble friend's encouraging remarks and his agreement to review the situation, I think that we can leave this at the moment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 17 and 18 not moved.]

Lord Campbell of Alloway moved Amendment No.19: After Clause 8, insert the following new clause:

("Procedural measures of safeguard.

.—(1) A decision to grant, vary, or refuse a licence under the provisions of this Act or of the Telecommunications Act 1984 shall not be made unless and until—

1. (a) consultation shall have ensued between the Authority and the Director;
1074
2. (b) written observations as to terms and conditions of grant, variation, or ground of proposed refusal shall have been exchanged between the Authority and the Director;
3. (c) a copy of such written observations shall have been supplied to the applicant; and
4. (d) the applicant shall have been afforded an opportunity of making written and oral representations on such observations in support of his application.

(2) The decision mentioned in subsection (1) above shall be a reasoned decision in writing.

(3) If and in so far as the written observations to which reference has been made in subsection (1)(b) above contain technical or commercial information of a confidential nature supplied by any applicant, the Cable Authority shall ensure that such information be expunged before the copy is supplied to any applicant pursuant to the provisions of subsection (1)(c) above: and such information shall be excluded from the grounds of decision mentioned in subsection (2) above.").

The noble Lord said: My Lords, I beg to move this amendment standing in the name of the noble Lady, Lady Saltoun, the noble Lord, Lord Harris of Greenwich, the noble Lord, Lord Howard of Henderskelfe, and myself. This is to insert a new clause after Clause 8. The objects are to build mandatory consultation between the authority and the director, as defined by Clause 1 of the Telecommunications Bill, into both Bills—and that is in Clause 1(a)—and to provide procedural measures of safeguard to ensure that full and satisfactory consultation in fact takes place—that is Clause 1(b)—and also, to ensure that there is what the noble Lord, Lord Mishcon, on another occasion in Committee, so eloquently described as fair play for the applicants for licences under both Bills in accordance with the fundamental requirements of natural justice. That is Clause 1(c) and 1(d).

A further object is to require a reasoned decision, without which the courts will be unable to quash what might well be a wholly arbitrary decision or to enforce any restraint upon the exercise of the absolute permissive, administrative discretion under Clause 4 of this Bill. That is in subsection (2). Another, taking aboard again observations made by the noble Lords, Lord Mishcon and Lord Harris of Greenwich, at Committee stage, is to protect confidential information; and that is in subsection (3).

At the outset, it is perhaps of cardinal importance to seek to point out that these provisions in this amendment interact and are designed to interact —they are, indeed, inseparable—if one accepts that mandatory consultation should be built into both Bills as a matter of principle. Without the procedural measures of safeguard against abuse, the bare acceptance of the principle of mandatory consultation by Parliament would not affect the exercise of absolute, permissive discretion by the Executive and would not enable the judiciary to curb abuse of power and quash an arbitrary decision.

Some noble Lords will perhaps here sense the presence of the ghost of Montesquieu, but be that as it may, hence not only the principle of mandatory consultation but the need for measures of safeguard (as stated in the marginal gloss to this proposed amendment) without which any statutory affirmation of principle that we accept in principle being built in would be a sterile exercise. Why?—because it would lack any means of legal efficacy. The need for this amendment, which seeks to ensure due administration, is compounded by the fact that an applicant for a licence is subject to executive discretion at the hands of not, as is usually the case, one department of state, but at the hands of two administrative bodies which are of disparate status—the Cable Authority and Oftel.

It is now—it was not so at one time—common ground, as my noble friend Lord Elton accepted at Committee stage, that a degree of commercial compatibility between the two sets of licences is wholly requisite. Hence, the need not only for mandatory consultation but for the measures of safeguard to ensure that it is full and satisfactory consultation and that there shall be jurisdiction, and effective jurisdiction, in the courts to review an arbitrary decision.

So far, my noble friend Lord Elton, on this Bill, and my noble and learned friend the Lord Advocate, on the Telecommunications Bill, have opposed even the principle of mandatory consultation as inappropriate for a variety of reasons. In particular, my noble and learned friend the Lord Advocate gave three reasons which are set out in cols. 498 to 500 of Hansard of 20th February. But the astonishing thing, your Lordships may well think, is that, when my noble and learned friend the Lord Advocate was opposing the principle of mandatory consultation, he said in the second paragraph of col. 500 that it would be sensible that the two licensing authorities should not operate without regard to each other. He said: That would not be a sensible way to proceed, and I am sure there will be close co-operation".

Under this Bill, the provisions of Clause 6(2) are mandatory but they do not take the matter any further for the purpose of effective control of administrative discretion. The provisions of Clause 7(2) are matters of exhortation and the powers under Clause 4 (which is the relevant source of executive power) are wholly wide, wholly discretionary and wholly permissive. So one arrives at the situation—and I make no apology for taking a little time on this, because it affects the rights of the subject—where the question of bona fides is not in question (for one is not suggesting that anyone should act in bad faith) and where ultra vires is not in question (because, in practice, the limits of discretion in Clause 4 are so widely drafted as to oust the incidence of any such submission in practice). So one comes back again to the need for measures of safeguard, as proposed in this amendment, to enable the judicial review machinery to operate at all, by and large, in practice.

I have deferred to the views expressed by the noble Lord, Lord Mishcon, for which I am grateful, and also to the view expressed by my noble friend Lord Elton, for which I am (for once) also grateful, that there should be no question of any full review, that that was inappropriate, that there should be no question of any appellant machinery or of the court substituting its own opinion for that of the board and no hearing de novo: just the bare minimum standards of safeguard to ensure that there should be no arbitrary decisions and that the subject should be protected. Whether or not I have achieved that in this form of drafting, that is what I have sought to do and that is the principle, which is far more important than the words, which I am seeking to contend.

It is not my purpose to advert to this internecine departmental contest for primacy, to which reference was made on a previous occasion, or indeed to the conceptual division of the indivisible which appears to satisfy honour on all sides. It is far too late in the day to turn back the hands of either clock without wrecking the whole mechanism of both Bills, and such is not my intention. This artificial dichotomy, to which I ventured to refer even on Second Reading in an eight-line intervention, cries out for a bridging operation. This amendment seeks to provide that bridge—a bridge which is, albeit of home-made and perhaps rough-hewn construction, I would submit, reasonably sound. It also has a safeguard against the accidents of injustice. On behalf of noble Lords who have tabled this amendment and of myself, I beg to move.

Lady Saltoun

My Lords, in supporting this amendment, I feel rather like a gramophone needle which has got stuck in a groove, for I have by now made this speech to your Lordships three times before. What is worse, unless the noble Lord, Lord Elton, can bridge the gap between us about bridging gaps, I am rather afraid that I may have to inflict the speech upon your Lordships up to another three times.

The fact is that two different government departments are concerned with the technologies involved in many present and future developments such as Prestel, teleshopping, telebanking and goodness knows what other future services which have as yet not been thought of or invented. These technologies are joined together like flesh and blood. Section 43 of the Home Office White Paper on the development of cable systems and services admits that the Cable Authority will have to work on occasions in consultation with Oftel, but we know perfectly well that over the last five years the departments concerned have been at loggerheads. That is why we consider it absolutely essential that the duty to consult shall be written into both this Bill and the Telecommunications Bill. Ministerial assurances, however sincere, that all will be well, that they will kiss, make up and live together happily ever afterwards, are simply not good enough because they have no legal force. Also, Ministers come and Ministers go, but these laws have to go on, if not for ever, at least for a very long time.

Finally, I believe that the proposed dichotomy has been of no little concern to British Telecom, for the reasons which I have given, and the bridging of this regrettable gap would be a great relief to them. I hope that the noble Lord will be able to go some way towards accepting this amendment.

Lord Harris of Greenwich

My Lords, if I may, I will begin by making an apology to the noble Lord and to the House that I have to slip away soon and I would not wish the noble Lord to believe that I had been discourteous to him by so doing. I should like to speak briefly and say that I strongly agree with the amendment put forward by the noble Lord, Lord Campbell. It is a significant improvement, if I may say so, on the amendment we discussed at the Committee stage.

I very much echo the words just spoken by the noble Lady. I do not find it altogether persuasive to be told that Ministers will ensure that these two administrative organisations will behave wholly reasonably, and I think that we need to see something on the face of the statute. That is in fact what the noble Lord is asking for: he is asking for mandatory consultation, and I think he is absolutely right to do so. Secondly, I think it is necessary to ensure that there is fair play for applicants for licences. That is particularly necessary when there are two administrative organisations involved.

I know that this whole question of giving reasons alarms the Home Office. I can remember a situation in which I found myself on the side of the noble Lord, Lord Elton, and against many of my noble friends on the question of whether prisoners should be given reasons for being denied parole. I explained on that occasion why I did not favour the giving of reasons; but the argument here is rather different. I find the argument for giving reasons in this situation very powerful indeed as regards applicants for licences, whether they should be granted, refused or varied. I do not myself see any argument against the ultimate power of the courts to look into these matters.

The fact of the matter is that any administrative body can behave unreasonably. We all know from our own experience that that is so. However reasonable the men on that body may be, they can on occasion make serious errors of judgment. Therefore, when it comes to matters of this sort it seems to me right to ensure that those who apply for licences should have the opportunity, in the final analysis, for some form of judicial review in those exceptional cases—and they will of course only be exceptional cases—where there is something to be said for doing so. Accordingly, I very much hope that the Government will accept this amendment and if, by any sad chance, the noble Lord, Lord Elton, is going to tell us that they cannot do so, I very much hope that the House will press this matter.

Lord Mishcon

My Lords, I should like, if I may, to start by congratulating the noble Lord, Lord Campbell of Alloway, on the very tolerant way in which he accepted the arguments advanced against his amendment at Committee stage. There were those of us who advanced views in which we doubted whether the judges were competent people to decide upon matters of licences as between different applicants. He has acknowledged that that is so and has withdrawn from the judiciary any such suggested duty, making them merely a body of judicial review. I am grateful, as I said, to him for giving consideration to the arguments which were put forward.

I find myself in one particular difficulty over this amendment. If, with your Lordships' leave, the noble Lord could intervene to satisfy me that I am wrong in regard to this, no one would be more pleased than I, because, on the question of mandatory consultation between the two authorities, my noble friends and I are with him wholeheartedly. In our regret that this has not been dealt with by one Government department, we are at one with him, too. I follow the usually—as they were on this occasion—lucid observations of the noble Lord, Lord Harris. If he has to leave in the midst of my remarks, because of an urgent call that he told us he had, I shall not regard him as being in the slightest degree discourteous. He is incapable of being discourteous, but this is my difficulty.

The noble Lord, Lord Harris, talked about the interference, as there should be, in regard to the question of giving reasons when one is dealing with a citizen who is applying for a licence. I see that completely when you are applying for a driving licence, a licence to use a gun or a licence for anything else to which you are entitled if you comply with certain requirements, be they honesty, skill or whatever. It seems to me that if an administrative machine then refuses you that licence, you ought to have a right of remedy, on the basis that you are qualified to have it and that the administrative machine has worked unfairly.

But this is not such a case. This is a case where generally—and, presumably, this is the only time when unfairness will occur—there are several applicants. Then you have the job not of deciding whether the people who are the applicants are honourable, decent people, whether they have certain skills or whether their undertakings can he relied upon. What you must do is to make the best administrative judgment you can as to whether, between competing applicants, one of them, as against another, should get the licence.

To impose upon an authority the duty to give reasons why the person placed No. 2 was not made No. 1, and why the person placed No. 1 was advanced as against No. 2, strikes me as being an impossible position in which to place them. To impose upon them, too, the right of judicial review, on the basis that the authority have, presumably, gone wrong in some way in deciding that No. 2 ought to be No. 2 and that No. 1 ought to be No. 1, strikes me as being an almost impossible position.

When you get an authority which decides in camera, maybe—and I can well see that it would be—that on paper both of those two are equal, but that the oral testimony that was given and the way the questions were answered by the representative of one applicant made them feel rather doubtful, in spite of what was said about the company's own record, whether they would be as strong in giving an undertaking as another applicant, that is a matter which you dare not put in writing and that is not confidential material.

So the difficulty which my noble friends and I have with this amendment, with much of which we agree, relates solely to the giving of reasons, to the copy of those reasons—apart from confidential matters—being given to the applicant and to the applicant having the right to answer them. Incidentally, the amendment does not even state within what time. If the noble Lord can convince us that that is not a very real difficulty, then, if there is to be a Division, we shall be in a certain Lobby, but if he cannot do so we have a problem.

Lord Winstanley

My Lords, before the noble Lord sits down, I merely want to ask whether my recollection is incorrect in thinking that he supported legislation which gave unsuccessful applicants for certain jobs a right to know why they had not got the jobs, so that they would know that it had not been as a result of discrimination on grounds of sex, colour or anything of that kind.

Lord Mishcon

My Lords. I cannot remember the legislation to which the noble Lord refers. It strikes me as the sort of remark that I would have made and as the sort of support that I would have given, but this is an entirely different matter. To prove discrimination, on the grounds of sex, colour, race, religion or whatever ought to give the right of review, but this is not at all that kind of case.

Lord Campbell of Alloway

My Lords, with the leave of the House, may I seek to answer the question put by the noble Lord, Lord Mishcon? The fact that there is more than one applicant renders it all the more essential, if one seeks to try to conform with the fundamental requirements of natural justice, that those who are refused have reasons for the refusal. There are here at stake important commercial interests of some value, with a spin-off which affects the consumers. There is every reason why, in the broad interests of the public, under the broader aspects of due administration and public administrative law, anyone who is refused should know why he is refused.

I do not see the difficulties to which the noble Lord refers, and the noble Lord knows me well enough to concede that I never take refuge in pretending not to see a difficulty if I do see one. With the greatest respect, it is so fundamental that any applicant should have an opportunity to make his case knowing what objections he has to meet, it is so fundamental that if he is unsuccessful he should know, broadly speaking, why he has been refused, that from my whole training as an ordinary advocate I simply cannot see the difficulty. I cannot help the House more.

Lord Spens

My Lords, I rise to support this amendment, if only because it brings a little clarity into what is almost as incomprehensible a Bill as the Telecommunications Bill. It mentions consultation with the director and nowhere else in the Bill is there any allusion to the director or to Oftel. But there is a very peculiar subsection in Clause 5, which I suspect the noble Lord the Minister will quote at us as being the kind of subsection which is mandatory upon the authority. Subsection (4) states: Before granting a licence for the provision of a prescribed diffusion service in any area, the Authority shall consult with the licensing authorities for the purposes of Part II of the 1983 Act". If your Lordships will turn to Clause 34 on page 31, subsection (2) defines the 1983 Act as the Telecommunications Act 1984. That, in itself, is complete nonsense and therefore I support the amendment.

Earl De La Warr

My Lords, I should like to support very strongly indeed what my noble friend Lord Campbell of Alloway has just said. He has put the case brilliantly and in a very wide context. All of these arguments have been produced so often. Indeed, the noble Lady, Lady Saltoun, has said that she has put them three times and I have been saying them ever since July, so we are more or less on the same lines. What we now need to consider, in addition to the legal points, is how likely it is that, as my noble and learned friend the Lord Advocate said on the Telecommunications Bill, there will be close co-ordination.

I must draw your Lordships' attention to two quotations, the first from the White Paper, which, I must remind your Lordships, is a Home Office document. In that part of it which discusses how the Government will handle this dichotomy of control, it says: The key decision must be that of the award of the franchise by the Cable Authority, and the presumption will therefore be that an application to the Secretary of State for Industry by the franchisee or his nominee for a licence to run a telecommunication system will be successful, provided that the proposed system meets the general technical specifications". That is one great department of state telling us how they see it. Now let us listen to what the civil servants from the Department of Industry put into the mouth of my noble and learned friend the Lord Advocate the other night: As far as the running of a telecommunication system is concerned, the primary licensing authority is the Secretary of State". My noble and learned friend said this when we were having a debate on this very subject of the statutory link between the two authorities. He went on to say: Many telecommunication systems are capable of conveying cable programmes, not just those being run solely for the purpose of providing programme services, but the Cable Authority will have no interest in these systems so it would be quite wrong for the authority to be consulted when these systems are licensed under the Telecommunications Bill". We are talking about one indivisible system which can do a number of different things. It can put down television-type programmes or it can put down interactive services. Therefore the truth of the matter, as I see it, is that there is very strong evidence that there is an inherent improbability that the two departments of state can, to the satisfaction of would-be cable operators, consult each other on the granting, variation and termination of licences. It is for that reason—like my noble friend Lord Campbell of Alloway I do not want to go into the history of strife—that I believe it to be absolutely essential for statutory linkage to be built not only into this Bill but also into the Telecommunications Bill. I am very sorry for my noble friend because he can speak only for the Home Office, while the whole burden of our argument is that two departments of state are involved. My noble friend shakes his head.

Lord Elton

My Lords, in this House one of the great disadvantages of being a Minister is that one answers for the Government, not for a department. I am reluctant to advertise the fact because it gives the rest of your Lordships so much fun at our expense, but there it is.

Earl De La Warr

My Lords. I think I can take hope from that. At any rate, it brings me to the end of what I have to say. I would only add that this, as I have said before, is a high-risk, sunrise industry. It has to have a lot of confidence within itself and from its backers. Many of its backers and many of the companies are deeply disturbed by the lack of statutory consultation between their two separate masters. I beg my noble friend to help us to put this right.

The Earl of Halsbury

My Lords, I should like to support the amendment. We are setting up two bureaucratic authorities. What are the occupational hazards of bureaucracy? First, bureaucracies are introverted and suffer from sporadic attacks of omniscience when criticised. Secondly, they are invariably preoccupied with their own convenience. This amendment will make them extrovert. When they clash they cannot retire into their tents like Achilles and sulk; they will have to come out into the open and face one another. Those are the very general grounds upon which I support the amendment.

There remains the difficulty which the noble Lord, Lord Mishcon, (I suppose some of his noble friends will be able to convey to him what I am going to say when he returns to the Chamber) has raised about the practicability of what some of Lord Campbell of Alloway's proposals entail with regard to publishing reasons. I understand the feelings of both noble Lords, but I believe that they can be reconciled if time is given to them to do so. I very much hope, therefore, that the noble Lord, Lord Mishcon, and his noble friends will be able to support the amendment and that the differences between them and the noble Lord, Lord Campbell of Alloway, will be reconciled before we come to Third Reading, so that they will be able to propose a further amendment to what is now before us which will reconcile their differences.

Lord Howard of Henderskelfe

My Lords, I had not intended to contribute to this debate, but I wish to add only a word and it is this. The most important part of this amendment, without any doubt whatsoever, is the statutory requisition for them to consult. If it is not written into statute, it will not happen. We have got to ensure that it is written into statute so that they are forced to consult, whether they like it or not. Whether or not the reasons should be given to the applicant is a matter upon which there can be different opinions, but there cannot be any Member of your Lordships' House, except those who have to speak for these two fiefdoms, who could possibly back a situation in which there is not a statutory duty for the two to consult.

Lord Glanusk

My Lords, I, too, believe that it is essential for the Cable Authority and Oftel to get together. I repeat what I said at Second Reading and hope that the Minister will do what he can to help: that these two authorities at least should be housed in the same building so that there is a reasonable chance that they may meet in the corridors or the lavatories and intercommunicate.

Lord Mottistone

My Lords, if I may give a practical reason for this which I believe is worth putting before your Lordships to show how necessary it is, there will be cable television systems established in areas, among others, containing a high proportion of business premises. In such cases the liability of the cable television operation, and the return on investment made, may be dependent upon the supply of cable programme services to the business community within the franchised area—in particular, interactive services, including, for example, data services. The ability of the cable operator to achieve that will depend, in part, upon having an adequate market for such services. That, in turn, will be greatly influenced by what other telecommunication services are licensed to be provided in the same area.

It is therefore unsatisfactory that the obligation to consult as between the two licensing authorities should lie only with the Cable Authority under Clause 5(4) of the Bill. The Secretary of State or the director—it does not really matter which—should be under a similar obligation whenever deciding whether or not to grant a telecommunications licence which will have a bearing upon the Cable Authority's own functions. In the absence of such consultative processes, the statutory obligation on the part of the Cable Authority to promote "prescribed diffusion services" and other services will be incapable of proper performance without the co-operation of the other licensing body, which at this stage has no statutory obligation to consult with the Cable Authority. So I very strongly support the amendment moved by my noble friend. I am sure that in the passage of time the wording may be changed—but the principle is so important that I would follow my noble friend into the Lobbies if that is where he chooses to go.

5.50 p.m.

Lord Elton

My Lords—at last! I was listening for a note of discord and scarcely detected it. May I say at the beginning that we hear so little from the noble Countess, Lady Saltoun—

Lady Saltoun

My Lords, with due respect to the Minister, I am not a Countess—I am only a Lady.

Lord Elton

My Lords, I do apologise—but how can one attribute the qualification "only" to the distinguished term "Lady"? What I had intended to say, although I have rather spoiled the courteous polish with which I had intended to say it, was that the noble Lady speaks so little that any amendment which brings her to her feet on three successive occasions is not altogether a bad one.

The amendment which my noble friend has moved seeks to achieve two aims. First, it seeks to impose a reciprocal duty to consult between the Cable Authority, on the one hand, and Oftel and the Secretary of State, on the other. Secondly, it seeks to lay down how that consultation shall be conducted. The question of consultation is a matter to which your Lordships understandably attach considerable importance. I quite accept that I did not persuade your Lordships in Committee that what is now in the Bill is satisfactory. I recall the concern expressed both on Second Reading and in Committee about the need for reciprocal consultation. I have of course also read last week's debate of the Committee stage of the Telecommunications Bill, when my noble friend Lord Campbell of Alloway tabled a similar amendment. In that debate, my noble and learned friend Lord Mackay of Clashfern undertook to consider further on that point to see whether a suitable provision might be made.

I can now say that the Government accept that better arrangements are needed for co-ordination between the Cable Authority when it exercises it licensing functions under this Bill and the Secretary of State and the Director General of Telecommunications when they exercise their licensing functions under the Telecommunications Bill. There are at least two practical problems. First, the great majority of licences granted by the Secretary of State and the director will not deal with matters affecting the Cable Authority's function. The authority has no interest in, for example, the licences granted to taxi operators when they run the telecommunication systems connecting their taxis. Nor will the Cable Authority have any interest in the licences granted to operators such as BT and Mercury when they run the public telecommunications networks and the provision of licensable cable programme services is not involved.

It would be bureaucratically cumbersome, and I believe your Lordships would think it wrong in principle, to require either the Secretary of State or the director to consult the Cable Authority about most telecommunication licences. Arrangements for coordination should therefore apply only to those telecommunications licences which are relevant to the provisions of cable programme services. I believe your Lordships would agree with that, and it is only an administrative difficulty.

The second difficulty is a legal difficulty. The Telecommunications Bill is about to be considered on Report in your Lordships' House after consideration in another place. It therefore seems likely to reach the statute book before the Cable and Broadcasting Bill, which has not yet been considered in another place. In the circumstances, it is impracticable to amend the Telecommunications Bill itself to include provisions on co-ordination with a Cable Authority which does not yet exist in law. It will therefore be necessary (and I should like to feel that I am addressing the noble Lords opposite as well as my own noble friends) to deal with co-ordination entirely in this Bill by imposing requirements on the Cable Authority, and partly by altering the effect of the Telecommunications Act to impose requirements on the Secretary of State and the director.

These, however, are technicalities—and I have described the difficulties. But the Government propose to build the bridge which almost every noble Lord who has spoken wishes us to build, even if it is what my noble friend has described as an improbable animal. We propose that a requirement shall be imposed on the Secretary of State and on the Director General of Telecommunications that, if they propose to grant or refuse a telecommunications licence to a person who has disclosed that he intends to use the system to which the licence relates for the conveyance of cable programme services, they should first consult the Cable Authority with a view to receiving any representations the authority may make.

Conversely, amendments will be made to Clause 5(4) in order to extend the existing consultative requirement on the Cable Authority so that, if it proposes to grant or refuse a licence to any person to provide cable programme services, it should consult the Secretary of State and the director with a view to receiving any representations they may make. I hope that has cast light on the clause to which the noble Lord, Lord Spens, directed attention and rightly predicted that I would speak.

This will place on the face of the statute the requirement which noble Lords and the noble Lady are understandably reluctant to leave to a statement of intent from such an ephemeral body as a government. I hope that your Lordships will feel that that explanation has addressed the principal concern of noble Lords on all sides of the House and my noble friends.

Lord Mottistone

My Lords, if my noble friend the Minister will allow me, it does not meet the point made in my speech. If he cares to read my speech carefully, he will find that just dealing with the question of the cable operator is only one side of the argument. The people who want to take up the cable licence will want to know what other telecommunication licences have been given in their area. So it has to go rather wider than my noble friend is saying. Perhaps he will take that into account at a later stage.

Lord Elton

My Lords, I am sure that we can work on the detail of this aspect. I was about to say that we shall be tabling amendments to this Bill at Third Reading in this House. It may be that discussion of the details will proceed beyond that point, but I believe we can reasonably expect to achieve that.

My noble friend also attached great importance to the consultative arrangements being set out on the face of the Bill. Here, I fear that I find some difficulty. The noble Lord, Lord Mishcon, ably deployed the difficulties about a reasoned decision. There are difficulties concerning the volume of paperwork and the ability of the Secretaries of State to communicate not entirely openly, even on matters which are not absolutely confidential. We accept that this is what my noble friend Lord De La Warr has described as "a high-risk sunrise industry" needing confidence; that that confidence could be brought about by a requirement written on the face of the Bill for statutory consultation; and that he proposed to put that on the face of the Bill. That is the issue which the noble Lord, Lord Howard of Henderskelfe, in a brief but important contribution, said was essential in his opinion.

I hope your Lordships will feel that the Government have advanced a considerable way and that we are building a bridge between the two departments (the names of the Secretaries of State of which each appear in the White Paper) so the gulf between them is not all that large. I accept that they are in different buildings. I will not refer directly to where my noble friend Lord Glanusk thought exchanges between them could most profitably take place, except, I suppose, that it is where the fears expressed by the noble Earl, Lord Halsbury, about omniscience might materialise when they consider matters entirely at their convenience. I do not wish to demean this exchange in those terms, however, and this is an important issue to which the Government have addressed themselves. I believe that what we have proposed should satisfy your Lordships that in future there will be direct consultation, required by statute, by the licensing authorities on both sides of the commercial field—and that is what your Lordships require.

Lord Campbell of Alloway

My Lords, I am grateful to all noble Lords who have spoken in this debate, and I am grateful also to my noble friend the Minister for coming some way towards meeting the principle. However, as I see it I am afraid that too little has been given to us to accommodate the principle for which we contend. It is, as I sought to suggest in opening this amendment, inseparable from the problem of means to ensure mandatory consultation. What we have been given is subsection 1(a). What we have been denied is the rest of it. What we have been given is an assurance that the Bill will say that there is mandatory consultation. The result will be to leave the Bill as it stands with a very wide executive discretion which, for the reasons I have sought to suggest, is wholly unacceptable to noble Lords on all sides of this House.

I give an undertaking to consult with the noble Lord, Lord Mishcon, on the subject of his reasoned intervention concerning decisions, following the advice, for which I am extremely grateful, from the noble Earl, Lord Halsbury. I take on board, and I should have mentioned, the point made by the noble Lord, Lord Harris of Greenwich, that it is only in the wholly exceptional cases that the courts would be involved at all. What we propose—not the words, the principle—is that we shall build into the Bill a sort of policeman to safeguard against administrative abuse; that is, the abuse of administrative discretion. Without it I am unable to take any course other than to seek the opinion of your Lordships in a Division.

6.2 p.m.

On Question, Whether the said amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 100.

DIVISION NO. 2
CONTENTS
Airedale, L.	Gregson, L.
Ardwick, L.	Hale, L.
Attlee, E.	Halsbury, E.
Aylestone, L.	Hampton, L.
Banks, L.	Harris of Greenwich, L.
Barrington, V.	Hatch of Lusby, L.
Beswick, L.	Howard of Henderskelfe, L.
Birk, B.	Howie of Troon, L.
Bishopston, L.	Irving of Dartford, L.
Bottomley, L.	Jeger, B.
Brockway, L.	Jenkins of Putney, L.
Brooks of Tremorfa, L.	John-Mackie, L.
Bruce of Donington, L.	Kaldor, L.
Campbell of Alloway, L. [Teller.]	Kearton, L.
	Kilmarnock, L.
Carmichael of Kelvingrove, L.	Kinloss, Ly.
Chitnis, L.	Lawrence, L.
Cledwyn of Penrhos, L.	Leatherland, L.
Collison, L.	Llewelyn-Davies of Hastoe, B
Cooper of Stockton Heath, L.	Lloyd of Hampstead, L.
David, B.	Lloyd of Kilgerran, L.
Davies of Penrhys, L.	Lovell-Davis, L.
Dean of Beswick, L.	McCarthy, L.
Donaldson of Kingsbridge, L.	Melchett, L.
Donnet of Balgay, L.	Milverton, L.
Elwyn-Jones, L.	Mishcon, L.
Ennals, L.	Monson, L.
Ewart-Biggs, B.	Mulley, L.
Ezra, L.	Oram, L.
Fisher of Rednal, B.	Peart, L.
Fitt, L.	Phillips, B.
Fletcher, L.	Pitt of Hampstead, L.
Gaitskell, B.	Ponsonby of Shulbrede, L.
Gallacher, L.	St. Davids, V.
Gladwyn, L.	Saltoun, Ly. [Teller.]
Glenamara, L.	Seear, B.
Graham of Edmonton, L.	Shannon, E.

Shinwell, L.	Taylor of Gryfe, L.
Somers, L.	Taylor of Mansfield, L.
Spens, L.	Tordoff, L.
Stallard, L.	Underhill, L.
Stedman, B.	Wedderburn of Charlton, L.
Stewart of Alvechurch, B.	Wells-Pestell, L.
Stewart of Fulham, L.	Whaddon, L.
Stoddart of Swindon, L.	Wigoder, L.
Stone, L.	Wilson of Rievaulx, L.
Strabolgi, L.	Winstanley, L.
Taylor of Blackburn, L.	Wootton of Abinger, B.

NOT-CONTENTS
Airey of Abingdon, B.	Lane-Fox, B.
Allerton, L.	Lauderdale, E.
Auckland, L.	Lindsey and Abingdon, E.
Avon, E.	Long, V.
Bauer, L.	Lucas of Chilworth, L.
Bellwin, L.	Lyell, L.
Belstead, L.	McAlpine of Moffat, L.
Bessborough, E.	McAlpine of West Green, L.
Bethell, L.	Macleod of Borve, B.
Brougham and Vaux, L.	Margadale, L.
Cairns, E.	Marley, L.
Caithness, E.	Maude of Stratford-upon-Avon, L.
Campbell of Croy, L.
Carnegy of Lour, B.	Melville, V.
Cathcart, E.	Merrivale, L.
Chelmer, L.	Mersey, V.
Cockfield, L.	Molson, L.
Coleraine, L.	Mowbray and Stourton, L.
Colville of Culross, V.	Murton of Lindisfarne, L.
Colwyn, L.	Newall, L.
Croft, L.	Northchurch, B.
Cullen of Ashbourne, L.	Nugent of Guildford, L.
Daventry, V.	Orkney, E.
De La Warr, E.	Pender, L.
Denham, L. [Teller.]	Peyton of Yeovil, L.
Digby, L.	Plummer of St. Marylebone, L.
Dilhorne, V.
Drumalbyn, L.	Portland, D.
Ellenborough, L.	Rankeillour, L.
Elliot of Harwood, B.	St. Aldwyn, E.
Elton, L.	Sandford, L.
Enniskillen, E.	Seebohm, L.
Faithfull, B.	Sempill, Ly.
Ferrers, E.	Sharples, B.
Forester, L.	Skelmersdale, L.
Fortescue, E.	Strathcarron, L.
Fraser of Kilmorack, L.	Strathclyde, L.
Glanusk, L.	Strathcona and Mount Royal, L.
Glenarthur, L.
Glenkinglas, L.	Strathspey, L.
Gormanston, V.	Swansea, L.
Gowrie, E.	Swinton, E. [Teller.]
Gray of Contin, L.	Teynham, L.
Gridley, L.	Trumpington, B.
Grimston of Westbury, L.	Vaizey, L.
Hailsham of Saint Marylebone, L.	Vaux of Harrowden, L.
	Vickers, B.
Harmar-Nicholls, L.	Vivian, L.
Home of the Hirsel, L.	Ward of Witley, V.
Hornsby-Smith, B.	Westbury, L.
Hylton-Foster, B.	Whitelaw, V.
Kaberry of Adel, L.	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 9 [General provisions as to programmes]:

6.11 p.m.

Lord Mishcon moved Amendment No. 20: Page 9, line 10, leave out ("proper") and insert ("maximum practicable").

The noble Lord said: My Lords, in the Division which preceded the last one, when the House was considering safeguards on quality, your Lordships found the Government in a majority of only one in endeavouring to oppose an amendment which was submitted from all sides of the House as being concerned with the standards by which in the future cable was to operate. If the Government find themselves unable to agree to this amendment, I hope that on this occasion the decision will be slightly different and, so far as those who support the amendment, on the right side.

On the last occasion in Committee we dealt extremely seriously with the question of quality related to the quota of British material and actors and others employed in the programmes authorised for cable operators. We had in mind most particularly the whole question of quality. I remember the very powerful speech, if I may say so, of the noble Lord, Lord Hill of Luton. He spoke from all his experience in the broadcasting world and in high government office and told us what should be in the Bill by way of an enforced quota.

The noble Lord the Minister was quite justified in the reference that he made to a fixed quota. The noble Lord, Lord Hill of Luton, said that he wondered whether a percentage quota was necessarily the answer. The debate was about guarding us from a flood of cheap material imported from abroad. I say in parenthesis that when I say "British" I mean to include the EEC. The obligation to comply with the Treaty of Rome is there. In very clear language, the noble Lord, Lord Elton, told us that there was little between us and it was really a question of choosing the right words.

I wonder whether I may be allowed to remind the noble Lord and the House of what he said in Committee, after a contribution from the noble Lord, Lord Winstanley: I am grateful to the noble Lord. I sometimes wrap my meaning in something of a cloak, I fear". I am sure that the noble Lord will be much more forthcoming in his answer to me tonight. I was saying that I thought we could look at words but not at principles. It seems to me that the Government have got the principle right. Whether we should be saying 'proper' or 'maximum'—although I doubt very much whether it should be 'maximum'—is another matter. There might he some other phrases Which I do not have at my fingertips. There might be an adjustment in that, but I do not think that we can place an absolute duty to arrive at a precise figure, for reasons which have been so ably expounded that I do not intend to repeat them."—[Official Report, 261/1/84; col. 366.].

We who were responsible for the earlier amendment, together with other noble Lords on all sides of the House, have endeavoured to give the utmost consideration to what the noble Lord the Minister then said. Instead of a fixed percentage (which we have omitted from our amendment), and merely having the word "maximum"—which, although somewhat favoured by the Minister, made him have some little doubt—we have introduced the words "maximum practicable". That is all that we ask for in regard to the negotiations which will take place hereafter between the Cable Authority and those who are in charge of these matters. All that we ask them to do is to achieve the "maximum practicable" proportion of that which will come from Britain, and by Britain we mean the EEC.

As I said on the previous occasion, in endeavouring to safeguard standards we lost the day by one vote. I hope that the Government will consider that Division to be so important and as showing so much of the opinion of the House that they will have second thoughts about resisting. After all that transpired in the debate last time, and after what the noble Lord the Minister said and which I have quoted, to resist this time would obviously be very wrong. If there is resistance, I trust that the House will show what it thinks of that resistance. I beg to move.

Lord Aylestone

My Lords, during the Second Reading of this Bill, from these Benches I and my colleagues supported the idea of the maximum possible amount of EEC material in cable programmes. We were doubtful whether a percentage should be put in. As I said in Committee, we feel that percentage might mean the maximum possible. If one talks of percentages, we should like 100 per cent., but that is not attainable. I think that the words in the amendment, "maximum practicable", take the matter as far as we feel it would be possible to go at an early stage. We fully support the amendment.

Lord Jenkins of Putney

My Lords, I am just a little worried at the excessive reasonableness of the approach of my noble friend Lord Mishcon on this amendment if he will forgive me saying so. It seems to me that the problem is whether in cable we shall be able to preserve a reasonable degree of British content; and without being too chauvinistic about it, I would say that in television terms British content really means good content.

Having said that, not for one moment do I wish to suggest that there is not excellent material from various other countries—the United States and elsewhere. But by and large the general standard of British television output is of a higher level than is to be found in most other countries in the world. Therefore we are entitled to ensure by all means in our power that the material which emerges into our own homes shall be our own material, for the simple reason that our material is the best. It is certainly the best for our own people.

We are trying to ensure that the new cable television shall not become a downturn in itself and shall not in consequence bring down the general level of British television output. The grave danger is that if there is a single form of output that is allowed to produce material of lower level, there might be some kind of Gresham's law with the consequence that the bad will drive out the good. This is a problem which we have touched on before and which we still face.

For that reason I should myself have preferred the retention of a percentage. Nevertheless, I understand the arguments which have persuaded my noble friend to be so reasonable, and though I cannot promise anything for the future, on this occasion I shall follow him along that excessively reasonable path. I shall support the amendment because I understand the practical difficulties—they are very real—and I believe that this is perhaps as far as we can go.

However, having said that, there is one other thing that I want to say. Once provision has been made in the legislation, there comes the next step of the interpretation of what is the "maximum practicable". At that point it will be necessary for the organisations within the industry to get together with the cable operators and to determine what is the figure. At some stage—whether or not we decide here that we cannot do it; and I understand the arguments against our doing it—a figure must be determined. It is no use having the "maximum practicable" which results in a different figure for different operators all over the place. Each person would make his own determination, and the boys who really wanted to scoop the pool would have their interpretation of what was the maximum. That would be the lot—and it would not be the British lot; it would be the other lot.

Therefore for that reason before the Bill leaves this House we must indicate that we expect such negotiations to take place and to produce an agreement, as happened previously. The figure which was previously agreed with ITV and which has also been adopted by the BBC was achieved by a process of negotiation over a period of time with the representatives of the producers or other people engaged in all sides of television. It was an excellent agreement because it was reached by negotiation between the sides. So I think that we ought to give an indication that that is what we expect as a result of what the amendment proposes. With those words—and these are my final comments, since I understand that there is some pressure on time—I hope that the Government will accept the amendment. In fact I have a good deal of confidence that they will do so, but if they do not. I think that the House will decide to accept it for them.

6.25 p.m.

Lord Somers

My Lords, I should like to support the amendment. I can certainly confirm what the noble Lord, Lord Jenkins, has just said about the quality of our broadcasting as compared with that in other countries. We have had to stay with us many friends from both Australia and America and, without exception, they have all said that our broadcasting is of a higher level than anything else they have come across.

There is one important point to remember. The new cable television undertaking will be run on a commercial basis and at first it may perhaps find things rather hard going financially. It is an unfortunate fact that all the cheapest material is the rather second-rate stuff which, I regret to say, comes from America, and naturally, unless they have any inhibitions, the operators will go for that. People who think that this is a rather superior point of view ought to consider the tremendous influence that television has today on the taste, the moral standards, and many other facets of our young people in particular. I think it very important that we should see to it that they have the best, and therefore I feel that there should be some control of what goes over the air. Here is an opportunity to do that, and I entirely support the amendment.

The Lord Bishop of Wakefield

My Lords, I should like to support the amendment, and I very much hope that the noble Lord the Minister will be minded to accept it. When we began the whole debate on cable television one of the arguments put forward was that the cabling of Great Britain would provide more jobs, and for that reason many of us welcomed the development. I believe that since the advent of Channel 4 we have all seen the remarkable achievements of independent producers and small companies in creating on that network various programmes, independent of the great television companies or the BBC. In this country there is a wealth of talent capable of producing good programmes.

What worries me about the phrase "proper proportions" in the Bill as it now stands is that that is a statutory term, and what is attractive about the wording now proposed in the amendment is that it gives a positive and forward-looking thrust. At the Committee Stage we all understood the reasons why it is not possible to impose a definite quota of 86 per cent. when cable television is first being set up. But if we include in the Bill the words "maximum practicable", they will give continuous encouragement to the authority, and equally important, to those in the television industry—producers, other workers, cameramen, and so on—to see that our capacity to produce good programmes is increasingly reflected in what is presented on cable television screens. Therefore I very much hope that the Government will be able to accept the amendment.

Lord Auckland

My Lords, I certainly support the spirit of the amendment, but I wonder whether it goes far enough. The European Economic Community has contributed a great deal, including much to British television in both feature programmes and broadcasts of an artistic nature. But I believe that we should go further than that; there are the EFTA countries, too, which have much to contribute here, as well as the Commonwealth countries. I should like to see the Commonwealth included in the amendment, because we have Australia, New Zealand, and Canada, all of which can contribute a great deal.

Of course we must be careful not to be insular; and I quite accept that it is very difficult to impose a quota, though the wording of the amendment could be described as a little vague in some respects. Someone would have to arbitrate, so to speak, as to what is the amount. However, I believe that the spirit of the amendment is acceptable; and I hope that my noble friend the Minister will also give consideration to the wider spectrum of the Commonwealth, old and new, and to the EFTA countries as well.

Lord Mottistone

My Lords, I differ only in detail from my noble friend Lord Auckland in that I am opposed to the amendment precisely because it is so narrow. I do not believe that its spirit is right because it narrows us right down to the EC. My noble friend has referred to the splendid developments in television in Commonwealth countries. Australia comes especially to mind, but there are others. The amendment, if we are landed with it, seems to me to stultify us. I would prefer to see "proper" as it stands. However, if we are to have an amendment along the lines of "maximum practicable", whatever that means—it is not easy—then I should like to see the words "and the Commonwealth". It has to be remembered that some of the principal producers currently in the United States come from Australia.

We are not talking about a narrow little world. If we included the words "and the Commonwealth", it would look like a dead hit against cheap American films, ignoring the very good American films that exist. Where the product is meritorious, surely these people will seek to obtain it. They are in the business to make money. They will not put on tripe because their customers will say, "We do not want your thing; we shall be content to go back to the BBC and ITV. We shall not look at your supplementary programmes".

On the whole, therefore, merit must come first. I do not like the manner in which the Bill singles out the EC. But so long as it says "proper", that is vague enough to give freedom to people to bring in anything. I should like to see it made much wider. The direction in which the amendment seeks to phrase the Bill narrows it and debases it and does not provide opportunity for the future.

Lord Hill of Luton

My Lords, on previous occasions when this subject has been debated I have taken the consistent line that failure to have a restriction on overseas material would mean poor quality cable and, much worse, would help to degrade the standards of the two existing services. No one could have gone through the experience as the member of the Government responsible for sponsoring broadcasting at the time of the arrival of independent television without realising that that is an accurate statement of what would result from the unqualified and uncontrolled admission of foreign material. The noble Lord, Lord Mottistone, has sought to make our hearts bleed about the Commonwealth. On the last occasion, I moved that the formula that had been evolved by independent television should be applied to this service. The noble Lord spoke against it and voted against it. In fact, that formual evolved by independent television kept a place for the Commonwealth. It actually achieved what the noble Lord now seeks.

I shall not repeat the auguments that I have used on the three previous occasions except to say this. I have no axe to grind. I am not looking for a post, a job or a retreat. I give it as my honest opinion, based on a substantial amount of experience, that the uncontrolled admission of cheap American material will lower standards to triviality. I am afraid that triviality does attract audiences; that is the danger of it. I do not wish to see more triviality in the two existing services, of which we have every reason to be proud.

I would urge upon your Lordships to accept that experience has taught that the uncontrolled admission of cheap American material that has earned its keep in the States and that is brought here at bargain prices would not only mean a low standard of cable but, much more important, a lowering of standards of the existing services. When the issue was last debated, a valid point was made against the generality contained in the formula adopted by the IBA. I thought that it was valid to say that if, in the new world of cable, there are services, say, wholly devoted to films or wholly devoted to music, and so on, it would be inappropriate to apply the same mathematical formula to all those various potential forms of programme. The noble Lord, Lord Hunt, made the same point, as did the noble Lord, Lord Elton.

I admit that there is something in that point on the assumption that we shall have a variegated range of cable services. Although, therefore, I regard the amendment as second best, I think that it is the best that can be achieved. I hope that the House will accept it knowing that it is second best but enabling something to be done from the outset. Those who say that cable companies should be given a run and then restrictions should subsequently be applied do not really live in this world of profit-making organisations. What would be the cry when there was any suggestion of the subsequent imposition of restrictions? I hope that the House, if the Minister cannot go beyond what he has already stated, which is not very much, will support the noble Lord, Lord Mishcon, in approving the proposed formula, knowing that it is second best but knowing, at the same time, that it is important even if it does not achieve all that is desired.

6.36 p.m.

The Earl of Halsbury

My Lords, before making up my mind on this matter—I address myself soley to the wording of the amendment and not to possible Second Reading points that have emerged during the debate—I should like to ask the noble Lord, Lord Mishcon, what would be the effect of the amendment if a first-class American film was made but it was practical to substitute a British film of second rank? Would the American first-rank film automatically be excluded by the amendment on the grounds that it was practical to substitute something for it?

Lord Elton

My Lords, as a preliminary, let me say that when I say "British" I means British and EC, as the noble Lord, Lord Mishcon, has done. I should like to establish at the start that we want what all your Lordships want; that is, the largest possible proportion of British input to cable services consistent with quality and consistent with not drawing a ring fence around us that keeps us ignorant of the best products in the rest of the world. If we are agreed on that, we have a large area of common ground. Your Lordships have considered whether a fixed point or fixed points on a scale of percentages, rising from the lesser to the greater, could be used as our industry became more adept and experienced in producing high quality material. The trouble with both is that they are inflexible. You have to be either at the fixed point or at a specific point on the scale at any one time, and nowhere else.

The noble Lord, Lord Hill of Luton, has helpfully reminded me that you would, in any case, need different scales for different channels. I would have thought, for instance, that the capacity of British opera to provide 86 per cent. or 100 per cent. of the music suitable to an opera channel might be in doubt. I choose opera only at random, as an example. I am reminded of German and Austrian opera, and so on. And what about Melba?

The noble Lord has therefore resorted in his amendment to a device very similar to others because we have both accepted that what is needed is something flexible; something that will adjust, like a pair of braces, to the tension which it has to support. When there is little which is not meretricious available in this country, and much that is meritorious that is available from elsewhere then plainly the proportion of British material on cable that would be appropriate for the British public would be relatively small. When there is much of great merit in this country—and of greater merit on the whole or even only equal merit with what is found aboad—then it is quite clearly right that if the British actors and producers for whom the noble Lord, Lord Mishcon, spoke—and he does not have a monopoly in that respect because we too wish to foster their prosperity—are able to produce the quality that we want to see on cable, then it should be taken up in preference to material from elsewhere.

We are at one then both in the problem we are trying to solve and the nature of the solution. What lies between us? I think what lies between us is what we find when we look at the actual detailed interpretation of the words on the page. I am not 100 per cent. certain—and perhaps percentages should not be used in this context—that our choice of phrase is perfect; but I think it is better than Lord Mishcon's, for this reason: what he says I think is the "maximum practicable". Provided that enough junk that is not pornographic or inciting to racial violence and hatred, and so on is available, merit will not enter into it. It would be perfectly practicable—and the noble Earl, Lord Halsbury, has put this much more eloquently than I could—to turn down the offer of a magnificent American production. Indeed—and I readily accept what my noble friend has said about the Commonwealth—it may be an absolutely first rate Australian production. Also, and in the interests of international understanding and the noble Lord, Lord Jenkins, it may be from the other side of the Iron Curtain. There might be marvellous productions which we set aside so that boring, indifferent, meretricious material produced at home might be screened instead.

If we have that requirement—even if it was not interpreted with the stark simplicity with which I fear the courts would have to interpret it—if it only tended in that direction, a great deal of the stimulus towards producing the quality of material which in this country has gained us an international reputation amounting to envy, would be gone. Anything you turned out would be almost automatically put on "the box" because there would be possibly 32 channels going into every screen in the United Kingdom which had to be filled with the maximum practicable proportion of British produced material.

I hope that I have demonstrated that I am not being difficult. I genuinely dislike resisting your Lordships' suggestions, particularly on evenings when majorities of five and one are around in the Lobbies. But here there is not a difference. We want to obtain what the noble Lord wants to obtain. I hope I have made it quite clear that my only reason for resisting this amendment is that I think it would attain something infinitely less desirable than what the noble Lord hopes of it.

If there were another phrase which fitted the Bill—and we have been searching and will continue to search—and could come closer to the elasticity that we want and also the upward tension (and I come back to braces, because I think the noble Lord is saying that these braces are not strong enough and are not going to hold the levels of British production high enough) without losing the elasticity, we would be happy to do it. But I fear that this amendment would not have the effect which the noble Lord so rightly wants and has so eloquently suggested that it would achieve.

Lord Airedale

My Lords, may I say in one sentence that I agree with the noble Lord, Lord Mottistone, that it is difficult to know what you mean by "a proper proportion", and if the Minister is not 100 per cent. satisfied with his wording, "a proper proportion" then I suggest the phrase, "a substantial proportion".

Lord Elton

My Lords, I must not, to use Lord Mishcon's phrase, keep "bobbing up"; but any suggestions will be gladly looked at. My immediate instinctive and entirely untrained reaction is that "proper" might be very substantial, and "substantial" might not be the right word. I am perfectly happy to look at these things and to be advised. All I can say is that I see and am advised that there are great dangers in what is now proposed.

Lord Mishcon

My Lords, the noble Lord the Minister is elegant in phrase and usually chooses, when he uses a simile or metaphor, a very appropriate one. I therefore intend to follow him upon the thrice repeated simile of braces. The principle which I am trying extremely hard to support—and I believe that I have the sympathy of most parts of the House—constitutes from my point of view a support for something without which this nation loses its dignity. I cannot therefore think of anything more appropriate than to talk in terms of braces.

The whole question that has been put to the House is this: does the House wish to have a phrase in an Act of Parliament when all of us know the dangers expressed by the noble Lord, Lord Hill, as only he can express them? We all know them. Are we to be satisfied with a word—the word "proper"—which is incapable, so far as I know, of judicial interpretation and is purely in the mind of the observer at that moment? What the noble Earl, Lord Halsbury, may think is proper may not be what the noble Lord, Lord Home—sitting so near him—might think is proper; and the noble Lord, Lord Elton, the Minister, might have an entirely different view of what is proper.

What we are trying to say therefore is something that means something instead of something which means nothing. I am perfectly happy to talk about my braces in this context, as I have said. The principle we are after is putting words in this Bill which mean, "the maximum practicable". Here I immediately turn to the noble Earl, Lord Halsbury, who when he intervenes—as your Lordships always find—intervenes with something which is very sound and therefore he deserves an answer.

I would have said that where you use the word "practicable" instead of "maximum", you have in mind that what you are supposed to do is to achieve a level but not to sacrifice certain matters in achieving it. What is practicable therefore in order to induce people to watch a cable programme—in order to satisfy advertisers as well—would obviously be weighed in the balance. I have no doubt that if there were a very fine American product and a very second rate British product, then when looking at the situation at that stage, and weighing up the proportions that ought to be negotiated from time to time, it would be deemed by the authority that within the meaning of the word "practicable"; is the fact that they are weighing up a first class product against a second class product in any one period of time.

It is going to be impossible to find words which fit in to every single argument and to every single contingency. We will not be able to do it; and I bow to the noble Lord, Lord Hill, when he tells me that I am achieving the second best and possibly not the best. I ask the House—and I ask the noble Lord the Minister to have second thoughts immediately, if he would—at least to accept the second best instead of nothing at all and something which is completely meaningless and which does not even act as a belt, let alone as a good, substantial pair of old-fashioned braces.

Baroness Trumpington

My Lords, the terms of this Bill are similar to those to which the IBA has been subject for many years, and which since 1955 have produced a British content of 86 per cent.; and, as everyone has said, a content of extremely high quality. No one offers the prospect of something which can produce 100 per cent. British content. There is the question of merit, to which my noble friend referred. I believe that this amendment is a tiny bit draconian for something which, up to a certain point, already exists—in other words, it is already written in statute.

Lord Mishcon

My Lords, the House has heard the debate on this matter, and I ask that the opinion of the House be taken.

6.51 p.m.

On Question, Whether the said amendment (No. 20) shall be agreed to?

Their Lordships divided: Contents, 83: Not-Contents, 97.

DIVISION NO. 3
CONTENTS
Airedale, L.	Fletcher, L.
Alport, L.	Gaitskell, B.
Ardwick, L.	Gallacher, L.
Attlee, E.	Gladwyn, L.
Aylestone, L.	Glenamara, L.
Banks, L.	Graham of Edmonton, L. [Teller.]
Beaumont of Whitley, L.
Beswick, L.	Gregson, L.
Birk, L.	Hampton, L.
Bishopston, L.	Hanworth, V.
Bottomley, L.	Harris of Greenwich, L.
Brooks of Tremorfa, L.	Hill of Luton, L.
Bruce of Donington, L.	Houghton of Sowerby, L.
Carmichael of Kelvingrove, L.	Howard of Henderskelfe, L.
Cledwyn of Penrhos, L.	Irving of Dartford, L.
Collison, L.	Jeger, B.
David, B.	Jenkins of Putney, L.
Davies of Penrhys, L.	John-Mackie, L.
Dean of Beswick, L.	Kaldor, L.
Diamond, L.	Kearton, L.
Donaldson of Kingsbridge, L.	Kilmarnock, L.
Donnet of Balgay, L.	Kirkhill, L.
Elwyn-Jones, L.	Leatherland, L.
Ewart-Biggs, B.	Llewelyn-Davies of Hastoe, B
Ezra, L.	Lovell-Davis, L.
Fisher of Rednal, B.	McGregor of Durris, L.
Fitt, L.	Melchett, L.

Milner of Leeds, L.	Stewart of Alvechurch, B.
Mishcon, L.	Stewart of Fulham, L.
Mulley, L.	Stoddart of Swindon, L.
Northfield, L.	Stone, L.
Oram, L.	Strabolgi, L.
Phillips, B.	Taylor of Blackburn, L.
Pitt of Hampstead, L.	Taylor of Gryfe, L.
Ponsonby of Shulbrede, L. [Teller.]	Taylor of Mansfield, L.
	Tordoff, L.
Saltoun, Ly.	Underhill, L.
Seear, B.	Wakefield, Bp.
Segal, L.	Wells-Pestell, L.
Shannon, E.	Whaddon, L.
Somers, L.	Wilson of Rievaulx, L.
Stallard, L.	Winstanley, L.
Stedman, B.

NOT-CONTENTS
Allerton, L.	Lawrence, L.
Auckland, L.	Limerick, E.
Avon, E.	Long, V.
Bauer, L.	Lucas of Chilworth, L.
Bellwin, L.	Lyell, L.
Belstead, L.	McAlpine of Moffat, L.
Bessborough, E.	McAlpine of West Green, L.
Bethell, L.	Macleod of Borve, B.
Brougham and Vaux, L.	Margadale, L.
Cairns, E.	Marley, L.
Caithness, E.	Maude of Stratford-upon-Avon, L.
Campbell of Alloway, L.
Campbell of Croy, L.	Melville, V.
Carnegy of Lour, B.	Merrivale, L.
Cathcart, E.	Mersey, V.
Chelmer, L.	Milverton, L.
Cockfield, L.	Mottistone, L.
Coleraine, L.	Mowbray and Stourton, L.
Colville of Culross, V.	Murton of Lindisfarne, L.
Colwyn, L.	Newall, L.
Craigavon, V.	Nugent of Guildford, L.
Croft, L.	Orkney, E.
Cullen of Ashbourne, L.	Pender, L.
Daventry, V.	Plummer of St. Marylebone, L.
De La Warr, E.
Denham, L. [Teller.]	Portland, D.
Digby, L.	Rankeillour, L.
Drumalbyn, L.	Renton, L.
Elliot of Harwood, B.	St. Aldwyn, E.
Elton, L.	St. Davids, V.
Enniskillen, E.	Sandford, L.
Faithfull, B.	Skelmersdale, L.
Fanshawe of Richmond, L.	Spens, L.
Ferrers, E.	Strathcarron, L.
Fortescue, E.	Strathclyde, L.
Fraser of Kilmorack, L.	Strathcona and Mount Royal, L.
Glanusk, L.
Glenarthur, L.	Strathspey, L.
Gowrie, E.	Swinfen, L.
Gray of Contin, L.	Swinton, E. [Teller.]
Grimston of Westbury, L.	Tranmire, L.
Hailsham of Saint Marylebone, L.	Trumpington, B.
	Vaux of Harrowden, L.
Halsbury, E.	Vickers, B.
Home of the Hirsel, L.	Vivian, L.
Hornsby-Smith, B.	Ward of Witley, V.
Hylton-Foster, B.	Westbury, L.
Kaberry of Adel, L.	Whitelaw, V.
Kilmany, L.	Windlesham, L.
Kinloss, Ly.	Wise, L.
Lane-Fox, B.

Resolved in the negative, and amendment disagreed to accordingly.

7 p.m.

Baroness Trumpington moved Amendment No. 21: Page 9, line 12, leave out ("in") and insert ("within").

The noble Baroness said: My Lords, this is purely a technical amendment designed to ensure consistency in the drafting of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Winstanley moved Amendment No. 22:

Page 9, line 13, at end insert— ("( ) that the needs of the deaf are borne in mind and that where reasonably possible proper and appropriate use is made of subtitling, signing and other techniques designed to assist people with impaired hearing to benefit from cable programme services.").

The noble Lord said: My Lords, with this amendment standing in my name and that of my noble friend Lord Aylestone, and that of the noble Baroness, Lady Vickers, we return once again to familiar ground, and I do not think it will take us very long. It is matter we discussed at Committee stage. There appears to be some apprehension on the Front Bench opposite. Does the noble Lord wish to intervene?

Lord Denham

My Lords, I am in the hands of the House about this. I think we rather felt that it was probably time to adjourn the Report stage, but if the noble Lord's point is going to be fairly short perhaps we could take this one, or if it is going to be long perhaps take it after the adjournment.

Lord Winstanley

My Lords, I hope it is going to be short, because I hope the Government are shortly going to accept it. Perhaps I may proceed on that basis. This is a matter we discussed at Committee stage. Noble Lords will recollect that this amendment had agreement from all parts of your Lordships' Committee, and yet I withdrew it. Some may ask, why did I withdraw it? I withdrew it because I did not have the machinery available to me to make the necessary calculation to be certain that I was going to win. I thought it would be deplorable if we lost an amendment about the deaf. In addition, I knew that the noble Baroness was sympathetic to the needs of the deaf, and I felt that if she and the Government were given sufficient time to mull over the matter it might be that after a convenient interval I should get a more sympathetic answer. We have now come to the time at which I hope to do so.

I do not think I need say a great deal more, since we are all waiting for dinner—there is much I should like to say—as long as it is understood that we are making an exception here for one large group, the deaf, because they are a group substantially disadvantaged in relation to television, and because they could be assisted in the way which is suggested in this amendment. I beg to move.

Lord Mishcon

My Lords, my noble friends and I support this amendment.

Baroness Trumpington

My Lords, the noble Lord, Lord Winstanley, is very kind. He is quite right. When we last discussed this in Committee, I tried to make clear the Government's concern for the needs of the deaf. We have given the matter careful consideration since the Committee stage. I am glad to say that, in the light of our consideration, and of the arguments advanced that night, we are prepared to consider whether it might be possible to make special provision for the deaf in this Bill. We accept that the position of the deaf in relation to cable television is very much a special case among disabled groups.

I think that the noble Lord, Lord Winstanley, accepts that his amendment will not quite do the trick, and for our part we are not quite sure that provision of this sort will sit happily in Clause 9. However, I can say that the Government are prepared to bring forward a suitable Government amendment to meet the main principles of the noble Lord's amendment. I hope that this assurance will give pleasure not only to those noble Lords involved but also to deaf persons who do not happen to have one of those brilliant, I can only describe them as tic-tac men or women at hand to help them when they watch the programmes of the future. I invite the noble Lord to withdraw his amendment.

Lord Winstanley

My Lords, I am most grateful to the noble Baroness for what she has said. With regard to the tic-tac men, the people who "sign" programmes, this is interesting to watch as the noble Baroness says. It is rather like ballet. It is not like the old alphabetic language, it is more balletic in terms of the movement. It is interesting, as a result of using this tic-tac technique in certain television programmes, the number of people who now wish to learn sign language. They are increasing in number, and not just among the deaf but other people. This is going to change the quality of life for the deaf.

The reason why we do this in this Bill is that we set an example to the community as a whole. By doing this, and making special reference to the deaf in the Bill, we do something for the deaf throughout the community as a whole. I am most grateful to the noble Baroness. I realised before that she almost choked on the words written on her paper at Committee stage, and it seemed to me that this time her words were much more palatable to her, and they were very much more palatable to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Denham

My Lords, this is probably the right moment to move that further consideration on Report be now adjourned. In doing so, I think I should say that we shall not be returning to this particular subject before 8 p.m.

Moved accordingly, and, on Question, Motion agreed to.