§ 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 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 12 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 13 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.
14 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. 15 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 16 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.
§ Amendment, by leave, withdrawn.
§ 3.27 p.m.
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 17 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 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 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.18
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 19 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 21 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.