§ 4 p.m.
§ House again in Committee on Schedule 1.
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.26
§ 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.
§ 4.20 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 50; Not-Contents, 119.31
|DIVISION NO. 1|
|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.|
|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.|
|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.|
|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.|
|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 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.
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 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.
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
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.
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. 43 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 44 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, 108.45
|DIVISION NO. 2|
|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.|
|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.|
|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.|
|Halsbury, E.||Penrhyn, L.|
|Harmar-Nicholls, L.||Peyton of Yeovil, L.|
|Hayter, L.||Plummer of St. Marylebone, 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.|
|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 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 moved Amendments Nos. 9 to 13:
§ [Printed above.]
§ On Question, amendments agreed to.
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".
§ 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 49 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 50 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 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.
51 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.
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 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 52 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.
§ 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 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 53 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.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Power to license services]:
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.54
§ 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 55 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.
§ On Question, amendment agreed to.
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 56 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 57 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 58 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 59 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 60 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 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 61 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 62 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. 63 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.
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 64 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 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 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 65 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 66 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. 67 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 69 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 70 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 71 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 72 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.