Cable and Broadcasting Bill [H.L.]

HL Deb 26 January 1984 vol 447 cc394-440

House again in Committee on Clause 11.

Lord Mishcon moved Amendment No. 49:

Page 10, line 15, after ("up") insert ("and publicise prior to the grant of any licences")

The noble Lord said: Your Lordships will remember a discussion that took place on an earlier amendment when the answer of the noble Lord the Minister was that Clause 11 was there in order to see that advertising standards were set down in a code and would be adhered to. I said then that that was all very well but if one looked at the Clause 11—and I obviously reserved all my arguments until we reached it—one found that there was no proper protection. First, there was no obligation to publicise the code, and secondly there was no time limit at all within which the code had to be prepared, with the result that there could be licences granted, and indeed licences operated, prior to the code coming into existence, and there could be advertising which did not accord with any sort of standards at all because none had been laid down.

In those circumstances and to cover the position the noble Lord the Minister himself outlined as the protection, I now bring forward the words of this amendment, which call for the code to be published and also say that this shall be done prior to the grant of any licence. When I deal with the words "grant of any licences", I should briefly say that the noble Lord indicated to us earlier in the Committee proceedings that the operation of the licence was to date from the time of the programmes being started by the cable operating companies and not from the time when, of course, cable might have to be laid down. Therefore, there is no question of this amendment meaning that the code has to be published before any licence is granted to enable the cable to be laid down where necessary. This is to operate prior to the licence being operated by the cable operator. That is the reasoning behind this amendment. I beg to move.

Baroness Trumpington

I am most grateful to the noble Lord, Lord Mishcon, for giving us the opportunity to discuss the way in which the Cable Authority should publish their advertising code, and for the brief conversation I had with him before he actually did so. There are, however, reasons which I believe to be sound why the amendment should not be made.

The process of drawing up a code governing advertising standards and practice will quite properly take a certain amount of time. The Government have made it clear that the Cable Authority's code should share a common core with the IBA's advertising code, although at some points there will be scope for divergence, given the distinct nature of the different media. The authority must, therefore, consult the IBA before drawing up their code. Equally the Home Secretary must be consulted, and I am sure that the authority will wish to consult other bodies with an interest in the field of advertising. In the meantime—and this is of particular relevance to the existing licences which the Cable Authority will take over from the Home Secretary—they may decide to rely largely on the IBA's code.

While I accept that consumers and applicants alike should know from as early a stage as possible what the new code is to contain, I do not believe that it is necessary or desirable to require the authority to delay work on inviting applications and granting licences until the code has been adopted and promulgated. Incidentally, moreover, the amendment as drafted could be held to mean that each time they granted a licence the authority would be obliged to publicise the code. It would, I think, be better to leave the authority itself to determine in the light of all the circumstances the best arrangements for the timely publication of their advertising code.

Lord Mishcon

Before the noble Baroness concludes—I am sure we have all listened with respect, as we always do, to what she has said—can she find some provision in this clause—and if a slight interval of time is required to answer this I shall well understand—or in the Bill which makes the authority publish other than the word "to draw up", which, of course, is not the same as "to publicise". That is quite apart from the point about this being done prior to the grant of any licences. Can she explain under what code of advertising the licensees will operate before this code is publicised?

Baroness Trumpington

So far as the question of timing is concerned, the Bill places an obligation on the authority to draw up a code, so the authority will be under a duty to do so; that is, as soon as the Bill comes into force. On the question of publication, the authority will have to make the code generally available so that licensees can comply with it. It is relevant that there is no obligation on the IBA to publish its code. I hope that answers the noble Lord.

Lord Mishcon

I do not want to press the noble Baroness unduly or waste the time of the Committee; but I am not quite sure I understand why there should be a duty to publicise implied in an Act when the Act does not specifically say that it should be publicised. Secondly, would the noble Baroness not agree that it is a little unrealistic to ask for applicants to apply without their knowing by what code they are bound?

Lord Mottistone

May I perhaps put a gloss on this which may be helpful? If the noble Lord, Lord Mishcon, remembers, in an earlier amendment we pressed to have a longer period of getting going and my noble friend on the Front Bench said that the date from which the licence would operate was when people were ready to go, which allowed about three years for the laying of the cables. That will give lots of time for the Cable Authority to get working on its code; there is about three years before D-Day, before anything happens.

As to making it public, surely from the point of view of the authority anybody who is going to want to advertise will want to know what the rules are having read this, even without it saying that it has to be publicised. Not all advertisers are children; they are going to come asking. Why should we put in "publicise" when people are going to want to know what the code is in any case. There is lots of time for the code to appear. I do think the noble Lord is labouring a very small point which, with the greatest respect, in practical terms is not important.

Lord Mishcon

If the noble Lord, Lord Mottistone, had finished his dinner earlier, he would have heard me refer specifically to the fact that the noble Lord the Minister had earlier indicated from what date the licence was to operate. I used almost the precise words, if not in such elegant language, as the noble Lord, Lord Mottistone, did when describing what the Minister had said. We are dealing with an Act of Parliament and all this talk about, "Well, surely they will publicise and it is only reasonable to assume that they will, but do not let us worry about putting this in a Bill" is not complying with the duty of a legislative body such as ours.

Baroness Trumpington

I am very grateful for what my noble friend said, and as a further answer to the noble Lord, Lord Mishcon, may I say, as I said originally, that until the code is available the Cable Authority may wish to apply the IBA code. The Home Office has required interim licensees to do so. Some of the services already being offered now are on existing systems. One cannot comply with a code until it is actually set up.

Lord Mishcon

I shall keep my promise and not make further speeches on this matter. The noble Baroness has again said that it is hoped that the licensees will be required to comply with the IBA code. There is nothing in the Bill that says so, but I do not think that at this time it is an appropriate issue on which to ask the opinion of the Committee. The noble Baroness will undoubtedly have in mind what has been said, and perhaps as a result one single concession may be made by the Front Bench. I am thinking in terms of the unpopularity of one Boycott, only because he presented a straight bat for so long, to his own team's annoyance. I am hoping that that annoyance will now go to the rest of the team of the Minister and the noble Baroness so that they will also be annoyed at the straight bat blocking of every ball that is bowled.

Baroness Trumpington

The noble Lord has obviously forgotten the second amendment to which my noble friend Lord Elton gave in willingly and with great graciousness.

Lord Mishcon

In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 and 51 not moved.]

8.12 p.m.

Lord Mishcon moved Amendment No. 52:

Page 10, line 24, leave out from second ("that") to ("no") in line 26.

The noble Lord said: I have now seen an explanation that the order of the Secretary of the State would have to come for affirmative approbation of Parliament. I had not realised that when I tabled this amendment. If the noble Baroness will kindly confirm my understanding of the position I shall speedily withdraw the amendment. I beg to move.

Baroness Trumpington

It is with pleasure that I say, "Hooray, hooray". I confirm exactly what the noble Lord, Lord Mishcon, said, and I await his pleasure.

Lord Mishcon

In those circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Earl Cathcart)

In calling Amendment No. 53 I should tell your Lordships that if it is agreed I cannot call Amendments Nos. 54 to 57.

Earl De La Warr moved Amendment No. 53:

Page 10, line 32, leave out subsection (3).

The noble Earl said: In inviting your Lordships to agree to withdraw subsection (3) I must say that it seems to me, and not for the first time in this debate, that there is too much attempt to regulate the cable industry on the basis of what is being done by the IBA. Therefore, this discussion, in its principle, will impinge on what we have talked about earlier this evening.

Subsection (3) states that the authority must ensure that no more advertising time must be allowed on a cable service which consists of many channels than is allowed on any one ITV channel. That is my paraphrase of the subsection and the Minister will no doubt tell me what he thinks of that. What sort of guidance is that? It does not take into account the multi-channel nature of the cable services. It does not take account of classified advertisements or sponsored programmes, of advertising magazines or even cable shopping. In fact, so far as I can tell, it gives no practical guidance to either the authority or the operator, and that is why I have moved to delete it altogether.

Of course, we must make sure—and I would be the first to agree—that programmes are not stuffed overflowing with advertisements; but I believe that this is certainly a subject that should be left to the authority to determine. I beg to move.

Lord Ardwick

Surely it does say precisely that: that only those programmes which are analogous to those on ITA should be subject to this limitation.

Earl De La Warr

My trouble is that I do not know how to define that and we do not get the guidance to do so.

Lord Glanusk

Can the Minister tell us what: such exceptions as may be agreed between the Authority and the IBA will be? That is what makes it unclear in my opinion.

Lord Elton

I may find myself responding to this amendment at slightly greater length than I had intended. The report of the inquiry chaired by the noble Lord, Lord Hunt of Tanworth, recommended against setting down defined limits on the amount of cable advertising at the outset but stressed the need for a flexible approach. It suggested that this was an area where, after some years of experience, it could become necessary to impose restrictions. The ITV and ILR companies argued strongly, however, that while they accepted that cable would break their present monopoly over the sale of television and radio advertising time, it would be inequitable if they were restricted as to the number of minutes per hour which they could sell while cable channels, which could be offering a very similar range of programmes, were unrestricted. The IBA endorsed the view of the companies.

Against this background the Government recognised that there was something of a dilemma because while, on the one hand, it was clearly right that in many respects cable should have more freedom than public service broadcasting, on the other it seemed difficult, on an issue so central to the finances of the companies concerned, to maintain a ceiling for advertising on independent broadcasting while allowing cable to do as it liked. One way out, in theory, would have been to remove the restrictions from independent broadcasting but the Government took the view that that would be a mistake. The quality of independent television is what it is because the volume of advertisements is not allowed to spoil the programmes. If the amount of advertising on ITV is greatly increased it would change the whole character of the commercial sector of public service broadcasting. Most people would perceive it as a change for the worse.

As a result, the Government opted for a middle course. Paragraph 97 of the White Paper proposed that on cable channels providing services which were broadly comparable to those of independent broadcasting the same maxima should apply for cable advertising as those permitted by the IBA. In all other circumstances cable could carry as much advertising as it thought the market would bear. The White Paper envisaged that the two authorities would need to consult together about the channels to which the limit should apply. Before the Summer Recess the White Paper was debated in this House and another place and I think that the Government's approach on this difficult issue commanded a wide measure of support. There were some who were rather inclined to the view of the cable industry that any limit was unnecessary but, with all respect to my noble friend Lord De La Warr, I think that was not a majority view.

It was suggested on Second Reading, however, that Clause 11(3) marked a shift away from what was proposed in the White Paper. I should like to make it quite clear that that is not the case. The Government accept that cable will offer opportunities for new kinds of channels as well as new kinds of advertising. There is no reason why the amounts of advertising should be restricted in those cases. In the process of translating White Paper prose into statutory language, however, it is often necessary to convey the same thought and achieve the same end in rather different phrases. There were at least two reasons why we could not follow the White Paper wording in the Bill. First, the concept of a cable channel is not one which features in Part I of the Bill because the phrase "cable programme service" is used for the totality of the service provided by a particular operator rather than its constituent channels. Secondly, the idea of services similar or broadly comparable to ITV does not readily accord with the rather more precise formulation necessary in legislation. Consequently, the approach which we have adopted is to state a general principle and then allow for expectation to be made either by agreement between the Cable Authority and the IBA or, in default of agreement, as the Home Seretary may determine.

The effect of this will we intend be exactly the same as the White Paper proposed. The two authorities will in the first instance have to discuss whether they can agree the circumstances in which cable services should not be subject to the same limits as ITV. Where they agree, cable companies will be able to take as much advertising as they wish, because the Bill gives the Cable Authority no general power to limit cable advertising. That is an important point, because it means that where ITV limits do not apply there will be no restrictions. I hope that my noble friend Lord De La Warr will welcome that clarification at least. To continue, where the two authorities do not agree, the Home Secretary will have to resolve the matter. We hope that there will not be many cases which are referred to him, but there is no question of the IBA having a veto. My right honourable and learned friend will of course decide each matter on its merits. What I can assure the Committee is that he has no intention of exercising his power to produce a result which would be any more restrictive than was envisaged by the White Paper.

I recognise that some of my noble friends oppose the principle of limiting the amount of advertising on any cable channels. For the reasons given, the Government do not share that view and would wish to resist the amendment if my noble friends were minded to pursue it further. I hope that what I have set out at rather great length suffices to reassure my noble friends that we are on the same lines as we were before and that there is no overriding power on the part of the IBA. I cannot give a precise definition of instances where there might be channels which are not comparable, but my noble friends will have examples in mind. If there are borderline cases which cannot be decided between the authorities, they can be decided by my right honourable and learned friend, who has, I think, roughly the same general philosophy of life as most reasonable people.

Earl De La Warr

The very fact that the amendment proposed to take the subsection out altogether should indicate that it was in the nature of a probing amendment. I am more than satisfied with my noble friend's explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]

Lord Mishcon moved Amendment No. 55;

Page 10, line 35, after ("State") insert ("(a)").

The noble Lord said: With this amendment, may we discuss Amendment No. 57? Amendment No. 57: Page 10, line 39, at end insert— (" and (b) there shall be a clear separation between advertisements and programmes."). As your Lordships will see, the purport of Amendment No. 57 is that there shall be a clear separation between advertisements and programmes. Your Lordships may well think that that is necessary by virtue of the fact that, if the advertisements are mixed with the programmes, not only are the programmes ruined—and I am sure that will be a thought in the minds of the cable companies—but it is terribly misleading and unfortunate for the viewers, and sets a terrifically low standard, quite apart from being unfair competition, although the noble Lord, Lord Mottistone, would most likely not accept my reasoning on that basis. I beg to move.

Lord Airedale

I think there is another aspect to this matter. It is not only a matter of the close conjunction of advertising with programme matter: there is the circumstance with which newspapers, and particularly local newspapers, are concerned. One gets an advertisement for some product and then one gets an article, which appers to be perfectly independent, describing the great merits of this thing which is being advertised, probably on the next page of the magazine. By the same token, one wants protection against television personalities slipping in recommendations about products, which products are about to be or have been advertised. I think that is a point which requires consideration.

Earl De La Warr

I wonder what the noble Lord, Lord Mishcon, has in mind about advertising magazines, as they are known.

Lord Mishcon

In a case of that kind, it is clearly a question of advertising alone. In those circumstances, no confusion is caused.

Lord Elton

We accept that cable could create opportunities for developments in forms of advertising which, although not appropriate within the framework of independent broadcasting, where there are as yet only two television channels, are entirely acceptable in themselves. I think that that is what my noble friend Lord De La Warr has in mind. Shopping magazines, recruitment advertising and sponsored programmes are all possibilities which we do not wish to rule out. Certainly there must be safeguards, but the effect of this amendment would be to make it very difficult for any of these developments to happen at all. If it is a probing amendment, I apologise for resisting it on those grounds. But it would be contrary to the flexible approach which was recommended by the inquiry chaired by the noble Lord, Lord Hunt of Tanworth, and which has been endorsed by the Government.

There are two assurances which I wish to offer the noble Lord. I think that this may be what he is after. First, the Government accept the principle laid down by the Hunt Report that sponsorship should be permitted on condition that there are certain clearly defined rules. Those rules would include in particular the separation of advertisements from editorial matter. That is not the same as a separation of advertisements from programmes; it is in fact a concept which it is not really possible to encapsulate in statutory language. Rules will need to be carefully drawn and no doubt revised from time to time in the light of experience. For that reason, they are much more suited to a code than to legislation; but we have clearly signalled to the authority that sponsorship is one of the areas to which it will have to address its mind. We have done that by referring to sponsorship specifically in Clause 11(1)(a). Moreover, the authority will have to consult the Home Secretary about its rules on advertising, and under Clause 11(4)(b) he will have the power to give directions about the classes and descriptions of advertisements and methods of advertising which may not be employed.

There is one other assurance that I can give, and that is that the Government accept, as I believe do all people concerned with advertising, that all advertisements should be clearly recognisable as such. That is a principle which applies across the whole field of advertising and certainly extends to any elements of sponsorship in programmes. People should always be aware whether what they are watching is designed to promote the cause of a particular commercial interest. This is something which the Cable Authority will need to ensure through the detailed rules which it draws up in its code, and my right honourable friend the Home Secretary will take a close interest in this particular aspect also when he is consulted by the authority under Clause 11(4).

Lord Mishcon

Our amendment has produced two very valuable assurances. I am extremely grateful to the noble Lord the Minister. If I went on with any speech on the amendment, the assurances may be withdrawn. I hastily accept them and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Lord Mishcon moved Amendment No. 56:

Page 10, line 39, at end insert ("and the Authority shall further do all that they can to secure that there is a proper and fair presentation of advertising rate cards,").

The noble Lord said: I hope that this amendment is sufficiently clear for it not to be necessary for me to make a speech. The amendment merely seeks to have advertising rates properly shown, so that everybody may know what cable companies are charging in the way of advertising rates, so that fair trading will obviously ensue. I beg to move.

Lord Elton

I shall try to be as brief as was the noble Lord, but the matter is not quite so simple as that. Advertising time on cable is likely to be sold in a variety of ways; and it is, I think, a mistake to try—as I fancy may be the intention behind the amendment—to draw too close a parallel with independent broadcasting in this respect. The existing ITV companies have a local monopoly of selling advertising time. With cable, though there may be only one operator, there may be many channels carrying advertising, and in each case the advertising may be sold in a different way. With a local channel, the operator may himself be responsible; with a national channel, it may be the national programme provider who will sell the advertising time and receive the revenue; with others, there may be a mixture of national and local advertising. The Cable Authority's direct control extends only to its licensees, and there would be difficulties in providing for the authority to have a locus in the transaction between third parties, such as the programme provider and the advertiser, even if there were a real problem here to be tackled.

That sounds a little dismissive; but I hope that, if the noble Lord reflects on what I have said, he will realise that the requirement is not one that can be expressed exactly as simply as he has proposed to do, because very often it is not a question of comparing like with like on the same service.

Lord Mishcon

I wonder whether between now and the Report stage the noble Lord the Minister will be prepared to consider that the amendment very carefully reproduces the words which really mean "use best efforts". in that the authority is required merely to do all that it can to secure what is referred to. The amendment does not say that in each and every case there must be a presentation of advertising rate cards. It states merely that there should be a proper and fair presentation. Where it would not be proper by virtue of the difficulties which the noble Lord has mentioned, no such duty is placed on the authority. Where it would be perfectly fair not to have a presentation in the way that the amendment proposes, again there is no duty on the authority. However, as there has been an exchange of views, which is a useful function during a Committee stage——

Lord Elton

I wonder whether the noble Lord will allow me to intervene. I think I detect that he is most helpfully and courteously about to withdraw his amendment, and perhaps he will allow me to say that it may be that I did not quite clearly enough direct his attention to the difficulty. It seems to me that the difficulty is not merely in regard to not comparing like with like. The noble Lord seeks to impose a requirement that something shall happen between second and third parties over which the authority has no control. If there is a requirement that rate cards shall be shown in a particular form, or should be up to a particular standard, or whatever, that will bear upon a whole variety of people over many of whom the authority will not have jurisdiction. Of course, I shall look extremely carefully at what the noble Lord has said, as no doubt he will look at what I have said, and thus we can both perhaps withdraw from our present positions.

Lord Mishcon

Indeed, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

Earl De La Warr moved Amendment No. 58:

Page 11, line 20, leave out ("and").

The noble Earl said: Under Clause 11(5), the Broadcasting Act 1981 is amended so that the authority shall have access to the general advisory council set up under the 1981 Act. The authority will be able to make use of its advice on such matters as misleading advertisements and the principles to be followed in making judgments about advertisements generally. I believe that it is a good idea for the authority to have this access, but I suggest that, if it is to have such access, it will be wise for the advisory council to have its terms of reference widened so as to be able to offer advice about all forms of advertising appearing on cable that do not—because they are not allowed to—appear on ITV channels. So the amendment does not seek to qualify in any way, but simply to extend the scope of the amendment to the 1981 Act, so as to allow the council to give the authority the full range of advice to which the authority is certainly entitled. I beg to move.

Baroness Trumpington

I wonder whether my noble friend Lord De La Warr will be so kind as to take his next amendment at the same time as this amendment, because the two amendments go together, and it would be much easier if we were——

Earl De La Warr

I am so sorry; I should have said that, in moving Amendment No. 58, I wished to speak also to Amendment No. 59.

Amendment No. 59: Page 11, line 26, at end insert— (" ; and ( ) the reference to the giving of advice to the Authority in paragraph (b) of subsection (2) of section 16 of the 1981 Act included advice as to the sponsorship of programmes included in cable programme services, the provision of classified advertisements and other services and facilities for advertising on cable programme services.").

Baroness Trumpington

My noble friend Lord De La Warr has emphasised the importance of ensuring that cable advertising is not forced to conform to the independent broadcasting mould. I can assure him that the Government accept that there will be forms of advertising on cable which have not been appropriate within the confines of public service broadcasting. That does not mean a lowering of standards. It is simply a recognition of the fact that, where there is an abundance of channels, new approaches can be tried. Cable will not be confined to spot advertising. There may be longer advertising features. There will be a place for sponsorship, subject to certain safeguards, and we have recognised that by making a specific mention of sponsorship in Clause 11(1)(a). There may also be classified advertisements, though if they do not involve sounds or moving pictures, they will not be subject to Cable Authority licensing, so the advertising code will not apply.

Having said that, I am satisfied that the Bill already achieves what my noble friend is seeking. Under Clause 11(5), as it stands, the joint advisory committee's task will be to advise the two authorities on their respective codes. The committees will need to take account of the ways in which the two media differ, as well as the ways in which they are similar.

The amendment is not satisfactorily drafted, I am afraid to say, and is not in any case necessary because the Bill already does all that my noble friend wants it to do. I hope therefore that, in the light of what I have said, he will feel able to withdraw it.

Earl De La Warr

This is not a very important question. I shall accept the point made by my noble friend that, in view of what is earlier stated in Clause 11, the powers of the advisory council are already sufficient. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Clause 11 agreed to.

Clause 12 [Inclusion of certain broadcasts]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

In calling Amendment No. 60, perhaps I may add for the information of the Committee that, if this amendment is agreed to, it will not be possible for me to call Amendments Nos. 61 or 62.

Lord Howard of Henderskelfe moved Amendment No. 60:

Page 11, line 35, leave out subsection (1) and insert— ("(1) It shall be a condition of every licence granted by the Cable Authority for a diffusion service provided by any person in any area that, subject to any exceptions for which the Secretary of State after consultation with the Authority and the broadcasting authorities may by order made by statutory instrument provide, the service shall include, by the reception and immediate re-transmission of the broadcasts, the programmes included in each broadcasting service provided by a broadcasting authority for reception in that area without any matter being added to or deleted from those programmes. ( ) An order made under this section shall be made by statutory instrument; but no such order shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: We now come to the "must carry" rule. I want to avoid any of the arguments which have taken place at some length in this Chamber on the question of whether the phrase "do all that it can" is weak or strong. In the amendment that I have put down I have endeavoured to avoid any such arguments by stating that it must be a condition of the licence that the "must carry" rule must be written into it. If the phrase "all that it can" is a weakness, pressure can be brought to bear, if there is only one particular applicant for a certain area, by saying that if they must carry, they will be in great financial difficulties. On the other hand, the same result can be achieved, if we take the strong meaning of the phrase "all that it can", by writing the "must carry" condition into the licence itself.

The Secretary of State should have to consult with the broadcasting authorities as well as the cable authorities before making any exception to the "must carry" rule. We also suggest that every broadcasting service provided by the broadcasting authority should be carried and not just television and sound services. This is really reverting to what I talked about on the last occasion that we discussed the Bill in Committee. Teletext could perhaps be included as being a television service. We could also include under "must carry" things such as downloading of computer programs and other data services broadcast for general reception.

We also include the words "broadcasting service" instead of television or sound broadcasting services as proposed in the Bill. It may be worth noting, because some of your Lordships may not know, that computer programs are now being transmitted on sound radio as well as by teletext. A series of 10 weekly programmes called "Chip Shop" began on 14th January. Associated with each is a short three-minute sequence of software being broadcast four nights a week immediately after the midnight shipping forecast. It is carried on various wave lengths. The radiated code—this is where I am talking about new forms of service that were not perhaps thought of when the Bill was drafted—is in the form of sinusoidal tones with frequencies of 1,200 to 2,400 Hz. That is why those words are included in this portion.

We also suggest that no material shall be added to, or deleted from, the programme under the "must carry" rule. I am perhaps being super-cautious but it occurred to me that where you refer to a programme, there might be some doubt about what a programme consists of. What about the gaps between programmes, in other words, those bits where ITV is apt to put in advertisements, and the BBC new trailers for its programmes—incessantly for something like the "Thorn Birds"? We do not believe that there should be an opportunity for the cable programmer, whoever he may be, whether the chap making up the programmes as a whole or the chap sending it over the wire to substitute his own message for that portion. In other words, the continuous programme should be carried continuously.

There are occasions when exceptions can be made by the Secretary of State. I believe that these should be laid before Parliament for affirmative resolution before being made. I have developed the arguments previously. I think that they are even stronger here. There should be very few exceptions. The Secretary of State or a Minister should be required to come to this House or the Lower House and tell that House why he believes that exceptions should be made. After all, we are dealing with an important exception that could be of considerable financial benefit to the cable company concerned. I see no reason why they should not come entirely clean on this subject.

Lord Elton

The noble Lord, Lord Howard of Henderskelfe, has proposed a rewriting of Clause 12(1) in the hope that it would meet some of the concerns of the broadcasters about the effectiveness of the "must carry" rule among other things. I must start by emphasising that the Government also attach great importance to that rule. Both the Hunt Report and the White Paper saw it as an important safeguard for our system of public service broadcasting. Everyone who is on cable should have access to the same range of services which anyone can currently receive with an individual aerial. In addition we believe that once DBS begins cable should be required to make that service available to those of its customers who wish to take it.

The noble Lord's amendment would make a number of adjustments to the present Bill. I feel that I must go through these in turn. I am afraid that I cannot acquiesce in all of them, but the noble Lord may find that I can offer him some encouragement on a couple of points. He should not look so pleased or delighted until he has heard the dimensions.

First, the amendment would require the authority to include a specified condition in each of its licences rather than to do all that it can to secure a particular objective. We have discussed the "do all that it can duty" on a previous amendment and noble Lords have heard arguments on both sides. If, in this Bill, we were to attempt to spell out precise conditions which the authority had to include in the licences, we would risk actually weakening the authority's powers because it would have to write into each licence the exact words used in the legislation.

The approach which we have adopted means that the authority must use all its powers and insert all such licence conditions as appear appropriate to enable it to fulfil its statutory duty. These may well include and, in fact, almost certainly will include at some time conditions which we cannot from our standpoint in time see as being appropriate at all.

Second, the amendment would require the exceptions order to be subject to the affirmative resolution procedure. This seems to the Government to be somewhat cumbersome. It is certainly not our intention to use this power to undermine the general application of the "must carry" rule. I can give the noble Lord a firm assurance on that point. But there clearly has to be some sort of safety valve to deal with particular sets of circumstances. Clause 12(1) is not confined just to prescribed diffusion services, in other words, those provided over wideband systems. It applies to all diffusion services. So, for example, the existing cable operators who are being allowed to offer new services over their narrowband systems and provide individual aerials for the reception of the broadcast channels will need to be covered by an order under Clause 12(1). Otherwise, once the Bill reached the statute book, the authority would have no option but to reimpose the "must carry" obligation. Another example concerns radio. Clause 12(1) requires cable operators to relay all BBC and IBA radio services intended for their area but there will inevitably be circumstances in which this is not appropriate, for example, where the system is an old-fashioned one with limited capacity or where the broadcaster is providing split networking on VHF and LF or MF. Without departing from the principle of must carry we may find that there are many small instances where some limited exception is necessary and everyone agrees it is sensible. To require a parliamentary procedure in each case would be very cumbersome and expensive. Having said those hostile but not unfriendly words, I am glad to say that I can at least meet the noble Lord on the question of consultation. Clause 12(1) requires the Secretary of State to consult the Cable Authority before making an order and the Government are prepared to bring forward on Report an amendment to ensure that the broadcasting authorities are included in the consultation process. I hope that the noble Lord will regard that as deserving of gratitude or at least his appreciation.

Finally the noble Lord's amendment makes it clear that the operator must not add anything to or delete anything from the programmes. If the noble Lord is thinking of the possibility that an operator might break into BBC1 and BBC2 by inserting his own advertisements, I think that the Cable Authority can be relied on to prevent that. But on the wider question of ensuring that the operator does not subtract the teletext signals or any computer programs which are intended for general reception as a radiating code or otherwise (I am picking up a great deal of useful technical jargon as I go along), I am glad to repeat the assurance I gave on Monday. It is certainly the Government's intention that he ought not to be able to do that and we shall look further at the drafting to make sure we have got it right. I hope that with those two crumbs of comfort the noble Lord will be content.

Lord Glanusk

Did I understand the Deputy Chairman correctly? Did he say that if this amendment is passed we cannot take 61 and 62?

The Deputy Chairman of Committees

That is correct.

Lord Glanusk

May I possibly speak on Amendment No. 62 now?

Lord Elton

If I may counsel there, I think I detected that the noble Lord, Lord Howard, was hesitating on the brink of withdrawal. If I am wrong, the noble Lord will of course have to leap into action, but I hope he was deciding prematurely.

Lord Howard of Henderskelfe

Perhaps I can save the time of this Committee by saying that I do not intend to press these amendments. If I said they were a bit crumby I might be thought to be speaking in derogatory terms, but the noble Lord the Minister himself used the term "crumbs".

I still believe that this should be a part of the licence. I understand why the noble Lord the Minister is opposing it. I also accept that, in the debates that we have had so far, which, of course, have taken place since one originally put down the amendments, the number of assurances which we have had on the question of how the Cable Authority is going to do its job fill several pages of Hansard. We hope we can rely on those assurances in the future, and that in fact this is not a weak duty laid upon the authority but a very strong duty indeed.

Similarly, I can see that we do not wish to take up too much of the time of the Committee by insisting on any exceptions going through the full burden of the affirmative resolution procedure. I hope, nevertheless, that they will be properly and fully reported to this House, and, if necessary, justified. Under those circumstances, I am prepared to get on with the business which we seem to be doing fairly briskly at this stage.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

8.53 p.m.

Lord Glanusk moved Amendment No. 62:

Page 11, line 42, at end insert ("but the number of DBS services the inclusion of whose programmes the Authority shall do all it can to secure in any one licensed diffusion service shall not exceed five.").

The noble Lord said: Clause 12, the "must carry" clause which we have been discussing, compels the operator to carry all the channels broadcast by the authorities, including the DBS channels. At present, the first satellite will have five channels, two of which I believe are allocated to BBC and two to ITA. This means that if the cable operators were to start up today they would be carrying eight compulsory channels. But there are at least three more satellites planned, each with five channels. If these are allocated in years to come this will mean that your compulsory "must carry" channels could or would rise to 23. This is a very major part (something like three-quarters) of the maximum capacity of the cable available to the operator, and we think this is excessive.

I believe that cable is going to rely for its main future on the non-entertainment circuits that it can offer, and all the other features that have been discussed possibly somewhat vaguely because no one quite knows what will be able to be offered in the future. If therefore we block 23 of their channels, their chances of maintaining a long-term future are nowhere near so bright. We therefore think that a clause to limit the number of DBS channels to five, making a total of nine compulsory channels, is a fair compromise between the two positions. I beg to move.

Lord Mottistone

To add to what my noble friend has said, it would not be a satisfactory answer to say: "Oh well, of course the public broadcasting services will not take up all their DBS channels". One has read in the papers that they are rather reluctant to take up the ones that have already been allocated to them, and that may indeed be the case in 1984, but in six or seven years' time—if there is no restraint in this area—for one reason or another the public broadcasting services might want all these extra DBS channels. At the moment I cannot see that they would, and no doubt neither can any of your Lordships, but it might be the case. It is only fair that the cable operators—who, as my noble friend says, are going to depend very much on the supplementary sort of services which will be offered (supplementary, that is, to the entertainment world)—should be protected at this stage from too many "must carry" requirements. I do hope that my noble friend the Minister will be able to reassure us very firmly, or even better still, accept this amendment as it stands.

Earl De La Warr

There is also the point that each cable channel takes up a great deal more band width than a terrestrial channel. Indeed, it might take up the equivalent of between two and three channels: therefore, five channels can result in a very high proportion of the network being filled by what are essentially programmes that have to be relayed.

Baroness Trumpington

My noble friend Lord Glanusk has made clear his fears that in time the number of DBS channels included in the "must carry" rule might rise to more than five. He submits that this would place an unreasonable burden upon cable companies, and his amendment seeks to limit the number of DBS services which might be included in the "must carry" rule to a maximum of five.

I listened with interest to the remarks of my noble friend, Lord Mottistone, and to those of the noble Earl, Lord De La Warr, and, so far as the foreseeable future is concerned, my noble friends' concern is misplaced. The United Kingdom has been allocated frequencies for only five DBS television channels, so there is no question of the "must carry" rule applying to more than that number of DBS channels.

If we look into the more distant future, there may be frequencies which in time it will prove possible to use for further DBS channels. But the technology to enable those frequencies to be used is still developing. I have no doubt that, in parallel with the development of that technology, cable technology too will have developed. Before ever we get there it may be that cable will be able to carry such a multiplicity of television channels that those to be included in the "must carry" rule would appear as a mere drop in the ocean. But that is to look very far into the future and I do not think that we can attempt to cater for that sort of situation now.

The point is simply this. For the foreseeable future we are limited to five DBS channels and my noble friend's amendment is unnecessary. For the more distant future we cannot see where technology will have taken us. There are, in addition, two other important safeguards for cable companies which I should like to underline. First, under Clause 12(1) the "must carry" rule applies only to services provided by the BBC and IBA. We touched on this in discussing Amendment No. 60 of the noble Lord, Lord Howard. If we are looking into the crystal ball for a time when, hypothetically, there may be more than five DBS channels. I think that we should beware of assuming that they would necessarily all be run by the BBC and IBA. Indeed, as the noble Lord knows, there are still many uncertainties about the arrangements for the first five channels. It is far too early to say even when or how all of them will be taken up.

Secondly, the Home Secretary has the power to make exceptions by order to the "must carry" rule, and before doing so he must consult the Cable Authority. If the operation of the "must carry" rule were to prove entirely unreasonable to cable companies because of an untoward increase in the number of DBS services beyond what is currently envisaged, the Home Secretary would always in the last resort be able to make exceptions if that proved necessary. While, therefore, I appreciate the wish of the cable companies for some certainty in these matters, I hope that, in view of the explanations and assurances which I have given, the noble Lords will be content.

Lord Glanusk

I thank the noble Baroness for that statement, but she seems to be trying to have it both ways. Normally the Front Bench is always telling us that legislation must last indefinitely or for 25 years or more. Now it seems to be telling us, "Forget about the future; it will all sort itself out. The techniques will change and no doubt you will be able to cope with more than five channels". I find that a slightly poor argument; but, in view of the lateness of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.1 p.m.

Lord Mottistone moved Amendment No. 63:

Page 12, line 5, leave out ("broadcasting authority") and insert ("person providing the licensed diffusion service").

The noble Lord said: Clause 12(2) relates to the problem that may arise when reception in an area covers, in effect, two broadcasts simultaneously. The concluding line gives power to the broadcasting authority to determine which of the two shall be taken by a particular cable. We believe that this is unreasonable; that the broadcasting authority may not be the best person to make the decision as to whether a particular part of the country has to listen to Welsh television instead of British television, or whatever it might be.

Lord Elton

I am sure that my noble friend is aware that the Welsh are British. They would be very offended if he were to suggest otherwise.

Lord Mottistone

I should have said "Welsh or English". I have got so much out of the habit of talking about the English; that is the terrible thing. The Scots and the Welsh have done this to me. There are not any Scotsmen here—what a pity! Whether one has to listen to one programme or another—and let us take it back to England and say the Birmingham area or the Southern area—the people who are most suitable to make a decision as to what service shall be provided to their customers, who are paying them for the service, are the cable operators. They are the chaps who will know. It seems unreasonable that another authority, which may have other axes to grind and which is not particularly governed by the practical knowledge of the market that the cable operator will have, should make that decision. So we say that, instead of the broadcasting authority, the: person providing the licensed diffusion service would be the more appropriate person for this particular task. I hope that the Government will bow to what one might call the practical needs of the market and, in the last resort, the needs of the common customer. I beg to move.

Lord Howard of Henderskelfe

This of course arises under the "must carry" rule. We are therefore dealing with public service broadcasting, and public service broadcasting considerations should apply rather than purely commercial broadcasting or narrowcasting considerations. Therefore, the broadcasting authority is the correct and proper organisation to make that determination.

Earl De La Warr

The noble Lord, Lord Howard, makes much of the fact that it is public service broadcasting. Those of us who have been in the relay cable business for many years know well that the contractors hate having the area of their market upset. That is really why they like to control the areas that are being covered by cable. It is no more and no less than that.

I will not embark on any further description of it, but I have known this happen between Thames and Southern, and between Anglia and Yorkshire. I invite the Committee to accept that this is a commercial request from the IBA, and I entirely agree with my noble friend.

Baroness Trumpington

My noble friend Lord Mottistone has most eloquently moved his amendment expressing the view that it should be for the person providing a diffusion service to decide which programmes included in a broadcast service he will relay under the "must carry" rule, if a choice is open to him. Under the amendment the appropriate broadcaster would have no say in the matter.

It may be of some assistance to the Committee if I give some explanation of the reasoning behind subsection (2) of Clause 12. It deals with the case where a diffusion service is provided in what we may term an overlap area—for example, where the programmes of two TV companies are intended for reception—or where the area in which the diffusion service is provided straddles the boundary between the areas of intended reception for two ITV companies, as my noble friend Lord De La Warr mentioned.

This provision is not only of relevance to ITV, because there are also regional variations in BBC1, and, of course, as between England and Wales, in Channel 4. But I use ITV as my example because, with its federal system, the regional variations are more marked. The purpose of Clause 12(2) is to provide that, in the circumstances I have outlined, the "must carry" obligation extends to only one of the services. The cable operator may wish to take both, but what the Bill says (and I think that my noble friend accepts this) is that he should not have to do so.

The purpose of the amendment brought forward by my noble friend is to give the cable operator the choice of which service to carry in an overlap area, rather than give the broadcaster the final say, as the Bill conveys. We do not think it would be right, however, that in an overlap area the provider of the diffusion service should be free to decide which of the services he provides to fulfil his obligation under Clause 12(1). We are, after all, talking about the broadcasters' services. It is they who decide which transmitters to allocate to which services, although for topographical reasons there are overlaps at points—and I think that Wales is one such place.

This geographical allocation of transmitters is particularly important in the case of ITV, because an ITV company's income from advertising is in part dependent upon the size of the market; that is, the number of homes served by the transmitters allocated to that company. To allow the provider of a diffusion service reaching, possibly, several hundred thousand homes to choose how to fulfil his obligation under the "must carry" rule could be to risk undermining the respective policies of the IBA and the BBC in respect of transmitter allocation.

I think that the problem which we are discussing is a fairly narrow one because, as I have already said, the cable operator will be able to relay more than one service and, no doubt, if there is a demand for more than one, it will be in his own interests, if he is in an "overlap" area, to do so. But for the reasons which I have given, the Government think that it would be wrong for him to be free to choose how to fulfil the "must carry" obligation, and therefore I cannot support this amendment.

Lord Mottistone

I am extremely disappointed—more disappointed than I have been throughout the passage of this Bill so far. I really am. It is such a "most un-Conservative" approach as to be quite disgraceful. It is the sort of thing that one would expect from noble Lords opposite. It tells us that the ordinary person who has a set of customers cannot make a decision as to what he has to do; he is forced to have four channels, whether or not he wants them. He must have another five, or even more, DBS channels using up his space; he is now told that if his customers do not like, say, Harlech Television, because it is half in Welsh, he must take it, but he can have another channel from, say, Birmingham at, so to speak, his own expense. I think that this is disgraceful. It is quite contrary to the principles of the party to which I have the honour to belong. I think that this is the most terrible statement that I have heard from my Front Bench.

I should like to have some sort of assurance that my noble friend will think again on this point, because to protect the ITA people and all those dreadful characters who are trying to run this Bill in advance of its time is carrying matters too far. Therefore, I hope that my noble friend will be able to give me some concession which will prevent me from taking more stringent action.

Lord Mishcon

I always know, and I believe that Members of the Committee know, that it is just when the noble Lord, Lord Mottistone, gets angry and uses extreme language that he realises he must be on a very weak wicket, because when he is on a strong one, he always speaks with such moderation and persuasiveness and threatens no one.

Lord Mottistone

I think there are moments when the noble Lord, Lord Mishcon, goes a bit far. When I get angry, I get angry for a very good reason—because I think that the fundamentals are being challenged. I may try to be persuasive in order to get views across in situations where I am not carried away by a sense of deep, deep emotion. But I do not do that because I am on weak ground and I should be very grateful if the noble Lord, Lord Mishcon, would withdraw the implication that I get annoyed only if I am on weak ground. There are some people who play things that way, but I never do.

Lord Mishcon

The last thing in the world I thought I was doing was offending the noble Lord, Lord Mottistone. In trying to introduce a light note at this hour, if anything that I have said has offended him, I withdraw it completely. Perhaps, rather more peacefully, I can now say what I wanted to say. It is not because of any ideology that my noble friends and I would support what the Minister has said; it is really on the pure case of justice. It is a question of whether you ought or ought not to be judge in your own cause.

I am perfectly sure that this would not happen with many cable companies, but there could be the position where a cable company wants to get the best viewing public it can, which is a very natural objective and a very proper one. On this criss-cross of two programmes coming from ITV or the BBC, one programme may be a rather popular one and the other may be less popular; one may be in a language which is not usually adopted by the members of a certain area—and I have in mind Wales—and one may be rather more acceptable to that population. If one is a judge in one's own cause, there could be a grave temptation to choose the less popular programme from the BBC or the ITV, because that will increase the customers of the commercial operator. In those circumstances, therefore, the proper people to judge which is the more acceptable programme are obviously either the BBC or the ITV.

If the noble Lord—who I hope has graciously accepted what I hope he regards as a gracious apology and withdrawal, because I have no wish to offend him—would take that as a moderate argument from these Benches, not based on any ideological considerations—which he accused us of having in a manner which is not acceptable to him—I hope he will realise that that is a perfectly proper argument against that which he has nut forward.

Lord Mottistone

I am very happy to accept the apologies of the noble Lord. I also see that from his point of view the argument he has put forward is a proper one, but I do not believe it to be so. I think that in this case the proper argument is that the cable company must have the opportunity to sell its services to meet the wishes of its customers. The ultimate ruler is the customer. It is the customer's view that matter.

Quite frequently in parts of this country even today geography forces us to listen to what we do not want to listen to, or to see what we do not want to see, because we happen to be in a particular district. That is bad luck. But if you have a cable it may be that you will be able to see the bit you really want to see. It is the customer that I am looking after. That is the point where we differ. But I accept the argument of the noble Lord. It is the sort of argument I would expect him to put forward. I am sorry I got extremely angry, but I really do get annoyed when people attribute the wrong things to me, and that is going a bit far.

Baroness Trumpington

To use my own words, I have been feeling somewhat "piggy in the middle". To use the words of the late Lord Reith, I would say to both my noble friend Lord Mottistone and to the noble Lord, Lord Mishcon, "I hear you". I would further say, due to this little debate, that I cannot undertake to bring anything back to the House at Report, but I can assure my noble friend that I shall report the great strength of his feelings to my colleagues in the interval and ask them to consider the text both of his argument and of the argument of the noble Lord, Lord Mishcon.

Lord Mottistone

I am most grateful to my noble friend. At the same time, I shall see whether I can devise an amendment which satisfies me and the Government, but it will probably not satisfy the noble Lord, Lord Mishcon. However, that is another matter. I shall do my best. In the meantime, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

9.16 p.m.

Lord Howard of Henderskelfe moved Amendment No. 64:

Page 12, line 6, leave out ("DBS") and insert ("pay")

The noble Lord said: This is preparatory to a fairly major amendment which comes somewhat later on. The Government appear to be envisaging that pay services will occur only on DBS.

Lord Elton

Would the noble Lord give way for a second? May I ask him whether it would be as well to discuss together with Amendment No. 64 his Amendments Nos. 69, 70, 119 and 121. They seem to hang together?

Lord Howard of Henderskelfe

I should be delighted to do so. I beg leave to move this series of Amendments, Nos. 64, 65, 68, 69, 70, and 71.

Lord Elton

I think the numbers are 64, 69, 70, and then we leap ahead to 119 and 121; but I can always remind the noble Lord when we get there. The noble Lord moves only one amendment and speaks to the remainder.

Lord Howard of Henderskelfe

I am sorry. Not altogether surprisingly, I have got myself somewhat confused, too. We have here 64, 69, 70, and much later 119 and 121, but really 69 and 70 are the ones which go with 64. Amendment No. 69: Page 12, line 15, leave out ("DBS") and insert ("pay"). Amendment No. 70: Page 12, line 15, leave out from ("a") to end of line 17 and insert ("broadcasting service by virtue of which the broadcasting authority receives money or other valuable consideration either—

1. (a) in respect of the provisions of broadcasting services for general reception from those to whom such services are provided; or
2. (b) where the service is provided by means of the technique known as direct broadcasting by satellite or DBS, in respect of the broadcasting of advertisements or the inclusion in a broadcast of any matter which is provided at the expense of a sponsor (that is any person other than a broadcasting authority, the Open University and the performers) for the purpose of being broadcast for general reception and is the subject of a broadcast announcement mentioning the sponsor or his goods or services.").

Amendment No. 119: Clause 34: Page 31, line 9, leave out ("the BBC or the IBA") and insert ("a person licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception"). Amendment No. 121: Page 32, line 20, at end insert— ("( ) References in this Act and in all other Acts amended by this Act to the British Broadcasting Corporation and the Independent Broadcasting Authority either together or in the alternative shall be deemed to include a reference to every person licensed under the Wireless Telegraphy Act 1949 to broadcast programmes for general reception."). I hope I can be extremely brief on this matter. In due course, in this wonderful year when there are going to be heaven knows how many lines per cable—when I shall fortunately long be dead—there will be methods of distributing pay services other than direct broadcasting from satellites. We already have what I suppose I could call indirect broadcasting from satellites; in other words, broadcasting from satellites to lower power which is then put down cables. We have things known by initials which I am not sure that I can remember correctly. Is it the MDS? It is the multi-propagation distribution service, which is done in a different way.

There will no doubt be terrestrial transmissions in due course, pay services, which will go down cables. There will be all sorts of new methods about which we do not know yet, including, I have no doubt whatsoever, broadcasts along lasers. In fact, in the long run lasers, or possibly even masers, may hold the greatest future, rather than cable itself, for the transmission of signals, whether they be data or entertainment.

I therefore want to ensure that this legislation, for which 25 years was mentioned as a possible life, can certainly not be struck down in just a few years' time because somebody has discovered that we can actually send pay services in ways other than by DBS. I beg to move.

Lord Elton

Your Lordships have already heard much concern about the "must carry" rule and the burden it might impose on services. These amendments would significantly widen the potential scope of the "must carry" rule. The present structure of Clause 12 presupposes that everything broadcast over the BBC and IBA terrestrial networks is freely available off air and should therefore be relayed over cable without any financial transaction between the broadcaster and the cable operator. In the case of DBS we accept that whether or not the service is offered on a pay basis, cable operators should be able to negotiate financial terms with the broadcaster.

These amendments are based on the hypothesis that the BBC or the IBA or, I would deduce from the later amendments, some person as yet unknown, might start to provide a pay television service other than by DBS. That is what the noble Lord has suggested. What this means is that the broadcasters might offer pay television over the terrestrial transmitter networks during the night when the normal services were no longer running. Technically this could be done if the coded signals were received by a special device associated with a video recorder in the home which stored the programmes for later showings.

One has only to reflect on the idea for a moment to realise that it raises wide questions about the nature and organisation of all our broadcasting services in this country. It is a speculative and hypothetical idea and I do not believe that we can start amending Clause 12 to cater for something which is no more than a glimmer in the scientist's eye in some unspecified form at some as yet unknown date. Until we know what such services might be we should not create the presumption contained in the amendment and which I think is the principle that the noble Lord would like to see in the Bill, that the "must carry" rule should apply to them also. This is interesting because the noble Lord, Lord Glanusk, was taxing us a moment ago with suddenly not wanting legislation to last for ever. That is to ask it to remain in force when the conditions for which it was designed have been totally changed.

When we discussed Amendment No. 62 it was made clear that the "must carry" rule is seen by many as having reached its limit. Although the Government were unable to accept that amendment, we are equally unable to accept this one which, far from setting a limit, would open up the prospect of a whole new range of potential obligations for cable operators.

What I should say is not to address myself to the detail of the amendment, but what the noble Lord wants to know and what I can tell him is that we do not think that the art of legislation is so developed as to enable it to be designed to cope with technological developments which we really cannot foresee. Therefore, while I am obliged to him for opening our minds to the possibility, I should pass a word of thanks. He referred to his last amendments as "crummy". I would not say that; at some stage I should slip in a complimentary word to his draftsman for his meticulous and painstaking work, but I am afraid we cannot use this example of it.

Lord Howard of Henderskelfe

I hope that, even if the Minister cannot accept the amendments I have put down on this occasion, he will at least consider the possibility of from time to time the Minister specifying such other services as might be subject to this rule. I do not believe that one can draft on one's feet. I certainly believe even less that a Minister can be expected to accept amendments which are drafted on the feet. However, I ask that the Minister and his advisers should again consider the questions for the future. We are all looking to the future. We are all trying to look beyond the immediate period of this year or next year and to what will happen in the 1990s, what the shape of broadcasting, narrow casting, broad band cable, and so on, is going to be. All I ask is that he goes back and looks again at this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Lord Howard of Henderskelfe moved Amendment No. 65:

Page 12, line 8, after ("otherwise") insert ("but subject to subsection (5) below").

The noble Lord said: Here again, if the Committee agrees, perhaps we might take with Amendment No. 65 Amendments Nos. 68 and 71.

Amendment No. 68: Page 12, line 14, at end insert— ("(4) Subject to subsection (5) below, the person appointed for the purpose mentioned in subsection (3) above shall consider the matters which remain to be agreed between the parties and, after giving to the parties an opportunity of presenting their cases respectively, shall make such order as he may determine to be reasonable in the circumstances having regard to the actual expenses incurred by the person operating the diffusion service in sending the sounds, visual images or other signals (as the case may be) to the subscribers to the service and shall, on request made by any person and on payment by that person of such sum (if any) as he may reasonably require, furnish to that person a copy of his order. (5) The person appointed for the purpose mentioned in subsection (3) above shall not be entitled to make an order pursuant to which the operator of the diffusion service is entitled to charge the subscribers to his service for the reception of the pay service any price other than that at which the pay service is available to subscribers direct from the broadcasting authority or such other price as the broadcasting authority may specify.").

Amendment No. 71: Page 12, line 17, at end insert— ("( ) An appeal shall lie to the Court on any question of law or fact arising from any order, or arising in the course of any determination, by the person appointed by the Secretary of State pursuant to subsection (3) above. ( ) The person so appointed may, if he thinks fit, make an interim order at any time during the course of his determination or, in the event of an appeal, after making his order and any such interim order shall be binding on the parties until the final order is made or, as the case may be, becomes effective. ( ) Where any interim order has been made, such adjustments shall be made when the final order is made or becomes effective as are necessary to put the parties, so far as is reasonably practicable, in the position in which they would have been had the final order taken effect at the time when the interim order was made. ( ) In this section "the Court"—

1. (a) in relation to any determinaton in England or Wales, or in Northern Ireland, means the High Court; and
2. (b) in relation to any determination in Scotland, means the Court of Session.").

These amendments relate to a disagreement which may arise between the cable people and the broadcasters. The provision says that if there is not an agreement then a person appointed for the purpose by the Secretary of State shall determine what the disagreement is about, whether it is over financial matters or otherwise. It seems rather unsatisfactory that there are no terms of reference to determine the financial or other provisions as between the broadcasters and the cable operator. It is worth mentioning under the procedures in the Bill that it is not an arbitration or any kind of judicial or quasi-judicial proceeding, and the person appointed would make his order purely as an administrative act.

There may be some safeguards in administrative law. I am no lawyer but, as I understand it, it is relatively new and rather undeveloped jurisdiction and certainly there ought to be express safeguards of the kind I have proposed in the amendment in relation both to the procedure and the amount which the cable operator is to keep or to be paid; and the publication of his orders should facilitate settlements being reached elsewhere. I think that covers the basis of what I have proposed. The question of price, of course, also enters into it. The only relevant provision appears to be in Clause 12(3), which determines whether financial or otherwise. I do not believe that is entirely satisfactory. I beg to move.

Lord Elton

I will be brief but I feel there is an obligation on Ministers, when noble Lords putting amendments are very brief, not to curtail their remarks beyond the point which the noble Lords who have made the curtailment would wish to hear expressed. When DBS starts, there can be no guarantee that the negotiations between the parties would necessarily result in an agreement and the Government therefore had to provide in the Bill for a means of bringing the matter to a conclusion, so that the "must carry" rule can apply. We must remember that by the nature of the "must carry" rule neither party has the right to refuse to co-operate with the other. The cable operator must consent to include the DBS service in his package of services and the broadcaster must agree for his service to be carried over cable.

The noble Lord's amendments would seek to spell out the precise procedure to be followed in the case of a dispute. We are not attracted by this formalised approach to the problem. Obviously the person appointed by the Home Secretary to determine the matter would need to act impartially and reasonably. To say specifically that he must allow the parties to present cases is probably superfluous. But, more important, our view is that if the whole process is to be formalised the result is almost certainly going to be delay—perhaps quite massive delay—and I do not believe that would be in the interests either of the customers or of the business. Delay is expensive and ought to be avoided.

The Government therefore believe that the "wise man" should be left to determine both the procedure which he follows and the criteria which he decides to take into account. The noble Lord's amendment suggests some criteria. If there is to be a list, I am sure that the cable companies would argue very strongly for a very much longer one. It does not seem to the Government that this is a matter on which Parliament can be expected to lay down definitive criteria.

There is one point which the Government fully accept, however, and that is that the broadcaster might have the power to determine what price the individual consumer is charged for his service. The negotiation and determination procedures are about the share-out between the broadcaster and the cable operator, and not about the basic cost. It was not our intention to suggest anything else in Clause 12(3), but we shall certainly have another look at it to see whether it offers the broadcasters the safeguards which we should certainly wish to provide.

On the question of rights of appeal and interim orders, I would simply repeat what I have already said about the undesirability of turning this process of resolving disputes into a sort of quasi-judicial exercise, because of the necessity to reach a swift conclusion.

Lord Howard of Henderskelfe

I am sorry if I was unnecessarily brief. I had been urged earlier to speak as sharply as might be, so that your Lordships may get home. But if I was so brief as to be incomprehensible, I apologise to the Committee. It seems to me that this Government do not always know on their right hand what their left hand is doing. The noble Lord the Minister has said that he does not want to see a list of criteria which the person making this determination should be required to observe. If he would speak to his colleagues in the Ministry of Agriculture, he would find that that is precisely what they are doing under the Agricultural Holdings Bill. They are issuing an enormously long list of criteria, when previously there were no criteria at all except for a definition of what was the rent properly payable. I suppose one must not say that there is one law for the rich and another for the poor, though as a landlord perhaps I am entitled to say that. Anyway, I hope that the department can look again at certain aspects of what I have suggested.

I do not want to erect an enormous apparatus which will take months to work out the answers. I want, just as much as the Minister wants, a quick process which can achieve swift and sure results. But I do not believe you will get this by leaving it entirely in the air, without any kind of guidelines as to what the person making the determination, on appointment by the Secretary of State, should consider. We do not even know what sort of person he will appoint. I would certainly appreciate it if this could be further elaborated, if not at this stage of the evening, perhaps at the next stage of the Bill, when the Minister might indicate what is in the mind of the Government in making such determinations. In the confident hope that we shall hear something on Report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.34 p.m.

Lord Mottistone moved Amendment No. 66:

Page 12, line 10, leave out from first ("by") to ("and") in line 11 and insert ("the Authority").

The noble Lord said: With this amendment, I should like to take the new manuscript amendment No. 66A and Amendment No. 67. Amendment No. 66A: Page 12, line 11, leave out from ("payable") to ("in") in line 12. Amendment No. 67: line 13, leave out ("he") and insert ("the Authority"). This completes the consequentials and is not of importance to the Committee. The point at issue here arose in the first instance from the concluding lines of subsection (3) of Clause 12, which read "in such proportions as he may determine". We thought that the "he" applied to the person so appointed in line 12, and we considered it a little ridiculous that the person so appointed should be deciding on his own fee. Looking at it again, I am sure that this is meant to refer to the Secretary of State, but it is not at all clear which it should be. Whatever else comes out of this amendment, I hope that the Government will make sure that the wording ensures that the Secretary of State is referred to, if that is what is intended.

We then asked ourselves: why the Secretary of State? After all, we have this splendid new Cable Authority, and this is just the sort of task they can do. The broadcasting authorities may think that they are awfully pompous and large, but they have the burden, in this case, of dealing with financial affairs, as the noble Lord, Lord Howard of Henderskelfe, has just been telling us. He tried to safeguard their methods of dealing with financial affairs.

It seemed to us to be quite a simple matter. One needs an arbitrator, and who better than the Cable Authority, which will know all the ins and outs by then? It is a straightforward battle between the broadcasting authorities and the individual cable operators. That led us to add the further amendments to replace, a person appointed", and insert the Authority". I think that is a nice, simple solution. I beg to move.

Lord Mishcon

Before the Minister replies, perhaps I may stick my neck out and say that I did not read this clause in the same way as, on reflection, the noble Lord, Lord Mottistone, read it. If I am wrong, I want to be corrected; but I thought I should put the other point of view.

This person is sitting as an arbitrator. As I understood it, it is not an uncommon procedure for the arbitrator to decide, having heard the parties, in what proportion the cost of the arbitration—namely, his costs, his fees—shall be borne. I read it therefore that the proportions were to be fixed, in regard to the fee, by the various parties—the arbitrator having heard the dispute and having decided—in such proportions as he (the person appointed by the Secretary of State) shall determine.

If I happen to be wrong—and that is something which occurs very frequently—then the noble Lord, Lord Mottistone, has made a very good point, because it is obvious then that there must be some doubt regarding the grammar of this clause, which should be corrected for the purpose of clarification.

Lord Elton

I can first undertake to have the drafting very carefully tested; I suspect that the noble Lord, Lord Mishcon, is right. If there is doubt, then, on first blush, anyway, it is not satisfactory; and we will certainly look at that point.

There are other issues in the amendment which my noble friend has put down. While we hope that the broadcaster who provides a DBS service and the cable company who will distribute it will be able to reach agreement over the terms on which the DBS service is relayed, there is obviously a need to provide for what will happen should that not be the case.

In drafting the Bill we gave careful consideration to who should act as the referee in the case of disagreement. Of course we considered the Cable Authority as a candidate, and I have no doubt that, as a responsible public body, they would have carried out the duty as fairly as they could. But they are (are they not?) to be under a statutory duty to promote the interests of cable. After all, that is to be in the Bill. This is a sensitive area and one of great importance financially, both to the broadcasters who will be providing the DBS services and to the cable companies. It is essential that the mechanism for resolving disputes should not only be fair but be seen to be fair.

In view of the Cable Authority's general duty under Clause 4(8) to use their licensing powers in the best manner calculated to promote cable services, it would verge on the impossible for the authority to demonstrate beyond the risk of challenge that they were completely impartial as between the financial interests of the cable companies and those of the DBS broadcasters. That is why we decided on the solution of a "wise man". As to the fixing of his fee, even advisers sometimes hesitate to commit themselves, and I will certainly not do so until I am able to write to my noble friend—probably next week.

Lord Mishcon

I say this only so that the record will be clear, and I shall take just one brief second. The arbitrator or referee whom we are dealing with here does not fix his fee; he fixes the proportions in which his fee shall be paid, and that is having heard the parties. I should have thought it logical that that was the proper interpretation of the section. The noble Lord, Lord Mottistone, may be right and I may be wrong.

Lord Elton

I committed the forgivable sin of leaving out half a dozen words which I should have said. The noble Lord is right.

Lord Mottistone

I am sure the noble Lords are right, but it is still not clear to me from this who fixes the arbitrator's fee. However, I accept fully what my noble friend has said about having a good look at the wording and I accept his other arguments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Manuscript Amendment No. 66A not moved.]

[Amendments Nos. 67 to 71 not moved.]

Clause 12 agreed to.

Clause 13 [Restrictions on inclusion of certain events]:

[Amendment No. 72 not moved.]

9.42 p.m.

Lord Howard of Henderskelfe moved Amendment No. 73:

Page 12, line 20, after ("event") insert ("or a restricted event").

The noble Lord said: I beg to move Amendment No. 73, and I think on this occasion that it will be for the convenience of the Committee if I do not take with it all the other related amendments. Some of them might fall automatically to be not moved, or whatever, when we come to the appropriate point. I think it would be appropriate now if I were to say something, and I will try, in view of the beady eye of the Government Chief Whip, which is fixed upon me, and perhaps even more so in the presence of the noble Viscount the Leader of the House, to speak briefly on this matter.

We now come, under Clause 13, to a series of amendments intended to deal with the protection of the interests of the consumer in certain special categories. I have found this—as have no doubt the Government, both when preparing their White Paper and when preparing the Bill—by far the most difficult area in which to attempt to reconcile the proper functions of the broadcasting authorities, the prosperity which I genuinely wish (though they may not believe me) the cable companies, and, above all, the interests of the consumers.

Although at this stage I am only speaking formally to Amendment No. 73, I think it is essential for me to establish or outline the general problem in order to understand why I propose a somewhat different machinery for achieving what most of your Lordships would agree is a desirable end. In doing so, I am making the assumption, which may or may not turn out to be justified, that cable proves over the years to be a success in Britain. But even the word I have used, "success", should perhaps be used in inverted commas, since it would inevitably leave a high proportion—how high we do not know—of listening and viewing members of the public out in the cold with no possibility whatever of physical access to a cable system, however much money they might choose to try to pay for it. What that proportion will be I do not know, but the audience will certainly never begin to approach the 99 per cent. or so who can receive terrestrial transmissions from BBC and ITV, or a potential audience hardly less, possibly even more, than that which will be able to receive satellite signals on DBS.

Before the advent of broad band cable, the problem was dealt with relatively simply by agreement among the broadcasters whereby it was agreed that certain national events should not be exclusively available to either service. There are reserve powers in the Broadcasting Act 1981 for regulations to be introduced should the need arise, but all Home Secretaries, present and past, are I am sure very glad that they have never had to activate those provisions.

There is a wide difference between the kind of events which are intended to be protected in this way. So far as I know, ITV has never attempted to cover the Boat Race. It has not been particularly interested in Test matches and after a while abandoned its coverage of Wimbledon. In the same way the BBC ceased to broadcast the Derby despite getting considerably more viewers for its coverage of this single horse race in an afternoon than did ITV, and left ITV alone in the field because of its contract with Epsom racecourse to cover other races on the same day. The expenditure in those days of about £40,000 to cover this one race was not considered to be justified.

The principal event which continues to be covered by both services is the football Cup Final. Over the years this led between the ITV and BBC and even, dare I say, within the board of governors of the BBC itself to considerable arguments about something called alternation. Coverage of the Olympics led to the same kind of arguments. People asked why the channels should broadcast the same events at the same time because it gave them no alternative even though they had different commentators on the same event. Nothing could be more different in their nature than these two happenings which are both referred to as "events". I am talking about the Olympics and the football Cup Final.

This indicates that they are trying to reach sensible answers. The football Cup Final is a single event lasting 90 minutes, unless there is extra time, and occurs at a single location. The Commonwealth Games, soon to take place in Edinburgh, are on this occasion in this country but stretch over a considerable period and cover events in different locations. The Olympics cover even more events in more locations spread over a longer period and in any event take place this year, and probably for years to come, outside this country. Even where there is only one location in the Olympics, two events on track and field may be taking place simultaneously in the same stadium.

A Test match may take place in one location but may cover five leisurely days. The World Cup and its preliminary rounds are held in many different stadia and may lead, for example, to Scotland playing in one match on the same afternoon as England is playing another match 200 miles distant. Wimbledon stretches over a fortnight and although at the end all interest is focused on the finals on the Centre Court, interesting matches may well be taking place in the early stages on the outer courts.

I think I have said enough to illustrate that the set of rules which is designed to prevent monopoly coverage of sporting events of national interest is far from easy to devise or apply. I have not attempted to mention non-sporting national events such as Trooping the Colour, Royal weddings and world events such as landings on the moon, for all of which I suspect it would be wrong to permit exclusive coverage to one channel in this country.

The other factor which has been changed quite enormously over the years since the advent of ITV—and I do not for one second suggest that it has anything to do with that—is the increasing commercialisation of sport, whether by way of sponsorship or shirt advertising or the earnings of its leading practitioners. The Olympic Games may still in name be a gathering of amateur athletes from all round the world, but the attitude and earnings of those athletes are a very far cry from the days of "Chariots of Fire".

Far be it from me to wish to reduce the amount of money which the governing bodies of those sports can earn through television and plough back into the sports themselves. I am very conscious, for instance, of the sums—literally millions—which Wimbledon has ploughed back into the LTA for coaching and other purposes from its earnings from television—largely, it is true, from what it is able to sell overseas. But the days are long since gone when we can imagine that the broadcasters or the cable companies are dealing with anyone but the most hard-headed negotiators and representatives of the clubs and individuals concerned.

I may so far seem to your Lordships to have been speaking rather in terms of a Second Reading speech than to the amendments which stand in my name. I have tried to set the scene in this way to show why I believe so passionately that in relation to sporting events money must not be the only factor which is allowed to speak. It is precisely because cable will never by any stretch of the imagination provide that universal coverage which broadcasters can, whether operating by terrestrial or satellite transmitters, that I want to try to ensure that this sizeable proportion of the population is not deprived of sporting events which it has in the past been accustomed to viewing or listening to.

By far the simplest system would be a complete prohibition of pay-per-view on sporting events. The reason for this is that, while pay-per-view may be prohibited for a limited list of events, it would still be available for the less important events where a sporting programme provider—and I imagine that it is highly likely that we shall have at least one programme provider who offers his services to numerous cable companies—would almost invariably be able to outbid broadcasters for these particular events. This they will be unlikely to be able to do if the payment by him for these events has to come out of the general pool of his expenses over a year for all the sporting events which he provides on that particular channel.

If pay-per-view was available to these people, we would reach the absurd position, which could not for long be tenable, whereby the supposedly less important event could earn a great deal more money than that which could be earned by what hitherto had been regarded as the premier event. I do not know whether the prestige of Wimbledon is such that it could survive such attractive terms being offered to its players by tournaments such as those held at Bournemouth, but I am certain that the Football Association would start to cut up very rough indeed if a single particularly attractive league match could earn more from a cable sports programme provider than its own Cup Final could from the broadcasters.

The Government have in some measure done their best to cover this by the indication of the events described in subsection (2)—and which I have for convenience called a "restricted event" in Amendment No. 85—in addition to protected events. The main object of my various amendments is to make sure that these also have the benefit of the protections already inserted for protected events. My first amendment, No. 73, endeavours to put them on the same basis, and a comparable terms basis formula would thus apply to restricted events. I beg to move.

9.55 p.m.

Lord Elton

The noble Lord, Lord Howard of Henderskelfe, has brought us to the beginning of a series of amendments which address themselves to an issue of very great importance and very general interest. I think that I must follow him by giving a brief introductory background (as he did) to what we have attempted to achieve in Clause 13.

What we are seeking to deal with is a very difficult conflict of interest, and I am glad that my noble friend Lord De La Warr is in his place, because it was his late father who spoke in your Lordships' House 30 years ago at the Report stage of the Television Bill, and spoke, what is more, as Postmaster-General. Though he was talking about the impact on the BBC of the introduction of ITV, what he said summarised very well the dilemma which now faces us arising, as it does, from the possible implications of cable for the BBC and independent television. He said: We are faced with a very real dilemma here. On the one hand, I think that we are all agreed that it is most undesirable that a certain limited number of events…can be bought up and restricted to a small number of viewers. On the other hand, it would be grossly unfair to take action which would depreciate the value of selected events solely because they are especially popular and important, and that is what may be done by embarking on restrictive legislation against them". That is a reasonably fair summary of the position in which we stand 30 years later. It is quite outside our power to ensure that anyone actually obtains the television rights for anything. The right to decide who, if anyone, may cover any particular event lies, in the last resort, with the organiser of the event. That is something which we need to recall constantly. We all know, of course, that television coverage can greatly enhance the value and prestige of some events, but that certainly does not mean that televison has anything like an automatic right to cover anything and everything. I need point only to the Football League to illustrate exactly what I mean. It is only this season that the Football League decided that it would allow some live coverage of league matches.

The third general consideration that we need to keep in mind is as follows. It is an inevitable consequence of the growth of cable and other new forms of television, such as satellite broadcasting, that the cost of the rights for the most popular programme material will go up as competition increases. Whatever safeguards we seek to build into the Bill for certain particular categories of programming, we cannot, on the one hand, encourage new services to develop, and, on the other, simultaneously try to stop them competing with the broadcasters for the whole range of material which the broadcasters have traditionally had to themselves. Cable will mean more competition for programmes and for audiences, and the challenge facing us is not how to limit the competition but to see how we can obtain the full benefits from it and at the same time see that the broadcasters continue to offer the wide range and excellent standard which we have come to expect.

The report of the inquiry chaired by the noble Lord, Lord Hunt of Tanworth, recommended that although cable needed to have a wide measure of freedom to acquire and produce popular programming, there were two particular areas in which the public interest justified certain restrictions. First, it suggested that cable should be prevented from acquiring exclusive rights for the great sporting or other national events—events which the ordinary viewer had come to expect to be able to see on BBC or ITV. For all the foreseeable future cable will cover only parts of the country, and the inquiry accepted that it would be unreasonable if it were to take away from those who would continue to depend on the broadcasters the possibility of seeing this particular category of events.

Secondly, the inquiry thought that cable should also be prevented from offering any programmes on a pay-per-view basis, at least for the time being. The reasoning behind that was that though cable would have to depend to a very large extent on pay television generally—in other words, pay-per-channel or set of channels—it ought not to be able to charge for individual programmes. The inquiry held that that would give it an unfair advantage over the broadcasters in acquiring rights, in particular rights to sports events.

In the White Paper the Government endorsed the inquiry's view that safeguards were needed for both the great national events—which in both the report and Clause 13(1) of the Bill are called "protected events"—and a wider range of events which might be bought up and offered over cable on a pay-per-view basis. So far as any of the protected events are concerned, paragraph 108 of the White Paper and Clause 13(1) of the Bill propose that a cable company should be able to cover them only if the broadcasters also have the opportunity to do so on comparable terms.

On pay-per-view the Government did not think it necessary to impose an absolute ban in all circumstances. Cable interests had very forcefully made the point that there were many new events which cable might wish to cover and that there could be no possible objection if they were offered to consumers on a pay-per-programme basis. What the Government proposed and have now sought to give effect to in Clause 13(2) is that cable should be allowed pay-per-view but not in circumstances where the event is one which has regularly been covered by the broadcasters.

I started my introduction referring to my noble friend's late noble father when he spoke 30 years ago as Postmaster General. I would only refer to him again by saying that he described this very issue as the most difficult problem in the Bill. Plus ça change, plus c'est la même chose. I wish to make clear 30 years later that we shall wish, after the Committee stage, to reflect carefully on all the points made during the discussions on this clause to see whether, as we certainly hope, we have found quite the right words to achieve our intention. This is an important and complex clause. If there are improvements that can be made, we shall be happy to be guided by the Committee.

The effect of the change that the noble Lord, Lord Howard of Henderskelfe, would have us make in Clause 13(1) would be to prevent cable showing not just one of the protected events but any event that the broadcasters had regularly covered unless the Cable Authority was satisfied that the broadcasters had had the opportunity to acquire the rights on comparable terms. This would be a very significant extension of the events covered by Clause 13(1) and it would go much further than anything which either the Hunt inquiry or the White Paper recommended, or, I suspect, my noble friends would endorse. It would greatly restrict the freedom of cable companies to negotiate deals with the rights holders.

It would require the Cable Authority to form a judgment on whether comparable terms had been offered to the broadcasters in a potentially large number of cases. Assessing the comparability of terms, given the intricacies of these sorts of transactions, will not be an easy task. The Government accept that such an assessment is a necessary precaution against the possible acquisition of exclusive rights for the great national events. But we do not think that it would be right to extend it to everything that the broadcasters have regularly covered.

The Government fully endorse the wish of the broadcasters to continue offering the public the services which they have come to expect and which the noble Lord, Lord Howard of Henderskelfe, has done so much to ensure that they should come to expect. Equally, the Government do not wish to put unnecessary obstacles in the path of the development of cable. In our view, the approach we have adopted in Clause 13 strikes roughly the right balance. The amendments of the noble Lord, Lord Howard of Henderskelfe, would tip the balance decisively against the interests of cable and, indeed, the rights holders themselves. They do not therefore commend themselves to the Government nor can I commend them to your Lordships.

Lord Howard of Henderskelfe

May I inquire whether the Minister is referring to all the amendments that come under this clause, including those which relate to seven days rather than 24 hours, and so on?

Lord Elton

Indeed not. The noble Lord spoke to Amendment No. 73 and said he would come to others later. I have strayed, I think, into Amendment No. 85 and possibly nudged Amendment No. 79. But these are all on the same issue. It is the meat of Amendment No. 73. I am not seeking to inhibit the noble Lord.

Lord Howard of Henderskelfe

I do not wish to press this. Above all, I do not wish to restrict competition unduly. As I stated earlier, we have a difficult position. We wish sport to be better funded in this country. One way it can be better funded is through television and radio. So anything that restricts competition in this field in itself is not necessarily good for sport. I keep coming back to the high proportion of the population who will never be able to receive cable. I ask that all your Lordships who have occasion to consider these and other amendments at a later stage should think of those people. Of course, not everyone can get everything as of right. I would not pretend that they should. But where for many years they have been accustomed to receiving all or the greater part of a sporting event as it occurs, I believe that they should continue to be allowed to do so. On the understanding that the Government have been applying their best thoughts as to how this very difficult problem may be solved, just as we have, I beg leave to withdraw Amendment no. 73.

Amendment, by leave, withdrawn.

Lord Airedale moved amendment No. 74:

Page 12, line 21, leave out ("a broadcasting authority") and insert ("the broadcasting authorities").

The noble Lord said: Perhaps we could discuss No. 75 together with No. 74 because they both do the same thing: they turn the singular into the plural; they turn "a broadcasting authority" into "the broadcasting authorities"; and they turn "a programme contractor has" into "programme contractors have". Amendment No. 75: Page 12, line 22, leave out ("a programme contractor has") and insert ("programme contractors have"). This is dealing with the question of protecting the protected events and making them available to other broadcasters.

I was glad, I confess, to hear the noble Lord, Lord Howard, say that he found Clause 13 difficult, and I think the noble Lord the Minister confessed that he found it rather difficult. This emboldens me to think that it was not just my stupidity which made me think Clause 13 was difficult. I was very grateful for being able to have the Government's Notes on Clauses which were available from the Printed Paper Office. When I saw one of the notes which referred to these two amendments, I thought the Government were firmly on my side, because I read in the notes: A major event of national interest such as the FA Cup Final cannot be brought up for showing on cable unless the broadcasters"— plural— have the opportunity to purchase the rights at the same price". Then it seemed the Government changed their minds because in paragraph 3 of the same notes one reads: The effect of this is that cable cannot acquire the rights to a protected event unless at least one of the broadcasting organisations first has the opportunity to buy the rights on comparable terms.". I must say I should have thought that the Government's first thoughts were best, for this reason. I suppose that the Cable Authority are going to be anxious that cable television will succeed, and one of their best chances, I should think, would be to get hold of a popular sporting event and have the exclusive right to show that. That would bring in new subscribers as nothing else would.

I imagine that the broadcasting world is a fairly small one; that the Cable Authority and the other broadcasters and the programme companies will know each other pretty well; and the Cable Authority in relation to a particular sporting event, will have a pretty good idea which of their rivals would be anxious to show that event, and which might not be interested. If the words of this subsection are in the singular, the Cable Authority will be able to select their rival who they least think will be interested in this event, have it offered to him on comparable terms, hope that he will refuse to take it, and then they will get what they want. I do not believe that that is the Government's intention at all; I believe the intention is that all the other broadcasters shall be given this opportunity to show the event on comparable terms.

As the subsection is printed, there is going to be awful trouble, because one day either the BBC or ITA are going to say, "Now 95 per cent. of the viewers have lost their chance to see this because we would have shown it, but it was never offered to us". But cable will be able to say, "But we offered it to the Welsh Authority"—or one of the programme contractors—"they turned it down, we are within the terms of subsection (1) and you have nothing to complain about". I think that we need the plural here instead of the singular. I beg to move.

Lord Elton

The broadcasting authorities have a long-standing agreement among themselves not to acquire exclusive rights for the great national events. So once one has access to one event, in practice both do. That is why we prefered the singular to the plural, but if there is a danger in this I will certainy look at it between now and Report. That goes also for the other danger to which the noble Lord drew our attention.

Lord Airedale

I am very much obliged. I think that when the Minister has read my speech he will think that there is something in it. Having had that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 75 not moved.]

Lord Airedale moved Amendment No. 76:

Page 12, line 24, after ("comparable") insert ("financially and otherwise")

The noble Lord said: This amendment arises under the same subsection and I have sought to insert after the word "comparable", the words "financially and otherwise", because it occurs to me that people, when thinking of terms, tend to think principally, if not exclusively, of financial terms. In the matter that we are discussing, other terms are extremely important. I am thinking of the familiar Saturday afternoon situation when the BBC and the ITV are both trying to please everybody all the time and are showing about six different sporting events which are all going on at the same time. One gets a short snippet of one, and then one is switched over to the next event. Cable may not want to do that; it may want to show the whole of one event—for example, a cricket match.

The terms under which the BBC shows snippets to a huge audience may be comparable to the terms under which cable wishes to show the whole thing to a much smaller audience. But the other terms are totally different. In the one case it is only snatches of the event, and in the other case it is the whole thing. That is why I feel we need to emphasise that here we are talking not only about financial terms, but also about the other terms which are very important too. I beg to move.

Lord Howard of Henderskelfe

I should like to add that the snippet versus whole-event argument applies equally to DBS. I have always seen one of the great advantages of DBS as being that it can show the whole event, as opposed to edited highlights. Whatever sporting event it may be that particularly interests one—for example, a motor race—it can show the whole drama, which is absolutely different from a half-hour snippet. Anything we say in relation to this matter should apply equally to DBS.

Lord Elton

The noble Lord, Lord Airedale, is absolutely right; there are other considerations which can be as important as the financial considerations. The danger of elaborating any of the terms is that as we highlight one we put the others slightly into shadow. I can assure the noble Lord that the Bill as drafted does cover all the considerations.

So far as extracts of events are concerned, I think we shall be discussing that issue further when we come to Clause 13(2) because it relates more strictly to pay-per-view than the protected events, most of which are likely to be ones which the broadcasters would wish to carry in full, or almost in full. However, I can confirm that there is nothing in Clause 13(1) as it stands, to prevent cable companies showing the whole of an event if the broadcaster wishes to show only extracts. The test would be simply whether the broadcaster had the opportunity to acquire the rights of a whole event on comparable terms, and not whether he actually decided to do so.

Lord Airedale

I am much obliged and reassured by that reply, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Airedale moved Amendment No. 77:

Page 12, line 25, leave out ("acquired") and insert ("would be granted").

The noble Lord said: This is a small but rather curious matter. The whole tenor of subsection (1) is to explain the circumstances in which the cable operator shall not be granted the right to show the programme, but the last line of the subsection relapses into the past tense and we read: that person acquired the right". This simply does not seem to be a very happy piece of drafting. I beg to move.

Lord Elton

I regret to say that the noble Lord has advanced his amendment in terms of art rather than science. If I am to reply in the same terms, all I can say is that the tense which jars on his ear chimes correctly on mine. I think that, as it is not a matter of great substance in the Bill but is a matter of great interest to the noble Lord and myself, rather than delve into this at greater length if the noble Lord is content, we might correspond or even talk about it at a later time.

Lord Airedale

I should not want to delay the Committee after 10 o'clock at night on a matter of drafting. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Renton)

I have to point out to the Committee that if Amendment No. 77A is agreed to, I cannot call Amendments Nos. 78, 79 or 80A.

Lord Airedale moved Amendment No. 77A:

Page 12, line 26, leave out subsection (2).

The noble Lord said: This amendment seeks to leave out subsection (2), which I believe is an unhappy subsection, and I have two separate quarrels with it. One is the use of the words in the penultimate line: an event which…is of a class or description", because it seems to me to destroy the whole purpose of what has gone before. I can only explain this by giving an example. Let us take show jumping. Throughout the summer there may have been quite a number of show jumping events which have been broadcast by the BBC and the ITV. They then decide that they have had their fill and do not want to broadcast any more show jumping; but yet another show jumping event comes along and cable sees its chance and wants to show it, and why should it not? Its viewers would very much like to see it and the show jumping authority would be very pleased to have the television fee.

However, under this subsection as drafted cable is denied the opportunity because show jumping is: of a class or description which has been regularly broadcast by a broadcasting authority". I simply do not think that this subsection achieves what the Government seek to achieve.

Again, I am strengthened in this by the Government's own notes on Clause 13, because they appear to make it clear that they are not really talking about events of a "class or description"; they are talking about particular events. In paragraph 8 they say: New events, or ones which have not had regular coverage in the past on broadcast television, would be allowed. It will be for the Cable Authority to determine whether an event is one that has been regularly broadcast by one of the broadcasting authorities. So they are not talking about events of a "class or description", they are talking about particular events which occur from year to year.

If the class or description was my only quarrel with the subsection, I should have put that down as a separate amendment. However, I think I must point out to the Government that there will be great difficulty in determining what is a particular event as it occurs from year to year. It is quite easy if it is a cup final, or some immensely famous event, but supposing it is a second-tier horse race, for example. Let us go for a moment with the noble Lord, Lord Howard, back to Epsom Racecourse. You have there a second-class race.

If the title is changed, presumably that does not make it a different event from year to year. If last year it was the Baked Beans Handicap and this year it is the Golden Cigar Handicap, and the other terms and conditions are the same, presumably it is the same event from year to year. Suppose the prize money goes up or down from year to year and the other conditions are the same, no doubt it is the same event. But supposing last year it was run at the spring meeting and this year it is going to be at the summer meeting. Does that make it the same event or a different event?

Supposing last year it was for three year-olds and four year-olds, and this year it is going to be for three year-olds and upwards. Is it the same event or a different one? If last year it was run over 10 furlongs and this year it is going to be over nine furlongs, does that make it the same event this year as last, or is it a different event? I know I am being destructive and I am afraid I am taking up time, but sometimes one can be helpful in pointing out difficulties even if one is not able to point to the remedy.

For these reasons, I feel that subsection (2) is unsatisfactory. The purpose of it is to prevent cable outbidding the other broadcasters, but we must be a long way from that. Surely there will be other matters to do with cable that will need amending legislation before very long. I hope that we shall not make the mistake of looking so far into the future that we have to try to legislate on this difficult matter of subsection (2). We should forget it for the moment and deal with this matter of the outbidding of the other broadcasters nearer the time when this threat starts to loom up, if it ever does. I beg to move.

Lord Elton

May I begin by briefly saying why Clause 13(2) is in the Bill? It is our expectation that pay-per-view, by focusing the cash of viewers on specific events, will give it considerable buying power. The extent of the buying power will depend largely on the level of public interest in the event, and nobody will doubt that public interest in many events has been generated very largely indeed by their having been regularly featured on conventional TV. The more successful those programmes and the bigger their audiences the greater their potential value to pay-per-view.

Very large numbers of people will not for many years have the chance of becoming cable viewers. They will remain viewers of broadcasting authority programmes and they will see no others because nobody will bring a cable to their door. There would be a certain irony if the avidity with which they had been watching a particular sporting series, a particular final or race year after year, was to be the reason for that series, final or race being bought out of their reach for ever by pay-per-view. It is to avoid that irony, and to protect public service broadcasting against that threat, that we have drafted subsection (2) into the Bill. Such events will of course include protected events in Clause 13(1) because they will almost inescapably have been regularly broadcast by a broadcasting authority, and those at least escape the definitional difficulties described by the noble Lord, Lord Airedale.

The noble Lord was kind enough to give me notice of some of his intentions. I am sorry that I was not sufficiently acute to detect this particular line of argument that he advanced on this amendment in time to give him specific replies to the chain of examples he gave me. I can say that wiping subsection (2) out of the Bill could wipe off thousands of television screens programmes which millions of viewers have come to expect from public service broadcasting over the years.

Much of what the noble Lord has said I do not wish to dismiss, because I understand the difficulty of where the line is drawn. I cannot give the noble Lord a homily on how the line is to be drawn, because I do not have the specific detail to hand. I must ask him to be patient. If it proves to be a matter which he wishes to be ventilated—which he may—there is a later stage. What I write to him may reassure him in the interim.

Lord Airedale

I am very obliged. I am certainly not proposing to divide the Committee on this. I am grateful for the reply, but I give the Minister notice that I shall, on Report, do my utmost to get rid of this expression "a class or description" of event, because I believe that when the Minister looks at it he will see that those words destroy the whole purpose of subsection (2). I shall return to this on Report unless we have agreed something in the meantime. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 78 not moved.]

10.26 p.m.

Lord Howard of Henderskelfe had given notice of his intention to move Amendment No. 79:

Page 12, line 28, leave out from ("a") to end of line 31 and insert ("restricted event")

The noble Lord said: I have a strong suspicion that my earlier withdrawal of Amendment No. 73 has rendered this amendment invalid. I shall therefore not move it.

[Amendment No. 79 not moved.]

[Amendment No. 80 had been withdrawn from the Marshalled List.]

Earl De La Warr moved Amendment No. 80A:

Page 12, line 29, leave out from ("a") to end of line 31 and insert ("prescribed event")

The noble Earl said: Much that the noble Lord, Lord Airedale, has said has made it possible for me to speak very shortly, because we both agree that Clause 13(2) does not do the job which the Government would like it to do.

Possibly the easiest thing is to quote a few lines from the White Paper, because I am assuming that it is exactly what is put in the White Paper that the Government intend to achieve. I quote from paragraph 115: The Government accordingly proposes that pay per view should be permitted except in those particular circumstances where it would pose a specific threat to public service broadcasting. The Cable Authority will therefore have a duty to ensure, by means of the conditions attached to operator' franchises, that no programme shall be offered on a pay per view basis if an event customarily shown on one of the existing public service channels would as a result no longer be available for such a channel".

I assume that this is what the Government intend to achieve. I am perfectly happy with Clause 13(1); it is only with Clause 13(2) that I find great difficulty. As it is drawn in the Bill there is liable to be an almost complete ban on a cable operator's ability to do any pay per view at all. The phrase, of a class or description which has been regularly broadcast by a broadcasting authority", is wide; and it is also very indefinite as to the type of events intended to be covered.

The noble Lord, Lord Airedale, went into this in much greater detail, and the clause could arguably cover all horse-racing and all football because of its catch-all nature. The clause will not allow the cable operator to provide the event, even if he were prepared to pay for it on a non-exclusive basis which would not affect in any way the broadcasters' rights to broadcast.

It seems to be to be essential—this is my solution—to remove the offending words which my amendment does remove at the end of Clause 13(2). We come here to a difference, but my contention is that it is not practicable at all to identify the event to which Clause 13(2) does apply by any sort of generic description that we could possibly think up. So I am brought to the view that the authority should themselves build up and maintain a list of those events which cable operators cannot show on an exclusive basis. The events on this list I have called the "prescribed events". It needs a definition and this appears at Amendment 83; and I apologise to my noble friend and to your Lordships because I am talking to 80A, 80B and 83 together.

Amendment No. 80B: Page 12, line 31, at end insert— ("( ) Subsection (2) above shall not apply when the Authority are satisfied that the inclusion of the "prescribed event" in a programme in a "pay-per-view" diffusion service will not prevent a Broadcasting Authority, the Welsh Authority, the IBA's subsidiary or a programme contractor from acquiring broadcasting rights in respect of the prescribed event on terms comparable to those on which the person providing the pay-per-view diffusion service acquired the right to include the prescribed event in that programme."). Amendment No. 83: Page 12, line 37, at end insert— (""prescribed event" means a sporting or other event of national interest regularly broadcast by a broadcasting authority being included in a list maintained by the Authority for the purpose of this section and any such list shall be published in such manner as the Authority considers appropriate for bringing to the attention of persons providing licensed services.").

I believe this is the best way to deal with the matter in order to keep in line with the White Paper. The Government may say that it would be an enormous list that the authority would have to draw up. I do not think it would be. If the Government think it out very carefully I believe they would find that it would not be a great list and it would have that precision which is essential. However, the real point is that, whatever my noble friend thinks about this, I hope he will take the point that, as it stands, Clause 13(2) just does not give the cable operators a look in in the way that is envisaged in Clause 115 of the White Paper. I beg to move.

Lord Elton

My noble friend's first object is to narrow down what he sees as the rather wide category of events currently covered by Clause 13(2). The restriction would apply only to sporting or other events of national interest which had been regularly broadcast. In support of this it has been suggested that an event of a class or description which has been regularly broadcast by a broadcasting authority could go very wide and include virtually all forms of popular sport at all levels. Here he followed the noble Lord, Lord Airedale. That would be to give the words a rather wider construction certainly than we intend. We obviously need to build some flexibility into the clause so that the authority has the power to specify a category of events rather than having to name each single time, place and event. To take an hypothetical example, the authority might wish to say, "All rugby union international matches played in the United Kingdom". That would be a reasonable interpretation of the phrase "class or description of events which has regularly been broadcast". I very much doubt, however, whether any reasonable authority would conclude that because all international rugby matches have regularly been shown, all club rugby matches should similarly be precluded from pay-per-view showing. A further limitation is that the prohibition on pay-per-view applies only for the first 24 hours after the event has taken place. After that there is no restriction.

The second object of the amendment is to waive the special pay-per-view restriction in those cases where the Cable Authority is satisfied that the acquisition of the cable rights has not prevented the broadcasters from having access to the broadcasting rights on comparable terms. Taken together, these two qualifications would mean that there was very little difference in substance between subsections (1) and (2) of Clause 13.

That seems to me to be a very serious defect. We should end up with two lists, both confined to events of national interest, but one kept by the Home Secretary and the other by the Cable Authority. In both cases the Cable Authority would have to assess whether comparable terms had been offered to the broadcasters and to the cable companies. I am not sure how this would work because the broadcasters would, by definition, never be able to acquire the rights for pay-per-view on their existing networks. Still, it would be a mistake to require the authority to undertake this difficult task in more cases than absolutely necessary.

A further problem is that his amendment would make it more difficult for the authority ever to permit pay-per-view. I also fear that my noble friend's amendment would make it rather difficult for them ever to refuse it. I was referring to the previous amendment there. That suggests to me that the middle course, which Clause 13(2) attempts to set, may not be so had after all.

I would remind my noble friend that I said at the beginning that we wish to pursue the objective which we set out in the White Paper. I shall read very carefully the report of what he and everybody else have said, in order to reassure myself that this is what we are achieving in the present drafting of the Bill. If we find that we are inadvertently achieving something else, then we shall wish to adjust it. As I think that that is the undertaking which my noble friend wanted from me, I shall not address any other defects which I imagine in his otherwise perfect amendment.

Earl De La Warr

I am most grateful to my noble friend. I should perhaps have said before what I shall say now, that during his previous remarks on various amendments it became quite clear to me that he was indeed thinking exactly in terms that I find suitable, and exactly in terms of the words of the White Paper. He has very kindly said that he will have a look at what I said I found wrong and unacceptable about Clause 13(2) and I hope I may accept that. On that basis, I am very happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80B not moved.]

10.37 p.m.

Lord Howard of Henderskelfe moved Amendment No. 81:

Page 12, line 31, at end insert— ("( ) With a view to preventing the making of exclusive arrangements for the broadcasting of protected events, the Secretary of State may make regulations as to the grant to the BBC, to the IBA and programme contractors, to the IBA's subsidiary and to the Welsh Authority respectively of broadcasting facilities in respect of such events. ( ) Regulations made under this section shall not apply to the broadcasting of a record of any event specified in the regulations where the transmission is made more than seven days after that event. ( ) Any regulations under this section shall be made by statutory instrument; but no such regulations shall be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: Your Lordships will remember that we discussed earlier the question of regulations which the Home Secretary was in a position to make and which, because he was in a position to make them, he had not had to make, since, whether or not under the threat of those regulations, agreement had been reached between the ITV and the BBC. This is an equal kind of fall-back position, which the Secretary of State may be able to preserve without actually having to operate it. That is the first purpose for which the amendment is designed. I hope that in trying to be brief I have not said too little about it.

The next point is the question of the number of days before which there shall not be a broadcasting of a record of any event. I believe that the Government were originally thinking in terms of seconds only. Then the 24 hours appeared and, subsequently, I came up with seven days. In fact, seven days has a good precedent in legislation. That is what it is all about.

The third matter is something which I seem to be raising at frequent intervals. It is about a statutory instrument being of an affirmative rather than a negative nature. As usual, I shall obviously be withdrawing the amendment, but I shall welcome the views of the Minister on the first two points that I have made. I beg to move.

Lord Elton

The noble Lord may save me a moment if he will refresh my memory. Am I to understand that one of his primary concerns is to extend from 24 hours to seven days the delay in broadcasting? I ask him that because I do not want to read through a longish speech to reach the nub of it.

Lord Howard of Henderskelfe

I believe there should be the reserve power to make regulations for protected events. We were in a way discussing this matter earlier, when we debated whether the authority or somebody else, such as the Home Secretary, should make up the list. I believe that there ought also to be a reserve power for the Home Secretary to do so, because this would be a very stong inducement for others to do so and not fall under this terrible imposition.

Lord Elton

I am much obliged to the noble Lord. The noble Lord's amendment is very nearly the provision our predecessors came up with in 1954. It was against the background of that provision that broadcasters agreed not to compete for the rights to certain major events, such as the Derby and test matches.

The amendment as it stands would add little if anything of substance to the statute book. The provision adopted in 1954 now resides almost unaltered in Section 30 of the Broadcasting Act 1981, as I am sure the noble Lord realises, and the amendment now before us would almost exactly duplicate what is already there. If I may say so, a particular weakness of the amendment is that it makes no reference to the acquisition of cable rights, only to broadcasting rights, and as a result will provide powers which exist already elsewhere in the statute book in respect of the broadcasting authorities. It will create nothing new in the Bill for the new authority and the new service for which we are now legislating.

I will certainly look at what the noble Lord has said. I regret that I was in fact following what I thought was a different proposition that he wanted to put to me, about the reserve powers. I should not like to respond succinctly to a point which might require a longer answer than I could give in the light of what the noble Lord has said already. Perhaps we could speak between now and Report stage, and if the noble Lord is not satisfied he may return to the subject.

Lord Howard of Henderskelfe

Does the noble Lord the Minister have any views on the period of seven days as opposed to 24 hours?

Lord Elton

That was the point I was pursuing. The purpose of the 24-hour delay is simply to prevent transmission of events live. Sporting events are rather like those flat slabs of bread one buys in Morocco: they are delicious for the first 12 hours, and after that they turn to cement. The purpose of having the delay is simply to ensure that the really fresh article is not brought in as unfair competition.

If one says that events shall not be brought in live, it is still perfectly possible to use a machine which takes a match off-air from a camera and records it onto tape. Then the tape is passed across the room and put into another machine, and 35 seconds later it is broadcast on the air. As I understand it, such a broadcast is not "live" as the law sees it. We did not want to encourage that happening under the Bill, and a convenient period of delay seemed to be 24 hours. In suggesting a period of 7 days, the noble Lord is obviously wanting a loaf which is not merely like cement but has probably gone green as well. I would have thought that was unnecessary.

Lord Howard of Henderskelfe

Precisely. The bread is still just edible after 24 hours, but it will have gone mouldy after seven days.

Lord Elton

I believe my noble friends behind me will bear out that stale bread is not something that will win many customers, and I do not consider that the noble Lord's fears are justified.

Lord Howard of Henderskelfe

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Lord Howard of Henderskelfe moved Amendment No. 82:

Page 12, line 32, at end insert— (" "national interest" includes matters of interest to England, Wales, Scotland and Northern Ireland individually as well as collectively,").

The noble Lord said: This amendment concerns a matter of clarification. I may be told that it is wholly unnecessary. It proposes a new definition of "national interest" to avoid tensions or arguments to the effect that a particular event should be excluded from a list because it is of interest to only one of the countries of the United Kingdom. It is one more endeavour to preserve the Kingdom united. I beg to move.

Lord Elton

I am much obliged to the noble Lord for this amendment. I cannot begin to think of a reason why we should protect the FA cup final south of the Border and not the Scottish cup-final north of it. If that is indeed the effect of this provision, or if it in any way offends against proper national sentiment, we shall, of course, seek to amend it.

The Deputy Chairman of Committees

Is it your Lordships' pleasure that the amendment be withdrawn?

Lord Howard of Henderskelfe

I think the noble Lord accepted the amendment, wonder of wonders! Is that not so?

Lord Elton

I understand that the amendment as it stands would not do, but I shall be happy to advise the noble Lord of terms in which he can move it at a later stage, when I shall be happy to accept it.

Lord Howard of Henderskelfe

Wonders will never cease! I am most grateful. In view of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howard of Henderskelfe had given notice of his intention to move Amendment No. 83:

Page 12, line 37, at end insert— (" "prescribed event" means a sporting or other event of national interest regularly broadcast by a broadcasting authority being included in a list maintained by the Authority for the purpose of this section and any such list shall be published in such manner as the Authority considers appropriate for bringing to the attention of persons providing licensed services.")

The noble Lord said: We seem to be getting on so fast that I can hardly keep pace. We are back to restricted events and the business of agreeing between the broadcasting authorities, the Welsh Authority and so on. As we are going to look at all this again, as I understand it, with a view to satisfying everybody if we can, even the noble Earl, Lord De La Warr, I shall not move Amendments No. 83 to 89.

[Amendments nos. 83 to 89 not moved.]

Clause 13 agreed to.

Clause 14 [Complaints of unjust or unfair treatment etc.]:

Lord Howard of Henderskelfe moved Amendment No. 90:

Page 13, line 7, leave out ("Authority") and insert ("Broadcasting Complaints Commission")

The noble Lord said: Can we have any information at this stage about the length to which we are to proceed tonight, because I have certainly not given thought to some of the later clauses? Perhaps the Chief Whip thinks we are getting on with such speed that he wants to get on with more. I beg to move.

Lord Denham

I think the suggestion that found general favour was that we should complete Clause 14 and go no further than that.

Lord Howard of Henderskelfe

I beg to speak also to Amendment No. 91, which stands in my name: Amendment No. 91: Page 13, line 14, leave out subsections (2) to (5) and insert— (" ( ) Schedule (Application of Part III of the Broadcasting Act 1981) shall have effect with respect to the Commission and to complaints of the kind mentioned in the preceding subsection.") This clause deals with complaints about unjust or unfair treatment and the infringement of privacy. So far as the BBC and ITV are concerned, the noble Viscount who is now leader of the House saw fit, when Home Secretary, to introduce a programme complaints commission, which dealt with precisely these matters. This commission was entitled to receive complaints from individuals about the way in which they had been traduced and treated by those terrible people, the BBC and the individual programme companies which lie under the IBA. The amendment I have put down of course has to go on much further and introduce a whole string of stuff into the schedules, but I will not bother with that at the present time.

This point, which I made on Second Reading, was answered by the noble Lord with what I thought, quite frankly, was an extremely specious argument. He suggested that because the BBC and the IBA were directly responsible for their programmes—at least, the IBA was directly responsible because it actually transmitted the programmes although it did not make them—we had responsibility to answer the complaints about programmes through a statutory complaints commission. It was no good dealing with them ourselves because we might have been supposed to be parti pris in such cases and not be able to judge them fairly as an authority, or as the BBC, because we had made the programmes and, therefore, could not take a dispassionate view. However, this new Cable Authority is in no such position. It has absolutely nothing to do with programme transmission or the making of programmes, so it is beautifully placed to consider complaints of this nature.

I am undoubtedly paraphrasing the words of the noble Lord, but I am saying that I should have thought the authority was in precisely the same position as regards this type of complaint as are the BBC and the IBA. It is perfectly true that it is not in the same position when individuals complain that companies have not adhered to the propositions that they made in their applications for franchises, and so on. This is a wholly different matter. We are dealing with individuals, and individuals will find it extremely confusing. If they are traduced, or believe themselves to be traduced, by programmes emanating from the BBC or IBA, they go to the statutory programme complaints commission, but if the programme has been sent by cable they have to go to the Cable Authority.

Furthermore, if the programme is a BBC or ITV programme which has been transmitted by the cable company under the "must carry" rule, I am not sure to whom the complaint should be directed. It would surely be very much simpler to deal with the whole matter under one head. After all, it is not as if so far, to my knowledge, the programme complaints commission has been greatly overworked. Its members are all paid on a part-time basis, and I should not like to tell your Lordships how handsomely, on a per hour basis, that has so far worked out for the members simply because their work has been very light. I should not imagine the work would be very much greater under the Bill, and I heartily recommend that your Lordships place complaints in precisely the same position as they are under the Broadcasting Acts. I beg to move.

Lord Mishcon

May I add a very brief word in support of this amendment? It seems to me that a most valuable history of precedents will have been set up by the complaints commission and that it would be a little ridiculous to ignore those precedents and the experience that has been obtained by having the authority listening to the same sort of complaints. Moreover, if one separated them one would get the position where different decisions would be made on complaints of precisely the same type by the two bodies. At first sight this seems to be a very wise amendment.

Lord Elton

While we have followed the pattern set for broadcasting in proposing a formal complaints system for cable, we have placed the duty to consider complaints not on the existing Broadcasting Complaints Commission but on the Cable Authority, and that is the complaint of the noble Lord, Lord Howard of Henderskelfe. The noble Lord suggested that it would be appropriate for the commission to be responsible for considering complaints, and said that it would ensure consistency of treatment if the same body were to deal with complaints about cable as well as complaints about radio and television programmes. I accept that there is some force in those arguments, but I believe that there is rather more in the case for the choice of the Cable Authority to do the job.

The choice stems from the essential difference between the structure of the broadcasting and the cable services. Cable is not broadcasting. The broadcasting authorities are directly involved in producing and transmitting programmes. It was because of this involvement that the Annan Committee recommended that an independent broadcasting complaints system was needed in the first place. But the Cable Authority will take no part in producing and distributing programmes, and it will act wholly in a supervisory role. As a result℄and the noble Lord has correctly paraphrased my remarks℄it will be in a position to exercise an independent judgment about cable programmes such as a broadcasting authority would not have been. Equally important, it will be recognised by the public as being so able. As well as having the necessary independence, it would be of positive advantage to the authority in assessing how well its licensees are carrying out their functions to deal with the whole range of complaints to which their programmes give rise.

There is also the interest of the consumer to consider. I agree that we do not wish to confuse him. It seemed to us that it would be much more straightforward for him if there were a single authority responsible for complaints about all cable matters, whether about the quality of the programmes or about privacy and unfair treatment. To have two statutory bodies, each responsible for particular aspects of cable complaints, seemed to us unduly complicated and bureaucratic. Cable companies are understandably anxious not to have to deal with a large number of different public bodies each with their own area of responsibility.

As regards the desirability of ensuring that the same standards are applied to the treatment of complaints about broadcast and cable programmes℄a point which I think the noble Lord may have had in mind, although I did not hear it℄it will, of course, be open to the Cable Authority and the Broadcasting Complaints Commission to consult together with a view to adopting a common approach, and we expect that they would wish to do so. I think that this is of interest to the noble Lord. Lord Mishcon.

For all these reasons, I regret that we do not feel very well disposed towards these amendments. But I should once again like to felicitate the noble Lord, Lord Howard of Henderskelfe, on the immense amount of work which has gone into working out the detail of what he proposes in many of these amendments.

Lord Howard of Henderskelfe

I fear I am not convinced, but this is no time to press a matter such as this to a Division. We have a very thin and unrepresentative House. Nevertheless, I feel very strongly that in the way of bureaucracy Pelion is being piled upon Ossa and that we should do very much better at the end of the day with one statutory programme complaints commission, which would achieve more uniform standards and all the other factors which I and others have mentioned. If the Government remain unmoved by my pleas, I shall certainly return to this matter at a later stage of this Bill. At the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Clause 14 agreed to.

Lord Denham

In moving, That the House do now resume, I think that I should say that I expressed a hope that your Lordships would complete Clause 14 and would do so by 10 o'clock. I think that it would be churlish, having achieved half my ambition, not to thank your Lordships for the expeditious way in which this business has been carried out. I think that the shortness of speeches and the lack of waste of time have indeed improved debate. I beg to move, That the House do now resume.

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

House resumed.

House adjourned at one minute before eleven o'clock.