Lords Sitting of 23 January 1984

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Peterborough.

Death Grant
Baroness Ewart-Biggs: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much the value of death grant has declined in purchasing power since the present monetary level was fixed.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): My Lords, the value of the grant has declined by about 82 per cent. since 1967.
Baroness Ewart-Biggs: My Lords, I should like to thank the noble Minister for his answer. Would he not agree that the figure he has just given explains why so many old people have a justifiable fear of what they term a pauper's funeral? Would he say, first, what means of assistance there are to relatives, other than widows and widowers on supplementary benefit, to help them meet these rising costs? Secondly, would he say when the Government will be ready to report on what many people would think was long overdue: that is, the future of the death grant?
Lord Glenarthur: My Lords, as the noble Baroness will be aware, a consultative document went out for consultation in March 1982 and replies were received by July 1982. The public response to that document gave no clear support for any of the proposals put forward. As a result, it has been necessary to re-examine the whole situation. The noble Baroness asked when an announcement could be made about the future of the grant. All I can say is that an announcement will be made in due course.
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As regards help from supplementary benefit for poor families facing funeral bills, the increase in the supplementary benefit single payments limit from £300 to £500 and the other changes in the supplementary benefit capital limits announced in the last Budget will help to ensure that people receiving supplementary benefit are not required to draw on personal savings or other forms of provision towards personal funeral costs. Those on supplementary benefit who are left with responsibility for arranging a funeral but have few savings or resources can already be given special help, and in 1982 some 13,000 families were given single payments toward funeral expenses, at an average level of about £200.
Baroness Ewart-Biggs: My Lords, I asked the Minister what means of assistance in meeting these costs are available to a son or daughter who is not on supplementary benefit.
Lord Glenarthur: My Lords, that is a question for the consultations which the Government are having at the moment and on which I cannot give a pronouncement.
Lord Airedale: My Lords, can the noble Lord answer the noble Baroness's question the other way round, so to speak, and tell the House what the level of the death grant would now be had it been increased in the same proportion as the increase in national insurance contributions since the present grant was fixed?
Lord Glenarthur: My Lords, in 1967 when the present rate of grant was fixed the national insurance contributions were flat-rated, and since 1975 they have been related to earnings. There have also been changes to and increases in other benefits, so it is not really possible to make a direct comparison in the way that the noble Lord asks. I could perhaps turn his question round, if I may. One could ask how far would national insurance contributions have to increase to restore the value of the death grant, and the answer to that is about 3p a week for the average earner.
Lord Airedale: My Lords, may I ask: to restore the death grant to what?
Lord Glenarthur: My Lords, to restore it to what it was.
Lord Stallard: My Lords, will the noble Lord accept that the consultative process he mentioned failed miserably, and for four reasons? First, the low cost basis of the proposals pre-empted any real consultation process; secondly, the proposals would have disqualified national insurance contributors from an entitlement; thirdly, the benefit would have been insufficient to help those who would have qualified; and fourthly——
Noble Lords: Question!
Lord Stallard: My Lords, is the noble Lord aware that, Fourthly, it would not have been readily available to those who needed it most? Would he not now accept that the Government and his right honourable friend the Secretary of State ought to be discussing with the Dignity in Death Alliance their very simple alternative proposal that the death grant should be up-rated in line with inflation and should be index-linked, non-means tested and available to everyone, including children and elderly people?
Lord Glenarthur: My Lords, I would not agree with all that the noble Lord says. There are many reasons which have to be taken into consideration by the Government in their consultations on the matter. I am sure the noble Lord and many others of your Lordships also would agree that the most important thing is that those who really need a grant get it. That is something that is also being considered by the Government at the moment.
Baroness Jeger: My Lords, does the noble Minister recall that in the consultative document which was put out it was stated that the equivalent value of the 1949 death grant would in 1982 have been £195? Can he tell us what it is now in January 1984? Can he say what practical steps the Government are taking to reopen the consultations which failed so disastrously in 1982?
Lord Glenarthur: My Lords, on the second part of the noble Baroness's supplementary, consultations are going on between Ministers at the moment, as I hoped I had made clear earlier. As to the cost of restoring the 1949 value of the grant to today's prices, based on the latest figures available the grant would need to be increased to about £210. That would cost about £105 million extra for the year 1983–4.
Lord Gridley: My Lords, may I ask my noble friend the Minister whether he is aware that I, as a Government appointed trustee of the Far East Prisoners of War and Internee Fund, and other trustees are concerned at the level of grants now being made to the widows of former prisoners of war who were forced to work on the Burma-Siam railway? Will the widows be borne in mind along with other considerations which the Government may be thinking about?
Lord Glenarthur: Yes, my Lords. I am well aware of the active part that my noble friend plays so far as Far East prisoners of war are concerned. I can assure him that all he says will be taken into account.
Lord Diamond: My Lords, will the Minister be a little more forthcoming as to what he means by "in due course"? Is not the essence of this matter that everybody has some concern? Indeed, many people believe that they have an indirect interest in the benefit in question. Is it not right that the Government should hurry up with these consultations which are going on between Ministers and offer us their conclusions, and not merely say "in due course"? As has been said with some considerable authority, in due course we shall all be dead.
Lord Glenarthur: My Lords, I seem to remember hearing various attempts to explain whether "in due course" was the same as "soon", or whether "soon" was the same as "in due course", and I am afraid that I cannot go further than I have said.

UK Shipping: Crosstrade Figures
2.44 p.m.
Lord Gridley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what percentage of Britain's gross shipping income was derived from "crosstrading" in 1982.
Lord Lucas of Chilworth: My Lords, crosstrade freight revenue is provisionally estimated to have accounted for 46 per cent. of total revenue from international activities of the United Kingdom shipping industry in 1982 or 67 per cent. of international freight revenues. Charter receipts and passenger revenues make up the remainder of the total.
Lord Gridley: My Lords, I thank my noble friend the Minister for that Answer. Will he confirm that over two-thirds of international trading arises from crosstrading and that in the circumstances this position is reasonably satisfactory?
Lord Lucas of Chilworth: My Lords, the figure of£1,541 million of United Kingdom shipping earnings on crosstrades compares with the total of £3,335 million of total revenue from international activities. I confirm that the proportions are satisfactory: but it is not without a considerable amount of endeavour by the shippers, the shipping lines and, indeed, the Government that this figure is being maintained.
Lord Underhill: My Lords, does the Minister recall that in our excellent debate on shipping competition it was made clear—and the Government department concerned agreed—that the beneficial owners of about 50 per cent. of United Kingdom registered shipping are foreign companies? Are the figures that he has given net figures, or do they allow for any of those receipts which are transferred out of this country? Also, does he not agree that crosstrading is imperilled by flags of convenience and discriminatory action by other countries? May I ask what the Government propose to do to avoid that?
Lord Lucas of Chilworth: My Lords, the Government are doing a great deal in a number of international fora to fight for the rights of British lines to continue their traditional crosstrading activities. It is the Government's policy, in the interests of the British shipping industry itself, British exporters and consumers alike, that an open competitive régime in world shipping should be maintained. It is for this reason that we are party to the current discussions of the United Nations Conference on Trade and Development and, in particular, to the EC agreement to work through the Consultative Shipping Group to ensure that there is freedom of competition for our ships and those of our Community partners.
Lord Greenway: My Lords, can the noble Lord give the House any comparable figures concerning Soviet crosstrading activities?
Lord Lucas of Chilworth: My Lords, so far as Russian crosstrading is concerned, I can tell the noble Lord, Lord Greenway, that about 15 per cent. of the trade of Soviet vessels is derived from trade between non-Soviet ports. In recent years, Russian vessels have carried between 1 and 2 per cent. of the value of all British seaborne trade.
Lord Underhill: My Lords, I am sorry to press the Minister further. He answered the second part of my question on the Government's action on crosstrading and discrimination, but not the first part which was that it is generally agreed that the beneficial owners of 50 per cent. of the United Kingdom registered shipping fleet are foreign companies. Therefore, are the figures that he has given to the noble Lord, Lord Gridley, net, after allowing for money transferred out of this country from those receipts, or are they gross figures?
Lord Lucas of Chilworth: My Lords, I very much regret that I cannot tell the noble Lord whether the figures are gross or net; but I will make inquiries and ensure that he is informed. It is not true that 50 per cent. of United Kingdom shipping is foreign owned. It is a smaller amount than that.

Further Education: Local Authority Provision
2.49 p.m.
Baroness David: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether local authorities are obliged to pay for the education or training of 16 to 19 year-olds in further education establishments.
The Earl of Swinton: My Lords, Section 41 of the 1944 Education Act requires local education authorities to secure the provision for their area of adequate facilities for further education in accordance with a scheme of further education. Section 8 requires that they secure provision in schools for full-time education suitable to the requirements of pupils up to the age of 19, other than such full-time education as
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may be made under the provisions of the Act relating to further education. It is for individual authorities to decide how to give effect to these requirements.
Baroness David: My Lords, I thank the Minister for that reply, and I understand from it that local authorities are not obliged to pay fees in a further education establishment. Would he not agree that it is an anomaly that a local authority should be obliged to provide education in a school for 16 to 19 year-olds but should not be obliged to provide for what may be an absolutely identical course in a further education establishment? Would he not agree that there should be no statutory bias towards one form of provision or another, and that they should be on all fours? Does he not think that young people should be able to choose freely which sort of education they are taking between 16 to 19, whether in a school or at a FE or tertiary college?
The Earl of Swinton: My Lords, I agree at least partly with what the noble Baroness has said. I accept that the position of the 16 to 19 year-old further education student is anomalous in that the home authority is obliged to pay the cost of provision at a college maintained by another authority only if they have given prior approval for that provision. The Government are committed to increasing freedom of choice wherever possible. This is one of the matters which are being considered by my right honourable friend the Secretary of State in response to the review of further education law.
Baroness David: My Lords, is the Minister aware that the drill of my questions is towards asking for some sort of legislation about further education, for which I have asked many times before? There are so many anomalies. Sections 6 and 7 of the 1980 Act mean that parents have a choice about where their children, whether post-16 or under the age of 16, go to school. They can also appeal. This is not so if they wish their children to go to a further education college. The same applies to recoupment. It is essential if it is a school but it is not essential for another authority to pay if it is for further education. Could the Minister please press for early legislation to put these anomalies right?
The Earl of Swinton: My Lords, I could press for all I am worth, but whether or not anyone would take any notice is another matter. There are other priorities for legislation, as I indicated in response to a Question from the noble Baroness on 27th October. However, my right honourable friend is addressing the underlying issues of the efficiency and effectiveness of the further education system by other means.
Lord Kilmarnock: My Lords, I think I detected a gleam of light in the noble Earl's reply. Would he not agree that in the present unfavourable employment climate for young people very many more of them are likely to wish to continue in non-advanced further education rather than in sixth-form education? If the Secretary of State is seriously studying the matter, will the noble Earl come to the House and make a Statement on the result of the Secretary of State's deliberations?
The Earl of Swinton: My Lords, I cannot tell the House how and in what form my right honourable friend will make his statement. However, if it is in the form of a Statement in another place it is customary that I should repeat it in this House. I can give no undertaking, however, on that point.
Lord Graham of Edmonton: My Lords, from what the Minister has said I gather that there is the possibility that the present practice may be changed. Will the Minister accept that the general public, in particular the young people involved, cannot grasp the subtleties of the demarcation between courses of education in schools and those in further education colleges for those aged between 16 and 19? Surely we ought to be maximising the number of young people who are prepared to take advantage of the benefits of education. If there is a preference for attending further education colleges because it appears to young people to be more grown up to attend further education colleges than school, ought we not to encourage this by every means possible?
The Earl of Swinton: My Lords, if I suggested that the position was going to be changed, I gave the wrong impression. I did not say that. I said that my right honourable friend was looking at the possibility of change, which is a different matter. Yes, I agree that the position is anomalous and that it is difficult. At the same time, the system is working. I do not believe that there are any very great difficulties. That is the only undertaking I can give to the noble Lord and to the House.
Baroness Masham of Ilton: My Lords, if local authorities do not have adequate or suitable educational or training facilities in their own area for disabled students, may I ask the noble Earl my kinsman whether they are obliged to send them elsewhere?
The Earl of Swinton: My Lords, local authorities are expected to assess the individual needs of each handicapped young person and to take into account special factors that refer to that individual young person. They have the power to provide for young people beyond the age of 19 as well as for those up to that age, and they have discretionary powers to provide financial support for any student in further education. Whether authorities send them in fact elsewhere I should not like to say. There are local authorities and local authorities.

Nuclear Weapons: Policy
2.55 p.m.
Lord Jenkins of Putney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the report of the Washington Scientific Conference on the Biological Consequences of Nuclear War, they will reappraise their nuclear warfare policy, so as to place less emphasis on the growth of the nuclear strength of the West and more on endeavours to halt the nuclear arms race.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, the horrific consequences of nuclear war are not disputed. That is why NATO's policy is one of deterrence aimed at preventing war of any kind, while at the same time seeking balanced and verifiable measures of arms control.
Lord Jenkins of Putney: My Lords, I am grateful to the noble Lord, but I wonder whether he has fully taken on board the conclusion of this
high level world scientific conference, including four Nobel laureates, that if even a small proportion of the present stock of nuclear arms were launched it might well bring about the extinction of humanity in the Northern Hemisphere, in any event, and possibly even in the world. Is the noble Lord aware that, although this report has received wide coverage elsewhere and is believed by some to be one reason for President Reagan's recent change of tune, it has had very little coverage in this country? Will he make the report available in the Library to noble Lords, and in particular the transcript of the satellite television dialogue which took place between American and Soviet scientists, which ended by the Vice-President of the Soviet Academy describing nuclear weapons as,
"a cancerous growth which will kill us if we do not cut it out"?
Lord Trefgarne: My Lords, there is always room for speculation about the horrors of a nuclear war and the severity of its effects, but NATO is more interested in ensuring that war does not start in the first place.
Lord Orr-Ewing: My Lords, has my noble friend observed that the Question refers to the growth of the nuclear strength of the West? Is it not a fact that while the Soviets have withdrawn a few SS4s and SS5s they have replaced them with 250 SS20s, all with three warheads and a reload capacity? Is it not a fact that during this period the United States of America has withdrawn or intends to withdraw several thousand nuclear warheads? How can this possibly be described in the Question as "growth", except by a distorted mind?
Lord Trefgarne: My Lords, my noble friend is quite right when he points out that NATO has been reducing the number of nuclear warheads, particularly in the European theatre, in recent times and that we have plans to reduce them even further, Whereas, as my noble friend said, at the same time the Soviet Union have withdrawn just a few very old warheads and introduced new, triple-warheaded missiles.
Lord Brockway: My Lords, in view of the strength of the demand all over the world for the ending of nuclear weapons, not only in Europe but in America and in the non-aligned nations, Japan and Australasia, will not the Government take advantage of the Stockholm Disarmament Conference not merely to demand the monitoring of military manoeuvres and activities but, through its terms of reference as a disarmament conference, to seek to bring about the ending of nuclear weapons?
Lord Trefgarne: My Lords, it is, unhappily, not for Her Majesty's Government alone to achieve a

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reduction or an elimination of nuclear weapons, but we shall certainly support any measure which proves to be both balanced and verifiable.
Lord Cledwyn of Penrhos: My Lords, further to the question which my noble friend has just asked, could not the noble Lord go a little further and tell the House what will be the main objective of Her Majesty's Government in the CSPM conference? Futhermore, could the noble Lord say whether his right honourable friend sees any hope of a possible resumption of the START or INF talks? Is there any ground for believing, as I believe The Times stated this morning, that the START talks might resume fairly soon, given that that would be an extremely important step forward?
Lord Trefgarne: My Lords, we do not yet have a date for the resumption of the START talks. We hope that there will be a date before long, but, as I believe I mentioned to your Lordships the other day, the Soviet Union are apparently reconsidering their position in this particular area. If that is so, and if it leads to a more constructive attitude of the Soviet Union in these talks, then a short delay in setting a date for restarting them will be well worth it. They have, however, recently agreed to a date to restart the MBFR talks in Vienna, and that is much to be welcomed.
The Earl of Kimberley: My Lords, does my noble friend not agree that the Soviet Union was bound to leave the talks in Geneva when cruise and Pershing missiles arrived in Europe, because they could not lose face due to their sponsorship of the so-called peace movements throughout the world?
Lord Trefgarne: My Lords, I greatly regret that the Soviet Union found it necessary to leave the INF talks when they did. It is a pity that they had not been more flexible during the time that the talks have continued or that the proposals they ever brought forward were ones which simply maintained the status quo, namely, a monopoly on the Soviet side of these particular classes of weapon, while we on the Western side—or, at least, the United States on the Western side—had been advocating a number of different proposals, including the zero option and variations of it. I hope that those talks, too, will restart although I am not hopeful that they will do so in the near future.
Lord Molloy: My Lords, while appreciate the fact that the noble Lord the Minister acknowledges and recognises the horrendous effects of a possible nuclear war, will he be prepared to consider that, in so far as it was perhaps this country—Great Britain—which had more in common with the Russian people and the American people while we were all allies together just a few decades ago, it could be Great Britain which provides the real meeting together of the Soviet Union, our former allies, and the United States, our allies? Would that not serve to acknowledge that the Warsaw Pact and NATO Pact by themselves mean nothing, but that it is the authority of the USA and USSR that really counts in the end? Would not some intervention and a bold independent stand by the Government on
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behalf of our people enable sanity to start creeping in and bring both sides together on a realistic basis to stop the growth of nuclear weapons—which growth might be followed by their destruction?
Lord Trefgarne: My Lords, the noble Lord is right when he says that the chief protagonists in these discussions are the Soviet Union and the United States. However, the United Kingdom does play an important part and we shall certainly continue to do so, not least in the current conference in Stockholm, to which the noble Lord, Lord Cledwyn of Penrhos, referred.
Lord Jenkins of Putney: My Lords, will the noble Lord the Minister be good enough to explain to his noble friend Lord Orr-Ewing that this matter is not assisted by name calling on either side? Will he further recognise that the main issue here is not so much the preponderance of weapons on either side but the fact that even a small proportion of either the Soviet or the American weaponry could virtually destroy mankind? Is that not a fact which ought constantly to be borne in mind?
Lord Trefgarne: My Lords, nobody doubts that the present nuclear arsenals in the world ought to be reduced. This Government will hasten to support any measure of that kind which was, as I have said, both balanced and verifiable. As to the name calling to which the noble Lord referred, perhaps he will convey his point to Mr. Gromyko following his recent speech in Stockholm.
Lord Bishopston: My Lords, in view of the growing feeling internationally that little progress will be made in any nuclear talks in the USA's pre-election period. Will the Government themselves, in support of the comments made by my noble friend, take their own initiatives to see that progress is made and that the future of mankind is assured?
Lord Trefgarne: My Lords, we will certainly, as I have said, continue to play our part in these matters but the chief protagonists—if that is the right word—must remain the United States and the Soviet Union.
Lord Paget of Northampton: My Lords, does not the noble Lord the Minister feel that all these questions are along the wrong lines? Homo sapiens has launched upon a career in which he is numerically doubling himself every 30 or 40 years. He is plainly in need of a massive cull. Nuclear weapons will make possible that massive cull—and, even more, they have the special factor of muddling up the genes so that from the new crop something rather better than the present lot may emerge. Ought we not to look to our good fortune?
Lord Trefgarne: My Lords, the originality of the noble Lord's views never ceases to impress me.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord the Minister aware that what my noble friend has just said is not Labour Party policy?

Business
Lord Denham: My Lords, at a convenient moment after 3.30 p.m. this afternoon, my noble friend Lord Belstead will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the loss of toxic weed killer in the North Sea.
It may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Cable and Broadcasting Bill will be adjourned at approximately 7 p.m. for about one hour. During the adjournment, the Committee stage of the Prohibition of Female Circumcision Bill will be taken.

Cable and Broadcasting Bill [H.L.]
3.5 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Elton): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Elton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [The Cable Authority]:
Lord Ardwick Lord Ardwick moved Amendment No. 1:
Page 1, line 14, leave out ("three") and insert ("six").
The noble Lord said: At the start of the Committee stage may I say that we are all faced with an unusual difficulty. We are legislating not in the dark perhaps but certainly in the twilight. We have very little knowledge of how the cable operators will carry out their tasks. We know of their "must carry" obligations to BBC and ITV programmes; and we know that those obligations will take up a considerable number of channels. Nevertheless, operators will have at least half-a-dozen channels at their disposal. How many of them do they hope to use? How do they intend to fill them? How many channels will they give to pure entertainment and how many to information, education, local affairs and shopping guides?
Each operator will of course make his own pattern. However, there must be a good deal of common ground among the cable operators—something that we shall eventually recognise as the British style in cable entertainment, and which will differ from that of other companies.
The Government have already awarded or are still in the process of awarding 11 pilot schemes to 11 companies, and the Government must know by this time how those companies intend to operate. The companies must have declared their aspirations, their intentions, and even their plans. But what those are we do not yet know. It would be a help to us all during our discussions on this Bill if the way in which the pilot projects will operate were brought into the open.
It would help us even with Clause 1. This clause sets up the Cable Authority and states that it shall consist
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of a chairman, a deputy and no fewer than three other members. This leaves it open to the Minister of course to have as many members as he wishes. It imposes on him only one limitation—that the number must be at least five. Nevertheless, Clause 1 is disquieting. The minimum is far too small for an authority which will have great powers, which will be able to impose drastic sanctions, and which will have need to make a variety of difficult judgments—especially in its early years.
Why such a low minimum? One can only surmise that the number was thought of very early in the interdepartmental discussions about cable, when a case was being made out for minimum control over the system, and when it was thought essential to assure investors—in order to get them to risk their money—that they would not be under the obligations of the independent television companies, which can be pressed to provide some features of high quality at high expense that will certainly not attract the maximum audience. Since then, wiser counsels have prevailed in Government circles, and although the authority is expected to exercise its powers with a light touch, as the White Paper puts it, its duties will be very wide. Of course these duties will be carried out by the professional staff, but that staff is going to require both guidance and support. The Government's wiser views were given in the White Paper. In this it was proposed that the authority should have initially a chairman and six other members: a total of seven. That was a fixed number, not a minimum. But even that more generous figure is on the small side, particularly as the appointments are for part-time service.
The authority is going to have a very large task. It is going to have statutory authority for awarding franchises to cable operators for the provision of cable services. It will determine the size and shape of franchise areas, taking into account not only market forces but also community groupings, and it may at the margin include areas of less economic appeal to the investor. The authority will, moreover, prevent concentrations of power in particular areas which would be contrary to public interest. It will judge franchise applications against a number of criteria which include judgments on the financial provisions of the company, the range and diversity of the material originating in this country that it would draw upon. It would have to see what are the arrangements proposed for educational services, community programmes and some local access, plus the range of interactive services. All this, if we take the White Paper as our guide, must be done fairly and must be seen to be fair.
The authority's sanctions will be the premature withdrawal or the non-renewal of an operator's franchise. It will also be able, after warning an operator, to subject him to a tighter degree of supervision than normal. The authority will be concerned, too, with setting up an advertising code of practice and with the moral aspects of cable, including its respect for the limitations of obscenity and racial prejudice. This sounds a very tall order for a board of five part-timers restricting themselves to a light touch. Surely a body somewhat bigger and with some specialist qualifications is needed, as is suggested in further amendments.
The size is important in another way. Most of the licences will not come up for renewal for 12 years, and

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it might be useful to have at the end one or two people on the authority who were there at the beginning of it all. A larger authority would make this survival more probable.
Our amendment is a modest one. We suggest that, instead of a minimum of chairman, deputy and three other members, there should be a minimum of six other members—an authority with a minimum of eight members instead of a minimum of five. I beg to move.
Lord Campbell of Alloway: Before justice could be done to the spirit of this amendment, is it not relevant to know if there is any hope that the departmental dichotomy which leaves this artificial gap between the authority and Oftel may be closed by setting up a merged authority, and if not, without anticipating the amendment put down by the noble Lady, Lady Saltoun, is there not a reasonable case in favour of this amendment on breadth of expertise? On this question of breadth of expertise, although the Fair Trading Act 1973 is excluded by paragraph 26 of the third schedule, it would appear that the director general, the OFT and the Restrictive Practices Court retain full jurisdiction as regards the grant of licences under Clause 4(8). So would it not be preferable perhaps to exclude the incidence of all restrictive practice legislation and to increase the number of members in accordance with the spirit of this amendment, to widen the expertise and to do broad justice by the community in that way? Is this not a matter which could be worthy of some consideration?
Lord Molloy: May I follow the submission made by my noble friend and the noble Lord, Lord Campbell of Alloway. It does seem to me to be not merely a simple amendment which could be accepted by the Government but one of very great import. When one looks at the other countries which have this sort of thing in their legislation—take, for example, the United States of America, the Federal Republic of Germany—they would not have to argue this case; it is already there built into their constitution. Sometimes we forget that there are five Prime Ministers in Western Germany, because there are five States and the Federal State and each State within the Federal State has a Prime Minister. We have not got that. We are probably the last, if not indeed the only, unitary country in the world.
Therefore, we have to take cognisance of that. It is wise, of course, to have a deputy to the chairman; that is sensible. But to have only three more members for an organisation of such considerable influence does seem to me to be unnecessarily mean. We might have, for example, one person with special responsibility for Wales, one for Northern Ireland, one for Scotland, another two for England being the largest of the countries. Then, when one realises that there are numerous other groups which will have an interest in this form of organisation, they should not be debarred or shut out or palmed off, so that they cannot submit their appeals in a particular week because the three members of the board are tied up and are very busy. We all know that this sort of flimsy, mean excuse has been used in the past.
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Therefore, let us start off on the correct foot and make sure that there can be proper representations submitted by masses of people, either on an area basis or on a professional basis. To make sure that that can happen, I believe it would be sensible for the Government to adopt the amendment and make the situation more realistic when this Bill becomes an Act under which the chairman and his deputy will have to act. I am sure the chairman with his deputy would prefer to have three more members on the board rather than leave it at a meagre three.
Lord Grimond: Following what has just been said by the noble Lord, may I ask whether it is intended to have any special representation from Scotland, or indeed from Wales, on the board? I am not myself clear at the moment that this is necessary, but of course Scotland is explicitly represented on certain similar boards. I should like to know from the Government whether it is their intention that this should be the case here.
Lord Aylestone: The 1981 Act requires the IBA to have a representative for Scotland, for Ireland and for Wales, and each one of those three gentlemen is chairman of his national committee, which is a considerable help. But the cable authority, as I see it, is a very different sort of animal from the IBA. It does not engage in transmission, it does not do any engineering. In my view, it would be very much better, if it is felt necessary so spread the cable authority throughout the country, to relate it to the areas where cable is being transmitted, because at best cable will not be transmitted, as the IBA is required to do, to 100 per cent. of the whole of the country to be achieved in 1998; cable in the beginning will be very lucky to serve half the country. I certainly shall not oppose this amendment, but I do wonder if it is really necessary.
Lord Mishcon: I wonder if I may venture to put some tidiness into the series of amendments now before the Committee. It may be unfortunate that it is an amendment from the Opposition which first deals with the question of the numbers of those who sit upon the authority. All the contributions made so far, if I may say so, are very relevant. But the Committee will have realised that subsequent amendments have been tabled which propose that various interests should be represented. Indeed, the noble Lord, Lord Aylestone, spoke about this; and how welcome it was to have that intervention in Committee. That will be welcomed from all sides.
I suggest that it would be a good idea to leave the debate on the question of how many should be on the authority fairly open, and then come hack to the issue of the separate représentation that ought to be on the authority. It may then be possible at this stage, or perhaps on Report, having heard the individual debates on who or who ought not to be represented, to decide what should be the minimum figure. It would be untidy—a word I used in my introductory remarks—if we now deal with issues which your Lordships will see are matters for debate on Amendments Nos. 4, 5 and 6.
Lord Elton: I am most grateful to the noble Lord, Lord Mishcon, for his elucidation of where we stand.

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I absolutely agree. Therefore, it might be helpful if I were to respond to the rather more general remarks of the noble Lord, Lord Ardwick, and others, by way of a preliminary comment. Perhaps he would then care to speak to his Amendments Nos. 4 and 6, in the context of this debate. Amendment No. 5 is a slightly different issue, which looks at the ceiling rather than the floor, and perhaps we can come back to that amendment afterwards.
The noble Lord, Lord Ardwick, said that we were, if not in the dark, in the gloaming, as to various developments within the context of which we shall be making our legislation. I had hoped to shine a feeble spotlight for him this morning in a letter which obviously has not reached him. It might help both him and the Committee if I say as much as I can about the general context, and I hope that soon after we shall revert from what I call the Second Reading to the Committee stage mode.
My general remarks in response to the noble Lord's questions are that we propose in due course—I use those words with trepidation after the exchanges during Question Time—when we get to the stage of licensing particular operators, to make public the details of their proposals for services so that the public will be in a position to know What to expect and are able to judge how the operators live up to their promises. But for the time being we are still discussing certain aspects of the applications with the companies concerned with a view to determining whether licences can be issued.
On the question of range and diversity of programmes, it is already clear that few programmes will be originated by the cable operators themselves. This is not surprising as the revenue from, say, 50,000 or fewer subscribers to each cable system will not itself support a great deal of original programme production. What is already happening is the formation of a number of companies which plan to offer programme services to cable operators on a national scale. As the new cable industry is only just starting, these plans are inevitably fluid; but an indication of the programme services which may become available in this wav can be gained from the published list of companies which have banded together to form the cable programme providers group. I believe there are about 10 or 11 of them.
The British content of these programme services will naturally vary depending on their nature as time goes by. The Government's requirements in this respect were generally understood, and the cable pilot project applicants and the programme providers gave details of their plans and aspirations for the future. Although I cannot go into all the details at this stage, we shall be publishing full information in due course, as I have said. In addition to offering what they consider to be an attractive range of different channels from those expected to be available centrally, the pilot project applicants all propose services which will be locally produced for the particular community served by the cable system. These include plans for community access, but normally go further, so that the operating company accept a commitment to produce a programme service of local interest. I know that that will be of interest to my noble friends sitting on the
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Benches behind me as well as to noble Lords on the Opposition Benches.
A number of other matters were raised. As to the optimum minimum number of members on the authority, perhaps I should reserve what I have to say until I have heard rather more of what noble Lords opposite wish to say on subsequent amendments. May I briefly say to my noble friend Lord Campbell of Alloway, as a first response to his idea, that the Competition Act will apply to cable as it already applies, for example, to independent television. We feel that it would be wrong to create an entirely separate scheme for cable. Regarding the relationship with Oftel, we shall be coming to that issue again on later amendments. Perhaps the noble Lord would like to follow me.
Lord Ardwick: In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.27 p.m.
Lord Aylestone Lord Aylestone moved Amendment No. 2:
Page 1, line 14, after ("three") insert ("nor more than ten.").
The noble Lord said: This amendment has already been touched on in my remarks on Amendment No. 1. The object of it is of course to limit the size of the authority to 10 members. It will be noted from the amendments printed on the Marshalled List that there are proposals to add an additional six members to the authority, presumably in addition to the six or seven which the Government have in mind already, making about 12 or 13. At the moment the IBA works—and works very well and doing a much bigger job—with an authority of 12 members, and the membership figure has been lower. If we limit the authority to 10 it would help the Secretary of State and the authority to resist any attempt that may come from outside, in addition to the suggestions in other amendments on the Marshalled List, to add members to the authority. It would help the Government to repel such suggestions and keep the authority to a size that is workable. I beg to move.
Lord Elton: Do I take it that noble Lords on the other Benches opposite are neutral on this matter?
Lord Mishcon: Let me reply at once that we are in a position of neutrality until we hear the reply of the noble Lord the Minister.
Lord Elton: The Government quite agree with the mover of this amendment and are happy to accept it.
Lord Mishcon: I did not expect such co-operation from the Minister on any amendment not moved by himself. May I just utter this caveat. I would have hoped that this amendment, too, would have been withdrawn for this reason. Whereas it may be very proper to prescribe a minimum, when one is legislating for very much an unknown quantity—and we will be saying this very often during this Committee stage—to fix a maximum produces a difficulty. Nobody wants to see an authority overburdened in numbers, and nobody wants to see a very large committee, as it were, looking after the authority's

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powers in the Bill. But it is rather dangerous to fix a maximum number at this stage and I should have thought that that matter could always be at the discretion of the Government. So long as it remains in the discretion of the noble Lord the Minister I am sure that he will have the confidence of this Committee.
Lord Aylestone: It only remains for me to thank the Minister and assure him that I am extremely surprised at this stage that an amendment has been accepted. I thank him and I am very glad that he is prepared to support it.
On Question, amendment agreed to.
Lady Saltoun Lady Saltoun had given notice of her intention to move Amendment No. 3:
Page 1, line 16, at end insert ("and of whom one member shall have the special duty of maintaining close contact with OFTEL").
The noble Lady said: I do not propose to move Amendment No. 3 on this occasion because it cuts across Amendment No. 108, which is the amendment of the noble Lord, Lord Glanusk, and which I very much prefer.
[Amendment No. 3 not moved.]
Clause 1, as amended, agreed to.
Schedule 1 [The Authority: Supplementary Provisions]:
Lord Mishcon Lord Mishcon moved Amendment No. 4:
Page 36, line 16, at end insert—
("( ) Three out of the members of the Authority other than the Chairman and Deputy Chairman shall be persons who appear to the Secretary of State to be suited to make the interests of Scotland, Wales and Northern Ireland their special case.").
The noble Lord said: Here we revert to the whole question of the content of this authority. I believe that it would be the wish of the Committee that in so far as it is consistent we follow as far as possible legislation that already exists in regard to broadcasting. That does not necessarily mean that we are saying that a broadcasting authority has the same ambit of powers and duties as the Cable Authority will have under the Bill; but I do not think that we should give the impression that we are legislating purely and simply for those areas which are likely to be taken up by commercial interests at this point of time.
On Second Reading we all took the view that it could be quite a risky enterprise but that it was for those who are schooled in commercial matters of this kind to decide for themselves. We all took the view that very likely there would be limited areas of England which might be the beneficiaries of cable licensing and the activities of cable operators. The Committee does not need me to point out that we are legislating for a great number of years and trying to peer into the future. It would be quite wrong to take it for granted that Wales, Scotland and Northern Ireland will not have cable operators in their midst and cable programmes for their enjoyment. That point will be particularly interesting when we come to consider what is called the interactive services, about which the Committee will be hearing a great deal.
As the noble Lord, Lord Aylestone, said earlier, the Broadcasting Act 1981 provided for precisely the matters raised in this amendment, saying:
"Three out of the members of the Authority other than the Chairman and Deputy Chairman shall be persons who appear to the Secretary of State to be suited to make the interests of Scotland, Wales and Northern Ireland, respectively, their special care."
We must not think that in other contexts Northern Ireland, Wales and Scotland are to be left out of the Bill. In Clause 3(3) there is provision for offences committed under the Bill to be within the purview of Wales and Northern Ireland, and for people on behalf or those countries to initiate prosecutions. I observe that there is an amendment down to bring Scotland into line with that provision. If it is taken for granted that offences will be committed in Scotland, Northern Ireland and Wales, the Bill should aim at covering those areas.
It may be said that when dealing with cable it is unnecessary to feel that there are different interests in the various constituent parts of the United Kingdom which make it necessary for there to be representatives of those areas on the authority. I should say that that is quite a wrong view. One can foresee without any difficulty at all how much it may be necessary to have the national and cultural interests, and the various desires of Wales, Scotland and Northern Ireland, looked at quite separately from those of England. It is on that basis that this amendment is moved.
Lord Elton: Amendment No. 4 proposes that three members, other than the chairman and deputy chairman, shall speak for the Kingdom of Scotland, the Principality of Wales and the Province of Northern Ireland. This is a matter in which the noble Lord, Lord Grimond, has already voiced an interest. As he comes from one of the remoter parts of Scotland, I can well understand that.
In this requirement the noble Lord, Lord Mishcon, and his allies are drawing a parallel, I believe, between the Cable Authority, on the one hand, and the BBC and the IBA, on the other. The charter of the BBC requires the corporation to have national governors for Scotland, Wales and Northern Ireland. Similarly, under the Broadcasting Act 1981, the IBA has to include members designated to make the interests of those regions their special care. The broadcasting corporation and the broadcasting authority are the precedents for the amendment, and very respectable precedents they are, too. But while they are strong on precedent they are not quite so strong on relevance. The Cable Authority, for which we are now legislating, will be different from the two broadcasting authorities in several important ways.
For a start, the Cable Authority will not provide any services of its own to the public, and nor will it have any power to impose on its licensees any public service obligations. It is intended, therefore, to supervise the services provided on cable systems with only a light touch. The particular concern of the BBC's and IBA's territorial members is with their authorities' obligation to provide a service which has regard to the distinctive culture, interest and taste of the separate parts of the United Kingdom. That is proper, for much of what they promulgate goes out over the whole of the United Kingdom or is receivable at least on either side of the

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various national borders. But cable is not like that. Each network is local and limited. The Cable Authority will have no national role for its members of the kind that falls, for instance, to the national governors of the BBC. The authority will of course be obliged to demonstrate that it is not favouring one part of the United Kingdom as against another in dealing with licensing, but it will not need national members simply to do that.
We would rather, therefore, that the choice of members was not strictly limited in that way but that my right honourable and learned friend should be able to look rather more freely for the available talent. We would also rather avoid giving one of the signals implicit in such a requirement: that signal would be that the authority would be rather interventionist in its approach and those coming under its aegis could expect constantly to be asked to adjust their product according to its views. The success of cable is closely dependent on the confidence of investors. We do not wish them to expect closer supervision than is already in the Bill.
That said, I should like to give an assurance to noble Lords opposite that, although we may not wish to reserve labelled seats, as it were, for national members of the authority, that is not to say that we want members to come only from London and the South-East, for instance. We recognise the importance of a membership with a wide geographical spread. My right honourable and learned friend has asked me to convey to your Lordships his assurance that he will pay particular attention to that when he comes to appoint members for the authority; but that does not mean, of course, that he will appoint specific Scotsmen, and Welshmen and Northern Irishmen, as such. I hope that the assurance that I have given as to the widely diffused regional character of the membership of the board will reassure the noble Lord.
Lord Ardwick: That reassurance is very welcome, but we were not thinking of the Scot or the Welshman on the authority exerting a continuous repressive influence on the operator. We were thinking of the representative being there in the beginning, when the choice is made, and when a decision has to be made about the range and diversity of the programmes and whether they should include something of the national culture of the country in which the cable operator is working. That is what is in our minds.
There is another question. The authority has to make sure that the area in which the cable operators are working is not just a commercial or market unit but is also relevant to the community. That is a very difficult decision. It is the type of decision which has often been fraught with difficulties when we have been dealing with the question of Parliamentary constituencies. So I believe that if there is on the authority representation by people from Northern Ireland, Scotland and Wales, that would give a good deal of reassurance. But, as the noble Lord has hinted, because a member of the authority is an expert on Wales, Scotland, or Ireland, that does not mean that he does not have other general qualifications for the task. However, I believe that I can accept the assurance of the noble Lord with a good deal of pleasure.
Lord Elton: I am not sure where that leaves us. Is the noble Lord not pressing the amendment? I have one or two things to come back on if necessary.
Lord Mishcon: Since I earlier moved the amendment, perhaps I ought to say that, together with my noble friend. I welcome the assurance. However, I wonder whether the Minister will consider saying that he is prepared to give further consideration to the question of representation as mentioned in the amendment. That would make my task rather easier for the sole reason that I am sure the Minister has in mind that members of the authority, at all events to start with, are to be part time, apart from the chairman and the vice-chairman; I am not quite sure whether they, too, are to be part-time. Therefore it would do very little harm to make provision as we propose for the representation of the various areas of the United Kingdom on the basis that possibly those members, at all events for the time being, would be part-timers. If, having regard to the discussion that has taken place, the noble Lord the Minister would be prepared to say that he would again look at the matter, I should be perfectly happy to withdraw the amendment.
Lord Elton: The noble Lord tempts me sorely, particularly as, oddly enough, he makes me feel almost guilty because of the kindness that I was able to show to the noble Lord, Lord Avlestone. The noble Lord knows me well enough to understand why I say that. I now have to deploy arguments which I shall repeat when, after two brief interludes, we come to the debate on Amendment No. 6. There is a general argument about giving specific responsibilities to members of any body such as the authority, in that one either inexorably increases the number of seats, or one inexorably increases the number of hats worn by each person in a seat. General experience suggests that often it is better to increase the number of hats rather than the size of the body. We can argue about what is the optimum and maximum size; and we have fallen into having 13 as the maximum—or is it 12?—following the helpful intervention of the noble Lord, Lord Aylestone. Therefore on that count I am anxious about the point that if we produce three representatives of Scotland, Wales, and Northern Ireland—and, incidentally, none for my own country, England—we shall put labels on three seats.
I turn to the question of whether it is necessary to have these specific labels and these specific appointments in order to achieve what both the noble Lord and I want to achieve, which is that the interests shall be effectively represented. I must then consider, for instance, the procedures to be gone through under Clause 6(2)(c) in regard to licensing a cable system anywhere, and the elaborate local consultations that must then be undertaken, which no doubt we shall be debating later this afternoon.
My feeling is, first, that I should like to keep my right honourable friend's hands free to choose the talent where he thinks it best; and, after all, there may be three talented Scots, or indeed three talented Welshmen, three talented Irishmen, or, for the sake of national loyalty I must hastily add three talented Englishmen. But, whatever one says, the requirement that each kingdom, principality, or province be

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specifically represented will quite possibly result in one of the representatives being pushed off.
I could go on repeating myself in different forms; I am sure that the noble Lord has got the point. Much as I should like to say that I shall take away the question and think further about it, I must, with reluctance, say that I think that that would prejudice my position on Amendment No. 6, on which I feel quite strongly.
Lord Mishcon: I shall use the formula that is well known to your Lordships' Committee, and say that I shall consider most carefully what the noble Lord the Minister has said, and at this stage beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Swinton: I think that this might be a convenient time to take the Statement, and so I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Weed Killer: North Sea Pollution
3.46 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer to a Private Notice Question being asked in another place. The Answer is as follows:
"The information available to me is that a Danish vessel lost her deck cargo in rough weather on 13th January while steaming over a 30-mile stretch due east of Berwick-upon-Tweed and roughly half way between the United Kingdom and Danish coasts. The cargo consisted of 80 barrels containing 200 litres each of an agricultural chemical known as "Dinoseb". The barrels will almost certainly have sunk to the sea-bed. They are yellow and are clearly marked as a Class 6/1 poison.
"I understand that the Danish authorities are mounting a recovery operation, but that the vessel equipped with the necessary detecting and lifting gear will not be able to reach the area until Tuesday evening, or Wednesday at the earliest.
"At this time of year it is unusual for British fishing vessels to fish in the area. However, purely as a precaution, my department is advising fishermen to avoid fishing in the immediate locality and to report to my district inspectors immediately if they have taken fish catches in the vicinity of the incident since 13th January.
"It is hoped that all 80 barrels will still be intact, but even if every one of them has released its contents, the chemical will almost certainly have dispersed rapidly, and fish are likely to be seriously affected only in the immediate vicinity. The chemical is not bioaccumulative in fish flesh, and it is extremely unlikely that any supplies of fish to the British market from the North Sea would have been affected.
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"At this stage I am not able to say why there was such a long delay between the incident and the information being made available to the international community."
My Lords, that completes the Answer to the Private Notice Question in another place.
Lord Grimond: My Lords, I am greatly obliged to the official Opposition for allowing these Benches to ask the first question on the Statement. In deference to the distinguished lawyers I see on the Opposition Front Bench, I must say that I fully understand that this is without prejudice. Bearing in mind that the Question was asked by a colleague of mine in another place, I should like to know whether I am right in thinking that the main danger from the chemical would arise if any of the barrels were hauled on the deck of a trawler and there opened or split, and that the chemical affects the skin and hands of people? I take it that the crews of trawlers have been advised not to touch the barrels if they come up in their trawls.
Do I understand that it is quite clear that it was contrary to regulations that the barrels were being carried as deck cargo? Have the Danes assured us that some steps are being taken by way of prosecution or otherwise to prevent such a practice in the future? Have the Danes also assured us both that they are taking steps to inquire as to why there was such a delay in informing us about this danger and that they will obviate any similar delay in the future?
Lord Bishopston: My Lords, I thank the Minister for replying to the Private Notice Question which has been tabled by a Liberal Member in another place who has constituency interests in the matter. I feel, as the noble Lord, Lord Grimond, has suggested, that there are a number of questions to which some reply is needed relating to a situation that could have serious international consequences. The Minister, if I heard him correctly—I make no complaint about the fact that we have not all received a copy of the reply that he has given—said that it is extremely unlikely that fish will be affected. However, the situation is serious. One wonders about the delay between the incident happening and the information becoming known.
Can the Minister say what consultations have taken place between Her Majesty's Government and other states, including the EC, about action to reduce the effects of pollution, and in this case contamination of fish and food, although there may not be any substantial fears at the moment? Can he also say what action is being taken to protect the interests of the fishing industry and those who work in it and transport as it relates to shipping? Do the Government agree with the Danish Environmental Protection Agency which has warned about the extremely high toxicity of the cargo, and which has allocated resources to rescue the containers? Does the Minister agree about the extreme toxicity of the weed killer involved? What assistance have the Government offered to the Danes in their attempt to clear up the lost cargo?
I believe that the House will also be much alarmed that the cargo was stored on deck where it was possibly subject to the kind of situation that has occurred. Will the Minister say what the International Maritime Consultative Organisation and perhaps the United

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Nations Law of the Sea Conference organisations have been doing to avoid the effects of pollution and to meet the needs that arise in an incident of this kind? Will the Minister say what monitoring takes place for which the Government are responsible that could be effective in preventing a recurrence of what happened with the consequences about which we know little at the present time?
Lord Belstead: My Lords, I am grateful to both noble Lords for what they have said about this difficult situation. In answer to the noble Lord, Lord Grimond, I most certainly agree with the noble Lord's assertion that the main danger would arise if fishermen were to try to land these barrels on to the decks of their ships. The noble Lord asked me about the legality or illegality of a cargo of this kind being carried on deck. My right honourable friend the Minister of Agriculture, Fisheries and Food is leaving for Denmark this afternoon and will be taking up this matter at the highest levels together with the question of the delay in notification which both noble Lords have raised.
The noble Lord, Lord Bishopston, asked about consultation which Her Majesty's Government might be undertaking with other countries, particularly within the European Community, to reduce the effects of pollution. It is important, without in any way sounding complacent, to repeat the point made in the original Statement that, on the best advice I have, this poison—although, it is true, it is highly toxic—would disperse rapidly in water, especially in the rough waters to be found in the middle of the North Sea at the present time.
In addition, it is important to notice that the Statement also said that the poison would be non-bio-accumulative in fish flesh, meaning that the poison would pass through the fish and would not be retained in the flesh of the fish. Although therefore I should like to study what the noble Lord, Lord Bishopston, said about the locus of the IMCO and the United Nations Law of the Sea organisations in this matter, we are not—if I may put it to the noble Lord—talking about pollution of coastlines which, both on the British side and on the Continental side, would be some 200 miles away.
We are talking of the danger of fish being polluted in the area where this grave incident occurred. In order to deal with that, I assure the House that the most urgent warnings have been going out from radio stations around the coast ever since we were notified about the matter by the Danes. Our inspectors have also been active in the main ports concerned warning fishermen and the associations of shipowners.
Lord Bishopston: My Lords, I apologise for coming back so quickly. In regard to my question about IMCO and the Law of the Sea facilities, I recall that when I had the noble Lord's responsibilities within the Ministry, I became aware of the enormous quantity of shipping that sails in the various waters concerned, and also about the need for effective international action and monitoring to prevent such a situation arising again. I am talking not only about this situation but also about others which are unforeseen arising from time to time.
Lord Belstead: My Lords, I should like to study what the noble Lord has said. He makes the point that huge numbers of vessels use the North Sea. Yes, indeed, they do; but it is perhaps right to be aware that, according to our best advice, there were no United Kingdom vessels in the area at that time and there were sightings of only 15 fishing vessels over the previous 10 days or so. The fact of the matter is that, mercifully, this is an area not much used for fishing at this time of year.
Lord Campbell of Croy: My Lords, will my noble friend agree that while some progress has been made over the years towards reaching international agreements and conventions for dealing with oil and trying to prevent oil pollution and slicks, very much less has been done concerning the carriage by sea of toxic substances such as this? Will the Government do what they can to prompt action in the international organisations including what used to be called IMCO, now called IMO, the International Maritime Organisation, with headquarters in London?
Lord Belstead: My Lords, my noble friend underlines the importance of seeing that if this cargo was being carried in an illegal way the matter should be taken up at the highest level. This will be done, as I have already said. But we have first to be clear in our minds—which we are not at present—whether the skipper of this boat was in breach of any regulations.
Lord Tordoff: My Lords, arising out of that and further to the reply that the Minister gave to my noble friend, Lord Grimond, may I ask whether there is some responsibility in this country in so far as the ship, I understand, was loaded in a British port?
Lord Belstead: My Lords, I do not have information on that point.
Lord Harmar-Nicholls: My Lords, will my noble friend recommend to his right honourable friend, in regard to anticipating future problems such as this and dealing with them on an international scale involving more than one nation, that when such matters are sent from the European Commission and from the European Parliament, the Council of Ministers gives them a higher priority than it seems to have given them in the past for enabling regulations to be made?
Lord Belstead: My Lords, in the first instance, this is precisely the sort of point I think that my right honourable friend ought to talk about on the spot with the Danish authorities in Denmark. I am glad to be able to say that he will be in a position to do so within a very few hours.
Lord Fitt: My Lords, will the Minister say whether he is satisfied that the Danish authorities have the machinery and expertise to recover these containers if they are not at the moment creating the damage that all of us fear? Has any request been made by the Danish Government to the United Kingdom Government for assistance in the recovery of the containers?
Lord Belstead: My Lords, I am not aware that the Danish Government have made any such request. On the other hand, I am advised that a vessel equipped with the necessary detecting and lifting gear would be able to reach the area, as the Statement said, by about Wednesday morning at the earliest.

Cable and Broadcasting Bill [H.L.]
4 p.m.
House again in Committee on Schedule 1.
Lord Mishcon Lord Mishcon moved Amendment No. 5:
Page 36, line 22, after ("interest") insert ("(and in particular, no such financial or other interest in any advertising agency or in any business concerned with the manufacture or sale of apparatus for wireless telegraphy or other telegraphic equipment)").
The noble Lord said: The Committee will want to be very careful indeed about the provisions in the Bill which deal with independence of mind and with commercial dual interest when it comes to legislating with regard to the appointment of members of the authority. This is undoubtedly important because the cable companies, the cable operators, will, one hopes, have successful business ventures while complying with all the restrictions and limitations for which we may legislate or which may be imposed by the authority. But what one wants to achieve, through the care that this House and another place will exercise, is the avoidance of scandal and the avoidance of legitimate complaint that licences have been wrongfully awarded or licences have conditions attached to them which are not sufficiently onerous and that that has happened—even though it may not be true that it has happened—as a result of the conflicting interest that a member of the authority might have.
The draftsmen and, indeed, Parliament, were very careful when the Broadcasting Act was brought into being to ensure that it contained provisions which made it very clear that this dual interest should not apply. But when your Lordships look at page 36 of the Bill, and in particular paragraph 2(3) of Schedule 1, you will find that the Act has been followed faithfully until it comes to the very wording that is inserted in Amendment No. 5, which is the amendment I am moving. I should like to read the words:
"and in particular, no such financial or other interest in any advertising agency or in any business concerned with the manufacture or sale of apparatus for wireless telegraphy or other telegraphic equipment".
Those words occur in the Broadcasting Act 1981. They are followed by words which apply only to the Broadcasting Act and which do not in any way apply to this Bill. But all the relevant words I have directly copied in the amendment. The sole purpose—if I may repeat myself—is to ensure that no breath of scandal, if we can avoid it, does in fact occur by virtue of our having not copied these words from the Broadcasting Act into the Bill, and one wants to secure that there is no question of criticism being made of a member of the authority that he had two axes to grind when dealing with the very responsible job that the authority will have. I beg to move.
Lord Marsh: I intervene very briefly because, frankly, I am puzzled by the noble Lord's amendment. It seems to me that the Bill as printed makes it very clear that:
"the Secretary of State shall satisfy himself that that person will have no such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as member of the Authority".
That seems to me to be such a blanket power, and a very good one, because it enables the Minister of the day to choose on the basis of the actual circumstances. Conflicts of interest in industry and commerce are very common. They are inevitable. If people are involved in that particular area of activity it is highly likely that they will be involved in some other aspect of it. If one is looking for areas where there are people who are not members of advertising agencies and who are not manufacturers or suppliers of equipment, one has to remember that it is quite common for virtually any merchant bank to have clients who are acting very substantially for other persons who may well be advertising agencies or manufacturers or suppliers. It is quite common to find auditors, accountants, or even lawyers who have very considerable interests indirectly. That could, in many cases, be more significant than picking on one specific area of activity.
So I cannot understand why, having given the Secretary of State total power and total authority to refuse to accept someone because he believes that there is an unacceptable conflict of interest, it should be deemed necessary to add in two, and only two, areas of specific interest.
Lord Peyton of Yeovil: I should like briefly to express my agreement with what the noble Lord, Lord Marsh, has just said. I will not repeat his arguments. However, I have long been a supporter of what I am afraid is a lost cause in our times—that of keeping Acts of Parliament to a minimum length and not seeking every opportunity unnecessarily to lengthen them. As the noble Lord, Lord Marsh, has pointed out with great eloquence, to insert this amendment—which was moved with customary eloquence by the noble Lord, Lord Mishcon—would seem to add nothing to the Bill. Therefore, I hope that the noble Lord the Minister will check his own characteristic amiability and not accept the amendment.
Lord Mishcon: After such courtesy, paying tribute to eloquence on one side of the Committee and amiability on the other, I find it extremely difficult to answer the noble Lord at all crossly, and indeed I do not do so. However, I should like to turn to the points raised by the noble Lord, Lord Marsh. His argument would have been very effective indeed if he had done the usual homework that he always does when taking part in "Any Questions"—in which he is such a very interesting contributor—and had looked at the Broadcasting Act 1981, which I quoted. The Broadcasting Act 1981 has precisely those safeguard words that are in the Bill—they appear there word for word. But the Broadcasting Act 1981 went on to say, because the general words were not thought to be sufficient, that what one must do very specifically is to see that nobody interested in advertising and nobody interested in the supply of equipment which was relevant, should in fact sit upon the authority.

27
The argument put forward by the noble Lord, Lord Marsh, would have applied to the Broadcasting Act in regard to accountants, solicitors, merchant banks and all the rest. But Parliament in its wisdom said, "We are not going to walk into the danger of people sitting on an authority where licences are going to be granted, or contracts are going to be granted, who have something to do with equipment relative to broadcasting and something to do with advertising, which will be the feature of the Broadcasting Act 1981; Parliament is going to be sufficiently careful—and not over complex in its wording—to see that these words are put in the Broadcasting Act" apart from the general words which are in this Bill. There is specific exclusion of these words, which are already in the Broadcasting Act, although the Broadcasting Act, I repeat, has the very safeguard in general words that the noble Lord, Lord Marsh, quoted.
Lord Marsh: I apologise; I have no intention of turning this into a duologue. But the fact that Parliament in its wisdom inserted unnecessary words and provisions in past legislation is no reason for those of us who were not here at the time, and who can plead not guilty to doing so, to say that they must be continued in the future. I realise that we cannot speak on Amendment No. 6, but I find it very strange that it should be suggested by people who say that we cannot have any persons working for an advertising agency or a manufacturer or supplier of equipment, that it is absolutely essential that there should be somebody on the board who comes from the entertainment industry.
Lord Elton: I think I am right in saying that the noble Lord, Lord Mishcon, is seeking an assurance. I can assure him that we absolutely agree it is essential that we should prevent the arrival on the authority of people with inappropriate interests, and we also agree that quite possibly the interests to which he referred might be inappropriate in certain circumstances, and perhaps in most circumstances. I shall reply to the noble Lord's riposte to the thrust made by the noble Lord, Lord Marsh, in a moment.
First, I should like to put that assurance on the record. Nobody should serve on the Cable Authority whose business interest could conflict with the proper performance of his duty. Paragraph 2(3) of Schedule 1 is designed to ensure this. It is in wide terms, requiring the Home Secretary to satisfy himself that prospective members have no financial or other interest of any sort which might be prejudicial to the carrying out of their functions, and to check periodically that serving members have not acquired such an interest. My right honourable and learned friend will be obliged to do that, and to ensure that they are not in any way disqualified.
The occupations which the noble Lord listed—and he has now kindly drawn my attention to the origin of them—may be thought to be particularly sensitive, though not necessarily the most sensitive or, from another point of view, the most obvious ones that spring to mind as being incompatible with membership of the Cable Authority. Moreover, if in the provision we single out particular activities as being particularly undesirable, the inference of that is
28
that activities not singled out are necessarily less undesirable. That would have a narrowing effect on the legislation, and I do not think that the noble Lord would wish, inadvertently by seeking to strengthen the already substantial and adequate defences against this sort of inappropriate appointment, in fact, marginally to weaken them.
Now he brings me back and rubs my nose in the fateful subparagraph (4) of paragraph 1 of Schedule 1 to the Broadcasting Act 1981. I cannot be certain why it was included, possibly as long ago as 1954; perhaps at that time there was excessive caution. In my own view, there was excessive verbiage and I agree with the noble Lord, Lord Marsh, and my noble friend Lord Peyton that we wish to keep the verbiage to a minimum, particularly if thereby we strengthen rather than weaken the defences against inappropriate appointments. I want to make it absolutely clear that I am not seeking to make it possible for people with inappropriate interests to get on the board; I want to make certain that no such people do, even if they are not possessed of the interests which the noble Lord has listed.
Lord Mishcon: In order that the argument at least follows in a logical sequence, perhaps I may deal with what the noble Lord has just said. In all humility, I believe it has generally been forgotten from where my amendment originates. I have an idea—and I may be venturesome in saving so—that it is not realised where my amendment comes from, so much so that, although the noble Lord the Minister quoted just now the Act from which it comes and said that that may have been all right 30 years ago, I was quoting from the Broadcasting Act 1981, which was passed only three years ago. Three years ago Parliament decided that these words were necessary in addition to the words contained in the Bill. At that time there were many debates and there were those who advocated, as have the noble Lord, Lord Marsh, and the noble Lord opposite, that in various parts of the Bill there should be simplicity and economy of language. Nevertheless, it was decided that these matters were sufficiently sensitive with regard to broadcasting to be included, so there was no doubt that the Minister was properly warned with regard to an appointment.
There is one difference in the Cable and Broadcasting Bill. So far the authority is to comprise people who are given no description in this enactment; there is no provision that anyone with a particular interest will be made a member of that authority. It is very likely and very proper that on that authority there should be people with wide commercial experience and interest. The contracts or licences and monopolies that will be given are being given to commercial companies. If Parliament was wise enough and careful enough to put these words into another broadcasting Act in relation to the appointment of an authority, a fortiori should we be putting these provisions in a Bill setting up this Cable Authority, which deals with matters of the kind which I have just mentioned.
I urge upon the Committee that this is not a question of simplicity of language; it is a question of following a very proper precedent, there being an even stronger need in this Bill than there was in the Broadcasting Act 1981.
Lord Elton: Perhaps I should remind the noble Lord that the Broadcasting Act 1981 was a consolidation measure and, therefore, was not a revising measure. We are in fact looking at a precedent of 1954, not a precedent of 1981. I do not know whether that alleviates the noble Lord's anxiety, but we are looking at what happened 30 years ago.
Lord Mishcon: This is the last time that I shall rise, because I may lose support if I become too verbose and rise too often on this amendment, and I do not want to lose support. The noble Lord the Minister is quite right, but he knows as well as I do that when consolidating measures Parliament has the right to remove from Bills that it is considering anything that is otiose. In this case Parliament—in my opinion very wisely—did not think it necessary to do so.
Lord Molloy: I want to turn briefly to the submission made by the noble Lord, Lord Marsh, with which I would normally wholeheartedly agree. Only some months ago in this House, when we had a debate on the wording of Acts of Parliament, to many of us on all sides of the House it seemed that some of the language used was absolutely appalling and that ordinary people could not understand it—even some lawyers and judges could not understand it. There was general agreement on that by lawyers and judges as well as by ordinary folk like myself. Therefore, we must take full cognisance of what the noble Lord, Lord Marsh, has said.
Speaking parenthetically, my noble friend on the Front Bench quoted the Broadcasting Act 1981, but that quotation is also included in other legislation; it was in other broadcasting Acts. There seemed to be a specific reason for that. It would appear that when one reads the parliamentary history of broadcasting Acts one must be especially careful. This seems to be the gravamen of my noble friend's submission this afternoon.
As the noble Lord, Lord Marsh, has said, there is a blanket clause which one would have thought covers everything, but experience has taught us that it does not. I shall not say that people who are appointed to this board will fall into this category, but one of the reasons given to both the noble Lord, Lord Marsh, and myself when we were in another place was that sometimes things must be spelt out and a few more words must be added, because we must always bear in mind the activities, not so much of people who deliberately seek appointments on a board such as this in order to make money but of the crafty, the clever and the "shyster" (I believe that is the word sometimes used) lawyers, who will cut their way through a good-intentioned Act of Parliament with dead ease. I believe that both the noble Lord, Lord Marsh, and the noble Lord opposite who supported him know that. Therefore, in general, I support what the noble Lord, Lord Marsh, said.
However, if it is necessary (and those of us who disagreed with it at the time found it necessary to accept it) that three or four more lines be added to a Bill of this character, which will become an extraordinarily important Act of Parliament, in order to spell out something under that blanket coverage and tie up the safety aspect, I believe that this Committee ought
30
to say that, by and large and in general, we approve of their being added to the Bill.
Lord Peyton of Yeovil: I would add only a word of great regret that the conversion of the noble Lord, Lord Molloy, to the cause of brevity in Acts of Parliament should be so shortlived.
Lord Mishcon: I have moved the amendment and ask for the opinion of the Committee to be taken.
4.20 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 119.

DIVISION NO. 1

CONTENTS

Ardwick, L.

Jeger, B.

Birk, B.

Jenkins of Putney, L.

Bishopston, L. [Teller.]

Kearton, L.

Blyton, L.

Leatherland, L.

Boston of Faversham, L.

Listowel, E.

Briginshaw, L.

Llewelyn-Davies of Hastoe, B.

Brockway, L.

Carmichael of Kelvingrove, L.

Lockwood, B.

Cledwyn of Penrhos, L.

McCarthy, L.

Collison, L.

Mishcon, L

Cooper of Stockton Heath, L.

Molloy, L.

David, B.

Oram, L.

Davies of Penrhys, L.

Peart, L.

Dean of Beswick, L.

Phillips, B.

Donnet of Balgay, L.

Ponsonby of Shulbrede, L.

Elwyn-Jones, L.

Shinwell, L.

Ennals, L.

Stewart of Alvechurch, B.

Ewart-Biggs, B.

Stewart of Fulham, L.

Fitt, L.

Stoddart of Swindon, L.

Gaitskell, B.

Stone, L.

Graham of Edmonton, L. [Teller.]

Taylor of Blackburn, L.

Taylor of Mansfield, L.

Hale, L.

Underhill, L.

Hall, V.

Wallace of Coslany, L.

Hatch of Lusby, L.

Wedderburn of Charlton, L.

Howie of Troon, L.

Wootton of Abinger, B.

NOT-CONTENTS

Alexander of Tunis, E.

Ebbisham, L.

Annan, L.

Eccles, V.

Atholl, D.

Ellenborough, L.

Attlee, E.

Elton, L.

Avon, E.

Faithfull, B.

Aylestone, L.

Fraser of Kilmorack, L.

Banks, L.

Gainford, L.

Belhaven and Stenton, L.

Gardner of Parkes, B.

Belstead, L.

Glanusk, L.

Broxbourne, L.

Glenarthur, L.

Bruce-Gardyne, L.

Glenkinglas, L.

Byers, L.

Gray of Contin, L.

Caithness, E.

Gridley, L.

Campbell of Alloway, L.

Grimond, L.

Campbell of Croy, L.

Hailsham of Saint Marylebone, L.

Carnegy of Lour, B.

Cockfield, L.

Halsbury, E.

Cottesloe, L.

Hampton, L.

Cox, B.

Hanworth, V.

Craigavon, V.

Harmar-Nicholls, L.

Cullen of Ashbourne, L.

Harris of Greenwich, L.

Daventry, V.

Harvey of Prestbury, L.

Davidson, V.

Hayter, L.

De La Warr, E.

Henley, L.

Denham, L. [Teller.]

Hornsby-Smith, B.

Diamond, L.

Hylton-Foster, B.

Donaldson of Kingsbridge, L.

Ironside, L.

Drumalbyn, L.

Kilmarnock, L.

31

Kitchener, E.

Peyton of Yeovil, L.

Lane-Fox, B.

Plummer of St. Marylebone, L.

Lauderdale, E.

Porritt, L.

Lloyd of Hampstead, L.

Portland, D.

Lloyd of Kilgerran, L.

Rodney, L.

Long, V.

St. Davids, V.

Lucas of Chilworth, L.

Saltoun, Ly.

Lyell, L.

Sandford, L.

McAlpine of Moffat, L.

Seear, B.

Macleod of Borve, B.

Selkirk, E.

Malmesbury, E.

Shaughnessy, L.

Mancroft, L.

Skelmersdale, L.

Margadale, L.

Somers, L.

Marley, L.

Spens, L.

Marsh, L.

Strathcona and Mount Royal, L.

Maude of Stratford-upon-Avon, L.

Sudeley, L.

Merrivale, L.

Swinton, E. [Teller.]

Mersey, V.

Terrington, L.

Molson, L.

Teynham, L.

Montgomery of Alamein, V.

Tordoff, L.

Mottistone, L.

Tranmire, L.

Mowbray and Stourton, L.

Trumpington, B.

Munster, E.

Vaizey, L.

Murton of Lindisfarne, L.

Vaux of Harrowden, L.

Newall, L.

Vickers, B.

Northchurch, B.

Vivian, L.

Nugent of Guildford, L.

Wakefield, Bp.

Orkney, E.

Walston, L.

Orr-Ewing, L.

Westbury, L.

Pender, L.

Whitelaw, V.

Penrhyn, L.

Wynford, L.

Peterborough, Bp.

Young, B.

Resolved in the negative, and amendment to disagreed to accordingly.
4.28 p.m.
The Chairman of Committees: I understand that the noble Lord, Lord Mishcon, wishes to move the next amendment in two halves separately and therefore will not move Amendment No. 6 as printed on the Paper but will move two manuscript amendments, the first, Amendment No. 6A, being the first half of Amendment No. 6 relating to those employed in the entertainment industry. When that has been dealt with, I shall call manuscript Amendment No. 6B, which will be the second half of the amendment referring to a representative of the interests of the consumer. If that is right, Amendment No. 6 is not moved.
[Amendment No. 6 not moved.]
Lord Ardwick Lord Ardwick moved Amendment No. 6A:
Page 36, line 31, at end insert—
("( ) The membership of the Authority shall at all times include at least one person who appears to the Secretary of State to be representative of those employed in the entertainment industry in the United Kingdom.
The noble Lord said: I wish to speak to Amendment No. 6A, which is identical with the first paragraph of the old Amendment No. 6. This says that the membership of the authority shall at all times include at least one person who appears to the Secretary of State to be a representative of those employed in the entertainment industry in the United Kingdom. I have to answer the criticisms previously made that this seems inconsistent with the last amendment, but there is a vast difference. One was dealing with an individual having a particular interest in a particular firm. What we are concerned about is somebody who should be representative of the workers of the whole of the
32
entertainment industry. There will be no financial interests at all.
This is a remarkable decision that the Government have taken, that the cabling of programme services in Britain is to be entertainment-led, so the considerable interests of all the various branches of the British entertainment industry and everybody who works in it are all going to be affected by the advent of cable. Surely it is essential to have somebody at the highest level on the authority who can represent the workers in the industry and see that they are given full scope and are not denied legitimate opportunities by the use of an excessive amount of foreign material which can be bought in this country at low prices since it has already earned its keep—and its profits probably—in the United States of America.
Also, it is not only a question of watching over interests. The world of "showbiz" is a world of its own and other members of the authority may lack the special knowledge which is required—the kind of special knowledge which the Hunt Committee lacked and of which I was critical at the time. The authority is going to need this special knowledge if the claims of "showbiz" are to be viewed realistically and are to be properly judged. I beg to move.
Baroness Gardner of Parkes: I oppose this amendment. I did not like it when I read the text; and, having heard the speech made by the mover. I like it even less. It would be quite impossible to find the exact person that he was describing. I will make all my points now rather than speaking again on Amendment No. 6B. I accept that there is a possible need for someone in the entertainment industry and indeed for the consumer. But whatever need there is for these people, we do not know what other needs there are which might be greater; and to write these exact changes into the Bill to establish those for all time would I think be very wrong.
There should be a very wide discretion so that the people chosen to serve on this authority could be chosen on their own merits in order to meet whatever were the absolute needs at the time. I would not be in favour of the amendment although I have nothing at all against the people in the entertainment industry—and indeed I am very much a consumer myself I think the principle is wrong and it is quite incredible that we should suggest tying it down to such specific categories. Therefore I oppose the amendment.
Lord Somers: One difficulty about this amendment, although I am entirely in agreement with the spirit of it, is the immense difference in the various areas of the entertainment industry. There is music, the theatre, ballet and endless other forms of entertainment. Who on earth are you going to find with a really inside knowledge of the whole lot? It is practically impossible. You should have somebody who is ready to listen to those who are expert in the various departments. I must confess, for instance, that up to now music has had rather a poor deal as regards television. I only hope that one can find somebody who is ready to listen to expert knowledge and to take account of it.
4.35 p.m.
Lord Jenkins of Putney: The difficulty in dealing with this schedule and indeed with the Bill as a whole is that none of us knows what we are talking about. That is a common criticism of this Chamber. It is true particularly of this Bill, and also it is true of every other Bill which has ever been introduced concerning the creation of television services in this country. If one examines, for example, the Act which set up the Independent Television Authority, one finds that the shape, structure and nature of the authority, as we now know it, simply was not envisaged in the legislation itself. It has arisen by a strange combination of pressures, and on the whole I think the results of that have not been too had. But we are now attempting to create a structure in a situation in which television is already established and so our position is even more difficult than it was in those days. The existing structures are bound to condition to some extent the new structure that we are attempting to bring about.
I wholly support my noble friend's endeavour to put down something in the nature of a marker by saying that—and I share the view expressed earlier by my noble friend that the authority is not nearly large enough—conditioned by the small size of the authority, we can suggest only one person to cover the various areas of entertainment. As has been indicated already, he will have to be a person of very considerable stature indeed; but that there should be a person who appears to the Secretary of State to be representative of those employed in the entertainment industry I would have thought a very reasonable proposition, having regard to the fact that the whole structure of television in this country has been formed by the various pressures within the entertainment industry, acting upon other pressures. I think something similar is likely to happen in this case, although here there are other communications pressures, and pressures from business and consumer interests, which did not apply in the same form or nature to the existing channels. Nevertheless, having said that, it seems to me that my noble friend's proposal is a reasonable one, and I hope that the Committee will accept it.
Lord Annan: I very much hope that this amendment will not be pressed. It seems to me that it is an example of a special interest being introduced into the authority. That is my first point. My second point is that I deplore the attempt to go on earmarking places on the authority for special interests. I had some experience of this when the Committee on the Future of Broadcasting was being set up. It was then put to me that a most admirable member of it would be Miss Shirley Bassey, who was Welsh, a woman and black. I had to say that I would find it difficult to recommend this to the Home Secretary, because, although Miss Bassey might well be a most admirable member of the committee, she could not speak Welsh.
When you try to balance all the interests which naturally a Minister would want to try to have represented on the committee, if you once begin tying up places, whether for national interests, as in the first amendment which was moved by the noble Lord, Lord Mishcon, or in this one, it seems to me that we are on a very bad path. Therefore, I very much hope
34
that we shall not have either this or someone to represent the consumer—the consumer, it seems to me, being a very difficult person to define in this case. Is it the person who is in fact buying cable services or is it the general public? These are contradictions and confusions which we should be ill-advised to back.
Lord Marsh: At the risk of sounding negative, I should like to follow the noble Lord in his objection to this amendment, on the principle of being strongly opposed to setting up boards and authorities which are comprised of individuals all representing a specific sectional interest. It is an increasing trend with regionalisation in a country whose prime fear seems to be the ungovernability of its land mass, that we must have somebody representing the Welsh, somebody the Scots, somebody the Irish—we do not normally have somebody representing the English or Londoners, who are a large part of the population—and somebody representing this or that group. If the intention of the amendment is to ensure that the views of the staff are properly reflected, that seems to me to be perfectly right and proper. But it is something which will happen within each company separately, where there is a specific structure to deal with that.
I have recently had some experience of the entertainment industry and the people in it, and I agree with the noble Lord that it is quite unlike anything else that I have been associated with in my life before. But, having said that, I think that the principle of having people representing a particular interest is unworkable in reality, because you cannot find a person, or even a couple of persons, who represent the entertainment industry. It is totally unnecessary and it is a highly undesirable thing to continue to progress.
Lord Molloy: I find these arguments somewhat distressing. I hope that the noble Lord. Lord Marsh, will understand when I say that when he comes here he seems on occasions to be representing a very special body in Parliament—not just in an organisation outside—in the highest assembly in the land. The same can be said for people who want to make representations on behalf of trade unions. I do not think that that argument will work. If that argument will work, I do not think that the noble Lord, Lord Marsh, will come here any more on behalf of one big, powerful organisation. I ask your Lordships to take the attractive submission of the noble Lord, Lord Annan. The only snag is that it has nothing to do with this Bill. There is no one like Miss Shirley Bassey, who is black, Welsh, a good singer and cannot speak Welsh, who will be appointed under this Bill.
So what is really being proposed? Is it one tiny little group? As the noble Lord, Lord Marsh, said, that would be an appalling thing to do. Is it just a couple of groups? What do we mean by "the entertainment industry"? There was also the point made by the noble Lord on the Cross-Benches a moment ago. How on earth would all these various people get together to elect whoever would represent them? What is the answer to that? The answer is that they have got together. They have organised themselves. They are known as the Radio and Television Safeguards Committee and I am sure that they would help us.

35
We must ask ourselves, who are the Radio and Television Safeguards Committee? I shall not read out the long details of everyone who belongs to it, but I should like to indicate the substantial number whom they represent. So we have got over that obstacle. If we are to have a representative of the entertainment industry, say, "You have organised yourselves. You are all included. You are in a body which meets from time to time. Now elect one of your number for the Minister to consider". They would have no right to appoint anybody, but they should have the right to submit to the Minister somebody who they feel should be on this board.
Who are these people? To begin with, there are all the broadcasting staff. Then there are the TV technicians and engineers. There are all the actors represented by their guild. Then there is that suspicious lot known as British cricketers. A large cry from Miss Shirley Bassey! There are all the footballers in Great Britain. There is the artists' association and they are on radio, screen and in the playhouses. There are all the musicians. Then there are the journalists, probably with members in every newspaper and magazine throughout Great Britain. There are the authors and there is the Writers' Guild. I could go on and on. These are now all joined together.
It would be a good thing to ask, "Are we going to get all these together? Are we going to get them to decide who will represent them?" There is something to be said for the last point, but with regard to the first point they are all together under one heading known as the Radio and Television Safeguards Committee. I should have thought that, if something like this did not exist, we should have some genius on the Back-Benches who would propose the setting up of this sort of organisation with which the Secretary of State or other Ministers could discuss. Perhaps they could influence the Minister. The Radio and Television Safeguards Committee would be an asset to the group that will run cable and broadcasting under this Bill.
If we accept the amendment, it will not mean that there will be any special group from the entertainment world. Whoever is ultimately selected will have to satisfy, first, the Minister and, secondly, all the other people whom I have listed that he or she is the right person to represent the entertainment world. If it were an amendment which was purporting to damage or harm the Bill or, indeed, to destroy it, then I could understand that there would be strong opposition from the Benches opposite, or from elsewhere, to try to see that it was not approved by this Chamber. But, when one considers the status of all the groups that I have mentioned—and they cover roughly 15 or 16 British organisations that are concerned with sport and television—it will be seen that a representative on the board would be an asset to the whole organisation and would help in the success of this measure when it becomes an Act of Parliament.
Lord Aylestone: The noble Lord, Lord Mishcon, called in aid the 1981 Act, which was of course a consolidation Act. He will be well aware that there is no requirement in that Act to include a member of the entertainment world on the Independent Broadcasting Authority. But from my experience over a number of
36
years, I can say that what is behind this amendment is the exclusion of a representative of the trade union movement and not of the entertainment movement. I can tell him that, without that requirement in the 1981 Act, several Secretaries of State, through the Ministers of the time, and the chairman of the authority, appointed the late Sir Vincent Towson. Sir Ronald Gould, Sir Frederick Heyday and the last one, our noble colleague in this House. Lord Blease. I do not think there is any reason to believe that the new Cable Authority will behave any differently, or that the new Secretary of State will behave any differently.
Lord Elton: I feel greater sympathy with the noble Lords, Lord Annan, Lord Marsh and Lord Aylestone, than I do with the noble Lords, Lord Ardwick and Lord Molloy, on this matter. Very briefly, since I think that the Government's position ought to be on the record, may I say that we feel, as does my noble friend Lady Gardner of Parkes, that the imposition of statutory criteria for membership is bound to reduce the flexibility which is desirable in making appointments to the authority, as I have already said in dealing with the proposal for national representatives.
Like the noble Lord, Lord Marsh, I am averse to labelled seats for that reason, as well as for the occasional combative position which I fear in a body which has both labelled seats and the sort of pyramid of election which the noble Lord, Lord Molloy, suggested beneath it. And who is to say whether the vote of a ballerina will equal that of a television interviewer and what the balance of forces will be within that? It seems to me that the whole thing would become politicised. Since this still hovers about the question of optimum size, what we are trying to construct as the authority is a non-bureaucratic body exercising a light touch in its relations with the cable operators.
To start off with, we do not think it will be necessary to have as many as eight members for our purposes. It is my right honourable and learned friend's intention, however, that at the start the authority shall consist of a chairman, a deputy chairman and five other members. I hope that noble Lords will agree that that should be within his powers and that even within the larger confines which the noble Lord, Lord Aylestone, has permitted us in his amendment he should not be constrained to dish out labelled seats to the exclusion of talents which may not coincide with the categories into which noble Lords want to put them.
Lord Archwick: The size of the authority, which we have decided this afternoon shall be anything between five and 10, allows room, if desired, for some representative figures. We have been criticised for trying to find someone from a category, but I must emphasise that the category is enormously wide. It includes all the people employed in the entertainment industry. It ought not to be impossible for the Secretary of State to take soundings from the unions and find somebody whom they regard not simply as, in a narrow sense, representing their interests but as being able to speak on behalf of the entertainment industry as a whole.
Lord Mishcon: I am sure that my noble friend Lord Ardwick will agree that it is necessary to weigh up what has been said on this important matter and consider whether or not it is necessary to come back at Report stage to the amendment. With the leave of the Committee, therefore, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
4.52 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 6B:
Page 36, line 31, at end insert—
( ) The membership of the Authority shall at all times include at least one person who appears to the Secretary of State to be representative of the interests of the consumer.")
The noble Lord said: I hope the Committee infers from what I have just said that we do not concede the principle that Parliament should guide the constitution of an authority if a vital interest is concerned. Although generalisations can very properly be made as to the inadvisability in some circumstances, when one is setting up a statutory body of this kind, of labelling the people who must be on it, there must, in Parliament's wisdom and width of view, be exceptions to that rule. I am going to quote what has been said about the constitution of this authority by a body which has been set up nationally and which has. I believe, our general respect, irrespective of party considerations—the National Consumer Council. They say:
"The membership of the Cable Authority is too loosely defined. Apart from there being at least five members and a few restrictions on who cannot be on it, there are no provisions for ensuring that the authority will reflect the many views of those with legitimate interest in the rules by which cable companies operate. The decisions of the Cable Authority could have a serious effect on, amongst other things, the finances of the cable companies, the quality of cable services, the control of advertising on cable and indirectly on broadcast TV, the finances of the ITV companies and the extent and quality of local community and access channels"
The National Consumer Council go on to say that there should be a representative of consumer interests on the Cable Authority.
Let me deal briefly with two points and then leave the matter for the wise discussion of the Committee. First, the noble Baroness, Lady Gardner of Parkes, made a very sensible and practical suggestion, which affected my judgment as to whether this was the right time for the Committee to take a decision. The noble Baroness said that if you label the various interests you may exclude some interests which may become of greater priority later on. There cannot be a greater interest than that of the consumer. Even if one thinks in terms of a higher priority, the consumer interest must obviously operate throughout the Bill. Because there is no other guidance in the Bill, I believe that there is a special case, as advocated by the National Consumer Council, for the consumer interest to be represented.
Secondly, we were asked who was meant by "consumer". Let me answer that question right away. I mean the person who is right at the end of the receiving line: the recipient of the programme. That person must be safeguarded in relation to advertisement interest, content of programmes, prices and so on. Whatever the Committee's view may be on any other labelling question, I hope that it will agree
38
with the view of the National Consumer Council. I should hope that it would be their own nominee who would represent the consumer interest. Whatever your Lordships' views may be about other labels, I believe that they should not apply to this one. I beg to move.
Lord Somers: I wonder whether all that the noble Lord, Lord Mishcon, has just said, with which I very largely agree, could be solved by having an entirely disinterested official, a radio ombudsman, to receive complaints from the public and convey them to the appropriate place. This matter of complaints applies not only to cable television but also to all forms of broadcasting. At present it is very difficult indeed to get one's complaints home to the authorities. I do not know whether any of your Lordships have ever looked at the programme in which various letters from the public (I cannot remember the name of the programme because I dislike it so much) are read out by a man who treats them in a most complacent and, he thinks, amusing manner. He makes me so entirely irritated that I have to turn the programme off after five minutes. What we want is an individual who has no particular interest one way or the other to accept the complaints of the public and convey them to the appropriate place.
Lord Peyton of Yeovil: I cannot conceive that when my right honourable and learned friend composes this body he will be so foolish as to set out to collect hermits and Trappist monks, who are the only people who in this context might perhaps be regarded as non-consumers. There are numerous bodies in this country which set out to represent, quite stridently at times, the interests of those whom they identify as consumers.
Therefore, I believe that to accept the noble Lord's amendment would be an error. My increasing confidence in my noble friend the Minister, if I may put it that way, leads me to believe that he will do nothing of the kind. I myself was surprised to hear that the National Consumer Council was called in aid. I have great respect and admiration for that body, but I manage to keep my admiration in a fairly low key, and I hope my noble friend will do the same.
The noble Lord, Lord Mishcon, said he was anxious that the interests of the person right at the end of the receiving line should be safeguarded. As I said at the start of my remarks, I cannot conceive that members of the authority—no matter from what group they are selected, or perhaps from none—would be innocent of the views, interests and reactions of the person at the end of the receiving line.
Lord Winstanley: It appears to me that the noble Lord, Lord Mishcon, in moving this amendment, which he did admirably, put both sides of the case. Perhaps that indicated that it may have been more appropriate if the noble Lord sat on this Bench and not on the one he occupies now, so fair was he in steering the course. I listened to the noble Lord most carefully and it appeared to me that he was opposed to the idea of the authority being filled up with people having a specific responsibility to represent specific interests. The noble Lord made the point, rightly, that if one once spells out one interest that must be represented on the authority, then there is an implication that

39
other interests not so spelt out are not to be so represented.
I would have thought that every Member of your Lordships' Committee hopes that the whole of the authority will be there to represent the interests of the consumer. That is the whole purpose of the authority It is not there to represent the interests of the cable operators. I hope it is not there wholly to represent the interests of the Government, whatever Government that may be. The purpose of the authority is to protect the public interest in one way or another, because the public is the consumer.
I hope we shall leave this matter fairly open, but I hope also that at the end of this debate the noble Lord or Baroness who is to reply will be able to tell the Committee that, without question, when deciding who to appoint to the authority the Secretary of State will bear carefully in mind the ability of those people to represent the interests of the consumer. I hope very much that the Secretary of State, in making appointments, will make absolutely certain that there is at least one person who is sufficiently familiar with the workings and activities of the National Consumer Council, the Consumers' Association, and perhaps the Citizens Advice' Bureaux and other bodies of that kind to be able effectively to represent their interests. But to spell out that the National Consumer Council shall have the right to nominate somebody would be very dangerous indeed.
Without straying from the point, my noble friend and I have down an amendment to insert after Clause 9 a new provision to appoint local advisory committees. If the Committee felt it was appropriate to set up such committees, we would very much hope your Lordships would agree that they should contain people who are quite specifically connected with voluntary consumer interest bodies in their own particular areas. That arrangement would safeguard some of the matters which the noble Lord, Lord Mishcon, has in mind.
I am in some difficulty because I very much agree with the noble Lord's point, but if you once start spelling out an interest which must be represented, and almost imply that a body such as the National Consumer Council has the right to nominate a person, then one begins to think about other bodies which ought to have a parallel or similar right. That is a great difficulty. I am bound to say that my noble friend and I on these Benches would be very concerned if, at the end of the day, we found that the Secretary of State had appointed people to the authority and that the authority as so constituted was not capable of representing the consumer.
I hope those matters can be attended to by some kind of undertaking or assurance by the noble Lord or Baroness who replies, to the effect that the Secretary of State will hear in mind very strongly the need for the people on the authority to be fully aware of the activities of those very important consumer protection bodies of one kind or another, and that he will spell out also that the whole purpose of the authority is to watch over and protect the interests of the consumer. So, we would not necessarily oppose this amendment but, frankly, we would not be wildly enthusiastic in
40
supporting it. Nevertheless, we sympathise with its ultimate aims.
Lord Marsh: Having opposed on principle the idea of having labelled seats on the authority—and that is a principle about which I feel very strongly—I find this amendment even easier to oppose, and I am troubled by it. Frankly, if there is one interest group that does not need to be protected in this particular case it is that of the consumer. That the consumer needs protection is an extraordinary proposition. The consumer is the paymaster. I sit as chairman of a commercial television company. I promise your Lordships—and I make no virtue out of it because it is pure self-interest—that I think of nothing else but the consumer. I wake every day hoping that more consumers will be happier with the product.
The idea is that a contractor is going to ignore the consumer, but the consumer is the sole source of success available to the contractor. We are in danger of believing that, somehow or another, Parliament has a role to help everybody do everything. People who set up and put their own money behind a project that is designed to attract and please the viewers of cable television will be very well aware of the needs, desires and interests of the consumer. If they are not, then, fortunately, they will not just get a rude letter from the Minister and fail to be appointed next time around, but they will go bust.
5.6 p.m.
Baroness Lockwood: I have a great deal of sympathy with those noble Lords who have spoken against having a fragmented authority, with different members representing different interests. But unlike the noble Lord who has just spoken. I take an entirely different view of this particular aspect. Unfortunately, I was not in the House during the Second Reading but I read the debate very carefully. On reading the debate, one realises that the contributions came very much from the experts. This is a very technical matter. While I accept what has been said about the approach of the Home Secretary to this matter. I believe that in a new area such as this it is important to ensure that the consumer's interests and point of view will be taken into account. It is not just a question of the National Consumer Council because no single body should have a right to nominate. But it is a question of trying to assess the various interests of a community as a whole and of appointing someone within the community who is in touch with grass roots points of view and who can speak on behalf of those people.
If I may say so, this is not just a negative approach—dealing with complaints. It is also a positive approach—being able to import into the authority ideas on the kind of approach and programmes which the consumers in the area want. Whether or not the noble Lord the Minister feels able to accept the amendment. I hope he can give an assurance that there will be on the authority someone who is a part of the community; who knows the various voluntary bodies in the community, is in touch with them, and can speak on their behalf.
Lord Elton: I wonder whether the words "demand-led" lack some of the force that I need to express my

41
support for that which the noble Lord, Lord Marsh, has said. I have to tell the noble Baroness, Lady Lockwood, that if the consumer does not want cable, he will not pay for it; and if he will not pay for it, there will be no cable.
Lord Molloy: Does the same apply in respect of nuclear weapons?
Lord Elton: I cannot hear the noble Lord, but I will sit down.
Lord Molloy: That is a terrible argument to make.
Lord Elton: The noble Lord can now tell me why.
Lord Molloy: I beg the noble Lord the Minister to think again about what he has just said; that if you do not want something in this country then you do not have to pay for it. Is it therefore the policy of the Government that pacifists will not have to pay their part towards the cost of nuclear weapons?
Lord Elton: If the noble Lord will allow me, I am not adducing a general principle as to how we should run this country; I am addressing myself to the matter on the Marshalled List—an amendment to the Cable and Broadcasting Bill. In that Bill there is a system whereby we expect entertainment to be delivered to houses and other places and it will be delivered only at the cost, and therefore at the invitation, of the people who will be at the end of the cable. If people do not want the cable to come through their door or their drainpipe it will not. If enough of them do not want it to come through it will not start from the other end.
With the noble Lord, Lord Marsh, I regard that as a definitive statement of the initial control which the consumer has. Thereafter, he has the perfect right not to continue subscribing to the service which the company has brought at great expense to his door or his drainpipe as the case may be. Therefore, he has a negative voice as well. But I can assure both the noble Baroness and the noble Lord, Lord Winstanley, and indeed my noble friend. Lord Peyton, that my right honourable and learned friend will not set about the difficult task of finding people who are particularly out of touch with the views of the consumer, and that he is aware of the way in which the views of the consumers are at present reviewed, co-ordinated and sometimes orchestrated, and is well capable of finding people suitable in that respect to sit on the authority.
Similarly, as I should have said in the last debate, he is well seized of the width of interests in the entertainment business, and I shall be very surprised indeed if that interest is not also represented on the authority.
What I want to say is that the interests which your Lordships have so clearly expressed as being so close to your hearts are ones which are very likely indeed to be covered. I cannot say they will be because everybody has a particular interest, but the generality of interest will be spoken for on this authority, and if it is not my right honourable and learned friend will want to know why it is not. I think, therefore, we ought to get away from this whole question of putting labels on seats.
Lord Mishcon: I wish it were as easy as that, and I wish that the wisdom of the right honourable and learned friend of the noble Lord was guaranteed under the Bill for all time, and indeed that he was allowed to sit, if there were a Conservative Government, for a great number of years as Secretary of State.
But, having said that, we are legislating for what ought to be the constituent elements of a very responsible authority. I promise to do it briefly, but let me try to deal with some of the points which have been made. The noble Lord, Lord Marsh, is, as usual, persuasive and amusing, but I found, if I may say so, a lack of depth on this occasion both in the amusement and in the content of his argument. We are not dealing with a commercial product which the customer can either refuse or take as he wishes. We are dealing with something that is going to be a monopoly in a particular area for 12 years, possibly 15 years if a later amendment is passed. In those circumstances it is a very different consideration from the matter which appears to obsess the noble Lord, Lord Marsh, night and day—and I admire him for it—namely, the benefit of his own consumers. His own consumers can indeed switch off; other people like the BBC can come along and entertain, and other channels may also be competing. But this is a monopoly being given for 12 to 15 years.
Again I repeat the point which was made so well by my noble friend Lady Lockwood. The argument is, what about a complaints procedure? I am most grateful to the noble Lord on the Cross-Benches for the words he spoke in half support of the amendment before he went on to the setting up of a complaints procedure as being a possible alternative. I was not thinking in negative terms of what the consumer does not want; I was again thinking in positive terms of what the consumer does want. That does necessitate a representation on the authority.
The whole basis of the Bill we are talking about, the question of advertising, programme content, and the way in which various services are being dealt with, the interactive services and so on all this makes the interest of the consumer paramount. So, in my view—I can only put the view of myself and my noble friends as forcefully as I can—it goes miles above the whole general concept of whether or not you should label and set out the various interests that should be on the authority.
I regard this, as do my noble friends, as of sufficient importance to, ask your Lordships to support this amendment in the Division Lobby, if that be necessary. This does not in any way make it wrong to support any notion that local committees might be set up upon which there should be representation; it does not affect that issue. I do hope that in various parts of the Committee there will be support for this amendment.
Lord Winstanley: I am sorry to prolong this discussion, but, after all, this is Committee and is the proper time to settle one's anxieties. I am bound to say I am a little less happy than I was about my neutrality towards this amendment since I heard the reply of the noble Lord, Lord Elton, and the speech of the noble Lord, Lord Marsh. It seemed to me that both rather missed the point. I fully understand the noble Lord.

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Lord Marsh, being wholly preoccupied with trying to find a prescription which is something the viewers want; I well understand that, in his present position as head of a company which has not hitherto been able to find exactly what viewers want, or at least has not been able to find enough viewers to want it.
But the noble Lord, Lord Elton, made the same point. He talked about cable as being a means whereby entertainment is to be delivered to homes. We are not wholly concerned here with entertainment. When the noble Lord, Lord Elton, talked about these consumer bodies, which he said were sometimes combined together as an orchestrated body he was talking very much about the campaigning voluntary bodies, which are slightly different from the local or national bodies of one kind or another which are essentially bodies concerned with information.
All right, I accept the entertainment point, but there is a need, one would hope, in certain areas for cable to be used as an information service, now that it is through television that most people primarily obtain their information rather than from the press. In a highly complex society there is no doubt that cable can be a very powerful and useful weapon, with which to provide citizens with the information that they need in order to conduct their lives properly. The kinds of body which are concerned with disseminated information are Citizens' Advice Bureaux and the National Consumer Council, not so much from a campaigning point of view but from the point of view of alerting people to the necessity of being properly informed.
I am very anxious indeed that the Cable Authority does have people on it who are personally acquainted with the activities of bodies like the Citizens' Advice Bureaux so that they are personally aware of the gaps in the public knowledge, gaps which could indeed be filled by cable if the Cable Authority had on it people who were aware of those gaps. I think the noble Lord, Lord Elton, rather dismissed this as being a sort of consumer lobby, a campaigning outfit. I do not think it is like that at all.
Lord Elton: If I appeared to dismiss it, it was because of the enthusiasm with which I rose to the fly cast to me by the noble Lord, Lord Molloy. I leap up to intervene before he casts another fly over me, so that I do not mislead the noble Lord again. Everything I say about entertainment and this being a demand-led service stands, but I do not regard cable as being capable only of providing entertainment. Nor will the Home Secretary be concerned only with entertainment, although entertainment is one of the special interests which the noble Lord in this amendment seeks to have specifically represented on the authority. My right honourable friend will indeed be concerned with the interests of the consumer in the broader sense to which the noble Lord has referred, and I hope the noble Lord will accept my assurance on that. I think we have gone on a long time about this, and I personally want a decision.
Lord Mishcon: And so do I, but, before the noble Lord sits down in peace and quiet, perhaps I may say that there is nothing in this amendment about representation of the entertainment industry. That was
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a separate amendment. The noble Lord said it was contained in this amendment; I am sure he did not mean that.
Lord Elton: No, I meant to refer to what was the first half of the amendment, which was the last amendment, which we have now discarded; but it is germane.
Lord Molloy: Is the noble Lord prepared to look at this and perhaps come back on Report? It is a vital point. For example, there is the very telling point made by the noble Lord, Lord Marsh. If the consumers do not like it, it will go bust. That means the consumers pay for it. That must follow. Surely, then, if they pay for it they are entitled to some representation on the board.
5.20 p.m.
On Question, Whether the said amendment (No. 6B) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 108.

DIVISION NO. 2

CONTENTS

Ardwick, L.

Listowel, E.

Birk, B.

Llewelyn-Davies of Hastoe, B.

Bishopston, L.

Lloyd of Hampstead, L.

Blyton, L.

Lockwood, B.

Briginshaw, L.

Longford, E.

Brockway, L.

McCarthy, L.

Bruce of Donington, L.

McIntosh of Haringey, L.

Caradon, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Cledwyn of Penrhos, L.

Oram, L.

Collison, L.

Peart, L.

Cooper of Stockton Heath, L.

Ponsonby of Shulbrede, L.

David, B. [Teller.]

Ross of Marnock, L.

Davies of Penrhys, L.

Shinwell, L.

Dean of Beswick, L.

Spens, L.

Donnet of Balgay, L.

Stallard, L.

Elwyn-Jones, L.

Stewart of Alvechurch, B.

Elystan-Morgan, L.

Stewart of Fulham, L.

Ewart-Biggs, B.

Stoddart of Swindon, L.

Fitt, L.

Stone, L.

Gaitskell, B.

Strabolgi, L.

Graham of Edmonton, L. [Teller.]

Taylor of Blackburn, L.

Taylor of Mansfield, L.

Hale, L.

Underhill, L.

Hatch of Lusby, L.

Wallace of Coslany, L.

Howie of Troon, L.

Wedderburn of Charlton, L.

Jeger, B.

Wells-Pestell, L.

Jenkins of Putney, L.

Wootton of Abinger, B.

John-Mackie, L.

NOT-CONTENTS

Airey of Abingdon, B.

Cox, B.

Alexander of Tunis, E.

Craigavon, V.

Alport, L.

Cullen of Ashbourne, L.

Ampthill, L.

Daventry, V.

Atholl, D.

Davidson, V.

Auckland, L.

De La Warr, E.

Avon, E.

Denham, L. [Teller.]

Belhaven and Stenton, L.

Dilhorne, V.

Belstead, L.

Drumalbyn, L.

Boothby, L.

Ebbisham, L.

Broxbourne, L.

Eccles, V.

Bruce-Gardyne, L.

Ellenborough, L.

Caithness, E.

Elton, L.

Campbell of Alloway, L.

Faithfull, B.

Campbell of Croy, L.

Fortescue, E.

Carnegy of Lour, B.

Fraser of Kilmorack, L.

Cockfield, L.

Gainford, L.

Cottesloe, L.

Gardner of Parkes, B.

45

Glanusk, L.

Munster, E.

Glenarthur, L.

Murton of Lindisfarne, L.

Glenkinglas, L.

Newall, L.

Gray of Contin, L.

Northchurch, B.

Gridley, L.

Nugent of Guildford, L.

Hailsham of Saint Marylebone, L.

Orkney, E.

Pender, L.

Halsbury, E.

Penrhyn, L.

Harmar-Nicholls, L.

Peyton of Yeovil, L.

Hayter, L.

Plummer of St. Marylebone, L.

Henley, L.

Hornsby-Smith, B.

Portland, D.

Howard of Henderskelfe, L.

Rodney, L.

Hylton-Foster, B.

St. Davids, V.

Killearn, L.

Saltoun, Ly.

Kimberley, E.

Sandford, L.

Lane-Fox, B.

Seebohm, L.

Lauderdale, E.

Selkirk, E.

Lawrence, L.

Sempill, Ly.

Long, V.

Shaughnessy, L.

Lucas of Chilworth, L.

Skelmersdale, L.

Lyell, L.

Strathcona and Mount Royal, L.

McAlpine of Moffat, L.

Macleod of Borve, B.

Sudeley, L.

Malmesbury, E.

Swinton, E. [Teller.]

Mancroft, L.

Terrington, L.

Margadale, L.

Teynham, L.

Marley, L.

Tranmire, L.

Marsh, L.

Trenchard, V.

Maude of Stratford-upon-Avon, L.

Trumpington, B.

Vaizey, L.

Merrivale, L.

Vaux of Harrowden, L.

Mersey, V.

Vickers, B.

Molson, L.

Vivian, L.

Montgomery of Alamein, V.

Westbury, L.

Morris, L.

Whitelaw, V.

Mottistone, L.

Wynford, L.

Mowbray and Stourton, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.28 p.m.
Schedule 1 agreed to.
Clause 2 [Meaning of "cable programme service" etc.]:
[Amendment No. 7 not moved.]
Lord Elton Lord Elton moved Amendment No. 8:
Page 2, line 4, after ("both") insert ("either—(a)").
The noble Lord said: With your Lordships' leave, I shall speak also to Amendments Nos. 9, 10, 11, 12 and 13:
Amendment No. 9: Page 2, line 5, leave out ("either—(a)").
Amendment No. 10: Page 2, line 8, at beginning insert ("for reception, by whatever means.").
Amendment No. 11: Page 2, line 14, at end insert ("either—(a)").
Amendment No. 12: Page 2, line 15, leave out ("either—(a)").
Amendment No. 13: Page 2, line 18, at beginning insert ("for reception, by whatever means,").
Again with your Lordships' leave, I shall then seek to move Amendments Nos. 9 to 13 en bloc.
These small amendments make adjustments to the definitions in subsections (1) and (2) of Clause 2 to rationalise the licensing arrangements in respect of programme services which are intended for public presentation outside the home or, as the Bill terms them, "restricted services". This category of service is likely to account for only a very small part of the authority's work because it is essentially confined to the occasional coverage of certain sporting events by showing them on a large television screen in places
46
such as cinemas. Up to now these presentations have been licensed by my right honourable and learned friend the Home Secretary. In recent years they have most often consisted of boxing championship fights which neither the BBC nor the ITV companies have wished to cover live.
This category of service is in most respects somewhat marginal to the rest of the Bill, but there is one important respect in which it involves the same considerations as the generality of cable services which serve the home. There is a possibility that it could, by providing live sports coverage to paying audiences, lead to a siphoning off of certain events from the public service networks to the detriment of the ordinary television viewer. For that reason, it seems right that the cable authority rather than the Home Secretary should exercise oversight of this kind of service so that it can impose the same requirements as for other cable services under Clause 13.
The Bill already goes some way towards achieving that, but, as drafted, subsection (2)(b), like subsection (2)(a), excludes programmes delivered to the screen by wireless telegraphy. In the past that would have been of no concern, but nowadays the final transmission to the point of reception is sometimes effected by wireless telegraphy rather than a cable link. This would mean that the licensing arrangements for the programmes would vary depending on the particular technology used. The amendments therefore provide that a "restricted service" shall be licensable by the cable authority whatever the technical means by which the signals are received. I beg to move.
5.31 p.m.
Lord Mishcon: I hope that the noble Lord the Minister will note my generosity and will find it possible to reciprocate. We do not intend to oppose any of these amendments.
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendments Nos. 9 to 13:
[Printed above.]
On Question, amendments agreed to.
Lord Howard of Henderskelfe Lord Howard of Henderskelfe moved Amendment No. 14:
Page 3, line 1, leave out subsection (6).
The noble Lord said: I apologise for not being in my place to move Amendment No. 7. I had not realised that it was possible to return to my place by a route shorter than the one I took. However, with your Lordships' indulgence, because I should not in any event have pressed Amendment No. 7 and because the two are closely tied together, I hope I shall be allowed to speak to both amendments.
This is a very complex matter. I am not a lawyer. I hope that I can explain the proposition in sufficiently simple terms for it to be understood by others who also are not lawyers. It relates to the future and, to some extent, to the present. There are well-understood definitions of what programme services are. In the past they have referred to sound, music and moving images. There are now, and will be in the future,

47
certain programmes (which are referred to in the Telecommunications Bill but not in this Bill) which are neither.
I am speaking not only for the BBC; I am speaking for the mass of broadcasters and indeed I hope for the very high proportion of consumers—if that is not a dirty word—who will never receive cable. There are a number of programmes that the BBC puts out under its service Ceefax on the four unused lines of the 625 television signal which are neither moving images, nor sound, nor music. An example is not only Ceefax itself but the programmes for computers which are put out—though not many of your Lordships may realise this—at a late number of the Ceefax, page 796, or whatever it may be, which can then be downloaded by means of a special adaptor on to the microcomputers which are being bought in such very large numbers by what appears to be a highly numerate public, especially in the younger age group. Unless these programmes—which are covered by Clause 4(1)(c) of the Telecommunications Bill:
"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 form of sounds or visual images"—
are defined as broadcasting services, there are certain consequences in relation to cable.
I believe that the Telecommunications Bill gets it right. Clause 6 of that Bill states:
"Section 5(1) above is not contravened by the running by a broadcasting authority of a telecommunication system the sole purpose of which is the transmission, by wireless telegraphy, from a transmitting station for general reception of sounds, visual images or such signals as are mentioned in paragraph (c) of section 4(1) above".
I am sorry that this cross-referencing makes it all sound so complicated. If this development is foreseen in the Telecommunications Bill, the provision should also be included in this Bill.
The amendment would also bring cable teletext services within the scope of the Cable Authority's licensing powers. Teletext services again consist of visual images but they are motionless visual displays. They therefore fall within Clause 2(1) as visual images, but they do not fall under subsection (2) (the definition of a "licensable service") because subsection (6) says that "visual images" is to have a different meaning in subsection (2). A submission on this matter has been made to the Government, so that what may appear to many of your Lordships to be gobbledegook may make sense to some members of the Government.
In subsection (2) "visual images" means visual images which are such that sequences of them may be seen as moving pictures. That is, after all, the way that the cinema and television work—a whole succession of still visual images which, because of what happens in the eye, become moving images. According to the definition in the Bill the term must exclude the motionless visual displays of which a teletext service—and hence a service including, say, a computer programme—is comprised. That means that a teletext service (including Ceefax and Oracle) will be excluded from the licensing requirement and so will not be subject to the control of the Cable Authority. Consequently, a teletext service providing religious or political material of whatever nature
48
would be permitted (subject only to the law of obscenity and of incitement to racial hatred), because Clauses 24 to 27, dealing with these matters, apply to cable programme services generally and not just to licensable services. Under the licensable services definition there would be no control however unbalanced or unfair might be the material.
I believe that the deletion of subsection (6) would prevent that by bringing teletext services within the control of the licensing system. Similarly, the amendment which unfortunately I was not in my place to move would have brought similar services within the confines of the copyright law—which is in itself a highly complex matter—in relation to cable services.
I am conscious that what I have said is as unclear as is much of what the future holds for cable services generally, but I hope that since with your Lordships' permission I have been able to associate together the two amendments, the noble Lord who will be answering the debate will be able to give me some kind of assurance that the point is taken on board and the two Bills are brought into line. It is precisely because the new services are so new that the terms of art which hitherto applied do not appear to cover these services and that it is necessary to widen the scope of such terms of art in order to include them in the future. I beg to move.
Lord Elton: I am sure that all of your Lordships will share my sympathy with the noble Lord for his long peregrination in the Chamber. I hope that the Committee will agree that since both he and I were to have spoken to Amendment No. 14 with Amendment No. 7, which is normal procedure, we may have your Lordships' indulgence to speak to Amendment No. 7 with Amendment No. 14—which is what the noble Lord has done. I need not take too long, though this is a technical matter. I hope that I can assure the noble Lord that the Government's intention is that the teletext services of the BBC and the IBA should come within the scope of the "must carry" rule and that no adjustments to the definitions in Clause 2 are necessary on that account, even to embrace the specialist computer signals to which the noble Lord. Lord Howard of Henderskelfe, referred.
This is a point which we shall be able to consider in more detail when we come to the noble Lord's amendments to the "must carry" provisions in Clause 12. If the drafting of that clause should prove to leave that in doubt, I shall seek further to allay the noble Lord's fears by improving it by amendment. For the present I hope that he will be prepared to accept my assurance that we intend that the Bill shall extend the "must carry" rule to both the teletext services.
The noble Lord has also expressed concern that cable text services should be subject to licensing by the Cable Authority; and I now launch into my own attempt at clarifying gobbledegook. In regard to the matters now concerning the noble Lord. Clause 2 works as follows. Subsection (1) defines the general category of cable programme services in terms which include text services. Subsection (2) separates out and defines the smaller category within that category of licensable services. It does so in terms which make it broadly comparable with broadcast television and radio. The reason for this distinction lies in the

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difference between the meaning borne by the words "visual images" when they appear in subsection (1) and the meaning borne when they appear in subsection (2). In subsection (1) they appear unqualified, and I can assure the noble Lord that therefore they bear the full meaning which is attributed to them in normal speech.
However, in subsection (2), as in subsection (4), they are qualified by the operation upon them of subsection (6). What subsection (6) does is to say that the term "visual images", where it appears in subsections (2) and (4) of the clause, but nowhere else, means moving pictures. Teletext is not made up of moving pictures and is thus excluded from the terms of subsection (2), and indeed subsection(4). It is therefore also excluded from the requirement that anyone providing it will need a licence to do so from the Cable Authority under the Bill when it is enacted.
The effect of these parts of the clause is that therefore only a licensable service—that is, a service broadly comparable with broadcast TV and radio—will require a licence from the Cable Authority. Other cable programme services, which are much closer to printed publishing than to television, will not be so required. That does not mean that they will be open to uncontrolled and perhaps licentious free-for-all. They will still he programme services under Clause 2(1), and they will therefore be subject to the general laws of the land, including, for instance, those of obscenity and defamation.
To require the Cable Authority to license all text services would not only impose an unwelcome burden on the authority—which is a consideration—but, I believe more importantly, not be right in principle. We do not propose to start licensing newspapers printed on paper, which would indeed be Orwellian but I think would not for a moment be supported by your Lordships, and for similar reasons we do not propose to start licensing newspapers printed on television screens.
I hope that the noble Lord will be content with both the assurances that I have given him on the "must carry" rule and the explanation I have given him on the operation of subsections (1), (2), (4) and, in particular, (6) of the clause, at least until he has read Hansard, which I think might be necessary in order to translate what doubtless seems to him to be the gobbledegook which I have uttered into the plain speech which he always has a right to expect from me.
Lord Howard of Henderskelfe: I think that the noble Lord has succeeded in expressing in extremely plain speech what is by no means in his mouth gobbledegook. But I am still not absolutely and completely happy about the point which I raised almost en passant in relation to copyright. We shall be reverting to it at a later stage of the Bill, and therefore I do not now propose to detain the Committee on it. But it seems to me that due to the interaction of the various clauses and subsections of the Bill with one another, the effect of not making the teletext services licensable services—and I agree that they are very much a newspaper of the air, and therefore should not be licensed in the ordinary way—may be, and I say only may be, to deprive them of that protection of copyright which is so necessary to the producers of intellectual property, which is what I think composers
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and writers now tend to be called in law, which seems rather sad, but there it is. However, resting on the assurance I have been given, and asking the Minister to look at the matter again between now and Report stage to see whether I am right or wrong in it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2, as amended, agreed to.
Clause 3 [Prohibition on unlicensed services]:
5.48 p.m.
Lady Saltoun Lady Saltoun moved Amendment No. 15:
Page 3, line 31, at end insert—
(";
(c) in Scotland, except by or with the consent of the Lord Advocate".)
The noble Lady said: To start with I had to scrutinise the Bill very carefully before I was quite sure that it applied to Scotland at all, because some English people who I call English nationalists still seem to think of Scotland, when they think of it at all, as a wild region beyond Northumberland and Cumberland, inhabited by sheep and by mad savages clad in tartan, who hunt a beast called the haggis, and whose life style might be described as by "Whisky Galore" out of "Brigadoon".
As your Scots Lordships know, that is not at all the case, and the country is in fact inhabited mainly by quite civilised people, who do quite ordinary things, lead quite ordinary lives, wear quite ordinary clothes, and who even watch television and are enthusiastically looking forward to the advent of cable. Their equivalent of the Director of Public Prosecutions is a colourful-sounding figure called the Lord Advocate, who sits on the Government Front Bench in your Lordships' Chamber. So, since this Bill seems to apply to Scotland, I imagine that the omission of Scotland from this clause can only be an oversight, which this amendment is designed to rectify. I beg to move.
Baroness Trumpington: I think of Scotland constantly. How could I not do so with such a charming and able representative proposing this amendment, not to mention the noble Lord, Lord Ross? The noble Lady has suggested that Clause 3 of the Bill as drafted might create an anomaly in respect of prosecutions for offences under Clause 3 committed in Scotland as against those committed in the case of the rest of the United Kingdom. While the Bill expressly provides for the appropriate Director of Public Prosecutions to give his consent to proceedings in England, Wales and Northern Ireland, Clause 3(3) makes no mention of Scotland.
I hope that I can allay the noble Lady's fears. There is no mention of the position in Scotland because none is necessary. The whole system for prosecutions in Scotland is, of course, different from that in the case of the rest of the United Kingdom. Where an offence is created by statute, prosecutions in Scotland can be brought only by the procurator fiscal on behalf of the Lord Advocate unless the statute expressly provides otherwise. In England, Wales and Northern Ireland the presumption works the other way: private prosecutions are possible unless excluded by the relevant statute.

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Since the Bill as drafted makes no special provision for Scotland in respect of offences under Clause 3, the general rule will apply. There will thus be no question of private prosecutions being brought in Scotland or elsewhere in the United Kingdom in respect of this offence. I hope that the noble Lady is reassured, and that she will withdraw her amendment.
Lady Saltoun: I should like to thank the noble Baroness for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Howard of Henderskelfe Lord Howard of Henderskelfe moved Amendment No. 16:
Page 3, line 37, leave out from ("instrument") to ("a") in line 38 and insert ("but no such order shall be made unless a draft of the order has been laid before and approved by").
The noble Lord said: I do not think I need speak at length on this amendment. Simply, I think that the prohibition of unlicensed services, except with the leave of the Secretary of State, is absolute, The Secretary of State, however, may make exceptions by statutory instrument. Since the principle controls over cable operators will be imposed through the licensing system, it is in my view extremely important that those excused from the controls should be carefully scrutinised. My amendment is designed to subject the proposed exceptions to the rather stronger form of positive parliamentary scrutiny rather than negative parliamentary scrutiny. I beg to move.
Baroness Trumpington: Clause 3(5) of the Bill as presently drafted provided for an exceptions order made under Clause 3(1) to be subject to the negative resolution procedure in Parliament. Such an order might exempt from the need to hold a Cable Authority licence certain services or classes of service which would otherwise require a licence. This provision follows the precedent of Part IV of the Post Office Act 1969, which contains the Home Secretary's existing power to license cable programme services, and of Part IV of the Telecommunications Bill, which will replace Part IV of the 1969 Act until this Bill comes into force.
The noble Lord, the Lord Howard of Henderskelfe, has referred to the problems which might ensue if the relay by cable of DBS subscription services were exempt from the need to hold a Cable Authority licence. In such a case, it has been suggested that the operator of a communal aerial system might acquire a single set of apparatus for decoding the signals constituting the pay service, and distribute the service free of charge to his customers without payment to the provider of the service.
I would, however, refer your Lordships to the assurance which my noble friend Lord Elton gave on Second Reading of the Bill when he said that the Government were aware of a number of difficulties of which this is only one over the dishonest acquisition of pay television services, and were considering the need to bring forward additional provisions during the passage of the Bill. I can assure the noble Lord that in our consideration of such new provisions we shall not overlook this particular aspect of the problem. I
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cannot yet say whether we shall be in a position to bring forward proposals on Report stage. The issues are complex, but the Government accept that there is a real problem to be tackled, and tackled it shall be.
Lord Howard of Henderskelfe: Before the noble Baroness sits down, may I inquire, with the utmost respect, whether she is answering the amendment I have just moved or a new clause which I shall be moving somewhat later in the proceedings, relating to theft? I was merely referring to the positive and negative procedures which are so well known to Members of your Lordships' House. We know perfectly well that if the Government have to go through the positive procedure they have in fact to come to us and justify what they are doing. They do not have to do that if they go through the negative procedure. It was purely on this issue that I was speaking to your Lordships, not on something that is somewhat more complex.
Baroness Trumpington: If the noble Lord will allow me to continue, I think he will find that I shall eventually come to the bit to which he is referring. I hope that he will allow me to carry on. I think that what I will do is to read the bit concerned with the standard negative resolution procedure. In the view of the Government there is no need either to strengthen or weaken the standard negative resolution procedure in Clause 3(5). I hope that the noble Lord will accept that bald statement.
Lord Howard of Henderskelfe: It is so bald that it almost suits me.
Baroness Trumpington: If the noble Lord will allow me, I have found another piece. There is absolutely no point in not coming clean with your Lordships. I had expected, quite frankly—in fact, I had been informed—that Amendments Nos. 16 and 17 were to be taken together. That is why I have gone into all this rather long rigmarole that affects Amendment No. 17. I think I am not altogether to blame for having been bald. I shall now try to put a little hair on the baldness by adding another little piece.
The amendment of the noble Lord, Lord Howard of Henderskelfe, would mean that every order would have to be debated in both Houses even if there were no objections. That, I suggest, is a needless allocation of parliamentary time. I hope, therefore, that the noble Lord will not feel bound to impose this small but very real additional burden on either this House or another place. Heaven knows what I am going to do when I get to Amendment No. 17!
Lord Howard of Henderskelfe: I think that by now I cannot possibly press my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.59 p.m.
Lord Aylestone Lord Aylestone moved Amendment No. 17:
Page 3, line 38, leave out ("either House") and insert ("both Houses").
The noble Lord said: I should first like to assure the Committee that there has been no agreement between

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the noble Lord, Lord Howard, and myself to take these two amendments together. But, in fact, the subject matter is related. I can conceive of a position when the agreement of the Secretary of State and the chairman of the authority may not be in line with the wishes of some people who are concerned with that agreement. There could be a position whereby Members of both Houses of Parliament are interested in the subject and would want it ventilated. It would be possible to pray against the order in either House and I cannot agree that it would take a little parliamentary time. The matter should really not be regarded as a negative procedure Motion but as a positive procedure, whereby it comes before both Houses of Parliament for approval.
Baroness Trumpington: The Bill, as it stands, allows both Houses of Parliament to debate any exceptions order which the Home Secretary may make under Clause 3(1). The procedure provided for is the standard negative procedure whereby the debate takes place only if the order is objected to. It then takes place in either House or both, according to who objects to it.
The effect of the amendment in the names of the noble Lords, Lord Aylestone and Lord Winstanley, differs from that of the noble Lord, Lord Howard, in that it would mean only those amendments that were objected to would be debated, and that I welcome. It would, however, also mean that even if a vote were considered against the order in one House, the order would still be valid unless it were also voted against in the other House. Therefore we could have an order condemned by the Commons but validated by the approval of this House, or vice versa. I hope that the noble Lord will withdraw his amendment.
Lord Aylestone: I do not think that I can take the matter much further or we shall get the needle stuck on the record in the same place the whole time.
Lord Mishcon: May I merely say that the Government are extremely fortunate in having the noble Baroness, Lady Trumpington, to represent them; she can get away with anything.
Lord Aylestone: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Power to license services]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 18:
Page 3, line 39, leave out from ("Authority") to ("for") in line 40.
The noble Baroness said: This amendment is a technical one designed to improve the drafting of Clause 4. Clause 4(6) contains an exhaustive list of the types of conditions which the Cable Authority may wish to include in their licences. Clause 4(1) as presently drafted, however, overlaps with Clause 4(6) by giving the authority discretion to include in licences such conditions as they think fit. Since Clause 4(6) deals with all the conditions which the authority may include in licences, there is no need for Clause 4(1) to cover the same ground. The amendment, accordingly, removes from Clause 4(1) the reference to licence conditions. I beg to move.
Lord Mishcon: With great respect to the noble Baroness, this is not just a technical amendment. I will explain why, because I think the Committee, if I may say so, must know what it is doing if it is agreeing to this amendment. I do not intend to oppose it, but I want to add a qualification to it.
If you will look at the relevant clause, which is 4(1) on page 3 of the Bill—and I am looking as the amendment looks, three lines from the end—that was a power which many of us were apprehensive about because it said a licence could be granted by the licensing authority subject to such terms and conditions as the authority may think lit. There was therefore no limitation whatsoever; no question of whether or not that was a term that was imposed upon the authority; and the terms and conditions had to be subject to Part I of the Act, or had any other considerations: it was a broad authority that was given to impose any terms and conditions that the authority saw fit.
The noble Baroness, on behalf of the Government, in describing that as a technical amendment said, as I understood her, that this was unnecessary and the words were left out because of the wording on page 4 of Clause 6(a). If you look at Clause 6(a)——
Baroness Trumpington: No, I did not. I never mentioned Clause 6(a); I mentioned Clause 4(6) and Clause 4(1).
Lord Mishcon: I am so sorry, but when I said "on page 4" I was referring to subsection 6(a). The words are not that the licence may include such conditions and terms as the authority may think fit, but it says:
"such conditions as appear to the authority to be requisite or expedient having regard to the duties imposed on them".
That was a very much lesser power than would have been granted under Clause 4(1). If that is so, I do not think (and there was no question of anyone trying to mislead or anything of that kind) that it ought to be described as a purely techical amendment. I am the last person in the world to object to the taking away of an unlimited power, and I do not object to it. I was going to have something to say about the terrific power that the authority was given under Clause 4(1).
Having said that I do not object to it—and I have tried to point out to the Committee what we are doing if we remove this overall power—it becomes all the more necessary for us to be very careful about the terms, conditions and the codes that we put in this Bill, so that we know exactly what is the area in which we want the authority to impose terms and conditions. That indeed will be a matter to which amendments direct themselves subsequently before the Committee. Having uttered that caveat, I say that it is right for the Government to have withdrawn the overall unlimited power of the authority, but we ought to concentrate on what the nature of the terms and conditions should be, and what code should be laid down, and so on, hereafter.
Baroness Trumpington: I am extremely grateful to the noble Lord, Lord Mishcon, for saying that he is not going to oppose this amendment. I am not sure that I can go along with his suggestion that Clause 4(1) goes very wide. The point is that Clause 4(6)(a) gives the

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authority power to include all such conditions as are requisite or expedient for the purposes of this Part of the Bill. The problem was one of overlap; but I am grateful to the noble Lord for his charming remarks.
Lord Mishcon: The noble Baroness has, in a much nicer voice, repeated what I said.
On Question, amendment agreed to.
Earl De La Warr Earl De La Warr moved Amendment No. 19:
Page 4, line 10, leave out ("twelve") and insert ("fifteen").
The noble Earl said: Before I move this amendment, it would be right for me to repeat my reference to my interest in this industry as I said on Second Reading. I am deputy chairman of a cable consortium which is at present discussing with the Government the issue of a licence, and I have for very many years, as a result of being in another company, been very closely associated with the Cable Television Association. In order to save parliamentary time, perhaps I might have your Lordships' leave to say that just once tonight instead of every time I rise to speak.
The purpose of this amendment is to extend the period of the initial licence from 12 to 15 years. The White Paper in paragraph 72 referred to the inevitable gap between the granting of a licence and the start of the service. It said that this period:
"will not count against the twelve years".
But in the Bill there is no allowance made for this gap and I, for one, well understand why not. So far as I can see, one cannot in practice post-date a licence if only because it must actually be in force before a single subscriber can be connected even for marketing or technical purposes, and I should have thought that it would be hard even to start digging up the road. Nevertheless, there is a serious omission here and it is something that we must ask the Government to tackle and to tell us how they are going to deal with it. I have already put forward my proposal and I shall enlarge upon it.
I put it to your Lordships that the only sensible way in which to deal with this is to have no complex formula—I could think of many formulae that would be extremely difficult to apply—but simply to add a fixed period on to the 12 years. If that be agreed—and of course I know that it will not be agreed by many—what we have to do is to decide the length of the extra period.
I expect some of your Lordships will have heard that in the United States it is the norm for an area—indeed, a large one—to be cabled in about one year. But in that country, with very few exceptions, something well in excess of 75 per cent. and very often 100 per cent. of the cable is carried above ground on pole routes and the connections to the subscribers are just from the poles to the roofs of the houses. How different it is going to be here when every yard of cable has to go underground and every street dug up, sometimes on both sides, to get it there!
I should like to quote an example. I was closely involved some time ago in the late 1960s with the cabling of the City of Leicester—a city of over 100,000 houses and the last of the big towns to be speculatively cabled by a relay operator. I have checked the statistics
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very carefully with some of the people who were working for me then, because I regard my memory as liable to be a bit rusty on this point. As a result I can assure your Lordships that it was getting on for two years before we had completed the main trunk routes which, in the case of Leicester, we put underground and that was why it took that time, and we were still putting up feeders after six years. I have no hesitation in suggesting that three years is a reasonable and by no means a generous time to allow for what is referred to as "installation". It is for that reason that I strongly urge the Government to accept 15 years as the period for the initial licence to run. I beg to move.
6.14 p.m.
Lord Elton: I take grateful note of my noble friend's declaration of interest. I say "grateful" because it is good to know not merely that he has an interest which he has declared, but that he has one which makes him so very conversant with the matters with which we are dealing. He has set out very cogently views which I know will be strongly supported by the Cable Television Association. Even at this early stage of the Bill this is not unfamiliar territory. The Hunt Report which was published in October 1982 said that the cable franchises should run for eight years in the normal case, but for 10 years in the first instance in view of the large initial investment and the need for the business to be built up from scratch. The Cable Television Association argued very strongly then that that was insufficient and the Government took their views carefully into account in reaching their own conclusions which were announced in another place on 2nd December 1982 and elaborated in the White Paper of last April.
The Hunt Report did not draw a clear distinction between systems and services, but the Government decided on reflection that it was necessary to maintain separate though interrelated arrangements for the telecommunications and Cable Authority licences. The telecommunications licensing system was designed to encourage patterns of development consistent with both current and future technological development and the telecommunications licence was, therefore, fixed at 12 years for a conventional tree and branch system; but for 20 years for the more forward looking switched star system. Congruously, or congruently, with this (I am not sure which) the Cable Authority licence was set at eight years in the normal case, but 12 years for the initial period rather than the 10 originally proposed. That means, as I understand it, that the first Cable Authority licence will expire roughly simultaneously with the first tree and branch telecom licence and that that second Cable Authority licence will expire at more or less the same time as the first Switched Star Telecom licence. That was the basis upon which the pilot project applications were invited and no fewer than 37 consortia were willing to apply for licences on it.
The Government recognise that those who are to invest in cable wish their licences to run for as long as possible. The question is: what period is the right one in the public interest? My noble friend has cogently advanced that it ought to be longer than we proposed. Cable operators will in practice have a local monopoly. It is clearly undesirable that that monopoly

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should run, unchecked, for too many years. The Cable Authority will have the possibility of some intermediate sanctions, but the formal review of the licence will constitute its big gun and it gives it its most effective oversight of companies' activities. If that review is too far distant, its effectiveness will be diminished. If it is too close, companies will not be prepared to invest in the medium. Those are the opposing tensions and we believe that the point of equipoise is properly fixed at 12 years and not 15 years.
However, there are two points that I should like to make and I hope that my noble friend will find them helpful. First, the licence period will not start to run until an operator starts to provide programme services. So while he or his telecommunications counterpart is merely doing the initial installation, the clock will not have started. He will, of course, want to have a firm promise of a licence before he invests any money, but the licence will not need to come into operation until the day that services start. Secondly, we entirely accept that cable operators will have to work hard to build up a business, especially since they may wish to start providing public services before everyone is within range of the cable. That is a factor which we have specifically taken into account in allowing four years longer for the initial period than for the subsequent licences. I am afraid that I cannot, however, agree to meet my noble friends on the question of longer licences still. The Government believe that they would be bad for the consumer, and in the long run that must mean that they would be bad for cable, too.
Lord Mottistone: What my noble friend has said is most interesting: that the 12 years would start only from the moment that programmes could be provided, and therefore there would not be a start point on the licence until one actually got going. Does the Bill say that and, if so, where?
Lord Mishcon: I should like to add a query from these Benches to that raised by the noble Lord, Lord Mottistone. In my reading of the Bill—and I am sure that it is my fault—I could find nothing which made the start of the licence time run from the start of the programmes. I though that it ran from the start of the grant of the licence. It may be that I am completely wrong. If I happen to be right, then of course the noble Lord's point about the question of time becomes a very essential element in our future discussions, because if a licensee takes an inordinate amount of time in which to lay his cable and an inordinate amount of time to start his programmes, it may make matters very difficult.
Lord Elton: I am obliged to the noble Lord, Lord Mishcon, for the length of his intervention. I think that the answer to both my noble friend and the noble Lord is that one does not need a licence until one undertakes a licensable activity, and in this case the licensable activity is sending out the programmes to the person to receive at the other end of the wire. In the Bill if as a commercial activity, one is sending out practice signals or merely digging holes—as the noble Lord put it—the licence is not necessary. I trust that the noble
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Lord will be reassured by what I tell him. I think that the noble Lord, Lord Ardwick, wants to come back and say that he is not.
Lord Ardwick: I am just wondering what will happen if an area is half cabled and if programmes go out to half the area. Does the licence begin then?
Lord Elton: Yes, subject to correction—but I cannot see why correction should be needed. If you start sending out programmes to a small audience in the expectation that your audience will increase, that is clearly described in the Bill as a licensed activity. It will be a matter for commercial judgment by the operator as to what point he should start the ball rolling, and at what point the expenses of being licensed will be balanced by the revenue received from sending out programmes.
Lord Mishcon: I do not intend to take time on this point, but it is important; perhaps the noble Lord would be good enough between now and the Report stage to consider with his advisers whether this aspect is sufficiently clear from the Bill, both as guidance to the licensing authority (that is, the Cable Authority) as well as to licensees. I follow his point that Clause 3(4) says that:
"For the purposes of subsection (3) above the relevant maximun period is—(a) twelve years in the case of a licence for the provision of a subscribed diffusion service in an area".
I suppose, as the Minister says, that could be interpreted to mean that one gets the licence only for the diffusion of the service. Nevertheless, it may be necessary to make sure that the words are clear. It will become a much more interesting debate when we listen to the terms and conditions of the grant of the licence because, as I said, the time element may be a very vital factor in the cable-laying and the starting of the programmes.
Lord Mottistone: Before my noble friend replies, I should like to endorse in principle what the noble Lord, Lord Mishcon, is saying. It seems to me that both here and in the answers to the noble Lord, Lord Howard, on Amendment No. 7—which was rather surprisingly spoken to although it was not moved at the correct point—the Government are taking for granted that the interlink between the Telecommunications Bill and this Bill does not need to be a very strong one. I think it does. It is very unfortunate—and we said this on Second Reading—that there are no cross-references at appropriate stages to the Telecommunications Bill to make it clear to the users of this Bill just exactly where that fits in. In answer to my point as well as that raised by the noble Lord, Lord Mishcon, my noble friend was saying that it is all right because the other period is in the Telecommunications Bill. It is very confusing.
Perhaps between now and the Report stage the Government could undertake to bring forward some sort of comprehensive amendment which provides cross-references—perhaps a schedule of cross-references to the Telecommunications Bill—because I think that when they tackle the matter seriously, the two departments of state concerned will find that there are more gaps than they think there are and that in preparing such a schedule they will have to tighten up

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loopholes that they do not realise they have. That is very important.
Lord Elton: I have stated what we intend shall happen. Of course, noble Lords are quite right to ask me to make sure that that is what will happen and to be familiar with the means by which it will happen. I think that the anxiety of the noble Lord, Lord Mishcon, will reduce itself to this: will the authority be able to say that they will give a licence to company X when they are ready for it, or in six months' time, and then start the licence running at that point? In other words, is that an undertaking that they can give? As far as I am advised, it is an undertaking that they can give. Therefore, I see no difficulty there.
I wonder whether my noble friend Lord De La Warr is not distinguishing in his mind between cable operators and cable providers, because there is a distinction. One is concerned with licensing in this Bill, and the other with licensing in the Telecommunications Bill. It may be that he seeks a link between the starting of digging the hole by the provider and the licensing of the activity of the user on the assumption that they are always one and the same person. That was not an assumption that I was making. It may further arise from that that my noble friend Lord Mottistone—and I do not know why I am putting these terrible ideas into his head—may wish to press me further about linking legislation between the two at a later stage. I can certainly undertake to look at that, though I cannot begin to undertake to say what the result of that look will be.
Earl De La Warr: I can assure my noble friend that I was accepting a distinction between these two licences, though both on Second Reading and in the debate on the White Paper I made it clear that this is a distinction that I do not like. Indeed, this matter will be raised a good deal later at this stage in order to try to link the two together. We understand very well the difficulty in which the Government found themselves. I know a great deal about the arguments that have raged in the past three years between these two great departments of state. Let us say that I understand that it was convenient that the programme side should be part of the Home Office and that the telecommunications side should be part of the Department of Industry. So I do not have it wrong there.
Having said that, I still hope that my noble friend will be able to say that, ideally, he can produce something which links these two licences together, but in any case something that takes account of what was said in the White Paper (and I quoted it very precisely) that this period:
"will not count against the twelve years".
He has given us some assurances on this aspect. I should very much like to see these assurances written into the Bill. I do not ask him to give any firm assurances tonight, but I should like him to say that he will take this away and look at it.
Lord Elton: What I cannot say is that I shall take my noble friend's amendment away and look at it. What I can take away and look at is the validation that I seek
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to give of the not insignificant reassurance that I have given him that the period about which he expressed the greatest anxiety—the period of installation and setting up—shall not count against the currency of the licence. If it takes three years, in his terminology he has his 15 years because he says that it is three years before the clock starts running. On reflection, if he takes that away and thinks about it, he may be reassured about that.
As to the validation of that and how it will work, I will take advice, as I will look at the linking with the Telecommunications Bill, but I do not hold out a great deal of hope about that.
Earl De La Warr: I am grateful to my noble friend for that, I hope that, even by implication, I did not ask him to think again about the three years. I asked him to think again about the suggestions made by my noble friend Lord Mottistone, and to think how he could satisfy us all as to a proper allowance being made for the installation period. I should like to think that he has said he will think about these things, and for that reason I now beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.32 p.m.
The Duke of Portland The Duke of Portland moved Amendment No. 20:
Page 4, line 19, after ("varied") insert ("in respect of such matters as are specified in the licence as being subject to variation").
The noble Duke said: The risk that the authority might vary the licence in such a manner as to make it unprofitable will not encourage applicants of high standing. If the authority has the power to vary the terms of the licence in such a manner as to make it unprofitable, applicants will be discouraged from making as large an investment as they would if they knew that the authority could vary the licence only in certain clearly defined eventualities.
Lord Elton: My noble friend the Duke of Portland does not wish the Cable Authority to have an unfettered power to vary licences once they have been issued. He suggests this might create unhelpful uncertainty for investors. I think he will agree that there are a number of circumstances in which the authority may perfectly properly wish to vary licences. In some cases the authority may wish to impose greater restrictions on licensees: but, equally, in others, it may wish to respond to a request from the licensee to relax those restrictions.
I do not believe we can expect either the Cable Authority or the licensees to foresee all the sets of circumstances in which either or both may need to vary licences during the currency of the licence. After all, the initial licences will run for 12 years, and in a new industry all parties would have to be clairvoyant to foresee every eventuality from the outset. If the amendment were made, therefore, I am afraid that the authority would be constrained to write into the licences very wide powers indeed to vary them in any circumstances they saw fit. That would bring us back to almost the same place as we are now, before the amendment was drafted.
But some licences would be beyond the reach of even that device. I doubt whether those licensees

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would bless the provision in the noble Duke's amendment. I remind your Lordships that on the day that the authority is created it will assume responsibility for a number of licences already issued by the Home Secretary to existing operators, and for pilot projects. Not all the conditions in those licences will necessarily match the new framework which we and another place will by then have established by virtue of this Bill. So the authority will need the power to vary those licences to bring them into line with the obligations which flow from the legislation we are now producing. This is perhaps a rather special case, but it is a good example of one of the many circumstances in which the authority may quite reasonably need, or be quite reasonably requested by the licensee, to vary a licence after it has been issued.
The authority will, of course, under Clause 4(8) have a general duty to use the licensing powers in the manner which it judges best calculated to promote the provision of prescribed diffusion services. I doubt that the authority will use the powers to vary licences in an unhelpful way, but I hope that my noble friend agrees with me that it should be free to vary them in a helpful way as well. Therefore, I hope he will think a little longer about his amendment.
Lord Peyton of Yeovil: May I shortly observe that in these days there is no guarantee of an authority behaving in a helpful manner. I had no intention of intervening until the last few sentences uttered by my noble friend the Minister. I hope he will consider this again carefully, because there is something objectionable about the terms of a licence or a contract being altered unilaterally after they have once been settled, without any warning at all. Unless I misunderstood my noble friend I conclude that he is assuming that the authority, being given the general duties that it is being given, will perform those duties in a helpful manner. I believe that such an assumption is optimistic in the light of general experience today. I therefore hope that my noble friend will again consider this point to see whether some sort of provision should not be made that additional restrictions should not be inserted into the licence unless, at the time of the granting of the licence, some kind of warning was given that they may be so introduced.
Lord Mishcon: I wonder whether I may assist on this; it is my wish to do so. I can well understand the arguments in this matter, as I am sure the noble Lord the Minister can with his usual breadth of mind. The first argument is that if one ties the hands of the authority it can only vary a licence where it has warned, on the grant of a licence, that it might do so in respect of any term or condition. That has the grave disadvantage that nobody can foresee what situations may arise which may cause the variation. On the other hand, there is the case against a variation which says that the difficulty is that there is, as it were, a contract: the licensee, on the basis of the terms and conditions, has decided to invest his money in the project, and it is unfair if he receives a material variation shot at him out of the blue. Those are the two arguments.
I respectfully suggest to the Minister that the way in between may be a consideration of the fact that a clause should be inserted in the Bill which says that if
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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.
Lord Elton: I am grateful to the noble Lord, Lord Mishcon, for his intervention. It was not my intention to suggest that the only variations that might be proposed by the authority would inevitably be helpful. I am not only a member of the Government: I am also a member of the public, and my experience is similar to that of my noble friend in this matter.
The noble Lord has suggested—I am not sure whether he intended to suggest this—that the alternatives are that there shall be no power to vary or that there shall be a power to vary helpfully to the licensee or that there shall be power to vary helpfully to the other interests which need protection and about some of which we have talked at length this afternoon.
Plainly we could not have a lopsided licence with a sort of ratchet effect, that "This licence may not be altered in any sense except for the benefit of the licensee"; nor could we have one with the opposite ratchet system built into it, that it could be altered only to the disadvantage of the licensee, and to increase the restrictions. So we are left with the question of whether or not the amendment is right to posit that at the very beginning of the licence period, 12 years away from its renewal, the licensing authority is going to be in a position to say, "We will not ever vary this licence except in the following respects".
I do not know about your Lordships' perspicacity and ability to foresee the future, but if I were put into the position of granting licences for that purpose, and if I had a statutory duty to promote the whole exercise, I should be very anxious indeed not to prevent myself either assisting the cable movement, which was my duty, or, in some respects, though not against the interests of cable, restricting the activities of the licensee, because it is conceivable that some of them may offend against canons not expressed in law at present. I would simply have to give myself the chance of doing what proved to be necessary when the time came and which I had not foreseen when drawing up the licence.
Given that, I would have to give myself a very wide remit indeed and say, "This licence shall not be variable unless circumstances arise which make it necessary to vary it". That seems to be the unavoidable implication of what my noble friend has put in his amendment. If there is another approach and another way in which he wants to talk about these various devices proposed by the noble Lord, Lord Mishcon—for example, that a variation may be imposed on a licensee only after a given period of notice or with the possibility of appeal or in the light of specific considerations—they do not appear on the face of the amendment and I should be reluctant to commit myself to a response to those, because they were not what the noble Duke was asking your Lordships to do.
I have to say that what your Lordships are being asked to do can have only one of two possible effects.

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One would be greatly to restrict the ability of the industry to develop in the light of changing circumstances over a decade; and the other would be to force the licensing authority to write such wide caveats into the original licence that the licensee would have no more security than is now the case under present legislation. I wonder whether the noble Duke would be kind enough to look at what he has proposed and consider it further.
Lord Winstanley: Before the noble Duke responds to that invitation, I wonder whether I could ask the noble Lord one question. If we are to accept his advice that the power to vary the conditions of a licence should remain unfettered, and if we are also to accept, as he has advised us, that it would be wrong for the licence to specify those matters which could be varied, are we not to wonder whether or not there should be some control over certain things which could not be varied? For example, there could be circumstances in which the authority might decide to vary the area. They might decide that the original area was wrong, or perhaps they want to let another franchise to another cable authority to do another area, and therefore they might possibly wish to vary the geography of the area in which the licence-holder operates.
A variation of that kind would be of very profound significance, I would have thought, to the licence-holder. I am just wondering whether there are not certain matters concerning which there should be some specific statement in the Bill that those matters cannot be varied, while leaving the others clear in the way that the noble Lord has suggested.
Lord Elton: That is an interesting proposition, but we are faced with exactly the dilemma we were faced with earlier in the example that the noble Lord has given us. In spite of the fact that my noble friend Lord Peyton takes a somewhat pessimistic view of the likely operation of the individuals on the authority once they have become an authority, it may well be that a successful franchise company may go to the authority and say, "We should like to extend our franchise from Leicester to Wigston Magna", for instance. If they were to do that and the noble Lord had the Bill restricted as he has suggested, they would not be at liberty to do it; so I think we need to think this through a little further when amendments are put forward.
Lord Peyton of Yemil: My noble friend has misconstrued me. It was not my intention for one moment to suggest that the persons making up this authority would be unpleasant or oppressive people. I was merely inviting my noble friend at least not to ignore the possibility, which can be vindicated from experience, that authorities can behave in an oppressive or unfair fashion, and that some provision must be made against their behaving in an arbitrary fashion. Although obviously the Government have always the very best of intentions, I wonder whether the provisos and safeguards in subsection (8) are really sufficient to deal with the matter. I cannot speak for the noble Duke, but all I was saying was that I hoped the Minister would be content to say that he would look again to see that a licensee is reasonably protected
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against an arbitrary decision by the authority. It would be a very strange authority if in the course of its existence it did not from time to time stray into arbitrary or oppressive decisions.
Lord Elton: I freely withdraw any unintended imputation to my noble friend for overstating his views on the nature of authorities. I am afraid I tend sometimes to look for colour in my speech by over-emphasis. I would not wish to associate him in that misdirection, and I quite accept that he was not impugning any class of people or any individuals.
The noble Lord, Lord Peyton, has asked me to consider whether the individual needs protection against an arbitrary decision—an arbitrary and possibly unfair decision—by the licensing authority. I actually believe that the provisions in Subsection (8) are a sufficient defence against that, but I would not be so churlish as to refuse to look at something as fundamental as that, because that also would be open to misinterpretation and it might appear that I thought the authority ought to be able to ride roughshod over its licensees.
I do not wish the noble Duke thereby to feel that it is not necessary for him to look further at this, and that the Government are automatically going to come forward with a panoply of protection. I merely say that I will certainly look again at the general principle; but if I have not succeeded in reassuring the noble Duke I am sure he will come forward with further devices to achieve what he seeks.
The Duke of Portland: I thank the Minister for what he said, and I hope that we shall be able to return to the subject later. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington Baroness Trumpington moved Amendment No. 21:
Page 4, line 28, after ("for") insert ("the provision of").
The noble Baroness said: This is a technical amendment designed to remedy a minor defect in the drafting of the Bill. Elsewhere—for example, in subsection (4)(a) of Clause 4—the Bill refers to,
"a licence for the provision of a prescribed diffusion service".
Subsection (6)(a), however, omits the words "the provision of". The amendment brings the drafting of subsection (6)(a) of Clause 4 into line with the rest of the Bill. I beg to move.
Lord Mishcon: I agree that this is a technical amendment and I agree that the noble Baroness is dealing with the right amendment. I do not intend to oppose it.
On Question, amendment agreed to.
6.50 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 22:
Page 5, line 15, at end insert—
("( ) The payments required to be rendered to the Authority under subsection (6)(b) above shall be such as are in the opinion of the Authority a fair reflection of the costs of the Authority in the discharge of its functions.").
The noble Lord said: When we were talking earlier about Amendment No. 18, the noble Lord, Lord

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Mishcon, said words to the effect that, in reducing the powers in the Government's amendment to Clause 4(1), we had to observe carefully the terms and conditions under which the authority would be operating; and, indeed, we have been discussing the extent of the powers of the authority in Amendment No. 20. This is not dissimilar, in that subsection (6)(b), which covers payment for the licence, does not at any point say what criteria the authority will use for deciding on the payment.
It could be that the authority might say to themselves, "We are going to charge more for a licence to someone who is putting in a cable in a very well populated and wealthy area, like the City of Westminster, which will do frightfully well. We will charge them more than the poor chaps who put in a cable in a poor area like the Isle of Wight. So we will charge them less and will charge the Westminster chaps more." It does not seem to us to be fair that there could be a potentiality for that variation, and we think that the criteria for the payment should be in the terms of my amendment, and that they should be,
"a fair reflection of the costs of the Authority in the discharge of its functions".
Surely, that is what the licence should be paying for and it is perfectly fair that it should do so. We think that because of the open-endedness of sub-section (6)(b), it is necessary to have another subsection at the end of Clause 4 to underpin what subsection (6)(b) can fairly be applied to. I beg to move.
Lord Elton: I am grateful to my noble friend for his explanation of his amendment. Unlike my noble friend Lord De La Warr, he did not declare an interest, though, in view of the fact that he lives on the Isle of Wight, I slightly felt he might have done. I appreciate the feeling behind this amendment, the general object of which is to protect those to whom the Cable Authority issue licences from being called upon to pay more for them than is reasonable.
Under Clause 18 of the Bill, the Cable Authority are required to conduct their affairs so as to ensure at the earliest possible date that their revenues are at least sufficient to enable them to meet their obligations and to discharge the functions conferred on them. For that purpose, they will have to look entirely to the fees which subsection (6)(b) of Clause 4 empowers them to charge on the grant of the licences which they issue to the persons who are providing cable programme services, and periodically during the term of their currency thereafter. The subsection leaves it to the authority to decide how much they need to charge their licensees in order to be able to maintain their operations; that is, to enable them to cover their general running expenses and the expenses directly attributable to the grant of individual licences.
The amendment would require the authority to satisfy themselves that their licence fees were such as fairly to reflect their costs in the discharge of their functions. We believe that this would, in any case, be the authority's guiding consideration in setting their fees, having regard to their general financial obligation under Clause 18, and that there is no need to provide specifically on the point. The authority would derive no benefit for themselves by securing from their
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licensees more than they need to carry out their functions. I need not dwell on the provision in Clause 18(2), whereby they would lose any surplus as soon as it was generated, because that is not, I understand, my noble friend's principal concern.
He may be over-anxious on the other leg of his approach. The authority not only are not in the business of raising money for the sake of it. They are not, I hope, to be in the business of using licence fees to cross-subsidise between rich companies and poor ones, as my noble friend suggested. We think that that is an area about which it would be undesirable to be absolutely rigid in the Bill. It may well prove, in practice, both reasonable and beneficial that larger and more lucrative areas should bear a higher proportion of the authority's costs than smaller, less prosperous ones, and I do not know how that grabs my noble friend. I am not suggesting that that would amount to cross-subsidisation; but, on the other hand, I do not think it would be sensible to try to relate each licence fee to the precise amount of time and effort expended by the authority on the particular operator in question. That could be quite an elaborate bureaucratic task.
The Government therefore believe that Clause 4(6) of the Bill ensures that the aggregate amount of licence fees will not exceed the aggregate amount of their operating costs. They also believe that the labour of analysing the precise cost to the authority of each licensee could be considerable and could generate additional costs which all licensees would, in turn, have to share. Some disproportion is therefore, we think, unavoidable, and the Bill is drawn as it is to permit that necessary flexibility; not to permit the authority to rob Peter in order to pay Paul. I hope that my noble friend will permit us to retain that flexibility which we believe to be essential.
Lord Campbell of Alloway: Before my noble friend sits down, may I ask him whether he agrees that perhaps this carte blanche to charge virtually anything is going a bit wide? Is he prepared to consider—only to consider—some sort of scale of fees by some yardstick? Is he also prepared to consider—I emphasise that—building into Clause 18(2) a negative resolution procedure, merely to afford some protection against abuse?
Lord Elton: I am not certain of the intention in the phrase carte blanche, which my noble friend Lord Campbell of Alloway used. There is, as he will see from reading Clause 18, no carte blanche as to the total revenue which the authority are to raise. So what my noble friend is suggesting—and quite possibly what both my noble friends are suggesting—is that the authority may be setting out to charge swingeing fees to a company in one area and minimal fees to another. That is not the intention of the Bill. I should not have thought that a negative procedure order would be the right way of tackling this. But I should just like my noble friend Lord Mottistone and his colleagues to elaborate on the way they see this happening, so that I can reply properly to the risk as they see it.
Lord Mottistone: My noble friend the Minister said that he would not like to see rigidity in the amendment. I suggest that the amendment is not rigid.

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It is in very broad terms. The way in which it would function is that the authority would have to do what the amendment says and the payments would have to be a fair reflection of the costs. It would not be a precise reflection of the costs, and they could vary between the two.
I know that my noble friend Lord De La Warr wants to speak, but I hope he will forgive me if I say that I was very much more taken than my noble friend the Minister by the suggestion of the noble Lord, Lord Mishcon, on Amendment No. 20, that what is lacking is a right of appeal. One would not want to put in an amendment such as this that it would be possible for licensees to appeal against a decision of the authority on all sorts of these areas, whether it be in relation to a variation of a licence or in relation to the fees charged. But if they thought that the authority were not being fair—and I accept the Minister's argument that the Government want the authority to be fair and that Clause 18 is intended to see that they are fair—and if there was room for some kind of' appeal, then it would be possible for us not to press this amendment or to go to a lot of trouble to produce something similar on Report. Either you have to have something which disciplines the authority more than Clause 4 is doing at the moment or you have to have a right of appeal.
Earl De La Warr: A number of useful suggestions have been made but the discussion has centred around the possible dangers of cross-subsidisation, which is not what we want, and has not focused sufficiently upon what we are trying to get across: that the authority should make up its own mind about how it makes the charges but should seek to go no further than to meet its costs out of the total of the charges. Nowhere in the Bill, either in this clause or in Clause 18, are we given any assurance that the charges in the aggregate will not turn out to be a global form of levy on the industry, to the profit of the Government. The last subsection in Clause 18 refers to any excess of the revenues of the authority going into the Consolidated Fund. To me that is not a safeguard. It is a threat.
Lord Marsh: What worries a number of us is that there is no kind of financial discipline on the authority. If it collects more money than it needs, that money is to be taken from it. But the capacity of bodies of this kind to spend money is almost limitless. If the authority is to have what appears to be a complete blank cheque to make whatever kind of demands it can justify, by reason of the fact that it is able to spend that money, that will be very dangerous indeed. I join those noble Lords who say that the suggestion made by the noble Lord, Lord Mishcon, about some kind of right of appeal and challenge would be fair and helpful.
Lord Ardwick: I am not quite clear what will be the source of a continuing income for the authority. It will have a permanent staff and will require a permanent income. Is the authority to live wholly upon the fees which it receives from fresh applications? Those must dry up eventually.
Lord Elton: May I try to deal seriatim with those points? My noble friend Lord De La Warr has asked me to redirect my attention to the question of the aggregate fee. Perhaps I can briefly refresh your Lordships' memory of Clause 18, which is where such reassurance (I am using the term that no doubt my noble friend would use) as there is in the Bill resides. It is fairly substantial. Subsection (1) puts on the authority the duty of getting its books balanced as quickly as possible. Subsection (2) provides that:
"Any excess of the Authority's revenues for any financial year over the sums required by them for that year for meeting their obligations and discharging their functions under this Part shall be applied by the Authority in such manner as the Secretary of State, with the approval of the Treasury and after consultation with the chairman (or in his absence the deputy chairman) of the Authority, may direct."
Subsection (3) goes on to make explicit that:
"A direction under subsection (2) above may require the whole or any part of any excess of the revenues of the Authority to be paid into the Consolidated Fund.".
The noble Lord, Lord Marsh, has put it into my mind (I think it was he, although I do not wish to malign him) that a future Financial Secretary to the Treasury might decide that a good way of beefing up the Consolidated Fund would be for the Cable Authority to overcharge licensees annually (if I may say so to the noble Lord, Lord Ardwick) and for that to become well established—something rather akin to simony in the Church in earlier days. That is certainly not our intention.
If it is thought that the Bill is defective in that respect (the noble Lord, Lord Marsh, indicates that that is not the area of his anxiety, but I detect that it is the area of anxiety of my noble friend, who says that he does not find any door opening into the taxman's office a very reassuring sight when he is trying to keep money in another place, and I take his point) I should have thought that probably it is in that clause of the Bill that my noble friend might seek to establish the reassurance he wants. Whether this should be done by way of amendment or by discussion at clause stand part I am not certain. However, I take the point. The Government intend, and have provided in, I believe, a watertight manner, that the authority can get only as much money from the licensees as is necessary for its function. If it gets more than that, it stands, first, to be directed as to how to spend it and, secondly, quite possibly to be directed to spend it by paying it over to the Consolidated Fund. This is not a prospect that would endear the chairman or members of the authority to their public or to the subscribers. Therefore it is not a likely prospect.
The noble Lord, Lord Marsh, raised a further matter, that of financial discipline. I take it that what he is saying is that it is not enough just for the authority to go on recruiting people to run a wonderful service and paying them. They ought to be required to cut their cloth according to a fairly small coat—only the biggest coat necessary, to switch metaphors, to cover the bodies of those whom they are licensing. That is another issue which does not necessarily arise on this amendment. If it did, I am not sure that it could be dealt with on appeal by an individual licensee.
Lord Marsh: Before the noble Lord sits down, my point is very simple. My fear is not that the authority

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will build up surpluses which will then be transferred to the Treasury. My fear is that with an open-ended ability such as this to raise revenue from the contracting companies, there is no discipline upon them whatsoever, and no sanction which can be applied, to ensure that they run themselves efficiently.
Lord Mishcon: There is a further point. Unless I am very much mistaken, this point has been missed in the discussion so far. The cable operator ought to have the opportunity to know what his commitments are before he agrees to apply and before he accepts the licence. This is a matter of equity. I can well understand that reasonable fees are in the mind of the noble Lord the Minister because he is a reasonable person, but the fact remains that if an annual fee can be charged over a period of 12 years and if there is no limit whatsoever to that annual fee (and the expenses of the authority, with a maximum of 10 members now and a minimum of five, are again an unknown quantity) the licence holder will not be in a position to tell what his likely liability is going to be. It is all very well to say that it is bound to be reasonable and restrained and to be within certain limits. The fact remains that under the Bill there is no limit whatsoever. Although I do not accept the wording of this amendment, I feel that some provision must be inserted which meets that point of equity. If we were to say that the licence fee (I am not putting this forward as an amendment; I am not allowed to do so at this stage) was in no circumstances to exceed a certain sum—"x"—at least we should know where we were. If we said that the licence fee had to be a proportion of the net profits as shown in the accounts, but with a minimum, if there were no profits, of "y", again the licence holder would know where he stood. But on this basis he does not know where he stands. That strikes me as being unfair.
Lord Campbell of Alloway: Is it not manifestly apparent that there is genuine cause for concern on all sides of your Lordships' Committee because, obviously, the drafting is not right; and, equally obviously, no-one has yet devised a way of putting it right? One cannot draft on the Floor of your Lordship's Committee. Will my noble friend the Minister, as an act of generosity, take this matter hack to enable it to be thought about again?
7.10 p.m.
Lord Elton: In the light of that moving appeal, I feel embarrassed to cavil yet further. The noble Lord, Lord Marsh, has raised an issue, and the noble Lord, Lord Mishcon, has, as it were, raised the reverse of the issue. The noble Lord, Lord Marsh, said that the Cable Authority ought to be under some inducement to conduct its affairs economically and efficiently. The noble Lord, Lord Mishcon, said that licensees have a right to expect that they shall not be submitted to unnecessary charges, even if they fall within the terms of the Act.
I have a good deal of sympathy with both points of view as well as that, I may hastily add, of my noble friend whose amendment we are discussing. But may I remind your Lordships that as soon as may be after the end of every financial year, the authority shall prepare a general report of their proceedings during
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the year and transmit it to the Secretary of State, who will consider it and lay copies before both Houses of Parliament. It seems to me therefore that an authority which expended profligate sums, imprudent sums, or even unnecessary sums, on the running of its business would be exposed both to the national media of other sorts, to the critique of the Secretary of State, and to debate by Parliament.
I then begin to wonder whether it is necessary to introduce further statutory incentives to good behaviour in the Bill. I am not certain what they would be. If my noble friends and other noble Lords wish to devise devices, then we should certainly discuss them. At this stage, I will say only that we are committed to having an efficient service run, and that we believe we have so devised. I shall of course read everything that has been said by noble Lords in all parts of the Committee in this debate, to reassure myself that we have done so. If I am so reassured, I shall not be constrained to bring another amendment to the House, but in every other sense I shall consider this issue.
Lord Mishcon: If I may speak just once again to help, and I promise the Committee very briefly. The defect in what the noble Lord the Minister has just helpfully said is that we all know that the Report stage procedure is not the best way of getting reforms or amendments made. There can be a debate on Report, but as a rule one is left with a debate. It is very difficult to enforce any amendment to a Bill, or any power of an authority, when one is debating the matter on Report.
Will the Minister, who is courteously going to reconsider the matter in the light of this debate, consider whether it would not be helpful to give a regulatory power to fix fees, it being understood that the regulations from year to year would be before both Houses of Parliament? They would then, obviously, be either approved or negatived. That would give an opportunity to vary licensing charges year by year if the necessity arose and Parliament so felt.
Lord Peyton of Yeovil: I am grateful to my noble friend for his sympathetic reception, up to a point, of the arguments which have been put, but I hope he will go a little further and look at this matter again. When he suggested—and this particularly worried me—that the authority will be under a duty to submit a report, and that this report will be subject to the scrutiny of the Minister and could even be debated in both Houses of Parliament, I am bound to say that my confidence was not restored enormously. Such documents are not best-sellers by any means. I have been in another place for quite a long time, and that kind of report is not debated at length by Parliament.
I hope that my noble friend will not rely on that kind of assurance, which I believe is very thin. I hope he will look instead at the possibility of a licensee finding himself at the mercy of an authority which (a) is not conducting its business with particular efficiency, and (b) is not constrained by an Act of Parliament to behave in a fair manner.
Lord Elton: I wish I had the advantage which my noble friend has, of many years of service in another

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place, because that would enable me to speak with the trenchant effect that he has. I tried to do so but I regret the electorate saw fit not to give me the opportunity.
I am being invited to do two quite separate things. There is a slight procedural difficulty here because, as I understand the way we conduct affairs, what I can be asked to do is to consider the amendment on the Marshalled List again. I have made it clear that I am not happy with the amendment on the Marshalled List. It seems to me that the aggregate is contained within suitable bounds in the Bill—and that if it is not, the weakness does not lie in that part of the Bill to which this amendment addresses itself; it may lie in Clause 18.
My noble friend Lord Peyton of Yeovil asks me to take away and consider something else; in fact, many of your Lordships wish me to do so—to consider the general point of introducing some greater constraint or of reviewing some greater restraint already in the Bill upon the authority to be efficient. I will of course consider whether the Government believe, in the light of what your Lordships have said, that there is sufficient constraint on the Cable Authority to be efficient. If we think there is not, I do not doubt from the character of all my colleagues from the most senior to the most junior that I shall be under constraint to introduce one. I would be foolish not consider that. But in doing so, it would be part of my general consideration of the Bill which I feel would be proper after Committee stage anyway, and I am not actually saying that I particularly favour that which my noble friend has down on the Marshalled List.
We have strayed a little from the path he sought to hew for us through the undergrowth. I hope he will not consider that I have been discourteous in going down another, and longer, path. For the reasons that I have given, I believe that his amendment is not the right approach to this problem. I do not doubt that a lot of ideas will have been put into his head by this debate, as they have been into mine. He may well wish to come back with something different at Report stage or—happy thought!—to be constrained to be satisfied with the status quo.
Lord Mottistone: On my noble friend's final point, I am not satisfied with the status quo. I accept the fact that this amendment, as with so many others, does not appeal to everybody. I always intended that it should be a probing amendment but it has been a more important debate than it would otherwise have been because together with that on the earlier amendments—some of which were Government amendments—it has led us to understand that the Cable Authority was apparently being given greater power than is reasonable. My noble friend the Minister has received many suggestions as to how that power should be curtailed. I do not think that the way it is done matters provided it looks fair and that as the noble Lord, Lord Marsh, said, the authority itself is subjected to some kind of discipline which it understands.
Provided those two factors are met, I believe that it is up to the Government to come forward with an amendment. If the Government do not, then we shall certainly return at Report stage with an amendment to
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achieve them. But as the noble Lord, Lord Mishcon, said, it is getting a bit late then for the debate that we have been able to have now. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
Lord Denham: I believe that this is probably a suitable moment to adjourn this particular Committee stage temporarily. In moving that the House do now resume, for the benefit of noble Lords who are interested in this Bill, I will say that we will not resume this Committee stage before twenty minutes past eight o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Prohibition of Female Circumcision Bill [H.L.]
7.20 p.m.
Lord Kennet: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Kennet.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord HAYTER in the Chair.]
Clause 1 [Prohibition of female circumcision]:
Lord Kennet Lord Kennet Moved Amendment No. 1:
Page 1, line 5, after ("offence") insert ("for any person").
The noble Lord said: Amendment No. 1 hangs together with the second amendment to line 7, which is Amendment No. 4.
Amendment No. 4: Page 1, line 7, leave out ("any") and insert ("another")
They both have the effect of providing better law for a case which I simply had not thought of when the Bill was drafted. I am indebted to the Government for these amendments.
As the Bill stands, it would make a woman who performed any of these operations on herself—if you can imagine such a mad case, but we have to imagine everything—liable to prosecution, and that seems an undesirable way to treat a person as gravely mad as that. This amendment and the one to the end of line 7 would avoid this anomaly by making the acts an offence only if done to another person. I beg to move.
Baroness Gaitskell: I should like to support the noble Lord, Lord Kennet. I think he is a great benefactor. I am entirely with him. We must prohibit this operation. There is absolutely no need for it at all ever, and it seems to me that we should not have it in this country. It is a regressive action, and we should utterly prohibit it. I hope that we shall.

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I have very little more to say apart from one or two things. There is no medical reason for this operation at all; no medical or psychological reason. It is utterly had from beginning to end. I think it is extremely wicked to have an operation like this on women here, and particularly just because there are some women from other countries who go in for it. We do not need any teaching from the women in Africa or India who go in for this kind of operation. We do not have to copy them; we do not have to do anything. I hope that Lord Kennet will succeed in having it abolished completely.
On Question, amendment agreed to.
Lord Kennet Lord Kennet moved Amendment No. 2:
Page 1, line 6, after ("mutilate") insert ("the whole or").
The noble Lord said: This is a drafting amendment. It is evident that if you prohibit the doing of things to any part of something it may be that you have not covered the doing of those things to the whole of it. Therefore, I beg to move the insertion of the words "the whole or".
On Question, amendment agreed to.
Lord Kennet Lord Kennet moved Amendment No. 3:
Page 1, line 7, after first ("or") insert ("labia").
The noble Lord said: This is drafting again, and it arises out of the difficulty that the layman finds in knowing how to mix Latin and English grammar together, as you have to do from time to time when legislating about medical matters. I understand that it would be better if we changed this line in the way proposed in the amendment. I beg to move.
On Question, amendment agreed to.
Lord Kennet Lord Kennet moved Amendment No. 4:
[Printed earlier: col. 72.]
On Question, amendment agreed to.
Lord Glenarthur Lord Glenarthur moved Amendment No. 5:
Page 1, line 8, leave out paragraph (b) and insert—
("(b) to aid, abet, counsel or procure the performance by another person of any of those acts on that other person's own body.").
The noble Lord said: This amendment does two things. First, it deletes the words in paragraph (b) of subsection (1) specifying the offence of procuring, taking part in or facilitating the acts listed in paragraph (a). This, as far as it goes, is a change of drafting rather than of substance. The reason is that we are advised that, if something is made an offence, as a general principle of law it also becomes an offence to aid, abet or procure it.
The wording which replaces this paragraph is consequential on the amendments we have just agreed. The effect of these is that acts performed by a person on herself are now excluded from the definition of offences in Clause 1. Accordingly, it would not be an offence for other people to aid and abet such acts. This seems to us undesirable, because a person charged with an offence under Clause 1 might then put forward the defence that the act was performed by the victim herself. The words of the amendment would preclude
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such a defence from succeeding so long as it could be shown that the defendant was party to the act.
The wording of the amendment is based on Section 1(1) of the Suicide Act 1960, which we think provides a suitable model for this purpose. I beg to move.
Lord Kennet: I should like to say that I support this amendment and would urge the Committee to accept it.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 [Saving for necessary surgical operations]:
Lord Glenarthur Lord Glenarthur moved Amendment No. 6:
Leave out Clause 2 and insert the following new Clause—
, Saving for necessary surgical operations.
("2.—(1) Subsection (1)(a) of section 1 shall not render it unlawful 'for a person to carry out a surgical operation on another person if that operation is necessary for the physical or mental health of that other person; and accordingly a person shall not be guilty of an offence under that section by reason of anything done in connection with, or with a view to, the carrying out of a surgical operation on another person in those circumstances.
(2) In determining for the purposes of this section whether an operation is necessary for the mental health of a person, no account shall be taken of the effect on that person of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.")
The noble Lord said: The distinction between the practices which go by the name of female circumcision and operations which are legitimate and necessary to a woman's health is the central and most delicate problem which the Bill presents. Perhaps I may preface my remarks by explaining briefly the objectives of the noble Lord's Bill as the Government understand them. The aim, as we see it, is to put it beyond doubt that female circumcision practised as a custom or ritual is a criminal offence, while avoiding any interference with legitimate medical practice. This raises sonic wider issues to which I shall want to turn in a few moments. But it is very important to keep a sense of proportion over this, because there are something more than 8,000 legitimate surgical operations on the female external genitalia—and perhaps many more—in any year, against perhaps a tiny number of female circumcisions.
May I perhaps now take the Committee through the new clause in detail and explain how it achieves the distinction we seek? So far as definitions are concerned, there is no difficulty about cancerous or pre-cancerous conditions and others for which surgery is clearly indicated on physical health grounds. The cases which present a problem—and they are a small but nevertheless significant number—are those in which a girl or a woman, otherwise perfectly healthy, becomes anxious and depressed about the shape or size of her external genitalia. This distress—which may become very acute and could lead to mental illness—can only be relieved by surgery, Such surgery—coloquially referred to as "trimming"—cannot be said to be necessary for physical health. It is from the woman's actual or potential mental illness that the need for it arises.
The noble Lord has recognised this problem in Clause 2(1)(a) by the phrase "rectification of

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abnormality". But this form of words leaves doubt about what is or is not physically abnormal—a view shared by the Royal College of Obstetricians and Gynaecologists. It would be quite wrong for any doubt to be cast over the position of women, black or white or of any ethnic group, requiring surgery for reasons which have nothing to do with the custom or ritual practice of female circumcision.
If the patient's mental health is to be admitted as grounds for surgery, then clearly some safeguard is needed to prevent its being used as a cover for female circumcision on the grounds that a woman's mental health would suffer if she could not conform to the prevailing custom of her community. Subsection (2) of the new clause covers this by preventing the surgeon from taking account of the effect on a person's mental health of a belief that the operation is required "as a matter of custom or ritual".
But the whole object of the Bill as introduced by the noble Lord is to prohibit practices which are confined to particular ethnic groups. If the new clause discriminates, then so does the Bill itself. It is for Parliament to decide whether the law should put beyond doubt that these medically unnecessary and repugnant practices should be prohibited in this country. If it does, the Government believe that the way to achieve this without interfering with any legitimate surgery is to include this new clause in the Bill.
Given that the clause expressly excludes anything which could be classified as female circumcision, we do not believe it necessary to retain the other detailed provisions of the present Clause 2. The only operations now exempted are those about whose medical justification there is no doubt. We see no need for them to be subject to special restrictions which do not apply to surgical operations generally. I should just mention here that an exemption limited to operations by registered medical practitioners is in any event too narrow since it could be argued that the definition in Clause 1 includes the procedure of episiotomy performed by midwives as a normal part of their practice. Since midwives also attend home confinements, a restriction to hospitals or nursing homes would present further difficulties, and equally we should not want to interfere with doctors performing necessary and proper minor surgery in their own consulting rooms.
The noble Lord, Lord Kennet, has tabled a manuscript amendment, Amendment No. 6A, and it might be convenient to refer to that now. I hope the noble Lord will have no objection. I believe the noble Lord is aware that this amendment only reached me at twenty minutes to seven o'clock and therefore what I have to say will be short. Nevertheless, I hope that it will make the point. I have not had time to consider the amendment as fully as I should have liked. Subsection (2) seems to me to be quite sufficient to prevent female circumcision from being brought in under the cover of the new clause. The additional subsection contained in the noble Lord's Amendment No. 6A would place a bureaucratic duty on doctors who are performing legitimate surgery without, as we see it, any commensurate strengthening of the safeguards provided by the new clause. I beg to move Amendment No. 6.
The Deputy Chairman of Committees: Amendment No. 6: leave out Clause 2 and insert the new clause as set out in the Marshalled List.
Since the amendment was tabled there has been a manuscript amendment to Amendment No. 6. Amendment No. 6A, in the name of the noble Lord, Lord Kennet.
7.34 p.m.
Lord Kennet Lord Kennet moved, as an amendment to Amendment No. 6. Amendment No. 6A:
After the words printed on the Marshalled List to insert a new subsection as follows:
"(3) In determining for the purposes of this section whether an operation is necessary for the mental health of a person a certificate to that effect shall be required from a member of the Royal College of Psychiatrists and a member of the Royal College of Gynaecologists.".
The noble Lord said: The Committee will be grateful to the noble Lord, Lord Glenarthur, for setting out in such careful detail the reasoning behind his very complex amendment. I am afraid that I have quite a lot to say about it and I hope that the Committee will bear with me if I do not hurry through what has to be said. I shall seek to persuade the Government not to press their amendment to a Division tonight. That is the course I hope to persuade them to take. However, I may not be successful in my desire to persuade them to do that, and in case I am not I have tabled a manuscript amendment, which has just been read out by the Deputy Chairman. First, I heartily apologise to the Government, and to the noble Lord, in particular, for the lateness at which my amendment was tabled. I regret to note that it took more than an hour to reach the noble Lord after I had tabled it. I am sorry about that and I do not know how it happened. It was certainly through no fault of mine or, I am sure, the noble Lord. In any case, I admit that it was tabled late and I apologise for the discourtesy to the whole Committee. It arose from discussions that took place only this afternoon and has been tabled because, in my opinion, it will alleviate some of the had effects of the Government's amendment, but it will not touch the main objections to the Government's amendment. The main had effect will remain. What that main bad effect is, other noble Lords and I will now explain to the Committee.
The Bill as drafted says that there shall be no female circumcision and no operations to those parts of the body except in the case of physical ill-health or physical deformity or abnormality. The noble Lord, Lord Glenarthur, put this very fairly in his opening speech. We are agreed that operations for cancer and pre-cancerous conditions—and indeed for any other sort of physical ill-health—should be permitted quite freely by any doctor. I should like to add that it is my understanding of the Bill that this includes episiotomy—routine episiotomies during childbirth are of course for the physical health of the patient—and as I understand the Bill they will be permitted to be done by midwives. There are various limitations towards the end of the Bill, as drafted; but they have all either been withdrawn already or will be withdrawn by a later amendment in my name. So, operations for physical ill-health, if I read my own Bill correctly, may be done by doctors or by midwives.
Then comes the question of physical deformity. As the noble Lord correctly said, some girls are born deformed or abnormal but may be perfectly healthy apart from that. I want to confirm what the noble Lord said to the Committee, that such operations are freely permitted under the Bill as drafted without any reference to bureaucracy, permission, certification, or being done in a special place. They are as freely permitted under the Bill as they are now.
I now turn to the new class to which the Government amendment addresses itself. These are girls who falsely believe, mistakenly believe, that their genitalia are abnormal and who get so depressed about it that, in the noble Lord's words "their distress can only be relieved by surgery". Let me emphasise this distinction once more. II they really are abnormal, even in the slightest way, the operation is freely available under the Bill. There is therefore no need for any amendment to the Bill. However, in the case of those who are quite normal, but believe they are not, the operation would be prohibited under this Bill and permitted by the Government amendment. Let us consider this.
The noble Lord said, if I noted him correctly, that there was "a small but not insignificant number" of such operations each year. I have certain questions to which I think the Committee would welcome an answer. How many each year? Roughly how many operations are carried out on girls who are deluded into believing in their own abnormality? What is the typical age of such girls? Are they not typically adolescent, or very young women indeed? What follow-up has been done in the medical profession on these operations? They are done to heal depression or mental distress. Do they do so? It is obviously impossible to say whether or not they do unless there has been a proper statistical follow-up. What follow-up has been done? Has such follow-up as may have been done included a proper statistical control group to see whether the linked delusion and depression of this type would not have cleared itself up without surgery?
In the event that the noble Lord has to reply that no proper statistical control group follow-up has been done, can he tell the Committee what other surgical procedures are in common use which have never been subjected to ordinary statistical controls afterwards to see if they worked? Only then will the Committee be able to judge whether an exemption is due in the case of this group of girls. In my opinion—I know that the noble Lord, Lord Rea, is to give a professional opinion shortly—it seems obvious that if an adolescent girl thinks she is deformed, but is not, then the right treatment is support, counselling, sympathy, possibly psychotherapy, but not surgery. If the depression is so deep-seated that psychotherapy and sympathy will not cure it, it seems pretty unlikely that surgery will do so either. A layman's understanding of psychotherapy suggests that the delusion and depression would merely transfer themselves to another cause, which would be equally groundless. However, that is for the Committee to judge.
I turn now to the means which the Government have chosen to secure the freedom of surgeons to continue with this tiny group of operations. It is so
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small that no figure has ever been named. As the noble Lord the Minister said, the means that they have chosen is to permit mental health as a ground for the operation but to exclude from the definition of mental health any depression or mental illness which is based on custom or ritual. I submit that this is what should stick in Parliament's throat. Quite simply, it means that white mental health is a good ground for the operation but black mental health is not.
Inadvertently the amendment would have a most unhappy racist effect. I know that that was not the Government's purpose in introducing it. This is not a Bill to put black people down and white people up, but to ban a form of cruelty and harm. It is a very great pity that the words "custom" and "ritual" should be making their first appearance in British law since the Catholic emancipation. In this country in the past 150 years we have not banned anybody's custom or ritual. We rejoice in the diversity and freedom of custom and ritual. It is unfortunate for legislation against the custom and ritual of certain immigrant groups to creep in via a humanitarian and public health Bill.
I am not an expert on race relations and it is not on my say-so that I put this to the Committee. I referred the Government amendment to the Commission for Racial Equality and asked for an opinion. The chairman has been good enough to let me have an opinion, which I shall now read to the Committee. It is dated 22nd December of last year and states:
"The Commission shares your concern at the formulation of the amendment. However well-intentioned in seeking to avoid any circumvention of the Bill's purpose, Clause 2(2) could be indirectly discriminatory in effect. A doctor, when assessing mental health as justifying the performance of an otherwise prohibited operation, will normally base his judgment on the patient's state of mind as he finds it. To suggest that some reasons for that state of mind may be acceptable and others, broadly confined to those which might affect persons of African origin or descent, are not is, in our view, discriminatory and therefore to be avoided".
That is a perfectly clear opinion from the statutory body which exists for the purpose that this amendment is racially discriminatory and is to be avoided. The opinion continues:
"On a more general point, so far as I am aware this is the first time, at least in recent years, that draft legislation has explicitly sought to exclude from consideration the relevance of a custom of an ethnic group settled in the UK. Any such exclusion or precedent would be undesirable on principle".
I sent a copy of the opinion to the noble Lord the Minister as soon as I received it, which was about two weeks ago because of the delay over the Christmas holiday. I feel sure the Committee will want to know his reaction.
I have this afternoon also received a communication from the National Council of Women of Great Britain which I have not had time to send to the noble Lord but I shall read it to the Committee:
"We have learnt with dismay of the Government sponsored amendment to your Bill dealing with the practice known as female circumcision. We welcomed and fully support the intention of this Bill, that the operation should be performed in this country only in cases of proven medical need or deformity. We view the amendment…as providing a loophole by means of which this intention could be circumvented. It would not be too much to say that it would wreck the Bill and we hope very much therefore that this amendment will not be accepted by the House".
I have also received messages to the same effect from the Josephine Butler Society and the Fawcett Society.
To sum up, I hope that the Government will not take the amendment to a Division today and will be ready to consider the arguments and representations from outside the House. I hope, too, that they will consider further—and, if necessary, discuss with me—the effect of my manuscript amendment to the amendment. I hope that we shall not inadvertently, perhaps by not having considered the matter fully enough, carry a piece of de facto racial discrimination into the law under the guise of public health and of kindness. In case a Division is contemplated, I might just say that this is a non-party matter if ever there was one. It is a humanitarian Bill and it is an intensely complicated matter. I am well aware that the situation, as the noble Lord the Minister and I have outlined it today, must be difficult indeed to follow. I judge that at present about 25 to 30 noble Lords are in the Chamber. I should very much regret, as I think would all noble Lords present, if in the event of a Division there was a very much larger tally of noble Lords voting, many of whom had not heard these complicated arguments. I beg to move.
Baroness Gaitskell: May I be allowed to ask the noble Lord the Minister one very small question? Does he agree that there is no need for female circumcision for psychological or medical reasons? It is thoroughly bad.
Lord Glenarthur: I entirely agree with the noble Baroness, but we are not talking specifically about female circumcision. We are talking about legitimate surgical operations as well as female circumcision. I thought that I had made that clear, as had the noble Lord, Lord Kennet, when he spoke earlier.
7.48 p.m.
Baroness Jeger: The Committee is in some difficulty tonight. As the noble Lords will recall, the Bill has, in effect, had two Second Readings. There was general welcome on all sides of the House for the Bill's intention. I very much hoped that it would go smoothly on its way; but it is totally necessary to oppose the Government amendment on the grounds that they have introduced the term "mental health" in the amendment. The original provision referred to "physical health", which covered all the points raised about the possibility of cancer, deformity and other difficulties. We were totally agreed about that. Suddenly we find the words "mental health" in the amendment. This is most unfortunate. It takes the Bill's intention into very shadowy places. It is an invitation for every charlatan in London to crawl out of the woodwork and say, "This woman has a mental difficulty".
Some of us are old enough to remember the difficulties with the old abortion legislation. If a woman had the money to go to a psychiatrist in order for him to say that her mental health would be disturbed if the pregnancy continued, she could get a certificate and have a legal abortion. That opportunity was not open to a poor woman in a back street who did not know what a psychiatrist was. I believe, too—and I have spoken to many doctors about the point—that the situation puts doctors in a very difficult position
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because the judgments are very subjective, very difficult, and shadowy.
With regard to the amendment which the noble Lord, Lord Kennet, has tabled so late, I appreciate that he believes that, if he introduces people with a little more psychiatric clout, it will be all right, but I find that quite unacceptable. I believe that there may be many doctors who are members of the Royal College of Psychiatrists who know very little about anthropology or the basic problems involved in this question.
In adolescence there can, for all kinds of reasons, be distress and difficulty for both boys and girls. If a girl produces a particular reason, she may well be stressing the focus of her depression while being quite unaware of the cause of it. It may be that family pressures to have circumcision are the real cause of her depression and anxiety. It may well be that the cause arises from the fact that the girl has failed her O-levels, or that she has had a row with her boyfriend. The reasons for depression, worry and anxiety in adolescence are legion.
Let us suppose that there is found a psychiatrist who will say that a girl's anxiety about her external organs is causing severe depression and therefore female circumcision is legal in the particular case. What happens if after the mutilation the girl is still depressed, because the cause was not properly diagnosed? She may still not be in love with her boyfriend: she may again fail her O-levels. Yet she has been mutilated at a time when she should have had sensitive psychiatric help, sympathy and encouragement. There are all kinds of emotional strains during adolescence, and if the words "mental health" as they appear in the amendment are to include emotional problems and difficulties as legitimising in this country this dreadful mutilation, it will be a disgrace if your Lordships' Committee pass it tonight.
Moreover, if the Government are spelling out that the operation would be illegal if required as a matter of custom or ritual, that would be very dangerous. The noble Lord, Lord Kennet, has put forward a point of view with which I largely agree. But there is another problem. The existence in the amendment of a phrase relating to custom or ritual would alert the patient, the relatives and the person who is to perform the operation that they must not use excuses relating to ritual or custom. So when they go to the psychiatrist they will not mention those matters because they will know that to do so would mean that the operation would be illegal. Instead, they will go on about depression, misery and all the other things which can come under the heading of mental health. It seems to me that, if we pass the amendment, we shall be supporting—I am sure unwittingly, so far as many of your Lordships are concerned—superstitions which come from witch doctoring and all the things that we are trying to get rid of.
I do not think that the noble Lord's manuscript amendment is very helpful because in my view we should exclude from the Bill the mental health aspect. We should try within the field of physical health to take care of distressing abnormalities. Where there are mental and emotional difficulties they should be dealt with not by mutilating surgery but by the more

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sophisticated and professional methods which I hope a psychiatrist would wish to use.
I want to make only one more point. I know that there are strong feelings based on racial points of view. However, I would remind the Committee that in countries such as Kenya, the Sudan and many others there are brave rulers, brave doctors, and brave nurses and midwives who are there standing up against this mutilation. If they cannot have from us encouragement in outlawing the procedure in this country, we shall be letting down a movement for freedom for women in many countries of the world where the practice has been a tradition.
I hope that the Government will take away the amendment, but, if they persist in putting it before the Committee, I shall certainly not be able to support it. This is a free vote—I must make that absolutely clear—I am speaking for myself, and I very much hope that the Government will not be able to carry the amendment tonight.
Lord Glenarthur: Perhaps I may briefly intervene because I think that the noble Baroness may be under a misapprehension which could confuse other members of the Committee. The fact is that Clause 1 of the Bill expressly states that to excise, infibulate, et cetera will be against the law. The new clause which I have described simply allows the legitimate surgical operations to go ahead. It does not allow female circumcision in its broader sense to go ahead. So I hope that the noble Baroness is quite clear on that point.
Baroness Jeger: I am not sure whether the noble Baroness is clear on that, but I think that we must ensure that all your Lordships are clear that the reference to mental health permits surgery on grounds of mental health, and should not be acceptable to the Committee.
Baroness Cox: I should like very briefly to add my voice to those who are concerned about the inclusion of the words "mental health", very largely merely to endorse the arguments that have already been put. I am deeply concerned because, though I understand the arguments that a girl may be very depressed, perhaps even to the point of being potentially suicidal, because she perceives herself as having a physical abnormality, if she does not actually have such a physical abnormality, it seems a very inappropriate treatment to subject her to a mutilating operation. Surely the more appropriate treatment is that which has already been endorsed: that she should be referred to those people who can help her with her mental disorder. I think that that is particularly important because the very nature of the situation as it pertains to someone who explicitly has no physical abnormality is that it is a delusion or depression. Therefore, even if she were to have the operation—which I am in no way suggesting she should have—it is likely that some other focus for the depression would emerge in due course. Thus the operation itself would very likely not be therapeutic, but would just leave permanent physical damage.
I should like to say that I am rather perplexed by the reference to episiotomy, because it seems to me that episiotomy is performed for medical reasons, and also,
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when appropriately carried out, does not leave any permanent mutilation. So I fear that I fail to see the relevance of bringing in episiotomy in this context. Therefore I regret that I cannot support the amendment as put forward by the Government.
Lord Hatch of Lusby: So far in both considerations of the Bill, before and after the election, all sides of the Committee have been meticulous in avoiding any value judgments on the customs of other people. I am afraid that by introducing the term "custom or ritual" the Government have broken that general agreement, and I hope that they will recognise that that is dangerous to the Bill. It is also dangerous to our relations with other countries, and it is particularly dangerous to the relations between the Government, and indeed Parliament, and the ethnic minorities in this country. That is of course no defence of the practice of female circumcision.
I would support totally what the noble Baroness, Lady Jeger, has said about the bravery of medical people, and indeed political people, in other countries where female circumcision is common. I have personal experience of this. When, in 1962, I was deported from Sierra Leone for mentioning the existence of female circumcision, this did not lead, as it has frequently done in other countries, to a blanket removal of any reference to the practice of female circumcision. It led to a national debate in which the major nationalist figures came out against the Government and supported me in saying that if the Government could not answer my case then they had no right to close my mouth by deporting me. Fortunately, that country has since redeemed itself by removing the deportation order and I have been accustomed to returning to it for the past 16 years.
I beg the Minister to recognise the gravity of the case that we are putting. What he has said about the anxiety and the distress—I am quoting him here—which can be caused particularly to young girls by the shape or the size of their genitalia and the depression that may then result is surely a matter, as the noble Baroness has said, for the psychiatrist, for the counsellors and for the family. It is not a matter for surgery or for surgeons. If that is the case with What are largely the depressions of white people, how much more is it the case among the ethnic minorities who come from countries where female circumcision is the recognised practice and is, indeed, virtually a religious practice.
It is surely obvious that many young girls may suffer intense depression and intense mental agony because they are bound to be unlike those among whom they mix, their friends and their relatives. Is this, then, to be a question of mental health? According to the Government amendment, the answer is, no. That is, as the noble Lord, Lord Kennet, has already pointed out, a matter of clear racial discrimination, or what would more clearly be colour discrimination.
I beg the Minister to take this amendment back and to think about it again before Report stage. Just as white girls are depressed because of a false view of their genitalia, so, when black or brown girls are depressed, the same treatment should be made available. I make a specific proposal. I suggest that the Government get in touch with Professor Lambo of Nigeria, who was Vice-Chancellor of Ibadan University, now deputy

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director general of the World Health Organisation, who is an African psychiatrist, and seek his advice. They should ask that he suggests suitable psychiatrists to be available to the Government in this country to give advice in these desperately complicated and tragic situations. They are complicated and tragic. I have never understood why that noted social anthropologist Professor Malinowski gave his approval to Jomo Kenyatta's book Facing Mount Kenya, a large section of which was devoted to a defence of female circumcision. But by doing so he showed the complications—the psychological, the spiritual and the social—which underlie the whole question of female circumcision in certain societies.
Quite frankly, nobody knows why, if there is any general rule that supports this practice. But if we have in this country—and it is undoubtedly the case that we have—young girls and women who come from societies where it is a disgrace not to have suffered female circumcision, then those are girls, usually British girls, for whom we are responsible. That responsibility is not carried out in this Government amendment. The distinction between subsections (1) and (2) is clearly discriminatory. Subsection (2) does not provide the kind of care and help which the Government should be providing and which we, as a Parliament, should be providing for girls who are put in this very difficult position.
I beg the Minister to take back this amendment before Report stage and at least to give it consideration with the help of those who understand people who have lived in countries, and who have studied the societies, in which this practice takes place.
8.5 p.m.
Baroness Masham of Ilton: I quote from a recent article in the Nursing Times, headed "The unkindest cut":
"Female circumcision is political. It is about the oppression of women by men and an abuse of human rights, performed on the victim before she is in the position to choose rationally what her fate will be. Yet, when women from some other countries come to settle here in Britain they want to have their daughters circumcised. They will group together to preserve the customs of their country and culture."
This is a very complex matter. I am sure that if we manage to pass satisfactory legislation, education will have to continue among these groups of people, many of whom may not speak or understand English well, if at all, but who must and should abide by our humanitarian standards. I think that everyone in the Committee is of the same mind, that female circumcision is nothing less than genital mutilation and will not be tolerated by us.
The amendment before us, in the name of the noble Lord, Lord Glenarthur, is far from clear. In fact, it seems to fog the issue. The amendment states that it,
"shall not render it unlawful for a person to carry out a surgical operation on another person if that operation is necessary for the physical or mental health of that other person".
Does that mean that anyone is free to carry out an operation anywhere if they think that someone needs it for any reason, without any safeguards? The amendment does not even say, "for the good health or wellbeing of the person". "A person can be anyone.
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How are they to know if an operation is necessary if the people are not medically trained? The amendment does not say that they have to be trained. I have shown this amendment to several doctors in the past few days, a gynaecologist, a neurologist, two paediatricians and a general practitioner who was a senior registrar in urology. All say that there are too many loopholes in this amendment and have queried why the Government have put in "mental health". If this is for sex changes should it not be clearly written in? What other mental cases are operated on?
The cases the noble Lord, Lord Glenarthur has mentioned seem to be abnormalities already covered in the Bill. If mental effects are to be written in, they should be more clearly defined to clear this confusion. I should just like to query the second section of Clause 2. I think perhaps Clause 2 could be widened a little to include small operations which may be carried out in the doctor's surgery or in the home by a doctor or midwife. I do hope the Minister, having listened to the arguments, will take this amendment back and reconsider the whole matter. Many other countries are taking an interest in this Bill and are trying to persuade their Governments to legislate against female circumcision. If we do not get this Bill clear and workable, it may do more harm than good; not just in Britain but in other countries who are watching our legislation.
Lord Rea: It may be of help at this point to describe what is generally thought to be good professional practice with regard to operations of a cosmetic nature on normal human anatomy on mental health grounds such as we are discussing tonight, and which comprise the operations which this amendment is supposed to safeguard. If a patient requests such an operation because she feels distressed or depressed about the shape of her body and wants it changed surgically, the proper procedure is to refer her to a psychiatrist for an opinion about her mental health. I am sure this is the opinion of most doctors and I have confirmed that I am backed fully by the ethical committee of the British Medical Association on this point. In the National Health Service it nearly always the practice that a psychiatric opinion is sought. I wish I could say as much for the private sector. The psychiatrist may be able to advise more appropriate treatment, taking the total interests and background of the patient into account, and I think the noble Lord, Lord Kennet, and other have described how this should be done.
On the other hand, it may be that the psychiatrist decides that the symptoms could in fact be appropriately allieviated by an operation. At this point I should say that many psychiatrists would welcome a blanket prohibition of operations on normal female genitalia since their decisions are often made under great patient pressure. Today, in fact, I was approached by a mother of four who sought augmentation of her breasts. She has perfectly normal breasts. They were not as big as they once were, but they were not abnormal, and I was put under some pressure by this lady. I eventually referred her to a plastic surgeon who I knew would seek a psychiatric opinion before operating. This lady is expecting that a long standing depression is going to be cured by this operation. I am quite sure that she is wrong.

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The amendment as it stands, contains no requirement that a psychiatric opinion will be obtained to confirm that there are proper mental health grounds for any operation to be done on such grounds. Apart from the discriminatory nature of the wording which is being discussed, the amendment is not sufficiently clear on this point. For ethical and professional reasons, I should like to ask the noble Lord the Minister to withdraw the amendment at this stage for further consideration. Should Amendment No. 6A, which has been put forward as a stopgap by the noble Lord, Lord Kennet, be carried, it would create, as the Minister himself has said, a somewhat bureaucratic procedure and we should not like to have to press this amendment.
Baroness Vickers: I should just like to ask two points: why do we have to leave out registered medical practitioners? Secondly, why are we not mentioning national health hospitals and registered nursing homes? I think that it would be very helpful to have both of those put back into the Bill because I think it is essential that we use these two services.
Lord Kennet: It may be convenient to the Committee if I say another word at this point. As I understand the procedure—and I shall no doubt be corrected if I have got it wrong—Amendment No. 6A, being an amendment to an amendment has to be taken first and then there will be a separate vote on the main amendment whether or not it has been amended by Amendment No. 6A. I see that the Deputy Chairman nods so I am glad that I have that right. I hope the Government will feel able to take the unanimous advice of those who have spoken in Committee and not press the main amendment tonight.
May I just say very briefly in answer to Lady Jeger that I know she does not like my amendment with its reference to two psychiatrists. Nor do I. It is not a good plan at all, but I disliked the Government amendment even more. It seems to me that if we are to institute this freedom to operate on white girls, racially discriminating, the least we can do is to make sure that there are proper psychiatric opinions to back it up. I commend the amendment to the amendment to the Committee as something which will slightly alleviate the fundamentally bad effects of the Government amendment.
Naturally, if the noble Lord is able to tell the Committee that he will not be pressing his amendment to a Division tonight, then there will be no need for me to move mine formally and to press it to a Division because the amendments can be taken away and looked at together.
8.18 p.m.
Lord Glenarthur: We have had a lengthy debate on this amendment and on the amendment of the noble Lord, Lord Kennet. I should like first of all to explain more fully why we do not accept that the new clause discriminates on racial grounds in the way that the noble Lord, Lord Kennet, has described, and in the way that the noble Lord, Lord Hatch, also went to great lengths to explain. The noble Lord, Lord Kennet, and the noble Lord, Lord Hatch, particularly
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addressed themselves to the words "of custom or ritual" which appear in the new Clause 2. He said, if I understood him right, that those words should stick in Parliament's throat; but it seems to me that the essential purpose of the whole Bill as presented by the noble Lord, Lord Kennet, is to prevent acts of cruelty or harm from being performed under the cloak of custom or ritual. That is the essential purpose of the Bill which the noble Lord has introduced.
Lord Kennet: I hate to interrupt the noble Lord the Minister and I will try not to do it again. My purpose is to prevent acts of cruelty and harm—the cloak is not particularly important—wherever it appears: white or black Christian or Moslem, animist, whatever you like.
Lord Glenarthur: Cruelty or harm is implicit in the custom or ritual in this particular sort of operation. As I said, this custom or ritual is implicit in the title itself, since the term "female circumcision" has no precise anatomical significance. What it does signify is the customary or ritual character of the acts to which it refers. I submit that interference with that sort of custom or ritual is inherent in the basic purposes of the Bill. What we are saying is that these particular customary practices are not compatible with the culture of this country. I do not see this as attacking any racial group; on the contrary; we are saying that girls and women living here should have the protection of the law against practices which, whatever sanction they may enjoy in other countries, are thoroughly repugnant to our way of life, and this seems to be a view which has been expressed by the Committee this evening.
Baroness Seear: I am sorry to interrupt the noble Lord the Minister but is he really saying that he is taking no notice of the express opinion, carefully rendered, of the Commission on Racial Equality? This is, after all, the commission set up by the Government to examine questions of this kind and to give an authoritative judgment on how clauses of this kind appear—at any rate to those directly concerned with race relations in this country.
Lord Glenarthur: What I am saying is that of course, as the noble Lord, Lord Kennet, said, we have seen the comments in the letter to which the noble Lord referred, we have examined them and they have been discussed by the Government. But we stand by the view that I had started to express and will continue to expound now. I do not want our discussion to dwell at length on unnecessary anatomical or clinical detail, but it is important that your Lordships should know exactly what would happen if my amendment is not accepted.
The noble Lord, Lord Kennet, has suggested that the amendment is discriminatory in effect and that it has been introduced to satisfy doctors who wish to carry out operations on the external genitalia of white women who develop imaginary phobias about their external parts. The reality is very different. The Government's amendment is designed to benefit women of all ethnic groups who suffer or who may suffer from mental ill health because some part of their

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external genitalia has become excessively large, but where there is no physical cause for their ill health.
Lord Kennet: I promised not to intervene again but I must break my promise. If the girl's external genitalia are excessively large an operation is freely permitted under the Bill as drafted.
Lord Glenarthur: I can expand upon that at length. The matter comes later in my speech, but in essence the fact is that we are faced with the problem of defining "abnormality" and if I may I would like to come back to that particular point later on.
Those women to whom I was referring a few moments ago—and there are not many of them—become acutely conscious of their body image, if that is the correct phrase, because of the excessive size of some part of their external genitalia and that may, in schoolgirls, come about as a result of teasing or ridicule by their peers. In such circumstances it is small wonder that they become increasingly anxious and depressed about their own external organs and this may easily lead to mental illness. I am advised that the Royal College of Obstetricians and Gynaecologists consider that surgical correction is the appropriate form of treatment—not psychotherapy in the way that the noble Lord suggests. The women in these cases are not suffering from any delusions, but there is no exact definition of "normality" by which they could be said to be abnormal. The range of "normal" is very wide and if we rely on it it will leave a doubt about the position of the women I am describing.
The Government believe that there must be no doubt in the medical profession's mind about whether such women may be lawfully operated upon in this country. The risks of mental illness to them are considerable despite the fact that there is no physical abnormality. The amendment before the Committee has been drafted to prohibit those operations which we and the noble Lord, Lord Kennet, wish to prohibit—an aim with which the Government are completely in sympathy.
However, we do not wish to cast doubt upon the legal status of what I described earlier as "trimming" operations, the need for, or the lawfulness of which, has not been called in question until debated on this Bill. Let me stress that no one has produced any evidence whatever of abuses in this type of surgery and the question of legislating about it would never have arisen had not the quite separate issue of female circumcision come to the fore.
There is simply no case for interfering with the type of legitimate surgical operations which I have described. It is not a question of protecting the freedom of surgeons but rather the rights of patients to have surgical treatment when that is what their condition requires. The problem is that while the distinction between this legitimate surgery and the traditional practice of femal circumcision is quite clear in commonsense terms, there is no precise anatomical definition which would admit one and not the other. That is why we need the provision for surgery on mental health grounds together with the qualification contained in subsection (2).
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I repeat: there is no racial discrimination in this. The grounds for surgery provided by subsection (1) apply equally to everybody whatever their colour or ethnic group. Subsection (2) in referring expressly to operations performed as a matter of custom or ritual, merely defines more exactly what is already the implicit purpose of the Bill. We do not think that that constitutes discrimination. If it does, as I said earlier, the discrimination is already there in the Bill. What I think the noble Lord was saying when he spoke earlier is that it ceases to be discrimination if it also catches some other activity which has nothing to do with the real purpose of the Bill. With respect, that is not a sound principle for legislation.
Various other points were brought out and I think it only right—although I am acutely aware of the time that this is taking—to comment on some of them. The noble Baroness, Lady Masham, referred specifically to the definition of the word "person". The implication here is that the exemption should be limited, for example, to operations performed by registered medical practitioners—I think that this was the point the noble Baroness was making—as in the existing Clause 2. There is, in fact, no general legal rule that medical treatment or surgical operations may be performed only by registered medical practitioners—and I must confess that until I became involved in this matter I was not aware of that fact myself—although it is illegal for anyone to claim to have qualifications which he does not in fact possess.
The operations exempted by Clause 2 are, by definition, not female circumcision because that is expressly excluded by subsection (2). They thus form part of the normal practice of surgery and it would not be right to subject them to restrictions which do not apply to surgery generally. So, while there may be room for debate on the particular issue which the noble Baroness raises, I submit that the Bill is not the place for it.
The noble Lord, Lord Kennet, asked me a number of questions about numbers. When I spoke earlier to my amendment I gave the noble Lord the figure of about 8,000. We do not have the information that he requested on the follow-up for these types of operation, nor do we have it for most other types of surgery. Successive Governments have always seen the necessity for surgery as being very much a matter for clinical judgment and we do not think that to police it from perhaps the Elephant and Castle in the way the noble Lord suggests is necessarily the right way to go about it. So far as the number of "trimming" operations that might be required is concerned, those operations probably amount to something like 10 or 20 in a year, but I do not think I can be more specific than that.
I hope that I have been able to answer some of the points that have been raised. There is a great deal of technical expertise present in the form of my noble friend Lady Cox and also the noble Lord, Lord Rea. However, I stand by what I said: these really are important matters that have to be included if the Bill is to make an sense at all, otherwise perfectly legitimate operations of the type to which I referred will be prevented, and that is thoroughly against the spirit of the Bill which the noble Lord has put before

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Your Lordships. I therefore beg to move my amendment.
Lord Hatch of Lusby: Before the noble Lord sits down, is he saying that the mental anguish caused by the inability of a girl to have a cosmetic operation is of greater importance, and should be included as a condition within the Bill, than the mental anguish caused to girls who come from a society in which female circumcision is the general practice, and that that should be a reason for accepting the Government's amendment? I could not follow the noble Lord's argument as to the difference between the two.
Lord Glenarthur: I think that the matter is simpler than the noble Lord, Lord Hatch, says. We all seem to be agreed that female circumcision is a thoroughly unsavoury practice. In effect, we are saying, "We do not like you doing it anywhere in the world, and we will do our best to stop it, but we shall certainly not allow you to do it over here". However, although we say that, we are not prepared to allow legitimate surgical operations of the sort I have described to be circumscribed by the law being changed in a way which has not hitherto taken place. I hope that that answers the noble Lord's point.
Lord Kennet: I do not think the noble Lord has made out a very good case; nor do I think many Members of the Committee think he has. I hope that even now he may consider not pressing the matter to a Division. I note that apparently there has been no follow-up to find the results of these operations which the noble Lord seeks to defend by his amendment. I note that the Royal College of Gynaecologists is in favour of the amendment. It would be, of course, because its members perform the operations. Can the noble Lord really divide the Committee, which has spoken unanimously against him, on the single advice of the Royal College of Gynaecologists without obtaining that of the Royal College of Psychiatrists? I do not think that is respectable.
The noble Lord has said that the Government do not think the amendment constitutes discrimination. The Commission for Racial Equality does, and that is what the commission is there for. The noble Lord, without a single voice in his support, intends to divide the Committee against that opinion. If the noble Lord is to divide the Committee (and he says that he is) I must also press my own amendment to the amendment—unwillingly, because it is not a very good idea, but it will make the Government's idea slightly less bad than it would otherwise be.
8.32 p.m.
On Question, Whether the said amendment (No. 6A) to Amendment No. 6 shall be agreed to?
Their Lordships divided: Contents, 38; Not-Contents, 42.

DIVISION NO. 3

CONTENTS

Ardwick, L.

Cledwyn of Penrhos, L.

Aylestone, L.

Collison, L.

Bishopston, L.

Cox, B.

90

David, B.

Masham of Ilton, B.

Dean of Beswick, L.

Mishcon, L.

Ennals, L.

Ogmore, L.

Fitt, L.

Ponsonby of Shulbrede, L.

Graham of Edmonton, L.

Rea, L, [Teller.]

Hampton, L.

Seear, B, [Teller.]

Hatch of Lusby, L.

Stewart of Alvechurch, B.

Houghton of Sowerby, L.

Stewart of Fulham, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Putney, L.

Taylor of Blackburn, L.

Kennet, L.

Tordoff, L.

Kilmarnock, L.

Underhill, L.

Llewelyn-Davies of Hastoe, B.

Vickers, B.

Lloyd of Kilgerran, L.

Wells-Pestell, L.

Lockwood, B.

Whaddon, L.

McNair, L.

Winstanley, L.

NOT-CONTENTS

Airey of Abingdon, B.

Lucas of Chilworth, L.

Alport, L.

Lyell, L.

Avon, E.

Macleod of Borve, B.

Belstead, L.

Mancroft, L.

Boardman, L.

Margadale, L.

Brabazon of Tara, L.

Marley, L.

Brougham and Vaux, L.

Mersey, V.

Craigavon, V.

Molson, L.

Crathorne, L.

Mottistone, L.

Davidson, V.

Mountevans, L.

Denham, L, [Teller.]

Portland, D.

Drumalbyn, L.

Renton, L.

Elton, L.

Rodney, L.

Faithfull, B.

Saltoun, Ly.

Glanusk, L.

Sharples, B.

Glenarthur, L.

Skelmersdale, L.

Gridley, L.

Swinton, E. [Teller.]

Hornsby-Smith, B.

Trumpington, B.

Kilmany, L.

Vaux of Harrowden, L.

Lane-Fox, B.

Wynford, L.

Long, V.

Young, B.

Resolved in the negative and amendment to the amendment disagreed to accordingly.
8.40 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 43.

DIVISION NO. 4

CONTENTS

Airey of Abingdon, B.

Long, V.

Alport, L.

Lucas of Chilworth, L.

Avon, E.

Lyell, L.

Belstead, L.

Mancroft, L.

Boardman, L.

Margadale, L.

Brabazon of Tara, L.

Marley, L.

Brougham and Vaux, L.

Maude of Stratford-upon-Avon, L.

Cathcart, E.

Craigavon, V.

Mersey, V.

Crathorne, L.

Molson, L.

Davidson, V.

Mottistone, L.

Denham, L. [Teller.]

Mountevans, L.

Drumalbyn, L.

Portland, D.

Elton, L.

Renton, L.

Faithfull, B.

Rodney, L.

Glanusk, L.

Saltoun, Ly.

Glenarthur, L.

Sharples, B.

Gray of Contin, L.

Swinton, E, [Teller.]

Gridley, L.

Trumpington, B.

Hornsby-Smith, B.

Vaux of Harrowden, L.

Kilmany, L.

Wynford, L.

Lane-Fox, B.

Young, B.

91

NOT-CONTENTS

Airedale, L.

Llewelyn-Davies of Hastoe, B.

Ardwick, L.

Lloyd of Kilgerran, L.

Aylestone, L.

Lockwood, B.

Barrington, V.

McNair, L.

Bishopston, L.

Masham of Ilton, B.

Carmichael of Kelvingrove, L.

Mishcon, L.

Cledwyn of Penrhos, L.

Ogmore, L.

Coleraine, L.

Ponsonby of Shulbrede, L.

Collison, L.

Rea, L.

Cox, B.

Ross of Marnock, L.

David, B.

Seear, B. [Teller.]

Dean of Beswick, L.

Stewart of Alvechurch, B.

Ennals, L.

Stewart of Fulham, L.

Gaitskell, B.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Taylor of Blackburn, L.

Hampton, L.

Tordoff, L.

Hatch of Lusby, L. [Teller.]

Underhill, L.

Houghton of Sowerby, L.

Vickers, B.

Jeger, B.

Wells-Pestell, L.

Jenkins of Putney, L.

Whaddon, L.

Kennet, L.

Winstanley, L.

Kilmarnock, L.

The Deputy Chairman of Committees: There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
Resolved in the negative, and amendment disagreed to accordingly.
Clause 2 agreed to.
8.49 p.m.
Lord Denham: I take the feeling of your Lordships on this. We have overspread the normal time. If the noble Lord, Lord Kennet, is in agreement, and if nobody wishes to speak very much on the rest of the Bill and it will go through formally, perhaps we could finish it off in a matter of a couple of minutes. But if there is to be discussion on the further amendments I think the general agreement was that we should take it at the next time allotted.
Lord Kennet: I can move the amendments very quickly indeed but of course I cannot answer for what other noble Lords may wish to say about them.
Lord Denham: In those circumstances, we shall have to resume the Cable and Broadcasting Bill Committee because there is a second day allotted for the overspill in the Prohibition of Female Circumcision Bill. I beg to move that the House do now resume.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.

Cable and Broadcasting Bill [H.L.]
House again in Committee.
Clause 5 [Applications for licences and prior consultation]:
Lord Aylestone Lord Aylestone moved Amendment No. 23:
Page 5, line 16, after ("writing") insert ("(and an application fee of such sum as the Cable Authority may reasonably require must be paid)").
The noble Lord said: In connection with the last amendment that we discussed on this Bill, the view of your Lordships generally was that the Cable Authority might make too much money in a particular year, and they were concerned about that position. This small amendment of mine does the reverse. It tries to provide a little money for the authority when they have not got any. The object of the amendment is that when a consortium makes application for a licence they should accompany that with a small application fee. It may or may not be appreciated that the work of considering an application for a franchise—or in this case a licence—is very involved and takes a long time. Should five or six applications be made at the same time within an area, the authority will be involved in a great deal of work investigating, researching and looking at the financial structure of the applicant, the programme objectives, and so on, as required under the legislation. And at that time, starting afresh, they will have no money other than the loan made to them by the Government.
I do not think it will be a hardship if, on application for a licence, a consortium is charged a small fee, which will have to be determined by the authority—perhaps £250, but it is a matter for the authority—at the same time as they apply for the licence. That would be a considerable help at that stage to the Cable Authority as regards the work they have to do. I am aware that in a rather different field—that is, as regards independent local radio—in some cases as many as nine applications have been involved, some of them perhaps mischievous or facetious. That is not likely to happen in this case, where a great deal of capital is involved in the application, but I feel it is worth considering. I beg to move.
Baroness Trumpington: The Bill as it stands enables the Cable Authority to charge fees on the grant and during the term of its licences. These fees will supply the authority with the income it needs to carry out its functions. The amendment provides that the authority should also be able to charge an application fee in respect of any application for a licence. The proposal has its attractiveness from the point of view of the authority and its licensees. It would add to the authority's sources of income: and it would be advantageous to its licensees since it would help to keep down the level of their licence fees. On the last point it has of course to be remarked that it would not be all saving for the licensees, as they themselves would have been liable to pay the application fees, but obviously it would be of some benefit to them. More generally, the existence of application fees might serve, as the noble Lord, Lord Aylestone, said, to deter frivolous applicants with no serious intention or ability to provide cable services, whose applications would needlessly waste the authority's time.
Now we come to the other side of the question. Against that has to be weighed the possibility that application fees might deter some serious applicants. The preparation of an application to provide a cable programme service calls for considerable investment of time and expense, as experience with the recent cable pilot project exercise has shown, and it might be considered unfair that the unsuccessful applicants should in addition have to pay a fee in order to reduce

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the licence fee payable by those who are able to reap the benefits of a successful application.
Where the balance lies is a matter which we should be happy to consider in the light of the debate. I am afraid I do not think that the amendment before us could be accepted, since the relevance of an application fee of this sort would be confined to those cases where there might be competitive applications. For some licences, such as those for restricted services under Clause 2(2)(b) of the Bill, competition will not arise; and in those cases it would seem odd, as this amendment would envisage, to require the payment of two fees. I hope therefore that the noble Lord will agree to withdraw the Amendment so that we could consider, if that were the wish of your Lordships, whether a more narrowly-drawn provision would be generally welcomed.
Lord Aylestone: In view of the fact that I have already had one amendment accepted, and in view of the generous offer that the noble Baroness has made, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mottistone Lord Mottistone moved Amendment No. 24:
Page 5, line 25, after ("applications") insert "or (if any application or applications have been received by the Authority before publication of the said notice) other applications")
The noble Lord said: This is a small amendment which takes the point that at the moment the wording of subsection (2) of Clause 5 implies that the authority, before granting a licence, shall publish a notice which invites applications for the licence, That is perhaps over-abbreviated, but the point is that it does not allow for the enterprising chap who finds an area in which he might wish to lay a cable and approaches the authority and says: "I should like to have a licence". He says this on his own initiative. The authority might get that informtion and say, "Right, this chap has applied for his licence. He probably has something there; we have to have some competition and therefore we will act under Clause 5(2) and publish the notice inviting applications." But my chap has already applied and the object of my amendment is merely to allow his application, which he has already made, to be considered among the other applications that have come after the notice. That seems to me to be perfectly fair, because my fellow has taken the initiative and is a sensible chap. He will be more of a benefit to the public and will have what we want from these people.
So it is probably a matter of the wording of Clause 5(2) not being clear enough on this point. I shall listen very carefully to what my noble friend has to say, but I suspect that, even if the wording of my amendment is not quite right, we want to make it clear that people who have initiative and get ahead first should at least be given equal consideration, which at the moment the Bill does not appear to give them. I beg to move.
Lord Glanusk: I entirely agree with what my noble friend Lord Mottistone has said. Is it not possible to take this a stage further? If a satisfactory offer from a reliable contractor has been submitted, is it reasonable that the authority should, within the space of perhaps six months, be forced to advertise that area for a new applicant?
Baroness Trumpington: I hope for every reason that we can avoid making heavy weather of this, because I think that there is nothing between the Government and my noble friends on the substance. The problem arises simply from a difference of view of what Clause 5(2) means. The amendment seeks to make it clear that the enterprising friend of my noble friend Lord Mottistone can apply for a licence to provide a prescribed diffusion service without having to wait for the authority to solicit applications. In the Government's view, the amendment is otiose because the Bill already achieves that objective. The important point which my noble friends may have overlooked is that where a statute creates a licensing procedure it is open to anyone at any time to submit an application unless the Act specifically says something different. There is no need to state that someone can submit an application, because by definition he can. As paragraph 58 of the White Paper made clear, the Government accept that the market-led nature of cable will mean that the initiative for applications must rest largely with those who wish to make the investment. The authority, too, will be able to generate interest in particular areas if they wish but there is bound to be a two-way process. All that Clause 5(2) does, is to require the authority to give in all cases a general opportunity for applications to be submitted, whether or not one has already been made. In the light of that reassurance, I hope that my noble friends will feel able to withdraw this amendment.
Lord Mottistone: I take some of the points of my noble friend the Minister, but my noble friend Lord Glanusk asked: is there anything to jolly the authority along? One can imagine the situation in which an enterprising chap puts in his application and nothing happens. It is not strictly relevant to my amendment, but I notice that in Clause 5 there is nothing to ginger up the authority into taking action to create a notice when they have had pushing from behind. If there were, we should be a little happier. Otherwise, we might have to come back at the next stage of the Bill with an amendment to achieve a gingering process, in addition to the assurance that my noble friend has given us that there is nothing to stop us from putting in an application ahead of time.
Baroness Trumpington: In answer to my noble friend Lord Mottistone, the authority's general duty to promote cable means that it would not be at all proper for them to sit on applications and do nothing about them. But it must be right to leave the authority some discretion in the organisation of their workload. Obviously, they will not be able to do everything at the same time. May I suggest that my noble friend reads in Hansard the report of what I said first and I hope that that, together with what I have just said, will thoroughly reassure him.
Lord Mottistone: I am taken 95 per cent. of the way, but I reserve the other 5 per cent. to come back on at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.5 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 25:
Page 5, line 31, at end insert ("to this end shall cause to be published in that area a list of all applications relating to that area together with suitable extracts from such applications of the information supplied by each applicant under section 6(2) below; and")
The noble Lord said: If the Committee will be good enough to turn to the wording of Clause 5, Members will see a marginal note Applications for licences and prior consultation. The clause recognises in subsections (2) and (3) that there is a duty to ascertain public opinion before granting licences, so that the views of the public can be properly brought before the authority prior to their making a decision. That is very democratic and very fair. If your Lordships will now turn to Clause 6(2), there are set out there the various considerations which the authority have to take into account. That means that there should be an application and, one assumes, a questionnaire which will anticipate that answers will be given to the matters which the authority have to take into account.
If your Lordships ally what I have said about Clause 5 to what I have said about Clause 6, you will observe that there is nothing in the Bill which deals properly with what has to be brought to the public's attention before they can make any useful observations, and, quite obviously, what ought to be brought to the publics attention is a list of all the applications relating to the area and suitable extracts from the answers that have been given to the questions posed, in order that the material matters mentioned in the Bill and the answers made by the applicants can be before the public in every respect.
I have spoken in terms of suitable extracts, so it is not a question of a very long document. So long as there are suitable extracts, that is all that is required. They can be published, which will ensure that this is not the mere, empty camouflage of a public relations exercise but will enable the public in a particular area to take an intelligent interest in the various applications and to put forward their views. It is in that spirit that I move the amendment.
Lord Elton: I am grateful to the noble Lord, Lord Mishcon, for bringing forward this issue. At present there is nothing in the Bill to stop the Cable Authority from doing what he wants. The present drafting of the Bill is similar in this respect to the obligations placed on the IBA by the Broadcasting Act. The practice of the IBA is to make available to the public copies of applications for ITV and ILR contracts. Applicants are allowed to indicate if there are particular pieces of information which are confidential. However, the Government are prepared to accept the noble Lord's argument for some strengthening of the Cable Authority's obligation on this point.
The amendment as it stands needs some technical attention. The Government would wish to consider further just how a new duty might be framed, particularly in order to ensure that it does not have the effect of preventing the authority from receiving any material from applicants on a confidential basis. On the understanding that the Government will prepare an amendment to bring forward at a subsequent stage
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of the Bill, I hope that the noble Lord will be content not to press his amendment.
Lord Mishcon: It is absolutely wonderful what a dinner recess can do to the noble Lord the Minister in making him so agreeable. Obviously I am very happy to accept his undertaking. In those circumstances and with, I hope, good grace, I ask for the Committee's leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glanusk Lord Glanusk moved Amendment No. 26:
Page 5, line 36, at end insert—
("( ) Where an application for a licence is for the provision of a prescribed diffusion service in any area by the person who is at the time of the application providing a prescribed diffusion service in that area or a substantial part of it ("the existing prescribed diffusion service") the Authority' may grant a licence without complying with the requirements mentioned in subsections (2) and (3) above, where the Authority is satisfied as to the following matters—

(a) that the applicant has not failed to any material extent to comply with any conditions of his licence for the provision of the existing prescribed diffusion service:

(b) that the programmes included in the existing prescribed diffusion service have been of a high general standard in respect of their content and quality; and

(c) that the terms and conditions upon which the applicant has provided the existing prescribed diffusion service to subscribers have been reasonable.").

The noble Lord said: Clause 5 makes no attempt to differentiate between the applicant applying for the first time for a licence in a new area and the contractor applying after his first term for the eight-year extension. At the same time, Clause 5 lays down an elaborate procedure which the authority has to go through before granting a licence. This includes holding public meetings, consulting the local authority and inviting applications from various contractors. This can lead to very lengthy delays before the authority is in a position to say whether or not it will grant a licence. It can even, in an extreme case, result in the service to the public in a particular area being cut off.
We believe that the position of a contractor applying for the renewal of his licence is somewhat different and should have different criteria attached to it. We believe that, provided he fulfils the three conditions laid down in this amendment—namely, that he has kept his nose clean and has behaved himseff, that his programmes have been satisfactory and that the terms and conditions he has offered to his customers have also been satisfactory, including the cost—he should be granted a renewal. I beg to move.
Lord Elton: The amendment moved by my noble friend Lord Glanusk would have the effect that companies licensed to provide prescribed diffusion services could normally expect to have their licence renewed unless they had fallen short in some specific way, whether in respect of the licence conditions relating to the general quality of the programmes or in respect of the terms on which the service is provided to the subscriber. It is to the general principles of the renewability of licences that we should turn our attention rather than to the phrasing which my noble friend adopts in suggesting that we should do this in a different way.

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That is because his intention is, I fear, in conflict with an important principle. That principle was spelt out clearly in paragraph 74 of the White Paper. Although the Bill in no way rules out the provision of more than one prescribed diffusion service in an area, in practice such services will inevitably constitute, in a normal case, a de facto local monopoly—at least for the foreseeable future.
Given that situation, it seems wholly right to the Government that every company, however good its performance, should be required to demonstrate to the authority at the end of the licence period that it is the best candidate for the succeeding licence. We see no reason why a person licensed to provide a prescribed diffusion service should have a right, short of specific default, to continue to hold his licence in perpetuity.
The Government are convinced that competition is in the interest of the consumer. We believe also that what is in the interests of the consumers must in the end be in the interests of cable. A company which has done well and which can show that it is likely to do a better job than any rival applicants will in any case have nothing to fear. Equally, if Company A has performed adequately but another clearly superior application is made by Company B, it would be quite wrong if the public were denied the benefit of a better service simply because the existing licensee had an entrenched right to stay on.
More cogently, it would also be wrong if the merely adequate Company A were to be sheltered from the invigorating knowledge that Company B was likely to get the licence unless it started to deliver more than a merely adequate service towards the end of its licence period. We believe that the correct approach is for the authority to re-advertise licences once they have expired and to invite competitive applications. The authority will also have to undertake local consultations before they grant a fresh licence. This will give subscribers an opportunity to make known their views about the existing service and any new proposals. In this way, the existing licensee, if he is seeking a fresh licence, will have positively to justify to the authority and to the public that he ought to be allowed to carry on. Under the amendment, he would merely have to show that he had not stepped over any one of three rather broad lines.
Although this amendment might well be in the interests of the cable companies, I believe it would not be in the interests of open competition or of the consumer—nor, in the long term, to the benefit of cable development itself. I am afraid that my noble friend has not persuaded me that the position we took in the White Paper was wrong. I hope that on reflection he will be able to tell me that he shares my view of the beneficial effects of competition, and that he will not press his amendment.
9.17 p.m.
Lord Mottistone: As your Lordships will know, I am absolutely dedicated to competition and think that all noble Lords opposite who do not believe in it do not understand how life works. In this particular case, there is one point I should like to put in the mind of the Government. There is a great deal of difference between the investment which a company will have to
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make to get cable going and the investment which has to be put in by companies which are operating in independent television. There is just a possibility that the question of going through the application exercise again before being granted a new licence is dictated in the way that it is in the Bill by the experience gained with ITA's similar system.
There is an immense difference between the amount of money that has to be invested to get a cable going and that to provide a programme. I can say this because I have no interest in cable television at all; some of my friends cannot say that. The Bill keeps the two as separate operations. We heard about this earlier. The providers of the cables come under the British Telecommunications Bill and the providers of the programmes come under this Bill. In most cases they are the same people, and they are having to invest a great deal of money and to take an enormous risk. What they have learnt from the other side of the Atlantic is not an encouragement to them.
In order to provide this great service, as I believe it will be, they are having to take a great deal more on their shoulders financially than any other similar bodies. I am not arguing against competition. I believe there ought to be competition, and to that extent our amendment probably requires some rehashing. But when it comes to the question of relicensing, I believe it would be more fair if there was something other than a rehash of the original notification and licensing procedure; an easier way to give a slight advantage to those people who have taken the risk in the first place. I do not know whether I have got my arguments across, but the picture is different from what I believe the Government thought it was.
Lord Mishcon: This is not the time, at 20 past nine in the evening, to indulge in comparative political theory. I would say only that the noble Lord, Lord Mottistone, misinterprets the view of the Opposition, which favours in a mixed economy that there should be competition in the private sector. It is only when there is unfair competition with the public sector that the Opposition raises its voice in a most eloquent and powerful way—but nevertheless fails to persuade the noble Lord on every single occasion.
Having said that, may I say that I agree with everything that the noble Lord the Minister has said. It obviously would be quite wrong to alter the wording of this Bill—because that is what the amendment would effectively do—by granting a licence for 12 years, with an option for the licensee, provided he has behaved himself, to renew for another 12 years and then for another 12 years; in other words, it would be an eternal licence provided he behaved himself. Then he would shield himself completely from the competition which the noble Lord seems to be able to support on every conceivable occasion in theory; but once we deal with it in practice and it hits at some of the people he is trying so fervently to protect, all of a sudden his ideal of competition fails him. This is a bad amendment and should be opposed.
Lord Glanusk: May I say this in defence of the amendment. We have given the contractor a fairly rough ride so far. We have said to him, "You can have a licence. It will have lots of conditions attached. None

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of them means anything, because we are going to alter them whenever we like. We are going to charge you a licence fee; we are not going to tell you how much it is; we can vary that whenever we like. Now we are saying that there is going to be no continuity without heavy competition, even though you have behaved yourself, your prices are right, your programmes are good; there have been no objections in the past 12 years from your public; still you cannot have a renewal of your licence." I think that is a fairly tough proposition to offer to a man who is going to invest several million pounds if not fifties of millions of pounds. I think that is fairly tough on him, and you still do not give any way.
Lord Drumalbyn: May I interject one point here? Is it quite fair when admittedly the licensee has done pretty well and has not put a foot wrong, to allow someone else to come along, without being able to give any proof whatever, and say, "I can do better than that", and merely on argument convince the authority that it would be worthwhile trying him? I am not sure that is quite fair. I wonder whether there is not some means of getting over that difficulty. For example, would it not be fair to allow the authority to put to the licensee, "Yes, you have done pretty well but that does not mean you have been perfect. We should like to discuss with you ways in which you could improve your performance, and compare that with what the new applicant says he could do". Then they could make a decision. They could say, "On the basis of what you have done we can find no fault in that; but we have seen an application from somebody else and it looks to us as though it could make improvements on what you have been doing". But it may not do so; the authority may prove to be wrong.
Earl De La Warr: It seemed to me that the noble Lord, Lord Mishcon, had understood the intention of this amendment slightly differently from my understanding of it, as to the number of years. He said this is perpetual motion: you can go on for 12 years and another 12 and another 12. I had understood it—it may be that I am wrong, and it may be that it would have to be redrafted to achieve it—that the intention was to let the initial man who had had it for 12 years go on for another eight years, and that would be all. If we have failed to do that, so be it, but it may be something which the Government could consider,
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having regard to the points that my noble friends have made.
Lord Elton: I am very much obliged for the support from the noble Lord, Lord Mishcon, and I only hope that it has not rendered my noble friends more suspicious of my advice than they otherwise would have been. May I say this to them? My noble friend Lord Glanusk movingly pointed out the difficulties and risks which beset the original applicants for the original licence. We have already reflected this in the Bill by the granting of a licence initially for 12 years and subsequently, as my noble friend Lord De La Warr rightly reminds us, for eight years. Therefore, the initial risk has been taken account of and there is the further consideration that the clock will not run until the programmes go out, which we discussed on an earlier amendment.
The noble Lord, Lord Mishcon, is right that this amendment envisages that the original successful chap, who may have won by a whisker—perhaps wrongly—from someone else, gets his 12 years and reckons it is worth spending the money, has genuinely taken the risk as a good investment, knows that he may not have more than 12 years in which to recoup his money—goodness knows, that is a long time in most commercial terms—may suddenly be given, as a sort of bonus or windfall, the right to remain for ever in situ provided he keeps his nose clean.
My noble friend Lord Drumalbyn now asks whether there is some compromise and would it not be possible to have a procedure in which the initial contractor says what he proposes to do in the next eight years and others would say what they propose. That is exactly what we suggest. That is the relicensing system as we see it and which, as I read the amendment, my noble friend Lord Glanusk wishes to avoid. Therefore, I hope I shall not be quite so vigorously supported by the noble Lord, Lord Mishcon, on the next amendment, when I hope to be reasonably well disposed towards my noble friends, in case I fall out there. But I cannot happily take on board what they recommend now.
Lord Glanusk: I think I recognise when my noble friend on the Front Bench has turned his toes in, and I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 [Matters to be taken into account]:
9.28 p.m.
Earl De La Warr Earl De La Warr moved Amendment No. 27:
Page 6, line 24, leave out paragraph (d).
The noble Earl said: Clause 6(2) gives guidance to the authority on certain aspects of the applicant's intentions with regard to the programming: the range and diversity, the origin, the educational and what I call the participative content that is envisaged. With one exception these are very reasonable things to look at, and they have my full support. However, what is not clear to me, at any rate, is the purpose of paragraph (d):
"the extent to which the applicant or each applicant proposes to include programmes provided otherwise than by himself or by associates of his".
That seems to add nothing to the guidance that is given to the authority. Because something that is short on meaning can often cause confusion, I believe that for the sake of clarity this particular paragraph would be much better left out. I beg to move.
Lord Mottistone: I support my noble friend Lord De La Warr. Paragraph (d) really does not mean anything at all. There is not much more that I can say. It has no significance within the framework of the other paragraphs in the subsection. I entirely agree that it therefore detracts from the value of the Bill and would be best out of it.
Lord Elton: Perhaps I can explain what I believe the paragraph means. Ever since the report of the inquiry chaired by the noble Lord, Lord Hunt of Tanworth, it has been recognised that each local operator is likely to have the monopoly of the supply of cable programme services in his area, at least for the foreseeable future. Against that background it is important that the Cable Authority should be in a position to see that its licensees use that privilege in a way that is in the best interests of consumers. One particular consideration which, in the Government's view, needs to be borne in mind is that operators might be tempted to acquire a disproportionate amount of programming from sister companies of theirs within the same group. A situation could arise, therefore, in which the local operator unreasonably restricted the range of programme sources from which the local blend of services was constituted. In other words, he might use his monopoly position to the detriment of the consumer who would be denied access to a wider range of programming simply because of the corporate links of the licensees.
This is also a consideration which the authority will need to take into account in exercising under Clause 7(3) its oversight of ownership arrangements which might lead to results adverse to the public interest. So there is a degree of overlap there. But we took the view that the authority should at the licensing stage be required to look at not just the range and diversity of programmes, as Clause 6(2)(a) requires, but also the range and diversity of programme sources, and in particular whether they extend outside the corporate family of which the applicant is a member. That is the reason for Clause 6(2)(d). I wonder whether in fact that explanation will satisfy my noble friend.
Lord Winstanley: In the light of the explanation of the noble Lord the Minister, since his concern apparently is not that an operator should include too little of other things but too much, should the wording not be:
"the extent to which the applicant or each applicant proposes not to include programmes provided otherwise than by himself or by associates of his"?
Surely that is the sense which the noble Lord has expressed.
Lord Elton: It does not matter which side of a coin you look at, you still know what it is worth.
Lord Mottistone: My noble friend the Minister surely would agree that the criteria which he gave us for having paragraph (d) are entirely met by paragraph (c). The trouble with paragraph (d) is that it gives no guidance at all. It gives guidance only if one has a preconceived idea of what it means, and surely one of the things about the law is that one should not have a preconceived idea of what it means. The paragraph could mean that one wants the operator to have more programmes, which I think the noble Lord, Lord Winstanley, was trying to say. Our objection is because the paragraph is meaningless and not because of the sense of what is required. I think that the provision is covered by paragraph (c). If paragraph (d) is to be retained, it needs to be reworded so that it conveys what the Government actually want it to convey, which it does not do at the moment.
Lord Elton: None of us wants to spend too long on this matter this evening. What worries me is that, although invited to do so, my noble friends will not rely on the provisions of Clause 7(3), which I thought that they might say render the proposal superfluous. That means that they intend to do dire and terrible things to subsection (3) in Clause 7. But that is merely a straw in the wind.
At this late hour, since so many experts in the English language tell me that paragraph (d) does not mean what I believe it means, I think that I had better take it away and maybe bring it back next time, or maybe not.
Lord Mishcon: I hope that the noble Lord the Minister realises that I responded to his suggestion made on the previous amendment, that in order that he could succeed in what he said I should not participate or give him support. I have tried awfully hard to obey his instruction.
Lord Elton: The idea did not seem to work, but I am grateful to the noble Lord.
Earl De La Warr: I am most obliged to my noble friend for his offer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 28 not moved.]
Lord Ardwick Lord Ardwick moved manuscript Amendment No. 28A:
Page 6, line 29, at end insert—
("( ) the proposed charges and charging structure proposed to be levied on the licensee's customers;
The noble Lord said: This is an amendment to Clause 6, which is a splendid clause, stating what the authority should take into account when granting a licence. In a very grand subsection the authority is told to take into account,
"all matters appearing to them to be relevant".
However, not satisfied with that, the Bill goes on to list some of the very important matters, such as the range and diversity of the programmes, the extent to which the applicant proposes to include in the programmes matter from the EEC, as well as programmes of an educational nature and those relating to local affairs. That is splendid.
Our amendment adds to the list; it is a simple addition. No doubt the authority would take into account the matters that we propose, bearing in mind that it is to take into account all matters that appear to it to be relevant, but, just as certain matters are spelt out, we think that it is perhaps useful to spell out yet more. These include, for example, the charges that the company proposes to levy on the customers, the timescale for cabling the franchise area, the method of dealing with and redressing consumer complaints, and the quality of the technology which the applicant intends to deploy.
No doubt the authority would seek such information from each applicant, but it is as well to spell it out, and it seems essential that the rights of the customer should be as fully safeguarded as possible, bearing in mind that the successful licensee will have a monopoly cable service. The procedure should also ensure that the customer gets what he wants at a reasonable cost and that this should continue for the duration of the licence. I beg to move.
I should like to add that, in order to save time, in moving Amendment No. 28A, I have spoken also to Amendments Nos. 28B, 28C, 28D and 28E:
Page 6, line 29, at end insert—
( ) if appropriate the time scale within which the applicant proposes to cable the franchise area;
at end insert—
( ) the method which the applicant proposes to adopt to deal with consumer complaints about the cable service provided and for handling problems of consumer redress;
at end insert—
( ) the extent to which the applicant intends to provide services through a physical system deploying the most advanced technologies;
at end insert—
( ) the extent to which the applicant intends to provide, or secure the provision of, telecommunication services;").
I do not think that there is very much in them that is controversial; at least I hope that there is not.
The Deputy Chairman of Committees (Lord Alport)The Deputy Chairman of Committees (Lord Alport): Amendment proposed,
Page 6, line 29, at end insert—
("( ) the proposed charges and charging structure proposed to be levied on the licensee's customers;
Lord Elton: I understand that the noble Lord the Deputy Chairman is referring to a manuscript amendment which I have not seen, but which I have heard referred to, but that we are actually speaking to the amendment on the Marshalled List.
The Deputy Chairman of Committees: I am under instructions that I am to call not Amendment No. 28, but Amendment No. 28A, which is as I have read out to the Committee.
Lord Mishcon: Perhaps I may briefly clarify the position. As one would expect, the noble Lord the Deputy Chairman is absolutely correct in what he has said. Our proposals are divided into five amendments. For the convenience of the Committee, my noble friend Lord Ardwick has spoken to all five, though technically he is moving Amendment No. 28A.
Lord Elton: I am most grateful; help is coming in on every side. I was aware of what was intended, but I had thought that it was not going to be pursued. If I may, I intend to speak to all the amendments—including presumably Amendments Nos. 28A. B. C. D and E—and I hope therefore to expedite matters because, I regret to say, there is quite a lot that I have to say, though I shall try to compress it.
This matter broaches a wide and interesting area, and there is indeed a wide range of factors which the authority will need to consider before granting a particular licence. That is recognised in Clause 6(1), which requires the authority to take into account all matters appearing to be relevant. Those matters will of course vary from case to case, depending on the type of licence and the specific circumstances in which each is granted. Nor could we expect to produce a list of considerations which was absolutely complete, or which contained nothing that was irrelevant to any particular case. Experience might well prove that some factors are unnecessary, but much more likely, and I should say much more importantly, experience would reveal that some which had been omitted were in fact very important.
Your Lordships might therefore ask why are we ourselves proposing a list at all under Clause 6(2). The list is there because the Government take the view that there are certain particularly important matters concerning the services which an applicant intends to provide which the authority should always consider before granting a licence for the provision of a prescribed diffusion service.
I shall not enumerate examples. Cable offers a pathway for more than cable television. For that reason, the authority will in all cases have to consider what related services may be provided alongside the television channels, and that is worth referring to. Applicants will therefore be able to make promises about what they will provide for this sort of service. Where they make promises, the authority will have power under Clause 4(6) to insert conditions in the licence to hold them to those promises.

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I now turn to the five additional considerations to which the noble Lord has referred. I believe that I am right in saying that three of them, as drafted, are outside the scope of the authority's powers and duties. The actual cabling of an area, which must mean the installation and running of the physical system, is, as we have now established, a matter for my right honourable friend the Secretary of State for Trade and Industry, the Office of Telecommunications and the Telecommunications Bill. Of course it is true that the Cable Authority will, in parallel, be concerned with the rate at which services are to be extended through a particular area. Indeed, under Clause 4(8) it has a duty to use its powers in the manner best calculated to promote the provision of cable services. This must mean that an applicant with plans for developing services throughout an area at the earliest date will, other things being equal, take precedence over someone with a less dynamic approach. We believe that this is sufficient provision without a specific duty in Clause 6(2) and that the other structural aspects in the noble Lord's third and fourth proposals fall properly outside the Bill.
Questions relating to cable technology and telecommunications services are for the telecommunications licensing authorities rather than the Cable Authority. Two further criteria are offered in the list which the noble Lord so ably urged upon us. The first relates to charges. The Government do not believe that it is necessary or, indeed, right to give the Cable Authority a role in controlling or overseeing charges which cable operators make to the public for the services that they provide. Cable companies will have to work very hard to persuade consumers to subscribe and to continue subscribing when there are other competing claims on their pockets in the home entertainment field, including particularly the video cassette recorder and later, of course, other technologies. The Government do not favour price controls as a normal tool of economic management. We do not see a need to depart from that general principle in this area.
The final criterion is on consumer complaints. I agree that the Cable Authority may well wish to satisfy itself, particularly once a service is operating, that the licensee is taking appropriate steps to deal with them. But the Government do not believe that this is a point that needs to be picked out for special mention in Clause 6(2), particularly as, at that stage, it is doubtful whether any applicant would be in the position to offer more than the most general of assurances. I hope that I have not spoken too fast or left out too much but the noble Lord will gather that I do not like, on the whole, what he proposes.
9.43 p.m.
Lord Mishcon: With that, one has to be democratically content. Nevertheless, it is still possible to urge upon the Committee, on what is really a completely non-political matter, commonsense and justice. Again and again, Members of the Committee on all sides of the Chamber have shown that they are worried about the artificial severance of the Telecommunications Bill from this Bill. To hear the Minister say on behalf of the Home Office, which he represents with such elegance
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and ability, that this is really a matter for another department and another Bill when we all know that the things are interconnected just underlines the difficulties that we are all under as a result of the severance of these departments when looking at Bills which are relevant one to the other.
When the point is made that two of these provisions are really within the purview of the Telecommunications Bill and the other department, it shows the absurdity of this artificial separation and underlines the need for us to see in this Bill that the two considerations that ought to apply are in fact applying to those who are granted licences. That is an obvious clarification, I hope, of the duties of the authority; I have no doubt, in conjunction with the other department.
What we are endeavouring to do, as the noble Lord the Minister has fairly said, is to put in this Bill the essential requirements before the public—who are entitled to comment—and the authority grant a licence. If you have that aim, in my submission and that of my noble friend who, as the noble Lord the Minister graciously said, very ably moved this amendment, what is in our mind is purely and simply those essential ingredients that the authority and the public ought to have in their minds.
To say that the question of proposed charges is something that the authority does not want to oversee, merely leads one to the public relations exercise that I referred to before. I assure the noble Lord the Minister that the public are interested in this and if, indeed, there is a choice between two, three or four applicants, and one or two of those applicants intend to make an excessive charge if they get this monopoly for 12 years, but the others when offering rather similar services are prepared to offer them more cheaply, that is obviously something that will activate the minds and the views of people in that area and ought to be very relevant to the authority when they are considering applications. That is the first point. I have dealt with the technological matters.
The next point is this. The noble Lord the Minister made an excellent point when we were discussing an amendment which was not clear to me—and I frankly say it in my ignorance. I did not realise, as I told the Committee, that the time of 12 years started from the commencement of the actual programmes; I thought that it started from the grant of the licences and that would be the time when the licence was granted by the authority. I see other noble Lords nodding their heads and I think they were under the same misapprehension, if misapprehension it is.
If that is so, again one of the most material considerations before the public and the authority will be paragraph (b) which is, if appropriate, the time scale within which the applicant proposes to cable the franchise area. One applicant may say: "I am doing this on the cheap and I must admit it. That means that I have got a contract here to cable the franchised area which is going to take me seven years because the contracting party supplying the cable says he is prepared to do it as economically as that if he can put it behind all the other work he has in priority, and if you give him five years in which to do it". Whereas of

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course another applicant may say: "I am perfectly prepared to see that this area which needs cabling is going to get the service within a very short period of time". That ought to weigh with the authority. It is an essential matter and it will weigh with the public.
Having said that, this is an attenuated if extremely high quality Committee at the moment, and I do not want in those circumstances—and nor do my noble friends—to start the Division Bells ringing, because in my judgment, it will not reflect the views of a full Committee or a better attended Committee. I hope that the noble Lord the Minister, listening to the arguments that have taken place, will say that maybe these are essential ingredients; and maybe, too, if other essential ingredients become necessary, the authority in its wisdom will rely upon the general provisions of the Bill that they have to take into account relevant considerations.
I hope he feels also that this most desirable relationship with the provisions of the Telecommunications Bill, the telecommunications authority and the department, will at least find its way into those matters which are relevant to both authorities when considering the grant of licences. If the noble Lord the Minister will respond with his customary generosity (not shown overmuch so far in the debates that have taken place, but coming their way slowly now and again) I hope that he will find it possible on this occasion to say that he will favourably reconsider.
Lord Elton: I am afraid that the noble Lord expects rather a lot of the dinner hour! I hope that my reply will be rather like the way in which the noble Lord described the Committee—attenuated, but of high quality. I am first opposed to the list before us, because I think lists are dangerous things and we already have as much of a list in Clause 6(2) as we want. My second and more particular response is to the technological arguments which the noble Lord, Lord Mishcon, so persuasively put forward. Under Clause 4(8) the authority is bound already to push forward cable and although it is not responsible for "cabling", as it has been described, it is responsible for seeing that the opportunity to be cabled arises as quickly as it can. That is one of its statutory functions. Therefore, it is already going to consider that matter, although we do not propose to list it in Clause 6(2).
The noble Lord was also anxious about pricing. Here there is a difference of some importance between us because we believe that, if the contractor offers too high a price, then he will not get subscribers, he will not make a profit and he will fail. If he offers too low a price, then he will get lots of subscribers but he will not make a profit and he will fail. That is the operation of the market. We do not think that the authority ought to say, "You shall charge this price". But that is, in effect, what it would be doing if it had an auction and decided the licence on the basis of the auction.
The noble Lord does not find those arguments persuasive, but they must be enough to convince him of the reluctance with which I would take this matter away. In fact, I am reluctant to take the matter away, and I am afraid that I shall have to ask him if he would be so kind as to do so.
Lord Ardwick: Where there are competitors for a licence, the price that they are going to charge the public must be an important factor in the choice of which company is to have the licence. Surely that must be so. That is the intention of the provision.
Lord Elton: Indeed, and that is why we have Clause 6(1) which demands that the authority shall indeed:
"take into account all matters appearing to them to be relevant".
I am sure that they will share the noble Lord's view, which is mine.
Lord Mishcon: Quite obviously the great difficulty is leaving things vaguely in a Bill; taking it for granted that the authority will consider whatever it may be, and leaving over the argument to applicants that it would be quite wrong for the authority to consider prices because in the matters of importance that were set out on the applications, the price charged to the consumer was not even mentioned.
There is no purpose in my wearying your Lordships with further speeches or arguments on this matter. It is obvious that the Minister in his wisdom or on the advice that he has received—and the two are not always the same—has decided to be reluctant about promising anything in regard to these amendments. These are important considerations and I believe that the sensible course, if my noble friend agrees, is to withdraw these amendments—and I know that I am only speaking to Amendment No. 28A—at this stage, and to bring them forward again at the Report stage when it would be my hope (hope being eternal in the human breast) that the Government, on reading the report of what has been said, will find it possible to concede at least some of these amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 28B, 28C, 28D, 28E and 29 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 29A:
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—

(i) entitled to the benefit of one or more existing licences as aforesaid; or

(ii) a participant in a body corporate so entitled or included among the persons so entitled; or

(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.

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( ) 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: This looks like a long and complicated amendment. However, if your Lordships will pay me the courtesy of not reading every word of it but of listening to what I hope will be a simple explanation of it, it may make life easier and, indeed, expend less time. The Broadcasting Act 1981 saw fit to include in Section 26 provisions which stated that where it looked as though there was a harmful monopoly, a contract under that Act would not be granted. We are not dealing with contracts; we are dealing with licences. However, in my submission, the same provisions should be included in this Bill when we are dealing with licences and where the authority is satisfied that an applicant is interested in another licence which has been granted.
Noble Lords would probably immediately round on me if I left the argument there because they might well take the view that in certain cases it would not be harmful, and the authority could not reasonably find that it was harmful, that someone—be it a company, individual or a firm—who was interested in another licence should be precluded from a second licence. Therefore, noble Lords will see that I have met the point—as, indeed, the Broadcasting Act met the point—merely by saying that this is one of the matters that the authority, on finding that there was an interest in another licence, should consider with a view to seeing whether it would constitute an undesirable monopoly, either regionally or nationally, and then and only then (and I continue with the last line and a half of the amendment before I reach the manuscript amendment):
"the Authority shall refrain from granting the licence to such an applicant."
So it is only in a case where it is seen by the authority to be an undesirable monopoly, either regionally or nationally, that the authority is being called upon to refuse that application.
Perhaps I may now explain the manuscript amendment. This was my fault; in tabling this amendment, I redrafted—but only making changes where they were necessary—Section 26 of the 1981 consolidating measure. What I omitted to do—and I only realised it this morning—was to define the word "participant", which is defined in the Broadcasting Act 1981. When I discovered that this morning I took the liberty of asking the ever helpful Public Bill Office whether they would kindly ensure that this came before your Lordships' Committee as a manuscript amendment in order to complete the amendment before your Lordships.
I repeat, this is the spirit of the section of the Broadcasting Act carried into this Bill and it is not mandatory upon the authority to refuse; it is only within its discretion when it finds that the grant, as it were, of a second licence or perhaps a third would be harmful within the wording of the amendment. I beg to move.
Lord Elton: It is widely recognised that the provision of cable services will constitute a local monopoly, at
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least for the foreseeable future. I have said that once or twice; I think I shall leave it out of my next speech. That is not because the Government favour the creation of monopolies as a general principle. Indeed, there is nothing in the Bill to preclude the authority from granting more than one licence in a particular area if it judges that that would be in the best interest of the development of cable. But economics seem certain to dictate that one operator per area will be the norm.
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. 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. I am not sure how likely it is that such developments might occur. It must be remembered that the Cable Authority is required to advertise each prescribed diffusion service licence separately, and in every case the authority will have to consider how the grant of the licence will assist the promotion of cable services generally.
It seems doubtful whether the authority would consider that the interests of cable and consumers were best served by the sort of situations which concern noble Lords opposite. 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 for the care with which he has drafted the amendment and the diligence with which he revised it this morning. Nonetheless, it does not offer quite the right solution and, if noble Lords agree, and if the noble Lord agrees to withdraw it, I shall undertake to consider whether we can bring forward a Government amendment at Report stage which would go some way towards what he wants.
Lord Mishcon: With the passage of every minute upon the clock the noble Lord the Minister is mellowing more and more. In those circumstances, and having regard to the courteous way in which he has dealt with this amendment and the undertaking he has given, I am delighted to withdraw.
Amendment, by leave, withdrawn.
10.2 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 30:
Page 6, line 29, at end insert—
("(ff) the extent to which the applicant or each applicant proposes to commit resources to the production of programmes of social interest and concern to the local community, which should not be less than one per cent. of gross annual turnover of the cable operator;
(gg) the extent to which the applicant or each applicant proposes to involve those living or working in the franchise area on the provision of the services provided under paragraph (ff) above.")
The noble Baroness said: I am slightly daunted in moving this amendment because on the amendment before last, in answer to the noble Lord, Lord Mishcon, my noble friend the Minister said that Clause 6 had as much in it as could be managed. I move this amendment, which has a slightly different slant from the other recommendations in Clause 6.
This amendment is tabled in the names of my noble friends Lord Seebohm and Lady Carnegy of Lour, and of the noble Baroness, Lady Masham of Ilton, and I hope is supported by others in your Lordships' Committee. The amendment is moved bearing in mind that cable programme services will be in a position to offer a social service to the local community by providing air time for local and voluntary organisations, local community groups and self-help groups, and will provide others with a genuine opportunity to be involved in the cable programme and to use cable programmes to disseminate information and act as a link between various voluntary organisations and individuals.
The problem lies in two aspects: the first is money and resources, and the second is methods. The groups of people to whom I refer are the vulnerable in our society—vulnerable as individuals and vulnerable as voluntary organisations. Voluntary organisations in this day and age and at this time are running into severe difficulties and have great financial problems to face. The amendment first recommends that 1 per cent. of the annual turnover of the cable organisation should be allocated to programmes which will help these groups in the community who for real reasons are not altogether able to help themselves.
Secondly, there are the methods. Many of these organisations are small. It is true that there are large voluntary organisations, such as the Spastics Society and Dr. Barnardo's, that have a good income, but I am concerned with the small organisations which have a very small income but which in the community are doing a good and essential job of work. They are not able to produce programmes; they do not have the mechanism by which to produce programmes. Therefore, it is hoped that one of the matters to be taken into account under Clause 6 would be that these organisations could be helped by the cable organisation to produce their own programmes.
Therefore in some ways this amendment, which is perhaps not as well worded as it might be, is to some extent an extension of the amendment of the noble Lord. Lord Mishcon, but it has a different slant and it refers to people and organisations who are vitally important in our society but who themselves have not got the resources. I beg to move.
Lord Seebohm: At this late hour I shall not delay your Lordships for long, but I must refer to the words used by the noble. Baroness, Lady Trumpington, when she moved the Second Reading of this Bill on 19th December last. I quote from col. 486 of the Official Report. The words are these:
"I believe that the development of new cable systems could pave the way for the growth of a whole range of new services of enormous potential for our economic, industrial and social life".
Nobody could possibly disagree with those words, but unless some resources are made available it just will not happen. A number of voluntary bodies, such as the Volunteer Centre, Age Concern, the National Council of Voluntary Organisations and so forth, have been discussing this for some months. They have gone into the matter at great depth and I will quote now from one of their statements, which says this:
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"It is clear from our own experience with existing broadcasting services and from cable services in America, Canada and Australia, that badly-made programmes will not get an audience".
We know that that is true. We also know that the voluntary organisations, which are now playing a greater and greater part in our social life, have neither the training, the resources nor the expertise to make programmes. But they must do this if we are going to have any effect at all. Nothing is worse than bad programmes: in fact they are more harmful than good. This will need money and there must be some form of resource centre where the money will come from. I cannot say that we have necessarily put down the right answer, but money will have to be found if those splendid words of the noble Baroness are to be implemented.
Baroness Carnegy of Lour: It is unfortunate that this particular amendment is being taken at this late hour because I believe it to be extremely important to the very fabric of the Bill and the potentiality of cable in this country. The amendment is an attempt, as my noble friend has said, to ensure that so far as possible in future not only do cable operators intend to offer programmes of local interest and concern and intend to employ local people and local groups but that this does actually happen, that it happens to an adequate extent, that it happens from the outset and that it happens successfully.
It is now widely accepted throughout the community that cable television is a potentially vital tool for the expansion and support of the work of voluntary organisations at local level. It is not clear, however, whether potential operators or indeed. I fear, the Government, appreciate how important this may turn out to be. In the Second Reading debate, my own small contribution was the only one specifically relating to this aspect, and in his summing-up the Minister did not in fact refer to the subject at all, although he has since written me a very helpful and courteous letter on the subject.
This is important not just for the voluntary organisations themselves but for the whole national strategy at the present time. The Manpower Services Commission's adult training strategy intends among other things to encourage people of all ages to use their spare time to keep themselves up to date and to keep involved for the sake of new work skills and for the sake of improving basic education in a variety of ways through such mechanisms as the Open Tech, through broadcasting and by many other means. This also has to happen through cable.
The whole field of preventive health care is involved. By remaining active and involved locally in local groups and local activities, older people, unemployed people and disabled people are far more likely to keep themselves happy well and active. In the field of crime prevention, especially among the young, clubs, societies, hobbies, interest groups and service projects are an important key to the problem of crime.
Voluntary organisations need ways to contact many more young people and involve them in a greater variety of activities, particularly in the great cities. The voluntary organisations have an enormous part to play in all this. They are willing to involve themselves to the

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hilt and are increasingly keen to do so through television. At national level, they already help the BBC and the ITV companies with back-up information and research for programmes in their particular area of concern. Some, indeed, have been appointed officials with media experience. But local programmes by local groups and local people present a very different problem.
We do not yet know how franchise operators will arrange their obligations under Clause 6, because so far these have not been published. Impressions in the areas concerned are being formed that access channels will be the way. The problem here is that companies will want voluntary organisations to produce programmes, and voluntary organisations will keenly desire to do so, but at this local level they simply do not have the money or the expertise to do so. The only way that this crucial interaction between voluntary organisations and the community can happen is if cable companies provide a good deal of help, of consultation, of advice in working up programmes, of script writing, of production, of camera team help and so on. Some mechanism has to be found to ensure this.
I accept that the Government do not want to limit the freedom of action of operators and I do not think anyone in the Committee wants that. But this amendment requires more precision in the consideration of the application, in so far as those areas in Clause 6 are concerned. It proposes that the resources to be devoted to this should be quantified and suggests 1 per cent. of the gross turnover of the operator. This would not be an enormous imposition. The customers of cable will be very interested indeed in what is local. It is likely to put up the number of customers and to increase the revenue of the company. Commercial viability is likely to be enhanced if this amendment is adopted. I hope that this, or at least some similar mechanism, can be adopted by the Government, if cable is to fulfil this particular function which is such a very important one for the nation.
Baroness Masham of Ilton: Voluntary organisations need all the help that they can get. The Government are most helpful to many such organisations, giving them grants to help them with their work; otherwise, some could not carry on. Our British voluntary organisations are the envy of many countries throughout the world. TV is the easiest way of getting a message across to the public. I hope that cable will give voluntary organisations an opportunity to do this. It will happen only if they can afford to do so. I gladly support the amendment.
10.15 p.m.
Lord Howard of Henderskelfe: I had not intended to intervene, but this amendment raises certain wider issues which relate to the community as a whole. I referred very briefly to this point in my Second Reading speech. One of the problems about television has always been that it is too large in its present form—with the independent television companies and the regions of the BBC—to do anything for communities which is really meaningful. The areas are too big and the number of inhabitants is too great. We see a much better picture of what might happen in
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local radio, again whether it be independent local radio or local radio provided by the BBC.
Where I differ slightly from the sponsors of the amendment is in the thought that you need a lot of professional help to achieve it. You do not. You need a minimal amount. It is quite extraordinary what can be done by volunteers within a community, whether they be official voluntary bodies or others. May I quote the example of Leeds local radio which was run for a week entirely, from top to bottom, by the school children of Leeds. They produced the programmes, wrote and read the news, went out and did all the interviews. All this is possible. All that is needed is only a minimal amount of help and resources and somebody to make sure that from the beginning there is a commitment to it. This is why I believe that this is one of the factors which should be written into the requirements for local cable companies.
If local cable can be fully involved with the community in this way—and I have no doubt that in most cases it will be, because it will be an audience-inducing potential—I believe that we can greatly enhance the community life of this country. Therefore I support the amendment.
Lord Mottistone: I support the principle behind the amendment but I should like to add a caveat. I cannot support the motion to write in the amount of money which should be put forward by the cable operators. This has spoiled two good points, in particular the first. It must be appreciated that the cable operators will not make a profit for several years. They will not be producing programmes of any kind for themselves for several years. Not less than 1 per cent. of the gross annual turnover of the cable operator is a vast sum. It would be much better to put it in other terms, if it has to be put in at all. It flaws an otherwise good amendment. The amendment speaks of the extent to which the applicant will commit resources to the production of programmes of social interest. If they are going to commit resources, then they are going to commit resources; you do not have to tell them what resources to commit. For those reasons, I do not support the amendment, although I support the principle behind it.
Lord Mishcon: On behalf of my noble friends and myself, may I say that we completely support the spirit behind the amendment. Obviously we await what the noble Lord the Minister has to say about any difficulties that there may be, which it is hoped can be ironed out. However, we wholeheartedly support the spirit behind the amendment.
Lord Winstanley: Just so that the noble Lord can be aware of the strength of the forces ranged against him—if they are ranged against him, which is not yet known—may I indicate that I and my noble friends on these Benches fully support the amendment moved by the noble Baroness, Lady Faithful!, and the two very important points made in it. I agree with those noble Lords who have expressed some reservations about the detail. I do not disagree with the noble Lord, Lord Mottistone. It would perhaps be a mistake to insert one per cent., half a per cent. or any other kind of per

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cent. In general terms, however, my noble friends and I on these Benches are not wholly enamoured of the idea of imposing upon the authority all sorts of constraints and instructions as to precisely what they should take into consideration on this or any other matter. We believe, however, that the two particular points contained in the amendment are at the very heart of the whole purpose of cable. The noble Lord, Lord Howard of Henderskelfe, is entirely right. The old BBC regions were too big. The BBC is too national and the area which it covers is too large. This has resulted, in a way, in television not being used much for the purpose for which it is ideally suited—that is, an information service and a community service. With cable, we have something catering for the community; something which can give real opportunities to community organisations and which can provide a genuine information service in the locality. It would be tragic if the cable operators did not undertake responsibilities of this kind.
In supporting the amendment of the noble Baroness, and if something of this kind is incorporated into the Bill, I should point out that we are not placing any kind of onerous burden on the shoulders of the cable operators. It is my view that sensible and wise cable operators will wish to do this. They would find it acceptable, good for their programmes, cost-effective, and good for the whole enterprise that they are heading.
Do not let us imagine that we are placing some terrible burden on cable operators. We are merely encouraging them to do what I believe any enlightened cable operator would wish to do. I hope that the noble Lord will be able to respond favourably to this amendment.
Baroness Lockwood: Perhaps I might add one further point to the excellent points which have been made in favour of this amendment, which I certainly support. At an earlier point in the Committee, when we were talking about representation on the authority, I made the comment that we really needed someone who was involved in grass roots issues and who knew about the feelings and the needs of the local community. In replying to that discussion, the noble Lord the Minister stated that consumers had one excellent weapon in their hands; they did not have to take cable, and that the success of cable depended on how many subscribers there were—that people could always withdraw from subscribing if they were not satisfied.
The amendment gets us away from that concept of cable and takes us into an entirely new area, where cable television need not be just another commercial channel but can actually become part of the community itself. It is in that sense that I believe this amendment needs supporting. Whether or not we should go for 1 per cent. I do not know, but there is a need to have some resources available. The only resources which could be available would have to come from the television companies themselves, and like many other noble Lords and Baronesses who have spoken, I believe that this would be a very good investment on the part of the programme makers.
Baroness Carnegy of Lour: Before my noble friend the Minister replies, I may remind your Lordships that people are prepared to pay a great deal to belong to different clubs and societies in which they are involved for the purposes of different hobbies. This could become a very large proportion of the income of a cable authority. Some noble Lords have regretted that a suggested figure of 1 per cent. of gross turnover is in the amendment; but if it has succeeded in exploring the issue by being worded in that way, then it was worthwhile. In fact, there could be a lot of money in this for a cable authority, and there could be a lot of money forthcoming from inner cities and from great housing schemes. The money may well be there, but it will only be forthcoming if there exist attractive programme enterprises in which people want to be involved.
10.24 p.m.
Lord Elton: My noble friends have drawn together a formidable and very distinguished alliance—if I may use that term without causing confusion—in support of what is obviously an idea of very great interest, some originality, and great attraction. We are a nation in which the voluntary spirit is very strong. You have only to look at the latest edition of Social Trends to see how strong it is. We rightly reiterate how fortunate we are to live in a society in which kindness to others and charity are regarded as things which should be expressed by people with a personal concern and not by Governments or institutions.
My right honourable and learned friend was fortunate enough to receive a delegation from Concern on Cable the other day, the members of which were very interesting in telling him what the voluntary movement was already doing to inform cable companies of the role which they would like to play in the development of cable. This is an important subject, and during your Lordships' debate an interesting and rather more appealing image of cable has emerged than existed before. I think it was Lord Howard of Henderskelfe who first referred to it as being intimate, which is a new concept. It was a cold light winking in the basement at one stage, in the back of my mind, but now it has become something warm and rosy.
What the noble Baronesses and others propose is that companies shall be selected, among other things, on the extent to which the applicant for a licence produces programmes of social interest and concern to the local community. It then puts a requirement that that proportion of their turnover devoted to this should be not less than 1 per cent. Finally, it says that a further consideration is the extent to which people living locally are drawn into the production of programmes. Noble Lords and Baronesses have explained how this would be done, in a really quite fascinating debate, I thought.
I will pass over the question of the list because the noble Baroness, Lady Carnegy of Lour, was kind enough to make the point for me about our aversion to lists. I would turn, instead, first of all—and this is not a quibble—to the terms of what it is the amendment asks us to favour. I think I know what is meant. I do not think it is what is in the amendment, and I am not certain that it would be very easy to draft what is

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meant. A programme of social interest and concern to the local community might well be a programme on how to live with a handicap in the community, or it might be about the developments planned in the area which might affect the ecology, and so on. But in fact "a programme of social interest and concern" is a term which you can apply to "Dallas", I regret to say. It is in fact an absolutely all-embracing term. I am not saying this as a quibble, because I am sure a quibble would not be accepted and at this time of night I would not be brave enough to bring one forward.
Lord Winstanley: If the noble Lord would allow me to interrupt, if he refers to the text he will see that it says "of social interest and concern to the local community". Does he mean that "Dallas" is of interest to Dallas?
Lord Elton: If the noble Lord chooses to go to any local community he will find that "Dallas" is, I think, 16th on the list of popular viewings in the national hit-parade. I think it is "Coronation Street" which is at the top, and that is a programme of local interest and concern; it is full of social issues. If the characters in that programme conduct themselves towards each other in a way in which the voluntary agencies think is appropriate, I suppose they would favour this definition, and if they conduct themselves with cruelty and inhumanity perhaps they would not.
I will not go on with this because I am sure that on reflection your Lordships will see that there is a very important point here: that the amendment does have to say in much more specific terms what it is that this 1 per cent. is to be devoted to before it will have the effect that my noble friends and others wish.
My second comment is couched in terms grateful to my noble friend Lord Mottistone for bringing in a reference to the economics of this matter. If, as the noble Lord, Lord Howard of Henderskelfe, suggested, this is a profit-inducing idea or if, as my noble friend Lady Carnegy of Lour suggested, this is going to generate profit, it is something that the companies are likely to do anyway. But, as my noble friend Lord Mottistone said, it will be some considerable time before cable is into profit at all. Indeed, what worries most critics of our policy is that cable is not going to succeed because it will be so difficult to make a profit.
I am not a businessman, but it seems to me that one can have an enormous turnover and virtually no profit. This amendment requires a company with a turnover of £1 million to pump, I believe, £10,000 into this operation, but the company's total annual profit may be only £12,000. So my next anxiety about the proposals put forward by my noble friends and others is that the mathematics are wrong. If we favour anything like this at all, I should be very reluctant to see this sort of arithmetic. In fact, I am not sure that I want to see any arithmetic at all in what is proposed because, on the one hand, I should not want a company with a turnover of £20 million and no profit to have to put £250,000 in, and, secondly, I should not want anything in the Bill which amounted to a levy on a programme; if your Lordships object to the word "levy", I use it only because I do not like using the phrase in my draft which states that cable is a long-
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term high risk investment and it would, in the Government's view, be wrong that any part of its revenues should be mandatorily hypothecated for a specific purpose. I tried to avoid that phrase but I now have it on record so we all know what I mean.
Your Lordships will see that I am greatly attracted by the motivation and ideas of your Lordships and deeply impressed by the numbers of your Lordships who have rallied to the amendments of my noble friends and others. Sympathetic as I am to what is proposed—that local money should go to local good causes or general good causes with a local application; that I entirely applaud because I have campaigned for charities often enough myself—I have never felt entirely happy with the idea of compulsory charity.
The terms on which this amendment is drafted are seriously vague because they do not illustrate precisely what it is. I say this to my noble friends, or such of them as can follow me, that if what they want to happen could be spelled out in the precise terms that would be necessary to make it legislatable, we should be in a different position. However, at the moment they are using what I regard as dangerous mathematics to advance an imprecise cause. I must therefore ask them—with great regret, because I do sympathise with them—to think rather harder again.
Lord Mishcon: Can the noble Lord the Minister build on that sympathy which he has expressed and which we are all sure is sincere? I do not think that one should enter onto what I believe is called a pilpulistic argument—I am rather proud of that word—and deal with a very serious subject, as the noble Lord the Minister admits, in a rather narrow way.
We all know what we mean by matters of social interest and concern. The noble Baroness and those who support the amendment have certainly not used the words "popular interest and concern", which I should have thought would be the proper language to define what the noble Lord the Minister was talking about when he mentioned all the machinations of JR and Dallas. Indeed, I should have thought that at all times those activities would cause concern to all those who had any business, marital or commercial transactions with him. What is intended here is that the word "social" obviously means, to those of us who have caught the spirit of this amendment, matters of social need. It also covers matters of interest socially to the members of the local community. It is to be a local concern and of specifically local interest, although that interest may be shared by others.
I hope that the Minister will be able to do this. It would save the risk at Report stage of words that may be used by any of us in trying to put forward a helpful amendment to support the proposal of the noble Baroness which we may again be told do not properly define the provision in what the noble Lord the Minister called legislating language. The noble Lord knows perfectly well what we intend.
Let us for one moment take for granted the point of the noble Lord, Lord Mottistone. I have a lot of sympathy with what he says about not specifying a minimum or indeed any sort of contribution. Could the Minister undertake to look sympathetically at the idea and bring forward a Government amendment in

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order to see that this is one of the matters that the authority takes into account? That is all that the amendment means. It does not say, as the noble Lord the Minister implied, that anyone who does not put forward these proposals will not get a licence. It merely says that it is among the things that the authority should be concerned with and will take into account.
I hope that this matter will be dealt with rather more affirmatively. Otherwise, we could be lost at Report stage merely by the use of language. If the noble Lord the Minister, with all the advice he has at his command, could bring forward an appropriate amendment to deal with the spirit of this proposal but in language which his advisers feel is suitable, that would be a helpful outcome of this debate.
10.37 p.m.
Lord Airedale: I thought that the Minister made rather heavy weather of the drafting difficulties of expressing the amendment so as to be clear. I can well appreciate that he is right when he says that "Dallas" might well be of social interest to the local community. But if one put the word "local" at the beginning instead of at the end of the phrase, so that it read, "of local social interest", I do not think anybody could suppose that "Dallas" was of local social interest. I know that we cannot draft while we are sitting in Committee, but I put forward that suggestion.
Lord Winstanley: I join the noble Lord, Lord Mishcon, in asking the noble Lord the Minister to think again and in particular to give what assistance he can in his official capacity in drafting a more satisfactory amendment. I find it impossible to believe that the noble Lord did not understand the amendment. I know that it has certain defects.
Lord Elton: Perhaps the noble Lord would be kind enough to tell me, not in the exact terms, but in the length that one would expect in a subsection, what precisely he means. He will find it extremely difficult. I have not hit on a way to do it.
Lord Winstanley: I hope that the Minister will be able to hit on a way to do it, and perhaps a better way to do it. But I think we know what we want done.
Lord Elton: I apologise for intervening again. I mean that I cannot do it in conversational language. I am not addressing myself to the difficulty of drafting language. I know that the noble Lord, Lord Mishcon, has a crystal clear feeling in his heart that certain things are good and should be promoted in the locality; my noble friend Lord Mottistone has an equally clear view but one which is quite different. I do not doubt that the noble Baroness, Lady Carnegy of Lour, is similarly keen on different things. Somehow we have to find a criterion which fits all the views. Until that is done I cannot offer an amendment. That has to be done first.
Lord Winstanley: The noble Lord will be aware that the Independent Broadcasting Authority requires television programme contractors to include in their
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programmes a certain quota of local and regional material—and that quota is vastly more than 1 per cent.—and those contractors are not working in localities in the true sense that cable is.
I put the point to the noble Lord in the following way. If the cable authority turns out to be the kind of body which we are led to believe it will be, and it sees that one of the contractors to which it has given a licence to provide cable services fails to make proper use of local community activities, and fails to give proper information about the local community, including social trends and voluntary bodies, I would expect it at the end of the day to be extremely reluctant to renew the licence. If on that basis the authority is going to be reluctant to renew the licence at the end of the day, surely it ought to make that clear before the day starts.
Lord Elton: Perhaps for the sake of elucidation I may ask my noble friends whether by activities of local social interest—or the other way round, as the noble Lord put it—they mean local community activities; that is, activities which are going on in the local community? That is not the idea that I had. I thought that what were in mind were matters to do with Age Concern, the handicapped and so forth, which are quite different from matters to do with the local rugby club and the migration of the neighbourhood flora and fauna.
Baroness Faithfull: First, I should like to thank all noble Peers who have spoken to the amendment and my noble friend the Minister. There is no doubt that there is one matter on which we are all agreed—including my noble friend the Minister—and that is the spirit of the amendment. It is perfectly true that we are not agreed on the way that it has been presented, and for that I apologise to your Lordships' Committee.
I quite take on board the point of the noble Lord, Lord Mottistone, and as the noble Baroness, Lady Carnegy of Lour, said, putting in the 1 per cent. quota has at any rate focused everyone's attention on the point that money is required. I am also most grateful to the noble Lord, Lord Howard of Henderskelfe, for talking about the production of programmes. The interesting point was that he said that a minimal amount of help was necessary. It need not be a great deal of help, but some is necessary. I am also very grateful to the noble Lord, Lord Airedale. I think that we all know what we mean, but like the characters in Alice in Wonderland, we do not say what we mean, and this is the difficulty that we are all in at the moment.
Perhaps I may suggest that I withdraw the amendment and that, with all those noble Lords who have spoken in the debate, I consider how it can be redrafted. I am sure that my noble friend the Minister will permit me to discuss the redraft with him—or perhaps not, as the case may be; though I hope that it will be so. Bearing in mind that we are all behind the spirit of the amendment, I suggest that I again bring it forward at the next stage. Therefore at this point I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
10.43 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 31:
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)—

(a) to ascertain the opinions of the public; and

(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 Lord said: I shall again try to be brief. Members of your Lordships' Committee will see that in the Bill there is provision dealing with the drawing up of a code affecting advertising. Your Lordships will also see that in Clause 10 there is a provision for drawing up a code dealing with programmes other than advertising and emphasising in particular what ought to be excluded by way of violence and matters of that kind.
In none of those provisions is there anything which deals with a time limit; there is nothing which deals with consultations with the public before drawing up the code, though the public is very much interested in regard to any code on standards. There is nothing which relates to the provisions of Clause 6, with which we have just been dealing, in order to ensure that there is a code which is available to all applicants, indicating the minimum standards for the essential matters mentioned in the clause which must be adhered to before a licence can be granted.
If we do not have that code of practice, then, of course, we are in danger, especially where there is only one applicant for a licence, of standards dropping very badly and of that having an effect not only on the provisions of this Bill and the standards that we are trying to keep in it but also, indirectly, on independent television, and possibly television generally. By virtue of the way that standards might cheapen, obviously, the public may be tempted away from following television on ITA or BBC, with the result that those programmes, too, may deteriorate in standard.
In my submission we have a very important duty to carry out. We should definitely lay down the time in which the code should be brought forward and published. We should see that the public are consulted about it. We should see that licences are not granted unless the code has been published and unless the licensee abides by the standards that the authority has laid down. I beg to move.
Baroness Masham of Ilton: I have had a great worry from several people that there may be far too many cheap American films that encourage gangster behaviour in our communities. I should like to support the amendment.
Lord Elton: I cannot be quite as brief as that, I fear. The noble Lord, Lord Mishcon, is eloquent in the cause of the consumer. It is a cause in which we all sympathise with him. I should like to pause, however, to consider whether the means that he proposes for advancing that cause are entirely appropriate to our case. Clause 6, which immediately precedes the new clause, deals with the testing of applicants for licensing to see if they are fit to receive licences. That clause lists five matters to which the Cable Authority must give particular attention before it grants a licence, and I will not rehearse them. The amendment as drafted takes those matters for consideration and says that it is not enough only to consider them. Considering them will only sort out the good applicants from the bad. I suspect that it means some form of comparison and choice of the best, or, in some circumstances, no doubt, the choice of the least bad.
Noble Lords want to do better than that. They want to be certain that any applicant will offer services which in these respects are at least up to some specific satisfactory standard. Let that standard, therefore, be stated and, since this is a complicated affair and the authority has become expert in it, let the authority take a year to decide what those standards shall be and then publish them and try and alter them in the light of experience if the need should arise. That, according to the amendment, is the hurdle that every applicant should clear before he is accepted.
That seems very practical and effective at first sight, but it is on reflection that doubts begin to arise. As drafted, the amendment is not intended to act of itself as a regulator of what goes out over cable once a licence is granted although it could, of course, be so used by the authority. I take it, however, that the concern of the movers is specifically with the issue of a licence at the outset. The focus of the concern is those occasions when there may be a single applicant only for a licence. That is what I deduce. On those occasions we are to suppose that the machinery of Clause 6 is particularly unsuitable, or at least particularly inadequate.
If it was the case that Clause 6(1) read, in line 5, "In deciding to whom to grant a licence", or even if Clause 6(2) read, in line 9, "in deciding to whom to grant a licence", it would certainly be said that the process was designed to deal only with the competitive entry, because the assumption would have been that a licence had to go to someone willy-nilly. The only question then would be to decide to whom it should go. But the clause does not read like that. It reads:
"In deciding whether or to whom to grant a licence".
So does Clause 6(2). The question that the authority is required to answer therefore is not, "To whom shall we give a licence?" It is, "Shall we give a licence to anyone; and, if so, who is the best qualified?" That is surely the question that noble Lords opposite want the authority to be forced to ask itself. I begin to think that there may be common ground between us because the Bill does quite clearly provide that it is always open to the authority to refuse to grant a licence at all, whether there is one or a hundred applicants.
What then are the considerations the authority is required to have in mind when deciding to grant, or not to grant, a licence whether there be a hundred

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applicants, or, as may happen, only one? They are, first, all matters appearing to it to be relevant and, second, without prejudice to that in Clause 6(2), the five matters listed in 18 in particular. Those are exactly the five matters to which this amendment seeks to direct their special attention as well.
This means that the essential change embodied in subsection (1) of the amendment amounts only to requiring the authority after reflection publicly to declare the minimum that it will be prepared to accept under each of the five headings in Clause 6(2) of the Bill. We have no objection to the authority making public the grounds for the choices it makes if it so wishes and, as I indicated in reply to the noble Lord's persuasive speech on Amendment No. 25, I have already agreed to consider requiring it to make available the information which prospective licensees include in their applications.
Moreover, if the authority is, as the Bill requires it to do, to consider the refusal of licences even to single applicants, it must follow that the authority must on those occasions at least have actual minimum standards in its own mind when it makes the determination. Their nature will become clearer with the growth of experience and the publication of the authority's considerations, perhaps under something like Amendment No. 25.
It follows therefore that all that lies between the noble Lord and the Bill as drafted is whether the minimum should be codified and published not in advance of all applications but in advance of those made more than twelve months after the enactment. My own feeling and that of the Government is that, first, even with the powers of revision given in subsection (2) of the amendment, this may introduce an undesirable level of inflexibility into the authority's remit. We also believe that considerations will vary quite considerably from place to place and that there might arise from a universal code a choice for the authority between fixing a threshold that was too high for some places and one that was unduly low for others.
I regret therefore that we do not favour the noble Lord's interesting idea of requiring the authority to publish a code on the lines suggested in the amendment. We believe that the test which the authority should be required to apply in each case is the one contained in Clause 4(8), which is: how can the provision of cable services best be promoted?
The other provisions in the amendment are actually dependent on the major principle, so the noble Lord will forgive me if I do not address myself to them, because I hope that the principle will be conceded.
Lord Mishcon: I have listened with interest and great respect to what the noble and learned Lord has said. It is his language which made me introduce the word "learned". I wonder whether the noble Lord realises that this was not only protection for the consumer and for standards, but also a protection for intending applicants. It is not enough to say that the authority, when the applicant reads the Bill, has to take certain matters into account which are very essential matters. What would guide the applicant as
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to whether he ought apply, or not, and what may guide the applicant to decide whether he ought to run the gamut of competition which may, indeed, affect his prestige if he is a loser in the competition, is the minimum standards in regard to those matters mentioned in Clause 6, which are of vital importance if standards are to be kept up. If you have minimum standards there, the guidance to the applicant is: "Oh yes, I can meet those standards; indeed, I can improve upon them." I think, therefore, that this will be of value to the applicants and will save the authority's time because it may be saved applications which have no merit.
Dealing with the Minister's next point, which is that of a possible variation in areas, I am trying to think practically in regard to where there could be such a variation in areas which would not satisfy a minimum requirement, because the matters which are mentioned in Clause 6 are, of course, of vital consideration when dealing with the question of licences. One cannot believe that there is not a national or even a United Kingdom minimum standard in regard to those requirements.
Having said all that, let me say that this is not the appropriate time to test the view of the Committee. I have an idea that the Committee is not really terribly anxious to debate the matter at length at this hour. The Minister has very courteously said that he has appreciated some of the points behind the amendment although he has found difficulties. In those circumstances I hope to be able to give consideration again to this amendment and I hope that he, too, will be able to give some consideration to it between now and the Report stage to see whether he cannot be more helpful.
Lord Elton: I shall look forward to hearing what the noble Lord has to say if he returns to this matter at the next stage. I rose to my feet in self-defence to say that I did avoid the words "mandatorily hypothecated". If the noble Lord, in a speech after the one which used the word "pilpulistic", calls me a noble and learned Lord, he must be the Lord Chief Justice!
Lord Mishcon: If the noble Lord the Minister had used the words "mandatorily hypothecated," I should not have called him "learned"! I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Restrictions on the holding of licences]:
10.56 p.m.
Lady Saltoun Lady Saltoun moved Amendment No. 32:
Page 6, line 30, leave out from ("shall") to second ("that") and insert ("make sure")
The noble Lady said: With the leave of the Committee, I should like to move Amendment No. 32 and to speak to Amendments Nos. 33 and 34 at the same time:
Amendment No. 33: Page 7, line 11, leave out from ("shall") to second ("that") and insert ("make sure")
Amendment No. 34: Page 7, fine 22, leave out from ("shall") to second ("that") and insert ("make sure")
The object of these amendments is two-fold. The restrictions as to who may or may not hold a licence

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which this clause contains are, it seems to me, of paramount importance. The wording of the clause as it stands is not really quite strong enough. It says:
"do all that they can to secure",
which would appear to give the authority the loophole of being able to say, "Well, we did all that we could to secure and failed". Who is to be judge of whether they had in fact done all that they could? Failure in this duty cannot be acceptable, and must be out of the question since in this instance the ball lies in the authority's court and it is only a case of making adequate inquiries, and those inquiries would not, I should have thought, be very difficult to make.
I think and hope that the wording I am suggesting is stronger and, with very great respect, it is also better English. "Make sure" is normal good English. "Secure" means the same, but it is not normal usage. "Make sure" is rather like "begin", which is good Saxon derived English as opposed to the Latin derived equivalent, "commence", which is a horrible word. I beg to move.
Lord Airedale: This is the first of a very large number of clauses in the Bill, as the noble Baroness has indicated, all of which begin with these rather curious words:
"The Authority shall do all that they can to secure that".
I do not know whether those words have any precedent in the statutes; perhaps it does not matter very much whether they are precedented or not. But I should have thought that it went without saying that the authority would do their best to secure that the provisions of the Bill would be complied with. I should not have thought it needed spelling out in a large number of instances like this. If there is any doubt about it, surely it would be easy to insert early in the Bill a short clause which would say:
"The Authority shall do their best to secure that the provisions of this Act shall be complied with".
The other point I wish to make on this is that what is to be done or not to be done according to the clauses in this Bill is at the will of Parliament. It is the will of Parliament that something is or is not to be done. To say that the authority,
"shall do their best to secure it"
is surely a rather secondhand way of impressing upon people what the will of Parliament is.
Why put the burden upon the authority in all these cases? It is for applicants and other people interested upon reading the Bill to see clearly what is permitted and what is prohibited. They must take the proper trouble to find out for themselves whether what they are applying for is permitted by the Act. If one says in almost every instance that the burden is on the authority to secure that the Bill is complied with, one is encouraging people to chance their arm. If there is a case of some doubt, the applicant will be advised, "Do not bother about that, you put in the application. It is up to the authority to secure that the provisions of the Act are being carried out; you do not have to worry about that". Why put all this burden upon the authority? Why not state in the clauses of the Bill nakedly and boldly what the mischiefs are which have to be avoided and what matters have to be complied
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with, so that everybody knows what they have to look at to secure that the provisions are complied with, and do not put the whole burden upon the authority like this. I hope that the amendment of the noble Lady will find favour.
Lord Elton: I am not sure that the amendment would have the effect that the noble Lord wishes, but the noble Lady has picked up an anxiety voiced at the Second Reading stage by the noble Lord, Lord Howard of Henderskelfe. I think therefore that I ought to explain that the duties on the authority in the Bill can in fact be divided into two types. The first is where the objective is one which is clearly within the direct power of the authority to achieve. In these cases the duty on the authority is absolute already. For example, Clause 11(1) says that the authority "shall" draw up a code governing standards and practice in advertising.
The second type of duty is where the means of achieving the duty is not within the direct control of the authority. I hope that the noble Lady will also allow me to speak not only to Amendments Nos. 32, 33 and 34, but also to Amendments Nos. 39, 46, 50, 51, 54, 61, 72 and 78, which will curtail our proceedings later in the day and, indeed, the week. In these cases, which are the subject of the amendments I have quoted, the Bill requires the authority to "do all that they can" to secure the objective. To take an example, the authority could not be put under an absolute duty to secure that certain rules were kept in the area of programme standards because the authority themselves do not control the transmission of programmes. However, I can assure the noble Lady that the duty is much stronger than she fears; indeed, within the conventions of parliamentary drafting it is the strongest possible duty in the circumstances, and is precedented in the 1981 Act. The authority's obligation is to use all the means at their disposal to secure the various objectives. This means that they must insert appropriate conditions in licences, they must invoke the various sanctions available to them in the case of a breach, and, in the last resort, they must use their powers to revoke a licence.
I have to assure the noble Lady that the revised wording that she suggested in actual fact could be held to be less stringent than what is currently in the Bill. I hope that this will reassure the noble Lady, the noble Lord, Lord Howard of Henderskelfe, and the noble Lord, Lord Airedale, that the Cable Authority's duties in the Bill as presently drafted are not deficient.
I entirely share the view of many noble Lords, notably the noble and learned Lord, Lord Gardiner, that our laws ought to be expressed in simple English strictly interpreted. In this case I think that the language is simple, and strictly interpreted it perhaps means a little more than it does in everyday conversation. I understand absolutely why the noble Lady felt it prudent to table her impressive list of amendments. The phrase to which she takes exception is certainly one that lacks force in everyday conversation. But legislation has its own style, and, as we all know all too well, within it words take on a new and sometimes more vigorous meaning. The terms we now have in the Bill place an inescapable obligation on the authority. I hope that in the light of that assurance

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the noble Lady will not feel constrained to press her amendment.
Lady Saltoun: I am very glad to hear from the noble Lord that the wording in Clause 7 imposes an inescapable duty on the Cable Authority to do what I think we all want it to do. I am slightly surprised to hear that the noble Lord thinks that the same applies to Amendments Nos. 46, 46A, 50, 51, 54, 61, 72 and 78, because in the case of those amendments the authority's duty is quite clearly to do its best to see that the instructions are carried out in a situation where it is not absolutely empowered to see that they are carried out.
In the case of the amendments we are discussing, there can be no question that it is up to the authority and up to the authority alone to make sure that the instructions in the Bill are carried out. Therefore, I shall not press these amendments to a Division in view of what the noble Lord has said, but I hope that he will have another look at them to make quite sure that they will make it absolutely mandatory on the authority to see that those duties are carried out and that no excuses are accepted.
Amendment, by leave, withdrawn.
[Amendments Nos. 33 and 34 not moved.]
11.7 p.m.
Lord Mottistone Lord Mottistone moved Amendment No. 35:
Page 7, line 23, leave out from ("corporate") to ("does") in line 24.
The noble Lord said: With Amendment No. 35 I should like to take Amendments Nos. 36, 37 and 38.
Amendment No. 36: Page 7, line 27, leave out from ("of") to end of line 28 and insert ("any shareholdings in that body corporate has led, is leading or is likely to lead to a person or persons exercising material control or influence over the content of the programmes included in the diffusion service or over the terms and conditions upon which the diffusion service is provided to subscribers in circumstances adverse to the public interest.")
Amendment No. 37: Page 7, line 29, leave out subsection (4).
Amendment No. 38: Page 8, line 13, leave out subsection (6).
The key amendment is Amendment No. 37, which is the deletion of Clause 7(4), and consequential on this is Amendment No. 36, which is important. The other two amendments, Nos. 35 and 38, are consequential because they are not relevant when subsection (4) is removed.
At Second Reading my noble friend Lord De La Warr said how curious it was to choose those mentioned in subsection (4) as the people, above all other types of shareholder, who were presumed to be in danger of leading the company in performing in a way that would be adverse to the public interest. He went so far as to say that most of these groups are just the sort of people who should have at least a modest holding in a cable company because their experience could be so valuable. In fact, the trouble with subsection (4) is that it is an exhaustive list of the types of shareholding which the Cable Authority might regard as contrary to the public interest. However, I would suggest to your Lordships that there are other types of shareholding which might affect the public interest adversely.
Thus, for those two sets of reasons I seek to remove subsection (4), but it is important to put into subsection (3) a proper definition of what would be adverse to the public interest, which I think is the purpose that the Government were seeking to serve in the first place. And so Amendment No. 36 seeks to put wording into subsection (3) which I believe is a much more sensible way of describing what the Government are trying to achieve and does not cut out all the people who might be of assistance to the cable company in running its business. As I said, the other two amendments are consequential, and I beg to move.
Lord Glanusk: We have heard from my noble friend the Minister twice earlier this evening about the advisability of sticking to the generality and avoiding the specific. Here in this clause the Government are doing exactly that, trying to be specific and leaving out a very large number of possibly undesirable shareholders who by omission may be allowed in. Otherwise, I support the amendment.
Lord Elton: Both my noble friends and I accept that the authority needs to have the power to intervene in circumstances where the public interest may be at stake even though one of the bodies listed in subsections (1) and (2) of Clause 7 has not actually acquired overall control of the cable company. Where we differ is on the best way of formulating that power. My noble friends' view is that the Bill goes too wide: I hope I shall be able to persuade them otherwise.
It is certainly the case that the list of bodies in subsection (4) of this clause is a long one, and I take the noble Lord's point about my leaping from the general to the particular in an ungraceful way, but I hope he will bear with me. The list includes a wide range of organisations in the entertainment and media field as well as local authorities and religious or political bodies. As my noble friend has said, many cable companies are likely to have some shareholders who come into one or other of these categories; but under the Bill the existence of these shareholdings is no more than a statutory trigger for the consideration which the Cable Authority has to give of the implications for the public interest. If I may change metaphors again, it is an amber light to warn the authority that they need to look a little more closely to ensure that all is well.
I entirely accept that there may be some shareholdings which are so small as to be of no consequence. In that case the authority will not need to waste much time thinking about them. It is much more straightforward, however, for the authority to have the discretion to decide when it needs to delve a little more deeply than to try and build some necessarily arbitrary threshold into the statute. The amendment does not help us in that respect. It is not the existence of the shareholdings which may give rise to difficulty for the operator but results, actual or potential, which are contrary to the public interest. In some cases quite a small shareholding might be sufficient to produce adverse results; in others, a large one.
What are the sorts of developments which the Government believe the authority will need to guard against? First, the grant of a licence could lead to the

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establishment of an undesirable concentration of editorial control in a particular area. Clause 7(2) also deals with that to some extent but subsections (3) and (4) go a step further. Secondly, there could be unacceptable religious or political influence over a company's programming policy. This might happen well before any particular group secured overall control of the company. Thirdly, there might be undesirable anti-competitive practices between companies engaged in related activities. The arrangements for the purchase of programmes and recorded music and the system of selling advertising time could all be distorted in a manner contrary to the public interest as a result of corporate links between the licensee and others in the media and entertainment world. Some of these developments, such as political influence of programming, would also be caught by my noble friends' amendments but others would not.
I believe therefore that these subsections offer important safeguards for consumers while in no way imposing unreasonable burdens on the cable companies. The effect of the amendments would be modestly to weaken the safeguards; and, for that reason, I am unable to give them the enthusiastic support that I should like.
Lord Mottistone: I suggest to my noble friend that they would strengthen them and that the main points that he made are better answered by my Amendment No. 36 than by his existing subsection (4). I ask him to think again about this. It is much too late to go on arguing about it. But, quite honestly, if he reads the report of what he has just said against the arguments that we put forward for this change, he will find that our proposals satisfy what he is seeking to do better than the Bill does at the moment.
The particular points about religion and local authorities are taken care of anyhow in subsection (1), and the other items are all dealt with very fully by my Amendment No. 36, which gets to the heart of the matter; that is, the person who is likely to mislead and act against the public interest—and we define the matter. The wording may be open to improvement, but the approach we have taken deserves the Government's much more thorough look in order to achieve their own objective better.
Having said that, I shall watch carefully to see what my noble friend does. I may have to put down either this amendment or another. But at this stage, I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 38 not moved.]
Clause 7 agreed to.
Clause 8 agreed to.
Lord Denham: I beg to move that this House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at sixteen minutes past eleven o'clock.