Cable and Broadcasting Bill [H.L.] (Hansard, 18 July 1984)

HL Deb 18 July 1984 vol 454 cc1553-619 1553

§ 7.44 p.m.

§ Lord Elton
My Lords, I beg to move that the Commons amendments be now considered.

§ Moved, That the Commons amendments be now considered.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ [References are to [Bill 127] as first printed for the Commons.]

§ 1 Clause 2, page 1, line 19, leave out ("Part") and insert ("Act").

§ 2 Page 1, line 20, leave out ("consisting") and insert ("which consists wholly or mainly").

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§ 3 Page 1, line 24, leave out ("simultaneously").

§ 4 Page 1, line 25, after ("Kingdom",) insert ("whether they are so sent for simultaneous reception or at different times in response to requests made by different users of the service").

§ 5 Page 2, line 6, leave out ("consisting") and insert ("which consists wholly or mainly").

§ 6 Page 2, line 10, after ("for") insert ("simultaneous").

§ 7 Page 2, line 11, leave out ("simultaneously").

§ 8 Page 2, line 28, leave out ("consisting of") and insert ("which consists wholly or mainly in").

§ 9 Page 2, line 29, after ("if") insert ("it is an essential feature of the service that").

§ 10 Page 2, line 29, leave out ("it is possible to send") and insert ("there will or may be sent").

§ 11 Page 3, line 1, leave out ("Part") and insert ("Act").

§ 12 Page 3, line 6, at end insert— ("(9) In this section 'dwelling-house' includes a hotel, inn, boarding house or other similar establishment.").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 to 12 en bloc. These amendments all deal with the definitional provisions in Clause 2. I think that it will be for your Lordships' convenience if I speak to them all together. Amendments Nos. 1 and 11 are purely drafting amendments relating to presentational changes to the Bill's interpretation provisions. Amendments Nos. 2, 5 and 8 are technical and pave the way for a group to which I shall be speaking later dealing with copyright protection for material such as computer programs which are not sent in the form of sounds or visual images but is part of the cable programme service. Amendments Nos. 3 and 4 are technical ones intended to make it clear that the definition of cable programme service extends to viewdata services such as Prestel where it might otherwise be difficult to show that the service, still less an individual page of text, was being sent simultaneously to two or more places.
Amendments Nos. 6 and 7 simply change the drafting of Clause 2(2) to make it consistent with the new drafting of Clause 2(1). Amendments Nos. 9 and 10 are technical amendments to Clause 2(4) which is designed to ensure that simultaneous two-way communications in sound or vision such as the telephone or in due course even the videophone and video conferencing do not constitute the provision of a cable programme service. Finally, Amendment No. 12 is designed to bring services that go to two or more hotels within the scope of the Cable Authority's licensing controls. The point was put to us that if cable services to hotels were left free to develop without regulation, this might jeopardise the development of services over wide band cable systems, particularly in an area with a high concentration of hotels such as central London. The amendment therefore places hotels and dwelling-houses on the same footing under Clause 2(2) so that services to two or more hotels will require a licence from the authority. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

Lord Winstanley
My Lords, I only heard the last of the noble Lord's remarks. Can he answer one question on Amendment No. 12? He made clear that this was a change in the Bill so that it would apply not just to dwelling-houses but to two or more hotels. I would 1555 merely ask him to confirm that I am right in assuming that a licence would not normally be required if a service was sent internally within a single hotel. It is possible that a single hotel might have 900 or 1,000 rooms and that it might want to operate a service. It is my understanding of the amendment and of the Bill as it would now be, that a single hotel with a service transmitted purely internally within the hotel would be excluded. Is that right?

§ Lord Elton
Yes, my Lords.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 13 Clause 4, page 4, line 3, leave out ("twelve") and insert ("fifteen").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 13. This amendment concerns the important and difficult question of how long the initial Cable Authority licences should run. When we considered the Bill at an earlier stage, we recognised that there was a difficult balance to strike between choosing a period that was long enough to satisfy potential investors but not so long as to reduce the effectiveness of the Cable Authority's oversight. Since then, the calculations on which potential investors had based their plans have been considerably affected by the Budget. While we were giving the Bill a Third Reading, my right honourable friend the Chancellor of the Exchequer was announcing in his Budget Statement that the system of 100 per cent. capital allowances was to be abolished. For a capital intensive business such as cable, with the need for very large up-front expenditure, this is of great significance. For some cable consortia, this could mean that the break-even point would move from year 7 to year 9, very near the time when, with a 12-year licence period, the company would be having to start turning its mind to the forthcoming re-advertising exercise.
The Government came to the view, therefore, that a further extension of the initial period was justified to take account of this new and rather unpromising situation. An amendment agreed to in another place, while preserving the normal period at eight years, extends the initial period to 15. This extension applies to both operations licensed in the future by the Cable Authority and the pilot projects, the first of which has now received a licence from the Home Office.
Similar extensions will be made to the telecommunication licences for cable systems by my right honourable friend the Secretary of State for Trade and Industry, to bring them in line with the cable programme service licence, though this change does not have any legislative implications. Thus, for tree and branch systems the licence will be 15 years, and for switched star systems, 23 years, equal to the period covered by two consecutive cable service programme licences. None of us can know whether or not cable is going to prove a success. The Government hope very much that it will, but we can do no more than create the opportunities. We believe that by making this change to the Bill we have increased the 1556 chance that those opportunities will be taken. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ Lord Mishcon
My Lords, I thought I saw a noble Lord about to rise. If that is so, I want to give him precedence.

Earl De La Warr
My Lords, as I have done at every stage of the Bill, I declare my interest as a director of one of the interim consortia. All I should like to do is to thank my noble friend for what the Government have done. He has been very explicit about the main reason why they have done it. Apart from that, for all the reasons that we adduced from Committee stage onwards, this will be of enormous help to this budding, but very high risk, industry. Once again, I thank the Government for what they have done.

§ Lord Mishcon
My Lords, I have only a very brief comment to make. It is not in opposition to this amendment, but purely to call the attention of the House to the fact that the extension to 15 years makes the revocation provisions and the lack of any other sanctions a rather more important matter than if the period had been shorter. I shall be referring to that in regard to later amendments, and I thought it only right to emphasise that point at this stage.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 14 Page 4, line 20, leave out second ("a") and insert ("the").

§ 15 line 24, leave out from ("requiring") to second ("to") in line 25 and insert ("the holder of the licence").

§ 16 line 31, leave out ("by virtue of that paragraph in a licence") and insert ("in a licence by virtue of that paragraph").

§ 17 line 32, leave out from ("licence") to end of line 33 and insert ("may require the holder of the licence").

§ 18 line 40, at end insert— ("(6A) The payment or payments required to be rendered to the Authority by conditions included in a licence by virtue of subsection (5)(b) above shall be such as to represent what appears to the Authority to be the appropriate contribution of the holder of the licence towards meeting the sums which the Authority regard as necessary in order to discharge their duty under section 19(1) below.").

§ 19 line 41, leave out from ("may") to end of line 43 and insert ("vary a licence by notice in writing served on the holder of the licence if—

(a) in the case of a variation of the period for which the licence is to continue in force, the holder consents; or
(b) in any other case, the holder has been given a reasonable opportunity of making representations.").

§ Lord Elton
My Lords. I beg to move that this House doth agree with the Commons in their Amendments Nos. 14 to 19, en bloc. These amendments all deal with the Cable Authority's powers in respect of the licences they issue. Amendments Nos. 14 to 17 are merely drafting amendments and need not detain us.
Amendments Nos. 18 and 19 are the ones of substance, and they deal with two separate points. Amendment No. 18 deals with the authority's power to charge fees, both on the issue of a licence and subsequently, while it remains in force. Noble Lords were anxious in Committee that the authority might use their power to make charges to raise more funds than were strictly necessary. Fears on this point were 1557 expressed also in another place, and my right honourable friend the Minister of State decided to put into the Bill an explicit link between the authority's power to raise fees from licencees and their financial duties in Clause 19. Amendment No. 18, accordingly, introduces into Clause 4 a new subsection which makes it absolutely clear that each licence fee is to represent what the authority think is the appropriate contribution towards the costs incurred by the authority in discharging their duty under Clause 19(1). Of course, it will be for the authority to determine what is appropriate, on the merits of each case.
Amendment No. 19 meets an undertaking I gave when we considered the Bill on Report, in response to an amendment moved by my noble friend the Duke of Portland. Unfortunately, there was not sufficient time for the amendment to be brought forward in your Lordships' House, but my right honourable friend was able to move it in another place.
Its effect is simply that the Cable Authority will not be able to vary the duration of a licence without the licensee's consent. In all other respects they will, if necessary, have the power to vary the licence without the holder's consent, provided they have afforded him a reasonable opportunity of making representations. The length of a licence is one of its most crucial features for investors, and it is right that if the authority ever come to the view that the licence period for a particular operator should be curtailed, they should use their powers of revocation under Clause 18, rather than seek to vary the licence. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 20 Clause 5, page 5, line 13, leave out from beginning to ("such") in line 17 and insert ("a notice—

(a) stating that they propose to grant a licence for the provision of such a service in the area;
(b) inviting applications for the licence; and
(c) stating the fee (if any) which will be payable on each application.

§ (2A) The Authority shall also publish, in such manner as they consider appropriate, as regards each application received—

(a) the name and address of the applicant; and
(b) ")

§ 21 line 20, leave out ("also").

§ 22 Clause 6, page 5, line 36, after ("must") insert ("be accompanied by the fee (if any) stated in the notice under section 5(2) above and must").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 20. I think it will be for your Lordships' convenience if I speak also to Amendments Nos. 21 and 22—in fact, if I seek to move the three en bloc.
When we considered this Bill in Committee, the noble Lord, Lord Aylestone, moved an amendment to enable the Cable Authority to charge a fee which would have to be submitted with applications for licences. Our initial intention had been that the authority should have power to charge fees only when they actually issued a licence, and then subsequently while the licence remained in force. In response to the 1558 noble Lord I undertook to consider the point further, and we came to the conclusion that there would indeed be some advantage in giving the authority this additional power in certain cases. It could provide a small additional source of revenue for the authority and might also deter entirely frivolous applications. I regret that these amendments were not ready before the Bill left your Lordships' House, but my right honourable friend introduced them in another place.
They give the Cable Authority discretion to require an application fee when they invite applications for a prescribed diffusion service licence. It will be for the authority to decide whether to charge an application fee in any particular case. Where they do so, they must fix the amount and state it in the notice they issue when they invite applications for a particular area. The set fee would have to accompany each application. The authority will have the power to require application fees only in respect of applications for prescribed diffusion service licences, since it is only in respect of these—the most important category of licences—that there are specific requirements for consultation, the inviting of competing applications and the seeking of public views, and the authority may well find themselves put to some expense. That is in response to a request of your Lordships. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

Lord Winstanley
My Lords, in the unavoidable absence of my noble friend Lord Aylestone, may I say on his behalf, and, indeed, on my own behalf, that we welcome these amendments and the way in which the Government have met the point raised by my noble friend at an earlier stage in our discussions.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 23 Clause 7, page 6, line 7, leave out from ("the") to ("to") in line 32 and insert ("extent to which the applicant or each applicant proposes to do the following things, namely—

(a) to include a range and diversity of programmes;
(b) to include in the programmes matter which originates within the European Economic Community and is performed by nationals of Member States;
(c) to include in the programmes an increasing proportion of such matter;
(d) to include programmes of an educational nature, programmes calculated to appeal specially to the taste and outlook of persons living in the area and programmes in which such persons are given an opportunity to participate;
(e) to include programmes provided otherwise than by himself or by associates of his;
(f) to include programmes provided by local voluntary associations and to assist such organisations in the preparation and production of programmes;
(g) to include in the programmes matter which is calculated to promote the understanding or enjoyment of programmes by persons who are deaf;
(h)").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 23. When we considered this Bill originally, we had a number of lengthy debates—in Committee, on Report and on Third Reading—about its provisions on domestic programme material. This is an important area, and at the time I made clear the Government's wish to see cable provide a stimulus to 1559 the British production industry. That is why the Bill contains three provisions in this area. First, the Cable Authority have a duty, in Clause 7(2)(b), to take into account at the licensing stage applicants' proposals in this area; secondly, under Clause 10(1)(d), they must see that proper proportions of British material and material from other parts of the EEC are included in cable programmes; and, thirdly, under Clause 22(3), they must include in their annual report an account of how they have discharged this duty under Clause 10.
There is only one change of substance in this amendment. It is, I think, generally accepted—certainly it was accepted by your Lordships—that in the early years cable will need to rely on a greater quantity of overseas material than will be the case later on, when it has become established. That is natural, because the production industry will take time to adjust and cable companies will take time to find their feet financially. One problem which perplexed us in our earlier deliberations was how to build into the Bill some kind of duty on the authority to achieve a progressive increase in domestic programming on cable, as envisaged by the White Paper.
We decided that the proper proportions formulation in Clause 10(1)(d) was the right one to give the authority the necessary flexibility to take into account all the relevant circumstances in carrying out this duty. However, it proved impossible to qualify that test to provide explicitly for an increase without either making nonsense of it or changing it to a more rigid formulation. Nonetheless, we continued to consider this problem in the light of further concern which was expressed in another place. As a result, my right honourable friend was able to bring forward the present amendment. Paragraph (c) is the relevant part, and it will give the authority a duty to take into account at the licensing stage not only applicants' proposals to include in their programmes material originating within the EEC, but also their proposals to include an increasing proportion of such material.
This amendment means that we now have in the Bill four separate duties on the Cable Authority in the area of domestic programming. I think that taken together they represent a firm steer to the authority to ensure that domestic programming is used on cable at the highest practical level, while leaving them with essential flexibility in the way in which they carry out their duties. How things will work out in practice will depend very much on the price and availability of the right kind of material, but our objectives are clear. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ Lord Mishcon
My Lords, one's recollection goes back to the sturdy debates that took place in your Lordships' House on the very matter of ensuring that there was sufficient quota of EEC material, including obviously material emanating from the United Kingdom. One's recollections are of endeavours made by the noble Lord, Lord Hill of Luton, in alliance—and a very holy alliance—with my noble friends and myself. The Minister was very forthcoming in his support of the principle, and we both struggled with the idea of a formula. One was not 1560 forthcoming that met with the approval of your Lordships' House in the long run. But this is definitely an improvement upon what was in the original Bill, and for that my noble friends and I are truly thankful.
What worries us—and this is why I made the comment that I did on the earlier amendment which extended the life of the licence to 15 years—is: what sanction is there in the Bill? What are the means that the authority could employ to see that the blandishments (if I may put it that way) made by the applicant as to the extent to which he immediately intended to give priority to EEC material, and the extent to which he was going to increase that material year by year, or certainly over the period of the licence, are carried out?
The only sanction in the Bill at the moment—and this was what we on these Benches complained about when the Bill was before us—is that contained in Clause 18, and that, of course, is the very vigorous one of revoking the licence. One knows that there will be the annual report and that there will be a progress report.
All that I can sensibly ask for at this stage, now that we are considering this amendment, is whether the Government will give an assurance to your Lordships that they, in turn, will tell the authoritiy in no uncertain terms that the provision of (and I am using shorthand English) a quota of EEC material (which will not only give employment to our people but will, I hope, uphold the quality of what is on cable) is regarded by the Government as being an essential ingredient, and that in some way there will be a review of the situation in regard to the licence if the promises made originally when the licence was granted in this connection are not fulfilled and there are no good reasons for not fulfilling them. That is something about which your Lordships would want to be assured before we pass from this amendment, which I am sure we can agree to otherwise.

§ Lord Elton
My Lords, inevitably in a debate of this type there is a faint feeling of the British Legion coming together and battle honours of long ago being recited. I well remember the encounters to which the noble Lord refers, and I am grateful to him for the interest which he quite properly has in this part of the Bill.
It is of course the case that whenever you have a franchising system there is the risk that promises and performance will not match up, and that is what concerns the noble Lord. We think that we have gone as far as we can in the Bill to try to guard against this, but I would not want to suggest that there is any panacea. The authority will have power under Clause 4(5) to write conditions into each operator's licence which reflect the promises made by him at the application stage. So we have it in writing and are able to confront him with it.
Breach of licence conditions can lead to a public warning by the authority under Clause 17(2), a period of close supervision of the operator's activities and re-vetting of his schedules under Clause 17(3), as well as ultimately—and, as the noble Lord pointed out, in the first instance rather more distantly—revocation of the licence. Where problems could arise in practice would be where a company could simply not find 1561 sufficient domestic programme material of a suitable kind at the right price. If the company was also experiencing financial pressures, the difficulty of any punitive action by the authority would be that much greater. But I cannot see that there is really any simple way out of that dilemma. The authority would have to decide, on the facts of each case, whether it was better to persevere with a licensee, even though in some respects his performance was falling short of the mark, or whether the point had come where revocation was necessary in the public interest.
However, as I have said, revocation is certainly the final step, but it is not the only one, and I believe that the intermediate stages of graduated deterrence in the form of public warning and the pre-vetting of schedules in fact amount to a matter of which a company would have to take very careful note and of which its customers would also take note.

§ Lord Mishcon
My Lords, before the noble Lord the Minister sits down, I wonder whether he would give me an answer in regard to the assurance that I sought and in which I thought your Lordships were interested; namely, that the Government will inform the authority of the importance which they attach to the quota provision and to the promises that are made, and that the authority will act with proper sternness in cases which show that unreasonably the licensee has not kept his promises. I shall keep talking, if I may, for a moment or two because I believe that that might help me in view of a message which is now being conveyed.

Lord Winstanley
My Lords, while the noble Lord the Minister is considering matters let me intervene just very briefly. The noble Lord, Lord Mishcon, has questioned the adequacy of the sanction which exists and which the authority can use. He has stated correctly that the only power that it has is the power under Clause 18 of the Bill to revoke the licence.
The adequacy or otherwise of a sanction depends upon whether the sanction ever has to be used. If the sanction is effective—in other words, if the licensees in fact fulfil the promises which they made when they were awarded the franchises—then it does not matter what the sanction is because they have in fact fulfilled those promises. It would only matter if they did not fulfil them. What matters, therefore, is that we have a clear understanding that the authority would be prepared to use that ultimate sanction should it be necessary. To that extent I am wholly with the noble Lord, Lord Mishcon, and I await with interest the assurance which I am sure we are presently going to get from the noble Lord.

§ Lord Elton
My Lords, I am much obliged to the noble Lords for a virtue which is sometimes a vice in this House, and that is their prolixity. I wanted confirmation of my view that it is not the function of the Government to instruct the authority—and I think that this is clear from the face of the Bill—as to how to fulfil its statutory duties. But we shall certainly ensure —and I think that this is what the noble Lord can best be reassured by—that the authority is fully aware of the views expressed on this matter in this House.

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§ Lord Mishcon
My Lords, I am much obliged.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 24 Clause 8, page 7, line 30, leave out ("there are shareholdings to which subsection (4) below applies") and insert—

(" (a) any of the persons mentioned in subsection (4) below is a participant; or
(b) any of the persons mentioned in subsection (4A) below is a principal participant,").

§ 25 Page 7, line 33, leave out ("the existence of those shareholdings") and insert ("that person's participation in that body corporate").

§ 26 Page 7, line 36, leave out from beginning to end of line 38 and insert ("The persons referred to in subsection (3)(a) above are").

§ 27 Page 7, line 42, leave out ("or the Welsh Authority") and insert ("and the Welsh Authority; and (d) a body corporate which is under the control of a person falling within paragraph (a), (b) or (c) above. (4A) The persons referred to in subsection (3)(b) above are— (a) a person who is a principal participant in another body corporate which is the holder of a licence for the provision of a diffusion service to which this section applies;").

§ 28 Page 8, line 2, leave out ("or") and insert ("and").

§ 29 Page 8, line 9, leave out ("records") and insert ("recordings").

§ 30 Page 8, line 11, after ("paragraph") insert ("(a)").

§ 31 Page 8, line 14, leave out ("(d), (e) or (f) above; or") and insert ("(a), (d), (e) or (f) above; and").

§ 32 Page 8, line 16, leave out ("any of the foregoing paragraphs") and insert ("paragraph (a), (d), (e) or (f) above").

§ 33 Page 8, line 21, leave out from ("section") to ("and") in line 23, and insert— ("— participant", in relation to a body corporate, means a person who (whether alone or jointly with one or more other persons, and whether directly or through one or more nominees) holds or is beneficially entitled to shares, or possesses voting power in, that body corporate; principal participant", in relation to a body corporate, means a person who (whether alone or jointly with one or more other persons, and whether directly or through one or more nominees) holds or is beneficially entitled to not less than one-twentieth of the shares, or possesses not less than one-twentieth of the voting power in, that body corporate. (7) In this section "cinematograph film", "record" and "sound recording" have the same meanings as in the Copyright Act 1956 (in this Act referred to as "the 1956 Act"); ").

§ 34 Page 8, line 26, leave out ("that") and insert ("the 1956").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 24 to 34 en bloc. This somewhat intricate set of amendments deals with two points on Clause 8 which were raised in this House at an earlier stage but had not been successfully attended to before the Bill left for another place. The first concerns the undesirability of requiring the Cable Authority to have to consider the public interest implications of every single share held by a body listed in Clause 8(4); the second relates to the need for safeguards against excessive concentrations of ownership of cable companies.
My noble friend Lord Glanusk pointed out to your Lordships that it could be very onerous for the Cable 1563 Authority and the companies concerned if the authority had a duty, at least in principle, to take an interest in every individual share. I agreed at the Report stage that we would try to build in a more realistic threshold and we have done this by introducing into Clause 8 the concept of a "principal participant". A principal participant is someone with 5 per cent. or more of the shares or the voting power of the company.
The effect of these amendments is that the authority will still have to look at any participation in a cable company by one of the bodies listed in paragraphs (a) to (c)—that is, local authorities, religious and political organisations and the broadcasting organisations—to see that no problem is likely to arise. But in the case of the commercial organisations listed in paragraphs (d) to (h) of subsection (4) the authority will have to consider the public interest implications only where the stake is 5 per cent. or more.
The second point about excessive concentrations of ownership and the possible development of regional cable monopolies is dealt with by Amendment 27. We have not followed the letter of the amendment which the noble Lord, Lord Mishcon, tabled in our previous proceedings, but I think that we have adopted its spirit. The Cable Authority will have to consider the public interest implications where a particular company or individual has a stake of more than 5 per cent. in two separate cable companies. That does not, of course, mean that companies are automatically precluded from having a sizeable stake in several licensed companies; it will be for the authority to consider what the practical consequences of such a situation would be. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ Lord Mishcon
My Lords, adopting the spirit of that amendment, which I had the privilege of moving, I am most grateful to the noble Lord.

§ Lord Glanusk
My Lords, I should like to thank my noble friend and his colleagues in another place for moving these amendments for us. Even after these amendments, it will still mean that virtually all the original shareholders in the licensed operating companies will be subject to immediate scrutiny by the authority because they hold more than 5 per cent. of the shareholding. We still believe that the companies and bodies listed in Clause 8(4)(d) to (h) are too specific and by no means exhaustive.

§ Lord Mishcon
My Lords, I hesitate to interrupt the noble Lord, but he has twice used the word "we" and I am not quite sure on whose behalf he is speaking, because in this House we do not speak on behalf of anyone but ourselves.

§ Lord Glanusk
My Lords, I beg your pardon; I was speaking on behalf of my noble friends who took part in the earlier debates. I, personally, did not take part in all of them.
There are several types of businesses which are omitted from that list and if they did become 1564 influential shareholders in the cable operating companies, they would create a far greater threat to the subscribing public than the ones listed there. However, we must hope that the authority can keep control of them via some of the other clauses, such as the powers laid down in Clauses 16 and 17.

§ Lord Elton
My Lords, I acknowledge both my noble friend's gratitude and his rebuke. We did consider his position carefully. It seemed to us that to have talked in general about any company shareholding which might lead to results adverse to the public interest without a descriptive list would have imposed a duty on the authority which it might have found very hard to fulfil. I shall not detain your Lordships longer because I think that our position on this is well known.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 35 Clause 12, page 10, line 23, after ("IBA") insert ("and such other bodies and persons concerned with standards of conduct in advertising as the Authority think fit").

§ 36 Page 10, line 41, leave out from beginning to first ("the") in line 43.

§ 37 Page 10, line 43, leave out ("in the case of any licensed service").

§ 38 Page 11, line 2, leave out from ("exceed") to end of line 4 and insert—

("(a) in the case of so much of a licensed diffusion service as appears to the Authority, after consultation with the IBA, calculated to appeal to tastes and interests which are generally catered for by ITV, the maximum amount of time which could be so given if that service were ITV; and
(b) in the case of so much of a licensed diffusion service as appears to the Authority, after consultation with the IBA, calculated to appeal to tastes and interests which are generally catered for by local sound broadcasting services, the maximum amount of time which could be so given if that service were a local sound broadcasting service.").

§ 39 Page 11, line 15, leave out ("Part") and insert ("Act").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 35 to 39 en bloc.
Amendment No. 35 would require the Cable Authority, when drawing up their advertising code under Clause 12, to consult, in addition to the IBA, other people and bodies experienced in regulating advertising standards. The amendment is similar to that tabled by my noble friend Lord Mottistone on Report. Your Lordships will recall that I was successful then in resisting it. However, the debate was rejoined at the Committee stage in another place when it was again argued, strongly, that to specify additional consultations with other bodies would make it clear that the process of drawing up the code should not be dominated by the IBA. The Government were finally persuaded by these arguments that the additional words might accordingly go into the Bill.
Amendments Nos. 36 to 38 deal with three points in relation to Clause 12(3), which concerns the amounts of advertising to be shown on cable. First, as noble Lords will know, we said in the White Paper that the amounts of advertising on cable television and sound channels should be unrestricted except where those channels were broadly comparable with the IBA 1565 services, in which case the IBA limits on the amount of advertising should apply. The original drafting of subsection (3) was defective because it referred only to the advertising limits on independent television which are more restrictive than those that apply to independent local radio; Amendment No. 38 now distinguishes between television and radio and provides that the ILR limit should apply to comparable cable sound channels.
Secondly, it was represented to us in another place that the drafting of subsection (3) was not sufficiently close to the White Paper formulation of channels that were "broadly comparable". We have wrestled with the statutory language, in which we cannot employ such ill-defined concepts as "channel", and are now satisfied that the tighter formulation in Amendment No. 38 brings us more closely in line with the White Paper. Thirdly, we have made clear in that amendment that, while the Cable Authority should consult the IBA in deciding what limits should apply, the decision should be that of the Cable Authority alone and not a joint decision with the IBA. This again reflects more closely what we said in the White Paper.
Amendment No. 39 is a small drafting amendment consequential on changes made elsewhere. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

Earl De La Warr
My Lords, I should like to thank the Government for all the help they have given on Amendments Nos. 35 and 38, which the noble Lord will remember were hotly debated during the Committee and Report stages.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 40 Clause 13, page 12, line 14, leave out from ("schedules") to ("schedules") in line 16 and insert ("then, so far as relating to that television broadcasting service, the duty in subsection (1) above shall be subject to the limitation in whichever of subsections (2A) and (2B) below is applicable.

§ (2A) Where the programmes contained in one of the programme schedules are broadcast for reception in a greater part of the area than the programmes contained in the other schedule or any of the other schedules, the said duty so far as so relating shall extend only to the programmes contained in the first-mentioned schedule.

§ (2B) Where subsection (2A) above does not apply, the said duty so far as so relating shall extend only to the programmes contained in such one of the programme")

§ 41 Page 12, line 17, after ("service") insert ("or additional teletext service")

§ 42 Page 12, line 21, leave out second ("the ") and insert ("that")

§ 43 Page 12, line 22, leave out ("DBS programme") and insert ("programme or teletext")

§ 44 Page 12, leave out lines 35 and 36 and insert— (" "additonal teletext service", in relation to a broadcasting authority, means a teletext service (other than a DBS service) which is additional to those already provided by that authority;")

§ 45 Page 12, line 39, at end insert— (" "programme" includes a teletext transmission")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 40 to 45 en bloc. I think that it will also be for the convenience of your Lordships if at the same time I speak to Amendments Nos. 64 to 70.

1566

§ Amendments Nos. 64 to 70:

§ 64 Clause 24, page 22, line 4, leave out ("made for reception in any area")

§ 65 Page 22, line 7, leave out ("provided in that area") and insert—

("(a) if the programme is so included in pursuance of a requirement imposed under subsection (1) of section 13 of the Cable and Broadcasting Act 1984; or
(b) where the broadcast is made otherwise than in a DBS service (as defined in subsection (4) of that section) or an additional teletext service (as so defined), if and to the extent that it is made for reception in the area in which the cable programme service is provided."

§ (3A) After section 27A of that Act there shall be inserted the following section—

"Exercise of jurisdiction of tribunal in relation to inclusion of broadcasts in cable programmes. 27B.—(1) On a reference to the tribunal under this Part of this Act relating to licences to broadcast works or sound recordings for reception in any area, the tribunal shall exercise its powers under this Part of this Act so as to secure that the charges payable for the licences adequately reflect the extent to which the works or recordings will be included, in pursuance of requirements imposed under section 13(1) of the Cable and Broadcasting Act 1984, in cable programme services provided in areas parts of which fall outside that area. (2) The preceding subsection shall have effect, with the necessary modifications, in relation to applications under this Part of this Act as it has effect in relation to references thereunder." ").

§ 66 Page 22, line 11, leave out ("subsection") and insert ("subsections").

§ 67 Page 22, line 13, leave out ("for reception in any area").

§ 68 Page 22, line 14, after second ("broadcast") insert ("then, subject to subsection (3A) below,").

§ 69 Page 22, line 17, leave out ("provided in that area").

§ 70 Page 22, line 25, at end insert— ("(3A) Subsection (3) above applies only—

(a) if the programme is included in the service in pursuance of a requirement imposed under section 13(1) of the Cable and Broadcasting Act 1984; or
(b) if and to the extent that the broadcast is made for reception in the area in which the service is provided." ").

§ These 13 interrelated amendments all concern the relay of BBC and IBA broadcasts over cable. They make some adjustments to the must-carry rule and to the copyright liability of cable operators, with a view to securing three particular objectives.

§ First, they clarify the operation of the must-carry rule and of copyright law where a cable operator straddles the service area of two broadcast transmitters; secondly, they ensure that the must-carry rule can operate effectively in the case of broadcast services which are provided on a subscription basis; thirdly, they give the broadcaster copyright protection against the unauthorised relay of his DBS or subscription teletext service.

§ The third of these changes is made in fulfilment of an undertaking which I gave to the noble Lord, Lord Howard of Henderskelfe, at Report stage on 1st March. If your Lordships wish me to dilate on any of those three aspects, I should be happy to do so, but otherwise I shall simply say, I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

1567

§ COMMONS AMENDMENTS

§ 46 Clause 14, page, 12, line 42, after ("includes") insert ("the whole or any part of").

§ 47 Page 13, line 12, leave out second ("a") and insert ("the whole or any part of a listed or").

§ 48 Page 13, line 25, leave out ("which it is the practice of a broadcasting authority to broadcast") and insert ("the whole or any part of which—

(a) it was at the commencement of this section the practice of a broadcasting authority to broadcast; and
(b) but for the acquisition of rights to include the whole or any part of events in that series in licensed services, it would still be the practice of that authority to broadcast; and for the purposes of this subsection anything broadcast by either of the broadcasting authorities shall be treated as broadcast by each of them").

§ 49 Page 13, line 34, at end insert ("the whole or any part of").

§ 50 Page 13, line 36, leave out ("that event") and insert ("the original recording was made").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 46 to 50 en bloc.
We did much to improve Clause 14 in Committee and on Report, but our work was incomplete. This group of amendments to the clause does I think improve the drafting further and put to rest some of the anxieties that your Lordships expressed when we last debated this part of the Bill.
Amendment No. 46 makes it clear that the protection offered to the broadcasters in respect of listed events applies to the whole event or any part of it. This is necessary because in the case of large events, such as Wimbledon, the Olympic Games, or the World Cup Final, it could be argued that a particular match or contest was not actually "the event" and was not therefore safeguarded. The same formula of the whole or any part of appears in Amendment No. 47. This makes it clear that listed events may not be shown on cable, on payper-view terms, or on cinema relay; in most cases, listed events will be protected events also. However, it may conceivably happen that some new events will in the future become worthy of inclusion on the list of great national events, and without this amendment they would not benefit from the pay-per-view protection because of the new definition of protected events in Amendment No. 48, to which I now turn.
Amendment No. 48 is at the heart of this group of amendments and is the most complex of them. When we looked again at the previous definition of protected event we found that it had a significant loophole. As the definition referred to what it is the practice of the broadcasters to show, it left it open to the cable companies to argue that that protection would fall away immediately the broadcasters were outbid for the rights. In other words, cable could bid over the odds for the rights in the certain knowledge that it could resort to pay-per-view as soon as the deal had been clinched and it was no longer the practice of the broadcasters, who had been outbid, to show the event. This would have made the protection inoperable.
There are two limbs to the new definition. The first provides that an event will be protected where it is the broadcasters practice to show it before the Act comes into force; this gets over the difficulty of the phrase, is the practice of the broadcasters". 1568 The second limb provides that it would still be the practice of the broadcasters to show the event but for the acquisition of the rights by cable; this is designed for the cases where the broadcasters genuinely lose interest in showing the event for some reason other than that pay-per-view has bid up the cost too much. I hope I have said enough to persuade your Lordships that the new definition of protected event is a distinct improvement on the old. It has one further advantage, that of flexibility.
One final point. In our Report stage discussions of this clause I made it clear that the 24-hour protection under subsection (5) would run from the moment that the action was first recorded, and not from the end of the whole event. I cited the example of the Test Match, where cable could show the first day's highlights on the second day. Although, as I made clear, this was our understanding of the subsection as drafted, by means of Amendments Nos. 49 and 50 we propose to put the issue beyond doubt, which I think is what your Lordships wanted. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ Lord Howard of Henderskelfe
My Lords, I want merely to thank the noble Lord, Lord Elton, for further improving this situation. We had a great deal of difficulty over it. First of all, I fear that those of us who know something about the subject had quite a lot of difficulty in teaching some of our fellows as to what it was all about—including the noble Lord, Lord Elton, who knew clearly what it was all about! The noble Lord has been of considerable assistance. Although I would not say this for the whole of the Bill, I think we have ended up with a greatly improved collection of words on this very knotty problem. I should like to thank the noble Lord for all the personal effort he has put into getting it right.

Lord Winstanley
My Lords, I am not satisfied that I have fully understood the noble Lord. In general I agree with the noble Lord, but am I right in thinking that the exclusions so far as cable is concerned would apply only if the financial terms on which cable rights were acquired prevented the continued coverage of the protected event by the BBC or the IBA? In other words, would it apply only if they were going to pay over the odds, as it were?
It might well be, for instance, if we take a protected event—clearly Wimbledon might be regarded as a protected event—that neither the BBC nor the IBA cover the whole of it. There are other matches going on at Wimbledon quite apart from those actually broadcast. Would it be open to a cable company to record and show other events which were not used by the BBC or the IBA, provided the financial terms on which they acquired those rights were not such as in any way to affect the BBC or the IBA? I am not clear from the noble Lord's explanation whether I have fully understood the nature of this particular exclusion.

§ Lord Elton
My Lords, whether the reason for the broadcasters ceasing to cover an event newly acquired by cable is a financial one or a purely programming one—that is, they have lost interest in showing it—will be a matter for the Cable Authority to judge and to 1569 activate the protection or not, as the case may be. The power is there. It is a matter for judgment.

Earl De La Warr
My Lords, I think that the Government have come close to dealing with what I was asking for at all stages. I also believe that the noble Lord has, by what he has just said, satisfied me on the one point on which I was in doubt, which is what happens when, for various reasons, the broadcasters decide not to broadcast something for which cable rights have been acquired.
The noble Lord has said that the authority then has the power to decide why the broadcaster decided not to broadcast. In doing so he has narrowed it further and, in my opinion, brought us even closer together. I have no complaint therefore because, as he might have said, but did not, it is always open to the cable operator to use the item on a non-pay-per-view basis, and so I am happy. I hope I have not embarrassed the noble Lord in what I have said.

§ Lord Elton
My Lords, I revel in the gratitude and approval of my noble friends, particularly when they get it right, which my noble friend has done yet again.
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 51 Clause 15, leave out Clause 15.

§ 8.27 p.m.

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 51, and to speak also to Amendments Nos. 78, 79 and 140.

§ 78 After Clause 28, insert the following new Clause:

§ ("Complaints of unjust or unfair treatment etc.

§ . The Broadcasting Complaints Commission shall also have the function of considering and adjudicating upon complaints of—

(a) unjust or unfair treatment in programmes actually included in a licensed service after the commencement of this section otherwise than by the reception and immediate re-transmission of broadcasts made by a broadcasting authority; or
(b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, programmes actually so included;

and Part III of the 1981 Act (which relates to that Commission) shall accordingly have effect with the amendments made by Schedule (Amendments of Part III of the 1981 Act) to this Act.")

§ 79 After Clause 28, insert the following new clause:

§ ("Contributions towards costs of Broadcasting Complaints Commission.

§ .—(1) The Secretary of State shall, for the financial year which includes the commencement of this section and each subsequent financial year, notify to the Authority the total sum which he considers to be the appropriate contribution of persons providing licensed services towards the expenses of the Broadcasting Complaints Commission.

§ (2) The Authority shall do all that they can to secure that persons providing licensed services make to the Authority in respect of every financial year payments representing what appear to the Authority to be the appropriate contributions of those persons towards meeting the sum notified to the Authority for that year under subsection (1) above.

§ (3) The payments made to the Authority by virtue of subsection (2) above shall not form part of the revenue of the Authority and, when received by the Authority, shall be paid to the Secretary of State.

§ (4) All sums received by the Secretary of State under subsection (3) above shall be paid into the Consolidated Fund.")

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§ 140 After Schedule 1, insert the following new schedule—

§ ("AMENDMENTS OF PART III OF 1981 ACT

§ Section (Complaints of unjust or unfair treatment etc.)

§ 1. In section 53(3) of the 1981 Act (disqualification for membership of Broadcasting Complaints Commission) after the words "the IBA", in the first place where they occur, there shall be inserted the words "or the Cable Authority" and for the words from "the preparation" to the end there shall be substituted the words—

"(i) the preparation or provision of programmes for broadcasting by the BBC or the IBA (including, in the case of the IBA, programmes consisting of advertisements); and
(ii) the provision of a licensed cable programme service or the preparation or provision of programmes for inclusion in such a service."

§ 2.—(1) For paragraph (b) of subsection (1) of section 54 of that Act (functions of Commission) there shall be substituted the following paragraphs—

"(b) unjust or unfair treatment in programmes actually included in a licensed cable programme service after the commencement of section (Complaints of unjust or unfair treatment etc.) of the Cable and Broadcasting Act 1984 otherwise than by the reception and immediate re-transmission of broadcasts made by a broadcasting body; or
(c) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, sound or television programmes actually so broadcast or programmes actually so included."

§ (2) For the definitions of "complaint" and "participant" in subsection (3) of that section there shall be substituted the following definitions— "broadcasting complaint" means a complaint in the case of which the relevant programme was broadcast by a broadcasting body; cable programme complaint" means a complaint in the case of which the relevant programme was included in a licensed cable programme service otherwise than by the reception and immediate retransmission of broadcasts made by a broadcasting body; complaint" means a complaint to the Commission of any such unjust or unfair treatment or unwarranted infringement of privacy as is mentioned in subsection (1); participant", in relation to a programme, means a person who appeared, or whose voice was heard, in the programme:

§ 3.—(1) In subsection (4) of section 55 of that Act (making and entertaining of complaints) after the words "relevant programme" there shall be inserted the words "or its inclusion in a licensed cable programme service".

§ (2) At the end of subsection (5) of that section there shall be added the words "or included in a licensed cable programme service."

§ (3) In subsection (6) of that section after the word "broadcast" there shall be inserted the words "or included in a licensed cable programme service."

§ 4.—(1) For paragraphs (b) and (c) of subsection (2) of section 56 of that Act (consideration of complaints) there shall be substituted the following paragraphs—

"(b) in the case of a broadcasting complaint, the broadcasting body by whom the relevant programme was broadcast;
(c) in the case of a cable programme complaint, the Cable Authority and every person providing a licensed cable programme service in which the relevant programme was included; and
(d) in either case, any person not falling within the foregoing paragraphs who appears to the Commission to have been responsible for the making or provision of the relevant programme."

§ (2) For subsection (3) of that section there shall be substituted the following subsection— (3) Before they proceed to consider a complaint the Commission shall—

(a) in the case of a broadcasting complaint, send a copy of it to the broadcasting body by whom the relevant programme was broadcast; and
(b) in the case of a cable programme complaint, send a copy of it to the Cable Authority."

§ (3) In subsection (4) of that section after the words "broadcasting body" there shall be inserted the words "or the Cable Authority" and after the words "that body", in each place where they occur, there shall be inserted the words "or Authority".").

§ (4) For subsections (5) and (6) of that section there shall be substituted the following subsections— (5) Where a broadcasting body or the Cable Authority receive from the Commission a copy of a complaint, it shall be the duty of that body or Authority, if so required by the Commission, to arrange for one or more of the governors, members or officers of that body or Authority to attend and assist the Commission in their consideration of the complaint. (6) Where a broadcasting body or the Cable Authority receive from the Commission a copy of a complaint and, in connection with the complaint, the Commission make to any person (other than that body or Authority) a request to which this subsection applies, it shall be the duty of that body or Authority to take such steps as they reasonably can to ensure that the request is complied with. 5.—(1) In subsection (1) of section 57 of that Act (publication of Commission's findings) for the words from "to the broadcasting body" to "so specified" there shall be substituted the words "directions requiring the publications, in any manner specified in the directions and within such period as may be so specified, of".

§ (2) For subsection (2) of that section there shall be substituted the following subsections— (2) Directions under subsection (1) shall, in the case of a broadcasting complaint, be given to the broadcasting body by whom the relevant programme was broadcast; and it shall be the duty of a broadcasting body to comply with any directions so given. (2A) Directions under subsection (1) shall, in the case of a cable programme complaint, be given to every person providing a licensed cable programme service in which the relevant programme was included; and it shall be the duty of the Cable Authority to take such steps as they reasonably can to ensure that any directions so given are complied with.

§ (3) In subsection (5) of that section for the words "or programme contractor" there shall be substituted the words ", programme contractor or person providing a licensed cable programme service".

§ 6.—(1) In section 58 of that Act (duty to publicise Commission) for the word "complaints" there shall be substituted the words "broadcasting complaints".

§ (2) That section as so amended shall be renumbered as subsection (1) of that section and after that provision as so renumbered there shall be inserted the following subsection— (2) It shall be the duty of the Cable Authority to take such steps as they reasonably can to secure the publication (by means of licensed cable programme services or otherwise) of regular announcements publicising the Commission and their function of considering and adjudicating upon cable programme complaints.

§ 7. At the end of section 59(3) of that Act (annual report of Commission) there shall be added the words "and to the Cable Authority and every person providing a licensed cable programme service".")

§ When the Bill was before this House, it was your Lordships' clearly expressed view that complaints about unjust or unfair treatment, or unwarranted infringement of privacy in cable programmes should be dealt with by the Broadcasting Complaints Commission and not the Cable Authority. That was not our initial view, but having considered your Lordships' views on the matter, we accepted them, and I gave an assurance at Third Reading that amendments would be made in another place to 1572 transfer responsibility for this matter to the Broadcasting Complaints Commission. These amendments give effect to that undertaking, and I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ Lord Mishcon
My Lords, no one else will remember the speech I made in favour of the Broadcasting Complaints Authority being the proper tribunal. I wanted to say merely that I remembered it.

§ Lord Howard of Henderskelfe
My Lords, if I remember rightly, this was one of the amendments in which I was associated with the noble Lord. I am delighted that the Government have seen sense on this matter and that we have one body who will establish their own precedents and deal with these extremely difficult questions of unfairness and so on.

Lord Winstanley
My Lords, lest there should be any doubt, we are all delighted.

§ Lord Elton
My Lords, may I say thank you to all noble Lords who said "thank you", and may I be excused from saying it in future and not thereby deter your Lordships from saying "thank you" whenever you feel like it?

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 52 Clause 17, page 16, line 33, leave out from beginning to ("Act") in line 34 and insert ("Expressions used in this section which are also used in the 1956 Act have the same meanings as in that").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 52. With your Lordships' leave I will speak also to Amendments Nos. 55–58 inclusive, 60, 63, 71 and 72, 95 and 155, since they all make minor adjustments to the provisions of the Bill relating to copyright.

§ COMMONS AMENDMENTS

§ 55 Clause 23, page 19, line 13, after ("every") insert ("cable").

§ 56 Page 19, line 14, leave out from ("included") to ("in") in line 15.

§ 57 Page 19, line 18, leave out from ("extends") to end of line 20.

§ 58 Page 21, line 32, leave out ("has the meaning given by subsection (1) of this section") and insert ("means a programme which is included, after the commencement of section 23 of the Cable and Broadcasting Act 1984, in a cable programme service;").

§ 60 Page 21, line 35, leave out from first ("of") to end of line 38 and insert ("the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section").

§ 63 Clause 24, page 21, leave out lines 40 to 42.

§ 71 Page 22, leave out from beginning of line 26 to end of line 13 on page 23.

§ 72 After Clause 24, insert the following new Clause—

§ ("Inclusion of sound recordings and cinematograph films in cable programmes.

§ .—(1) At the end of paragraph (c) of section 12(5) of the 1956 Act (copyright in sound recordings) there shall be added the words "or including it in a cable programme."

§ (2) In section 13(5) of that Act (copyright in cinematograph films) for paragraph (d) there shall be substituted the following paragraph— 1573 (d) including the film in a cable programme.

§ (3) After section 40 of that Act there shall be inserted the following section—

§ "Inclusion of sound recordings and cinematograph films in cable programmes.

§ 40A.—(1) Where a cable programme is sent and a person, by the reception of that programme, causes a sound recording to be heard in public, he does not thereby infringe the copyright (if any) in that recording under section 12 of this Act.

§ (2) Where a cable programme is sent and the programme is an authorised programme, any person who, by the reception of the programme, causes a cinematograph film to be seen or heard in public shall be in the like position, in any proceedings for infringement of copyright (if any) in the film under section 13 of this Act as if he had been the holder of a licence granted by the owner of that copyright to cause the film to be seen or heard in public by the reception of the programme.

§ (3) If, in the circumstances mentioned in the last preceding subsection, a person causing a cinematograph film to be seen or heard infringes the copyright in the film by reason that the cable programme was not an authorised programme—

(a) no proceedings shall be brought against that person under this Act in respect of his infringement of that copyright, but
(b) it shall be taken into account in assessing damages in any proceedings against the person sending the programme, in so far as that copyright was infringed by him in sending the programme.

§ (4) For the purposes of this section, a cable programme shall be taken, in relation to a cinematograph film, to be an authorised programme if, but only if, it is sent by, or with the licence of, the owner of the copyright in the film." ").

§ 95 Clause 33, page 30, line 19, leave out from beginning to ("Act") in line 20 and insert ("Expressions used in this section which are also used in the 1956 Act have the same meanings as in that").

§ 155 Schedule 2, page 40, leave out lines 24 to 26.

§ Amendments Nos. 52 and 95 are technical amendments to remedy a minor deficiency in the Bill as originally drafted. They ensure that the terminology used in Clause 17(4) and Clause 13(2) is the same as that which appears in the Copyright Act 1956. Amendments Nos. 55 to 58 are also technical ones to correct an unintended effect of the drafting of the Bill's copyright provisions drawn to our attention by the British Copyright Council. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ Lord Howard of Henderskelfe
My Lords, I do not want to delay your Lordships unduly, but I merely enter a caveat that I do not think that the matter is as easy as that. I think we shall run into further problems on copyright in the future, and some very difficult ones indeed. I merely enter that caveat so that it should go down on the record.

§ Lord Mishcon
My Lords, in view of that intervention, I would add that I am sure I am not alone in having representations made to me by the association which is responsible for the protection of copyright. The association is rather unhappy that the position it put forward has not been completely covered. There is nothing we can do about it at this stage except, as the noble Lord, Lord Howard, has done, to put that situation on the record.

§ On Question, Motion agreed to.

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§ COMMONS AMENDMENTS

§ 53 Clause 21, page 18, line 15, leave out ("and a person shall not be qualified to be so appointed") and insert— ("(2A) A person shall not be qualified to be appointed as an auditor in pursuance of subsection (2) above").

§ 54 Page 18, line 26, at end insert ("but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed").

§ Lord Elton
My Lords, I beg to move that the House doth agree with the Commons in Amendments Nos. 53 and 54. It may be for your Lordships' convenience if I speak also to Amendments Nos. 89 to 94 inclusive, 218 and 222.

§ 89 Clause 31, page 28, line 37, leave out ("an offence under section 25 or 27 above") and insert ("a relevant offence").

§ 90 Page 29, line 7, after ("below") insert— (""relevant offence" means an offence under section 27 above or—

(a) in relation to England and Wales and Northern Ireland, an offence under section 25 above; or
(b) in relation to Scotland, an offence under section 51 of the Civic Government (Scotland) Act 1982; "").

§ 91 Clause 32, page 29, line 14, leave out ("an offence under section 25 or 27 above") and insert ("a relevant offence").

§ 92 Page 29, line 17, leave out .("an offence under the said section") and insert ("a relevant offence").

§ 93 Page 29, line 23, leave out ("police officer") and insert ("person").

§ 94 Page 30, line 5, at end insert— ("(6) In the application of this section to Scotland, for the reference to a police officer of or above the rank of superintendent having reasonable grounds there shall be substituted a reference to the procurator fiscal being satisfied, on receiving a report from a police officer, that there are reasonable grounds")

§ 218 Schedule 2, page 51, line 34, at end, insert— ("(5A) For subsection (2) of section 42 of that Act (accounts and audit) there shall be substituted the following subsections— (2) The accounts of the Authority shall be audited by auditors to be appointed by the Authority with the approval of the Secretary of State. (2A) A person shall not be qualified to be appointed as an auditor in pursuance of subsection (2) above unless he is a member of one or more of the following bodies— the Institute of Chartered Accountants in England and Wales;

the Institute of Chartered Accountants of Scotland;
the Association of Certified Accountants;
the Institute of Chartered Accountants in Ireland;

any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 161(1)(a) of the Companies Act 1948 by the Secretary of State; but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed." ").

§ 222 Page 52, line 6, at end, insert— (" (8) At the end of paragraph 8(2) of Schedule 7 to that Act (the Broadcasting Complaints Commission: supplementary provisons) there shall be inserted the words "but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed".").

§ As this is the first of the groups which contains an amendment to page 52 of the Bill, I ought to record that the line numbers on the list of amendments to page 52 do not appear to coincide with the numbering in the printed Bill. The reason for this is that the line numbering in the Bill went astray during the printing of that page. The line numbers in the amendments are correct, however, if one counts from the top of the page and I understand that we need worry no further 1575 about the problem which will be sorted out by the printers.

§ These amendments are all technical amendments to certain provisions of the Bill to make sure that they will be able to operate in Scotland. Amendments Nos. 53, 54, 218 and 222 deal with those provisions of the Bill—and indeed the Broadcasting Act 1981—which concern the auditing of accounts. It was drawn to our attention that there were some unintended technical deficiencies in these provisions which could make the appointment of firms of Scottish accountants as auditors to the Cable Authority's accounts impossible. These amendments remedy the situation and make it possible—if the need should arise—for the Cable Authority, the IBA, the new Satellite Broadcasting Board (which we shall be discussing shortly) the Broadcasting Complaints Commission and even the Welsh Fourth Channel Authority to appoint Scottish firms to audit their accounts with absolute lack of nationalism.

§ Moved, That this House doth agree with the Commons in said amendments. — (Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS 55–58 [Printed above col. 1572.]

§ Lord Elton
My Lords, I beg to move that the House doth agree with the Commons in their Amendments Nos. 55 to 58 en bloc. I have spoken to these amendments already, all of which are consequential on earlier amendments that your Lordships have agreed. I beg to move.

§ Moved, That this House doth agree with the Commons in said amendments. — (Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT 59 Page 21, line 33, leave out ("and").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 59. With your Lordships' leave I will speak at the same time to an impressive number of other amendments—namely Amendments Nos. 61, 62, 74, 97 to 103 inclusive, 127, 128, 135, 144, 147, 158—

§ Lord Mishcon
My Lords, No. 148.

§ Lord Elton
My Lords, 148: your Lordships are as ever absolutely on the ball. Amendments Nos. 150, 151, 153, 156, 157, 165, 170, 175 to 178 inclusive, 181, 195, 198, 200, 202, 203, 205 to 216 inclusive, 219, 224 and 226 to 231 inclusive. If your Lordships lived in the age of steam you would think that that was like the stopping train to Inverness.

§ 61 Clause 23, page 21, line 39, at end insert— (" 'programme', in relation to a cable programme service, includes any item included in that service".)

§ 62 Page 21, line 39, at end insert— ("(12) The foregoing provisions of this section shall have effect as if references in those provisions and in section 12(9) of this Act to sounds included references to signals serving for the impartation of matter otherwise than in the form of sounds or visual images.")

§ 74 Clause 26, page 24, leave out lines 40 to 44.

1576

§ 97 Clause 35, page 30, line 33, leave out subsection (1).

§ 98 Page 30, leave out lines 37 to 39.

§ 99 Page 31, leave out lines 1 and 2.

§ 100 Page 31, leave out lines 5 and 6.

§ 101 Page 31, leave out lines 27 and 28.

§ 102 Page 31, line 34, leave out subsections (4) and (5).

§ 103 Clause 36. page 32, line 19, leave out from ("the") to end of line 20 and insert ("1981 Act")

§ 127 Clause 43, page 34. line 39, leave out subsection (1).

§ 128 Page 35, leave out line 2.

§ 135 Before Clause 44, insert the following new Clause—

§ ("General interpretation

§ .—(1) Unless the contrary intention appears, expressions used in this Act which are also used in the 1981 Act have the same meanings as in that Act. —

§ (2) In this Act and, unless the contrary intention appears, in any enactment amended by this Act— the 1981 Act" means the Broadcasting Act 1981; the 1984 Act" means the Telecommunications Act 1984; cable programme service" has the meaning given by section 2(1) above; the IBA's subsidiary" means the subsidiary mentioned in section 12(2) of the 1981 Act; licensable cable programme service" has the same meaning as "licensable service" has in Part I of this Act; licensed", in relation to a cable programme service, means licensed under section 4 above; programme", in relation to a cable programme service, includes any item included in that service; standard scale" has the meaning given by section 75 of the Criminal Justice Act 1982; statutory maximum" has the meaning given by section 74 of that Act; telecommunication service" and "telecommunication system" have the same meanings as in the 1984 Act")

§ 144 Schedule 2, page 39. line 2, leave out ("under Part I of this Act")

§ 147 Page 39, line 22, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")

§ 148 Page 39, line 28, leave out ("within the meaning of Part I of this Act")

§ 150 Page 39, line 39, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")

§ 151 Page 39, line 45, leave out ("within the meaning of Part I of this Act")

§ 153 Page 40, line 2, leave out ("Copyright Act 1956") and insert ("1956 Act")

§ 156 Page 40, line 27, leave out ("section 14(10)") and insert ("subsection (10) of section 14")

§ 157 Page 40, line 37. at end insert— ("(8A) After that subsection there shall be inserted the following subsection— (11) The foregoing provisions of this section shall have effect as if references in those provisions and in section 12(9) of this Act to sounds included references to signals serving for the impartation of matter otherwise than in the form of sounds or visual images.".")

§ 165 Page 42, line 10, leave out ("and 'cable programme service' ") and insert (", 'cable programme service' and 'programme'.")

§ 170 Page 42, line 44, leave out ("has the same meaning as in the Copyright Act 1956") and insert ("means a cable programme service within the meaning of the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section to the United Kingdom were omitted;".

§ (4) Also in that subsection after the definition of "performers" there shall be inserted the following definition— 'programme', in relation to a cable programme service, includes any item included in that service;".

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§ (5) After subsection (2) of that section there shall be inserted the following subsection— (3) Section 48(3) of the Copyright Act 1956 (which explains the meaning of references in that Act to the inclusion of a programme in a cable programme service) shall apply for the purposes of this Act as it applies for the purposes of that Act.".").

§ 175 Page 43, line 18, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 176 Page 43, line 28, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 177 Page 43, line 41, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 178 Page 44, line 4, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 181 Page 44, line 25, leave out from ("not") to end of line 26 and insert ("require to be licensed").

§ 195 Page 46, line 31, leave out ("within the meaning of Part I of this Act").

§ 198 Page 46, line 38, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 200 Page 46, line 45, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 202 Page 47, line 7, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 203 Page 47, line 14, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 205 Page 47, line 20, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 206 Page 47, leave out lines 28 to 31.

§ 207 Page 48, leave out lines 5 to 8.

§ 208 Page 48, leave out lines 31 to 34.

§ 209 Page 49, line 8, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 210 Page 49, line 38, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 211 Page 50, line 7, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 212 Page 50, line 30, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 213 Page 50, line 36, leave out ("under Part I of the Cable ad Broadcasting Act 1984").

§ 214 Page 51, line 5, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 215 Page 51, line 8, leave out ("Broadcasting Act 1981") and insert ("1981 Act").

§ 216 Page 51, line 12, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 219 Page 51, line 34, at end insert— ("(5B) in section 63(1) of that Act (interpretation) after the definition of "local sound broadcast" there shall be inserted the following definition— 'programme', in relation to a television or sound broadcasting service, includes any item broadcast in that service;".").

§ 224 Page 52, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 226 Page 52, line 26, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 227 Page 52, line 33, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 228 Page 52, line 40, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 229 Page 53, line 2, leave out ("Telecommunications Act 1984") and insert ("1984 Act").

§ 230 Page 53, line 9, leave out ("established under section 1 of the Cable and Broadcasting Act 1984").

§ 231 Page 53, line 14, leave out ("service within the meaning of Part I of the said Act of 1984") and insert ("cable programme service").

§ My noble friend tells me that I did not say Amendments Nos. 181 to 195.

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§ 182 Page 44, line 31, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 183 Page 44, line 38, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 184 Page 44, line 47, leave out ("service within the meaning of Part I of the Cable and Broadcasting Act 1984") and insert ("cable programme service").

§ 185 Page 45, line 8, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 186 Page 45, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 187 Page 45, line 16, leave out ("(1) in subsection (1) of section 58") and insert ("In section 58(1)").

§ 188 Page 45, leave out lines 21 to 25.

§ 189 Page 45, line 31, leave out ("under Part I of the Cable and Broadcasting Act 1984").

§ 190 Page 45, line 38, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 191 Page 45, line 44, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 192 Page 46, line 3, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 193 Page 46, line 13, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ 194 Page 46, line 25, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984").

§ Lord Mishcon
My Lords, would the noble Lord consider whether or not he is entitled to an entry in the Guinness Book of Records in this House for speaking to so many amendments at the same time?

§ Lord Elton
My Lords, it is an agreeable thought that some profit might come to us out of this. The principal aim is to save your Lordships' time.
The rather formidable looking group of amendments deals with two main points, both of which originally arose in your Lordships' House in the context of copyright. The first point was whether the word "programme" extended to fill-in material or to pages of text, and the second point was whether the Bill extended copyright protection to what the noble Lord, Lord Howard of Henderskelfe, termed "data" when it is included in cable programme services or in broadcasts.
When we considered the Bill at an earlier stage, fears were expressed that the word "programme" might be held not to extend to fill-in material or text, and that this might present problems particularly in the field of copyright. I undertook to consider the point. We came to the conclusion that there would be advantage in putting the matter beyond doubt by defining "programme" in relation to a cable programme service, not only for the purpose of Part I of this Bill, but for the enactments amended by the Bill. We have therefore defined a programme as including any item included in the cable programme service. In addition we have defined "programme" in a similar way in relation to broadcasts. This meets a further point which we discussed at an earlier stage when I said that it was certainly our intention that broadcast teletext services should be included in the operation of the must-carry rule and that we would see whether the matter needed to be made any clearer.
So far as "data" is concerned, Amendments 62 and 157 are designed to remedy a deficiency in the 1579 copyright protection afforded to computer software and data where these are included in broadcasts or cable programme services. In doing so they meet a yet further undertaking which I gave in response to an amendment moved by the noble Lord, Lord Howard of Henderskelfe, who taught me much in those passages about the technicalities of this kind of broadcasting. The amendments do not deal with the wider question of copyright protection for computer programmes and data in general. Such questions go far outside the scope of this Bill and must await the following general reform of the copyright legislation. They simply ensure that the copyright protection available to broadcasters and to cable operators 1580 extends both to sounds or visual images included in their services and to any signals which are also included in those services. This means that broadcasters and cable operators alike will be able to sue for infringement if computer programmes and data included in their services are reproduced other than for private purposes.
Finally, this group re-orders some of the Bill's interpretive provisions which I shall not recite. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

1581

§ COMMONS AMENDMENTS

§ 60 Page 21, line 35, leave out from first ("or) to end of line 38 and insert ("the said Act of 1984 or a service provided outside the United Kingdom which would be such a service if subsection (7) of section 2 of that Act and references in subsection (1) of that section").

§ 61 Page 21, line 39, at end insert— (" 'programme', in relation to a cable programme service, includes any item included in that service.")

§ 63 Clause 24, page 21, leave out lines 40 to 42.

§ 64 Page 22, line 4, leave out ("made for reception in any area").

§ 65 Page 22, line 7, leave out ("provided in that area") and insert—

("(a) if the programme is so included in pursuance of a requirement imposed under subsection (1) of section 13 of the Cable and Broadcasting Act 1984; or
(b) where the broadcast is made otherwise than in a DBS service (as defined in subsection (4) of that section) or an additional teletext service (as so defined), if and to the extent that it is made for reception in the area in which the cable programme service is provided."

§ (3A) After section 27A of that Act there shall be inserted the following section—

§ "Exercise of jurisdiction of tribunal in relation to inclusion of broadcasts in cable programmes.

§ 27B. — (l) On a reference to the tribunal under this Part of this Act relating to licences to broadcast works or sound recordings for reception in any area, the tribunal shall exercise its powers under this Part of this Act so as to secure that the charges payable for the licences adequately reflect the extent to which the works or recordings will be included, in pursuance of requirements imposed under section 13(1) of the Cable and Broadcasting Act 1984, in cable programme services provided in areas parts of which fall outside that area.

§ (2) The preceding subsection shall have effect, with the necessary modifications, in relation to applications under this Part of this Act as it has effect in relation to references thereunder." ").

§ 66 Page 22, line 11. leave out ("subsection") and insert ("subsections").

§ 67 Page 22, line 13, leave out ("for reception in any area").

§ 68 Page 22, line 14, after second ("broadcast") insert ("then, subject to subsection (3A) below,").

§ 69 Page 22, line 17, leave out ("provided in that area").

§ 70 Page 22, line 25, at end insert— ("(3A) Subsection (3) above applies only—

(a) if the programme is included in the service in pursuance of a requirement imposed under section 13(1) of the Cable and Broadcasting Act 1984; or
(b) if and to the extent that the broadcast is made for reception in the area in which the service is provided." ")

71	[Printed earlier	col. 1572.]
72	[Printed earlier

§ 8.40 p.m.

§ Lord Elton
My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 60. Amendments Nos. 60 to 72 are all consequential upon earlier amendments to which your Lordships have already agreed and I have spoken to them all. I beg to move, therefore, Amendments Nos. 60 to 72 en bloc.

§ Moved, That this House doth agree with the Commons in the said amendments — (Lord Elton.)

§ On Question, Motion agreed to.

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§ COMMONS AMENDMENT

§ 73 Clause 25, page 23, line 17, leave out ("a programme included") and insert ("the inclusion of a programme").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 73. I think it will be for the convenience of your Lordships if I speak at the same time to Amendments Nos. 171 to 173.

§ 171 Page 43, line 2, leave out sub-paragraph (1) and insert— ("(1) Proceedings for an offence under section 2 of the Obscene Publications Act 1959 (prohibition of publication of obscene matter) for publishing an obscene article—

(a) shall not be instituted in any case where the relevant publication took place in the course of including a programme in a cable programme service; and
(b) shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the only other publication which followed from the relevant publication took place in the course of including a programme in such a service;

and in this sub-paragraph "the relevant publication" means the publication in respect of which the defendant would be charged if the proceedings were brought.").

§ 172 Page 43, line 10, leave out from first ("of") to ("to") in line 11 and insert ("that section")

§ 173 Page 43, line 12, at end insert— ("(3) Proceedings for an offence under that section for having an obscene article for publication for gain shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which could reasonably have been expected to follow from the relevant publication was to take place in the course of including a programme in a cable programme service; and in this sub-paragraph "the relevant publication" means the publication which, if the proceedings were brought, the defendant would be alleged to have had in contemplation. (4) Without prejudice to the duty of a court to make an order for the forfeiture of an article under section 1(4) of the Obscene Publications Act 1964 (orders for conviction), in a case where by virtue of sub-paragraph (3) above proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under section 3 of the said Act of 1959 (power of search and seizure) unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions. (5) In this paragraph expressions used in the said Act of 1959 have the same meanings as in that Act.").

§ Your Lordships may recall that when we considered the Bill on Report, we carried out some fairly drastic surgery in form, although not in substance, to the Bill's provisions on obscenity. The object of the exercise was to attract the important enforcement provisions in Clauses 31 and 32 to the main offence of distributing an obscene cable programme. This group of amendments deals with three separate technical points which arose from our amendments at that stage. The first, which is dealt with by Amendment No. 73, was that there was a very minor drafting defect in Clause 25(1). The second is a drafting matter also. It appeared that there was a possible circularity in drafting which we have cured. The third, which is taken care of by the remaining amendments in this group, is slightly more substantial.

§ When we first considered the Bill, the position was that prosecutions for any cable-related obscenity offence could be brought only by or with the consent of the Director of Public Prosecutions. This was 1583 always our intention and is still the case under Clause 25 for the main offence of distributing an obscene programme by cable. However, the group of amendments which we made in this House on Report accidentally removed the consent provision for the ancillary offences which are in the 1959 Act, as amended by this Bill, of having an obscene cable programme for publication for gain and of distributing an obscene cable programme to a cable operator rather than to the public. These amendments do no more than put the matter right by restoring the necessary consent provisions. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 74 [Printed earlier: col. 1575.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 74. I have spoken to this. It is consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 75 Clause 28, page 27, line 8, leave out second ("the").

§ 76 line 17, leave out ("under this Part")

§ 77 line 21, leave out ("distribution or presentation") insert ("inclusion")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 75 to 77, and, with your Lordships' leave, I shall speak also to Amendments Nos. 236 and 240.

§ 236 Schedule 3, page 54, line 15, at end insert— ("1969 c. 48. The Post Office Act 1969. In Schedule 4, paragraph 53.")

§ 240 line 36, column 3, at end insert— ("In Schedule 4, paragraphs 30 and 32.")

§ These amendments all make technical adjustments to the Bill's provisions on defamation. Amendments Nos. 75, 76 and 77 do no more than improve the drafting of Clause 28 in minor respects. Amendments Nos. 236 and 240 and part of Amendment No. 235—to which I shall be speaking separately, since it covers some other matters as well—repeal some dead wood from the defamation legislation itself and provisions which have amended it.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMENCE AMENDMENTS

[Printed earlier

col.1569.]

[Printed earlier

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 78 and 79. They are consequential. I beg to move.

1584

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 80 Clause 29, page 27, line 28, leave out ("diffusion service") and insert ("service to which this section applies which is")

§ 81 line 34, leave out ("diffusion service") and insert ("service to which this section applies")

§ 82 line 36, leave out ("the diffusion") and insert ("that").

§ 83 line 38, at end insert— ("(2) This section applies to any cable programme service and any service which would be such a service if subsection (7) of section 2 above were omitted.")

§ 84 line 39, leave out subsection (2).

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 80 to 84 inclusive.
These amendments are designed to improve the drafting of the Bill and to remove any undue complexity in the inter-relationship between the Bill and the Wireless Telegraphy Act 1949. It seems too technical to go into further details, but I am prepared to do so if necessary.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 85 Clause 30, page 28, line 6, after ("committed") insert ("on any premises specified in the information").

§ 86 line 8, leave out ("any premises specified in the information") and insert ("those premises").

§ 87 line 10, leave out ("Secretary of State") and insert ("Authority").

§ 88 line 19, leave out from first ("of") to ("shall") in line 22 and insert ("any legal proceedings or of a report of any such proceedings, any information obtained by means of an exercise of powers conferred by this section").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 85 to 88 inclusive. This group of amendments deals with the powers of entry and search, in relation to offences of unlicensed cable activity, in Clause 30 of the Bill. The first two arise from a point which was put to my right honourable friend in another place. The point was that, as drafted, the powers might go rather wide in that they could, in theory, leave open the possibility that a magistrate might authorise the entry into and search of any premises where evidence of pirate cable activity was likely to be found. In practice, that evidence is almost always likely to be found on the premises where the unlawful activity is taking place, and it is thus unlikely in practice that the powers could be used against third parties. Nevertheless, on looking at the point my right honourable friend agreed that it was right to make it clear by these amendments that the powers of entry and search can be exercised only on the premises from which the unlawful services are being provided.
Amendment No. 87 is technical. Amendment No. 88 meets a further point which was first raised by the Law Society and discussed in another place. It was argued that the offence of disclosing information obtained during the exercise of powers of entry and 1585 search under this clause should be extended to cover all information disclosed, whether it related to a manufacturing process or trade secret—as under the clause in its present form—or to other matters, such as information of a commercial nature. The Government decided to accept the case for the extension and this amendment has the effect of broadening the offence in that way, while preserving a safeguard for disclosure for the purpose of legal proceedings or reports of such proceedings. That means, for example, that if while searching premises for a cable offence a person came upon evidence of the commission of an unrelated crime he would be able to report the matter to the police without falling foul of subsection (3) of Clause 30.

§ Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)

§ Lord Mishcon
My Lords, the gratitude of the Law Society was not expressed in another place. May I express this in your Lordships' House.

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 89–95 [Printed earlier: cols. 1574 and 1573.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 89 to 95. They are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 96 Leave out Clause 34.

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 96. I think it will be to your Lordships' convenience if I speak also to Amendment No. 134.

§ 134 Before Clause 44, insert the following new clause:

§ ("Offences by bodies corporate.

§ .—(1) Where a body corporate is guilty of an offence under this act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

§ (2) Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.")

§ These two amendments do no more than to transpose the clause dealing with offences by bodies corporate from its present place in Part I of the Bill to Part III, where it will apply to all the offence provisions in the Bill and not just to those in Part I. Originally, all of the offence provisions of the Bill were, in fact, in Part I, but I shall in a moment be moving that we agree with the Commons in two separate new clauses containing offences, one of which will go into Part II and one into Part III. It is therefore necessary for the provision dealing with offences by bodies corporate to 1586 apply to all three parts of the Bill. That is what the amendments achieve.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 97–103 [Printed earlier: col. 1576.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 97 to 103 inclusive. They are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments— (Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 104 Clause 36, page 33, line 2, at end insert— (" "DBS teletext contractor" means a person whose contract as a teletext contractor gives him the right and duty to provide material for inclusion in teletext transmissions broadcast in a DBS service.")

§ 105 Clause 38, page 33, line 14, after ("programme") insert ("or teletext")

§ 106 line 16, after ("him") insert ("or transmissions containing material so provided")

§ 107 line 17, leave out ("transmit the programmes") and insert ("broadcast the programmes or transmissions")

§ 108 line 21, leave out from ("Where") to ("nothing") in line 22 and insert ("under the power conferred by subsection (1) above the IBA broadcast programmes or transmissions in such a form as is mentioned in that subsection")

§ 109 line 24, at end insert ("or transmissions")

§ 110 Clause 39, page 33, line 36, after first ("contractors") insert ("(other than DBS teletext contractors)")

§ 111 line 37, at beginning insert ("only in relation to persons who are DBS teletext contractors but are not TV or DBS programme contractors; or

§ (v)")

§ 112 line 38, leave out ("and (iii)") and insert ("(iii) and (iv)")

§ 113 leave out from beginning of line 39 to end of line 2 on page 34.

§ 114 Page 34, line 5, after ("to") insert ("(a)")

§ 115 line 7, after ("contractors)") insert ("or (b) persons who are DBS teletext contractors.")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 104 to 115 inclusive, and to speak also to Amendments Nos. 123A, 130, 217, 220 and 221.

§ 123A After Clause 41, insert the following new clause:

§ "Provision of additional teletext services.

§ .—(1) If the IBA provide additional teletext services, then, for the purpose of enabling a teletext contractor to make charges for the reception of transmissions containing material provided by him and broadcast in such a service, the IBA may, notwithstanding anything in the 1981 Act, broadcast the transmissions in such a form (whether scrambled, encoded or otherwise) as will prevent any person from receiving them unless he obtains from the contractor the means of doing so.

§ (2) In this section and in the 1981 Act" additional teletext service" means a teletext service (other than a DBS service) which is additional to those already provided by the IBA under the 1981 Act.")

§ 130 Clause 43, page 35, line 3, leave out ("and "DBS programme contractor" ") and insert (" "DBS programme contractor" and "DBS teletext contractor" ")

1587

§ 217 Schedule 2, page 51, leave out lines 29 to 34.

§ 220 leave out lines 35 to 39 and insert— ("(6) After paragraph 1 of Schedule 4 to that Act (rental payments) there shall be inserted the following paragraph— 1A. In the principal sections (other than section 33(1)) and the following provisions of this Schedule references to advertising receipts— (a) in relation to a DBS programme contractor, and in relation to any period, include references to payments received or to be received by that contractor in respect of charges made for the reception of

§ 221 line 46, at end, insert— ("(bb) in sub-paragraph (7) for the words "the provisions of paragraph 1" there shall be substituted the words "the foregoing provisions of this Schedule"; and")

§ The heart of the group is the new clause in Amendment 123A which arises out of a request made recently to us by the IBA to provide them with powers to offer new services on teletext. They are thinking, in particular, of providing new information services on a subscription basis to specialist occupational or professional groups, such as doctors or farmers. We agreed that we should take the opportunity provided by the Bill, even at a very late stage, to make this small but useful addition to the IBA's powers. Amendment No. 123A would therefore enable the IBA to provide additional teletext services in encoded form so that a subscription can be charged for them. The provision does not apply to existing IBA teletext services which will continue to be provided free of charge to those who have teletext receivers.

§ Nor does it apply to any DBS teletext services provided by the IBA, since it is right that these should be subject to the provisions for DBS services as a whole rather than those which apply to terrestrial teletext services. So far as DBS is concerned, the IBA will have the power to provide DBS teletext services should they so choose. These will be on all fours with the DBS programme services, and thus should have a contract life of 12 years and be subject to the levy provisions that apply to DBS. The amendments therefore to Clauses 36, 38, 39 and 43 are technical amendments to define a DBS teletext contractor, provide that DBS teletext services may be broadcast in an encoded form so that a subscription can be charged, and bring them within the ambit of the levy arrangements proposed for the IBA's DBS services as a whole. Amendment No. 220 brings the definition of a DBS contractor's subscription income for levy purposes into line with the definition of advertising receipts which appears in paragraph 1 of Schedule 4 to the Broadcasting Act 1981.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 116 Clause 40, page 34, line 10, leave out from beginning to end of line 13 and insert ("For the purposes of this section").

§ 117 leave out line 19 and insert ("shall be regarded as separate parts of that branch. (1A) Except in so far as the Secretary of State on the application of the IBA otherwise directs, for each part of the television branch of their undertaking, it shall be the duty of the IBA so to conduct their affairs as to secure that their revenues from that part become at the earliest possible date, and thereafter continue, at least sufficient— 1588

(a) to meet all sums properly chargeable to revenue account in respect of that part of that branch (including sums which, for the purposes of that part, are required for the repayment of loans and interest thereon, for provision for depreciation and for the maintenance of so much of the reserve fund for that branch as is attributable to that part); and
(b) to make provision towards, and as soon as practicable for, necessary capital expenditure for the purposes of that part of that branch.").

§ 118 leave out lines 24 and 25.

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 116 to 118 inclusive. Perhaps I may speak also to Amendment No. 139. 139 Clause 46, page 35, line 32, leave out ("Subject to section 40(4)"). The four amendments in this group make minor adjustments to Clause 40 which provides for the way DBS services are to be incorporated into the IBA's finances. The IBA's DBS service is to form part of their television branch. The Government's intention, shared by the IBA, is that within that branch the DBS service must be self-financing. There can be no cross-subsidy between the DBS and ITV, save with the consent of the Secretary of State. Under subsections (2) and (3) that consent would take the form of a direction which must be laid before Parliament. These amendments do not alter that basic framework; they make only two changes. The first two amendments are designed to make it clear that the IBA need not establish a separate reserve fund within television branch for the DBS service: there will still continue to be one reserve fund for the television branch, but the DBS service must contribute to it.
The third amendment, deleting subsection (4), makes it clear that the IBA's DBS service must be self-financing, not from the first day of broadcasting, but from the outset. The IBA's start up costs on DBS will not be paid for by ITV, but will have to be recovered from the first DBS contractors. This may require a direction from the Secretary of State authorising the IBA to cover their initial deficit on the DBS service by borrowing from the terrestrial television services until the first DBS contractors are appointed and are paying rental. Such a direction could not, of course, be made until the IBA receive their DBS powers and this clause is brought into force. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton).

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 119 After Clause 40, insert the following new clause:

§ The Board

§ ("The Satellite Broadcasting Board

§ . — (l) There shall be a Board to be called the Satellite Broadcasting Board (in this Part referred to as "the Board") whose function it shall be to provide, by means of the said technique known as direct broadcasting by atellite or DBS, television broadcasting services of high quality (both as to the transmission and as to the matter transmitted) for he United Kingdom, the Isle of Man and the Channel Islands.

§ (2) The Board shall consist of six members, of whom three shall be appointed from among the governors of the BBC and three from among the members of the IBA.

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§ (3) It shall be the duty of the BBC and the IBA to supply to the Board (on commercial terms) such services as the Board may reasonably require.

§ (4) The Board, unless previously dissolved, shall cease to function at the end of the period of ten years beginning with the day on which the Board begin to provide their first television broadcasting service.

§ (5) Schedule (The Board: supplementary provisions) to this Act shall have effect with respect to the Board.").

§ 120 After Clause 40 insert the following new clause:

§ ("Provision of programmes

§ .—(1) Without prejudice to the powers conferred on the Board by this Part, the programmes broadcast by the Board shall be provided not by the Board but by a person (in this Part referred to as "the programme provider") who—

(a) is approved for the purposes of this section by the Secretary of State after consultation with the IBA; and
(b) under a contract with the Board, has the right and the duty to provide programmes to be broadcast by the Board, which may include advertisements.

§ (2) The Secretary of State may after consultation with the Board withdraw an approval under this section if a relevant change takes place which, if it had occurred before the giving of the approval, would have induced the Secretary of State to refrain from giving the approval.

§ (3) The Board shall do all that they can to secure that—

(a) no person who is a disqualified person, and no body corporate over which a disqualified person has control, becomes or continues as the programme provider (whether alone or in partnership); and
(b) no body corporate in which a disqualified person participates becomes or continues as the sole programme provider.

§ (4) The contract between the Board and the programme provider shall—

(a) contain all such provisions as the Board think necessary or expedient to ensure that the financial and other arrangements for the provision of the satellite transponder are made by the programme provider; and
(b) provide for the payment by the programme provider to the Board of such sums as the Board consider appropriate for enabling them to meet their reasonable outgoings.

§ (5) For the purpose of enabling the programme provider to make charges for the reception of programmes provided by him, the Board may, notwithstanding anything in this Part, transmit the programmes in such a form (whether scrambled, encoded or otherwise) as will prevent any person from receiving them unless he obtains from the programme provider the means of doing so.

§ (6) In this section— disqualified person" has the meaning given by section 20(6) of the 1981 Act; programme" includes a teletext transmission; "relevant change"—

(a) in relation to an approval of two or more persons in partnership, means any change affecting the rights and duties of those persons in relation to the partnership; and
(b) in relation to an approval of a body corporate (whether alone or in partnership), means any change affecting participation in, or the nature and characteristics of, that body corporate or any other body corporate which participates in that body corporate.

§ (7) For the purposes of this section and section (Application of 1981 Act and other enactments) below a person participates in a body corporate if (whether alone or jointly with one or more other persons, and whether directly or through nominees) he holds or is beneficially entitled to shates, or possesses voting power, in the body corporate.").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in Amendments Nos. 119 and 120 en bloc, and I shall speak also to Amendments 121, 123, 126, 129, 131, 141, 142 and 1590 242. I speak in the anticipation that the noble Lord, Lord Howard of Henderskelfe, will be speaking afterwards to Amendments Nos. 121A to 121F, 141A and 142A which seek to amend three of the amendments which are on the Marshalled List from the Commons.

§ COMMONS AMENDMENTS

§ 121 After Clause 40 insert the following new clause:

§ ("Application of 1981 Act and other enactments.

§ .—(1) Subject to subsection (2) below the provisions of the 1981 Act specified in Schedule (Provisions of 1981 Act applied by section (Application of 1981 Act and other enactments) (1)) to this Act shall apply in relation to the Board, television broadcasting services provided by the Board and the programme provider as they apply in relation to the IBA, ITV, TV programme contractors and teletext contractors.

§ (2) In its application to the Board, subsection (2) of section 43 of the 1981 Act (annual reports) shall have effect as if it required the report for any financial year to include an account of the extent to which the programmes broadcast by the Board have been supplied to the programme provider by persons other than those mentioned in subsection (3) below.

§ (3) The persons referred to in subsection (2) above are—

(a) where a body corporate is the programme provider in partnership with other persons, an associate of that body corporate, a person who has control over that body corporate and a body corporate which is under the control of such a person; and
(b) where a body corporate is the sole programme provider, a person who participates in that body corporate, an associate of such a person and a body corporate which is under the control of such a person.

§ (4) Part III of the 1981 Act (the Broadcasting Complaints Commission) shall have effect as if—

(a) any reference in section 53 to the IBA, or to a member, officer or employee of the IBA, included a reference to the Board, or to a member, officer or employee of the Board; and
(b) any reference in that Part to a broadcasting body included a reference to the Board.

§ (5) The Secretary of State may by order provide that any other enactments (including provisions of this Act) which apply in relation to the IBA, ITV, TV programme contractors or teletext contractors shall apply in relation to the Board, television broadcasting services provided by the Board or the programme provider with such modifications, if any, as may be specified in the order.

§ (6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

§ 123 After Clause 41, insert the following new clause:

§ ("No need for IBA to invite applications before entering into certain contracts.

§ .—(1) The IBA need not comply with subsection (4) of section 19 of the 1981 Act (prior consultation etc.) in relation to any contract for the provision of television programmes which is entered into on the expiration (by efiluxion of time) of a contract to which subsection (2) below applies.

§ (2) This subsection applies to any contract for the provision of television programmes which was entered into before the commencement of this section.

§ (3) In this section 'television programme' includes a teletext transmission.").

§ 126 Before Clause 43, insert the following new clause:

§ ("Repeal of certain provisions by order.

§ .—(1) Subject to subsection (2) below, the Secretary of State shall by order repeal sections (The Board), (Provision of programmes) and (Application of 1981 Act and other enactments) above and Schedules (The Board: supplementary provisions) and (Provisions of 1981 Act applied by section (Application of 1981 Act and other enactments) (1)) to this Act as from the date on which the Board cease to function in accordance with section (The Board) (4) above.

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§ (2) The Secretary of State may by order repeal those provisions as from an earlier date if he is satisfied that there is no suitable person able and willing to become or continue as the programme provider.

§ (3) An order under this section may, if the Secretary of State thinks fit, also repeal section (No need for IBA to invite applications before entering into certain contracts) above.

§ (4) An order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State thinks fit, and in particular may make provision for keeping the Board temporarily in existence for purposes connected with their activities and finances prior to the repeal effected by the order and for winding up the affairs of, and dissolving, the Board.

§ (5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

§ 129 Clause 43, page 35, line 2, at end insert— (" "the Board" means the Satellite Broadcasting Board;")

§ 131 Page 35, line 4, at end insert— (" "the programme provider" has the meaning given by section (Provision of programmes) (1) above.")

§ 141 After Schedule 1, insert the following new schedule:

§ ("Section (The Board) (5).

§ THE BOARD: SUPPLEMENTARY PROVISIONS

§ Status and capacity

§ 1.—(1) The Board shall be a body corporate.

§ (2) The Board shall not be treated for the purposes of the enactments and rules of law relating to the privileges of the Crown as a body exercising functions on behalf of the Crown.

§ (3) It shall be within the capacity of the Board as a statutory corporation to do such things and enter into such transactions as are incidental or conducive to the exercise of their functions under this Part, including the borrowing of money.

§ Appointment of members

§ 2.—(1) All the members of the Board shall be appointed by the Secretary of State after consultation with the BBC and the IBA.

§ (2) Before appointing a person to be a member of the Board, the Secretary of State shall satisfy himself that that person will have no such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as member of the Board; and the Secretary of State shall also satisfy himself from time to time with respect to every member of the Board that he has no such interest.

§ (3) Any person who is, or whom the Secretary of State proposes to appoint to be, a member of the Board shall, whenever requested by the Secretary of State to do so, furnish to him such information as the Secretary of State considers necessary for the performance by him of his duties under sub-paragraph (2) above.

§ Chairman

§ 3. The Board shall elect a chairman from among their members.

§ Tenure of office

§ 4.—(1) Subject to the following provisions of this Schedule, a person shall hold and vacate office as a member of the Board in accordance with the terms of his appointment.

§ (2) A person shall not be appointed as a member of the Board for more than five years at a time.

§ (3) A person may at any time resign his office as a member or as chairman.

§ Remuneration and pensions of members

§ 5.—(1) The Board may pay to each member such remuneration and allowances as the Secretary of State may determine.

§ (2) The Board may pay or make provision for paying to or in respect of any member such sums by way of pensions, allowances or gratuities as the Secretary of State may determine.

§ (3) Where a person ceases to be a member otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Board may make to him a payment of such amount as the Secretary of State may determine.

§ (4) The approval of the Treasury shall be required for any determination under this paragraph.

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§ Proceedings

§ 6.—(1) The quorum of the Board and the arrangements relating to their meetings shall be such as the Board may determine.

§ (2) The arrangements may, with the approval of the Secretary of State, provide for the discharge, under the general directions of the Board, of any of the Board's functions by a committee or by one or more of the members, officers or employees of the Board.

§ 7. The validity of any proceedings of the Board shall not be affected by any vacancy among the members or by any defect in the appointment of a member.

§ Officers and employees of Board

§ 8.—(1) The Board may appoint a secretary and such other officers, and take into their employment such other persons, as they may determine.

§ (2) The Board shall, as regards any officers or persons employed in whose case if may be determined by the Board so to do, pay to or in respect of them such pensions, allowances or gratuities, or provide and maintain for them such pension schemes (whether contributory or not), as may be so determined.

§ (3) If any officer of or other person employed by the Board, being a participant in any pension scheme applicable to his office or employment, becomes a member of the Board, he may, if the Secretary of State so determines, be treated for the purposes of the pension scheme as if his service as a member of the Board were service as an officer of or person employed by the Board.

§ Authentication of Board's seal

§ 9. The application of the seal of the Board shall be authenticated by—

(a) the signature of the chairman of the Board or some other member of the Board authorised by the Board to authenticate the application of their seal; and
(b) the signature of the secretary of the Board or some other officer of the Board authorised by the Board to act in that behalf.

§ Presumption of authenticity of documents issued by Board

§ 10. Any document purporting to be an instrument issued by the Board and to be sealed as aforesaid or to be signed on behalf of the Board shall be received in evidence and shall be deemed to be such an instrument without further proof unless the contrary is shown.")

§ 142 After Schedule I insert the following new schedule:

§ ("Section (Application of 1981 Act and other enactments) (1).

§ PROVISIONS OF 1981 ACT APPLIED BY SECTION

§ (APPLICATION OF 1981 ACT AND OTHER ENACTMENTS) (1)

Provision	Subject-matter
In section 2(2), so much of Paragraph (a) as relates to the provision by the IBA of broadcasting services as a public service for disseminating information and entertainment and so much of paragraph (b) as relates to the maintenance by the programmes broadcast by the IBA of a high general standard in all respects (and in particular in respect of their content and quality).	Duty of IBA to provide broadcasting services as a public service.
Section 3(1)(a) and (b), (3), (4) and (7).	Powers of IBA.
Section 4 except paragraph (d) of subsection (1) and so much of paragraph (b) of that subsection as relates to the giving of a sufficient amount of time in the programmes to news and news features.	General provisions as to programmes.

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Sections 5 to 7.	Code for programmes other than advertisements, submission of programme schedules for IBA's approval and programme prizes.
Sections 8 and 9.	Advertisements and code for advertisements.
Section 14(1).	Provision of teletext services by IBA.
Section 15.	Code for teletext transmissions.
Section 16(1).	Advisory committees and advisory council.
Section 21(1), (6)(a) and (b) and (7).	Provisions to be included in contracts for programmes.
Sections 28 to 30.	Government control over IBA as to hours of broadcasting and as to certain other matters and prevention of exclusive arrangements for broadcasting events of national interest.
Section 42.	Accounts and audit.
Section 43(1) and (2).	Annual reports.
Sections 61 and 62.	Approvals by IBA and variation and revocation of directions and notices.
Schedule 2.	Rules as to advertisements.".)

§ 242 In the Title, line 4, leave out ("and to make further") and insert (", to provide for the establishment and functions of a Satellite Broadcasting Board and to make other")

§ The Government amendments, by which I mean the Commons Amendments, pave the way for the DBS joint project which was announced by my right honourable friend in another place. They are the most important single block of amendments added to the Bill in the other place and your Lordships may therefore wish me to spend a little longer explaining them than some of the other amendments to which I have spoken.

§ For the longer term the Government remain committed to a competitive framework of BBC and independent DBS services; the BBC operating under its Royal Charter, the IBA under the provisions which are in Clauses 36 to 40 of the Bill. But in the short term there are real doubts whether there is room at the outset for two competing DBS services. The financial projections suggest that a service will not break even until it can attract some two million subscribers, and that will take several years.

§ The uncertainties in DBS led the BBC to explore the possibility of participation with others, and in particular with the IBA and the ITV companies. Having heard the case they put forward, the Government concluded that the best hope of securing a good quality British DBS service with an early start was offered by a joint project which would bring together the existing broadcasters and a proportion of outsiders. I must stress that no one will be coerced into participating in the joint project; the Government's approach all along has been to create opportunities, but not to force anyone into them against their better judgment.

§ The Government brought forward in Committee in the other place the legislative provisions to create the framework for the joint project. The new clauses and schedules in these amendments constitute the new framework. The initial DBS service will be provided by a new regulatory authority, the Satellite Broadcasting Board, while the programmes which the 1594 board transmits will be provided by an organisation approved by the Secretary of State. It is necessary to create a new board, since neither the BBC nor the IBA will be able by itself to be the broadcasting authority for the joint project. The board, and thus the joint project, will have a maximum life of 10 years. The clauses contain provisions for their own repeal after 10 years, or earlier if a suitable programme provider does not come forward.

§ The Government propose to allocate three DBS channels to the joint project. These will subsume the two DBS channels already allocated to the BBC; but they will be in addition to the DBS services to be provided by the IBA under Clauses 36 to 40. The IBA are to be given two channels, but in order to prevent excessive fragmentation of audiences and revenue in the early years, the IBA's DBS powers under Clauses 36 to 40 will not be activated until three years after the launch of the joint project DBS service.

§ I now turn to the statutory provisions. Amendment No. 119 provides for the creation of the Satellite Broadcasting Board and sets out its functions and composition. The board will consist of three BBC governors and three members of the IBA. The chairman will be elected by the board. Although it will employ its own small staff, the board may need to look to the BBC and the IBA for expert advice and support; that is provided for in subsection (3). Subsection (4) ensures that the joint DBS service has a maximum life of 10 years. Subsection (5) applies the Schedule in Amendment No. 141 to the board; these are now standard provisions for a broadcasting authority.

§ Amendment No. 120 provides in a new clause that the programmes for the joint DBS service are to be supplied not by someone appointed by the board, but by a person—described in this clause as "the programme provider"—who must be approved by the Secretary of State, after consultation with the IBA. The composition of the programme provider is not set out in the legislation. As participation is competely voluntary, the relative shareholdings and structure of the consortium will depend upon those who wish to take part. My right honourable friend made it clear, however, on Second Reading in another place that the joint venture will be equally divided between the BBC and the private sector. As to the private sector, one part, expected to be at least 25 per cent., will consist of those ITV companies who wish to come forward. The balance will consist of other private sector interests who would not be disqualified under Section 20 of the 1981 Act. The IBA will offer advice to my right honourable friend the Home Secretary on the private sector participants. Should there be a subsequent change in the composition or control of the consortium, the Home Secretary will have the power to withdraw his approval. The consortium will be responsible for meeting the board's financial requirements, and for the provision of the satellite transponder.

§ The next clause, Amendment No. 121, applies a number of provisions in the 1981 Act to the joint DBS service and the bodies providing it. The provisions are set out in the schedule which appears as Amendment No. 142. The schedule confers a number of powers and duties on the board corresponding to powers and duties of the IBA. I would remind noble Lords that the 1595 board will consist of BBC governors and members of the IBAS, who will come to their task with considerable previous experience. How they go about their business will of course be a matter for the board, but it would be surprising if, when considering a code of violence, for example, they did not draw upon the codes already prepared by the BBC and the IBA. The list of duties may, therefore, be less cumbersome than at first sight appears.

§ Subsection (2) of the new clause in Amendment No. 121 places the board under a duty to include in its annual report information on the supply of programmes by independent producers. These are defined as persons other than those participating in the joint project; and subsection (3) defines those participating as including holding companies, subsidiaries or associates of the actual participants. Amendment No. 121 goes on to provide that the programmes broadcast by the board are to come under the jurisdiction of the Broadcasting Complaints Commission, which I am sure your Lordships will welcome.

§ That completes the list of clauses and schedules, including Schedule 2. It illustrates the range of enactments applied to broadcasting which provide the framework of the joint DBS service, apart from the repeals clause, to which I shall come in a moment.

§ The next clause, in Amendment No. 123, relates to the renewal of the ITV franchises. The ITV companies are keen to participate in DBS. But they have argued that they could lose their reason for existence overnight as a result of the franchise system, and that this would seriously damage their ability to raise and service capital for DBS. The present franchises terminate at the end of this decade, and it is hoped that the DBS joint venture might begin in 1987.

§ The Government considered this point carefully, and we concluded that we would be justified in making some—but only the minimum—departure from the normal arrangements for franchise renewal. Amendment No. 123 therefore provides that on the occasion of the next franchise renewals only, the IBA will not be under an obligation to re-advertise the ITV and teletext contracts. The IBA will still retain a complete discretion whether to re-advertise individual contracts, depending on its assessment of each contractor's performance; and before entering into new contracts, whether re-advertised or not, the IBA will have to engage in the local public consultations required by Section 19(3) of the 1981 Act.

§ I must emphasise that no ITV company will be given an automatic extension of its franchise; nor is there any guarantee that its franchise will be renewed. The IBA will be free to renew without re-advertisement if it considers that a company's level of performance is satisfactory. Thus the general franchising structure, to which the Government remain committed, will be preserved; and the IBA will be left with full powers to do what is necessary to ensure a proper standard. There is one further safeguard. If for any reason the joint DBS service does not get off the ground, the Secretary of State will have power to repeal this clause under Amendment 1596 No. 126; and the ITV contracts will then have to be re-advertised in the normal way.

§ That brings me to the last of these new clauses, the repeals provision at Amendment No. 126. I said that the joint DBS service is to have a strictly limited life of 10 years. The statutory provisions governing the joint DBS service will then have no further purpose and can be removed. Subsection (3) provides for the mandatory repeal of the new clauses at Amendments Nos. 119 to 121 after the service has been in operation for 10 years; or, under subsection (2), from an earlier date if there is no suitable person willing to be the programme provider.

§ Finally, the last amendment, Amendment No. 242, amends the Title of the Bill to incorporate a reference to the new clauses and schedules which I have just described.

§ I am sorry that I have taken some time. I shall not take as much time on any other group of amendments, unless your Lordships require me to do so.

§ Moved, That this House doth agree with the Commons in the said amendments —(Lord Elton.)

§ Lord Howard of Henderskelfe
My Lords, may I ask a simple question? Will the three governors from the BBC and the three members of the authority be appointed by the Home Secretary? If so, will the chairman be elected from among them, or will he be a supplementary member, thus making the number into seven?

§ Lord Elton
My Lords, he will be so appointed but he will not be so elected. I think that that is right.

§ Lord Howard of Henderskelfe
My Lords, but he will be appointed by the Home Secretary?

§ Lord Elton
Yes, my Lords, he will be appoined by the Home Secretary but I do not think that he will be additional to the—he will be additional. The noble Lord now has it right, I understand. My semaphore is not working very well. I wonder whether my telegraph will work better.

§ Lord Mishcon
My Lords, I am going to keep the noble Lord the Minister usefully employed for a few moments. My understanding is that this is not quite clear. I think that all your Lordships would wish to have the matter clarified.

Lord Winstanley
My Lords, I understood the noble Lord the Minister to say that the chairman would be additional. Will he be additional and outside the other teams, as it were? At the moment we have three BBC and three IBA members. Will the additional one be neutral, like an umpire, or could he be BBC or could he be IBA?

§ Lord Elton
My Lords, he will not be additional to the six members. The total number will continue to be six—that is to say, there will be three people of one sort and three of another. It is difficult for me to get much further without further information. I understand that he will be elected by the six members.

§ On Question, Motion agreed to.

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§ 9.4 p.m.

§ COMMONS AMENDMENTS

§ 121 [Printed above.]

§ Lord Elton
My Lords, I rather think that I have spoken to this amendment, have I not? I beg to move that this House doth agree with the Commons in their Amendment No. 121.

§ Moved, That this House doth agree with the Commons in the said amendment—(Lord Elton.)

§ As an amendment to Amendment No. 121:

§ 121A Line 2, leave out ("subsection (2)") and insert ("subsections (1A) and (2)").

§ Lord Howard of Henderskelfe
My Lords, you will observe that being an optimist, as always, I am dressed in a fashion in which I am not usually dressed in your Lordships' House. I am hoping to attend the farewell dinner of two of my most beloved governors at the BBC. I hope that it will still be possible for me to get there at any rate while they are drinking port and drinking their health.
I do not intend to delay your Lordships for too long, but I am extremely worried about one particular provision, or non-provision, in the Bill. On all sides of the House we worked very hard on the Bill, not least Ministers. We got a Bill which I think was quite a good Bill. I did not agree with all of it, but that does not matter. We sent it off to the Commons, and it comes back in a wholly different form. In particular it comes back with a Satellite Broadcasting Authority, which was never, so far as I am aware, mentioned in your Lordships' House and which emerged—I do not know where from—while it was in the other place. I have not heard any reasons why some of the things which accompanied that new move happened.
I gave notice to the Leader of the House that I intended to refer to him on this occasion, but no doubt he has more pressing engagements this evening. When the Leader of the House, who was then Home Secretary, appointed the Part Committee it went into the technical matters concerning the techniques which should be used in direct broadcasting by satellite. Those three wise men—wise men? I do not know—came to the conclusion that the system that should be used should be C-MAC, which had to a large extent been developed by the IBA research department.
One of the alleged advantages of C-MAC over extended PAL or other ways of doing this was that it had a greatly extended number of sound channels available upon it. That in itself had very considerable advantages even if it were not for its other advantages (and I would be the first to admit that there were marginal advantages in pictures, but not I think so that any of your Lordships would have been able to tell, although the engineers could do so) over the question of sound broadcasting—sound broadcasting, furthermore, of a very high quality available over virtually 100 per cent. of the country.
All your Lordships will have heard complaints in various parts of the country of how people cannot get Radio 3 or whatever it may be, and why does not the BBC do something about it. The BBC does what it can. It has now got down to I think communities of some 1598 200 strong. I do not think that it can go much further in that direction. But at a stroke DBS does away with these problems, because it reaches down into all the deepest Welsh valleys, and similar places in Scotland, and provides a sound service which will shortly be digitally encoded and which will be second to none in the world. This was one of the reasons for employing C-MAC instead of the other systems.
What do we find when we look at the Bill? We find that there is no power to the Satellite Broadcasting Board to broadcast sound. They can broadcast pictures, and I suspect—though it is extremely difficult to interpret the Bill—that they can broadcast the sound which goes with those pictures. But they certainly cannot broadcast Radio 3, unless I am misreading the Bill. If I am told that I am misreading the Bill, I shall be absolutely delighted. The reason which has been advanced for this—and this is part of the trouble which we have had throughout the passage of the Cable and Broadcasting Bill—is that the Government have not been able to make up their mind on the question of networks, and to whom those networks should be allocated. This is a battle between two Ministries which has raged for some three years to my certain knowledge and which has caused a great deal of trouble.
The reasons why we are not to be able to receive sound do not seem to me in the least valid. It has been suggested that this would be a considerable alteration to broadcasting practices as a by-blow of a Bill which really had nothing to do with them. But that argument was certainly not accepted when we were discussing the Video Recordings Bill. Then we were told, "No, indeed, this is no interference, and, in any case, the Bill is a very proper place to put it. It will not interfere in any way with the practices which obtained up till now."
I am deeply disappointed that the Government should come before us with a very greatly amended Bill, which bears hardly any relationship to the Bill as it left your Lordships' House, and that they should do so without any adequate explanation of why the chief advantage of DBS by C-MAC is not allowed to be utilised. I cannot see why the Government should not allow the Satellite Broadcasting Board to broadcast sound signals. I think that it should not be difficult, and, after all, there has been something like 18 months to discuss what the networks should be. So I can only believe that it continues to be the result of in-fighting, which does not do broadcasting or government any good at all.
We have had a very amiable discussion this evening which I have welcomed, where we have been able to pay each other compliments which were not too extravagant because they were deserved, but here I part company with the Government. All that we can broadcast over the sound portion of the signal is white or pink noise. Most of your Lordships may know what white or pink noise is. It is certainly something which nobody would care to listen to for pleasure, and I do not see any reason why this should be confined. This is essential, because the signal is an integral one. It is not one that you can take up and say, "Right, that is the sound bit. We will forget about that and leave it alone". It is all there at the same time. It is as if you took a cake with a number of slices, some of which 1599 were the TV signals, some were the sound signals that went with the TV and some were the sound signals that were designed purely for radio purposes. It is something which could easily be achieved; and I was absolutely staggered when I read the Bill and the amendments to find that this provision had not been written in even with the numerous amendments which are before us tonight.
I do not want to delay your Lordships any longer, nor do I want at this absolute moment in time to say what I propose to do. I certainly want to hear what explanation, if any, the noble Lord, Lord Elton, can produce for what I regard as the most extraordinary thing I have ever heard of. I beg to move the amendment to the amendment.

§ Lord Elton
My Lords, I sympathise with the noble Lord, Lord Howard of Henderskelfe, at least in one respect. I, when I saw this Bill coming back to the House, was also, as is he, unaccustomed to being other than the revising Chamber. Usually our Bills go back to the Commons, and the Commons Bills go back to them, considerably altered. One is rather like somebody whose favourite child has gone away to school and come back with many new attributes (not all of them desirable) and with many new qualifications, but with some conspicuously absent. The noble Lord, Lord Howard of Henderskelfe, is expressing a cry of grief that a particular O or A level has not been added to this child's qualifications.
It is true, as the noble Lord has said, although I cannot hope to match his mastery of the technical aspects of his subject, which he always puts so clearly, that the MAC transmission standard carries the opportunity for extra audio channels on the back of each television channel, but I should not like it to be thought that that was the only reason why the advisory panel chaired by Sir Antony Part recommended MAC as the transmission standard for British DBS.
Since the noble Lord mentioned my noble friend who was associated with the beginning of that inquiry, I ought to say that it is indeed unfortunate that he is unable to be present. The reasons for the advisory panel's recommendation are of course set out in their report and include the new opportunities for the equipment manufacturers, the better picture standard offered by MAC, the greater ease of encryption, the possibilities of moving to high definitionTV. In short, MAC is a more modern transmission standard in every way.
The Government fully recognise the advantages of the extra capacity of the C-MAC system, and in particular the extra sound channels which it can provide. It is true that the Bill, together with the amendments currently before your Lordships, makes no provision for sound or data services on DBS. The Bill has been drafted in terms of television services because these are the prime function of DBS. The amendments moved by the noble Lord would enable the board to provide sound and data services as well, but they illustrate, if I may with great respect say so, the very great difficulty of going quickly into legislation on this matter. The noble Lord's amendments operate, if I have understood them 1600 correctly, by applying the legal framework in the 1981 Act for the IBA's local radio services to the new national radio services which might be broadcast from the satellite. But of course the regime for independent local radio is not really appropriate for what must, because of the footprint of the satellite which, as the noble Lord says, stretches across the country, be a national radio service; and it is even less likely to be appropriate for services which consist simply of the transmission of data.
The Government certainly do not wish to rule out those other services—quite the reverse; but the terms on which they might be provided do require further consideration. To take only one example, the use of any of these channels for national radio services will have to be considered alongside the proposal for independent national radio foreshadowed in Amendment No. 124 which we are to consider shortly. As I shall explain when we come to that new clause, the nature of the independent national radio service will be a matter for subsequent legislation which I hope may be introduced in two or three years' time. The noble Lord will understand that I cannot promise that such legislation will be introduced—that is not within my gift—but it is certainly our intention that it should be. However, I can assure him that if there is such legislation, it will of course provide a possible vehicle for legislative proposals for data and audio services on the joint DBS project, which could most appropriately be brought forward at that time. I hope the noble Lord will accept that assurance. We cannot accept his amendments, but we do accept the spirit of them. We would like to take away his proposals and look at them further, and if appropriate make proper legislative provision for them in two or three years' time.

§ Lord Howard of Henderskelfe
My Lords, as always, the noble Lord, Lord Elton, has been extremely conciliatory. The only reservation I continue to have relates to the time factor. I know very well that the noble Lord is not responsible for the legislative timetable of this Government, which appears to have got itself into some disarray and which the noble Lord has to deal with when it comes to your Lordship's House. Therefore, I hope that any legislation which is proposed will come about within the next two years rather than three. The reason I say that is, God knows! the people who are responsible for DBS are in sufficient of a muddle and difficulty without having the further difficulty that their services are perhaps at present illegal and will continue to be illegal until such time as we get legislation.
If in fact, as I believe—and I am as used to taking hints as the next man—the legislation might come sooner rather that somewhat later, I should certainly be prepared to accept the noble Lord's honourable and very decent approach to this matter. I beg leave to withdraw my amendment, and all the subsequent amendments which stand in my name will not be moved.

§ Amendment, by leave, withdrawn.

§ Amendments to Commons Amendment 121, Nos. 121B to 121F, not moved.

§ On Question, Motion agreed to.

1601

§ COMMONS AMENDMENT

§ 122 Clause 41 page 34, line 31, at end insert— (" (2) In subsection (5) of that section (power of Secretary of State to extend the duration of the function of the IBA) for the words "any date not later than 31st December 2001" there shall be substituted the words "any later date".")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment 122, and to speak also to Amendment No. 237. 237 Page 54, column 3, leave out line 25. The purpose of these amendments is to make further provision for extension of the IBA's life. Clause 41 extends the life of the IBA from its expiry date 31st December, 1996 to 31st December 2001. The purpose of the extension was to enable the IBA to grant one round of 12-year DBS franchises starting in 1988–89 and running until 2000–2001.
On Second Reading in another place, however, my right honourable friend announced that the IBA's DBS powers were not to be activated until the joint venture had been in operation for three years. The likelihood is that the IBA's DBS service may not commence broadcasting until 1993 at the earliest. For the IBA to be able to award 12-year contracts starting in the mid-1990s it will need a further extension of its life.
After careful consideration the Government decided that this could best be provided for by using the existing powers in Section 2(5) and (6) of the 1981 Act which allow the Secretary of State to extend the life of the IBA by order. These powers were to have been repealed: Amendment 237 reinstates them. Amendment 122 then lifts the time-limit on the existing power, thus permitting the Secretary of State to make further extensions to the IBA's life. As now, any extension will have to be made by statutory instrument which will be subject to the affirmative resolution procedure. Your Lordships can thus be assured that they will continue to have periodic opportunities to examine and discuss the affairs of the IBA, when debating resolutions to extend the IBA's life. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

123	[Printed earlier	cols. 1590 and 1586–7.]
123A	[Printed earlier

§ Lord Elton
My Lords, Amendments Nos. 123 and 123A are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 124 After Clause 41, insert the following new clause—

§ ("Provision of transmitting equipment for national sound broadcasting service.

§ .—(1) With a view to the provision by the IBA of a national sound broadcasting service the IBA shall have power to do all such things as are in their opinion necessary or expedient for the purposes of equipping themselves to transmit the programmes included in such a service.

1602

§ (2) Without prejudice to the generality of the power conferred by subsection (1) above, the IBA shall have power for the purpose there mentioned—

(a) to establish and install stations for wireless telegraphy (within the meaning of the Wireless Telegraphy Act 1949); and
(b) to arrange for the provision and equipment of or, if need be, themselves to provide and equip studios and other premises for sound broadcasting purposes.

§ (3) Without prejudice to the generality of the preceding provisions of this section and subsection (3) of section 3 of the 1981 Act (extent of IBA's powers), that subsection shall be construed as applying in relation to activities undertaken and in relation to property or rights acquired or held by the IBA for the purposes of this section.

§ (4) The aggregate amount outstanding in respect of the principal of any sums borrowed by the IBA by virtue of this section shall not exceed £2,500,000 or such greater sum as the Secretary of State may from time to time with the consent of the Treasury specify.

§ (5) Any property or rights acquired or liabilities incurred by the IBA for the purposes of this section shall he treated for financial purposes as property or rights acquired or liabilities incurred by the IBA for the purposes of the branch of their undertaking consisting of the provision of local sound broadcasting services.

§ (6) The reference in paragraph 4(1) of Schedule 1 to the 1981 Act (capacity of the IBA as a statutory corporation) to the powers of the IBA under that Act shall be construed as including a reference to the powers of the IBA under this section.

§ (7) Nothing in this section shall be construed as authorising the IBA to do, otherwise than under and in accordance with a licence under section 1 of the Wireless Telegraphy Act 1949 or section 7 of the 1984 Act, anything for the doing of which such a licence is requisite under those Acts respectively.")

§ AS AN AMENDMENT IN LIEU OF COMMONS AMENDMENT 124

§ Lord Mishcon
My Lords, I beg to move, That this House do disagree with—and may I use the word "with" and not the word "to" as appeared on the Marshalled List, because I think that is a typographical error—the Commons Amendment No. 124, and I propose the following amendment in lieu thereof: namely, the insertion of a new clause:

§ ("Inquiry into provision by IBA of national sound broadcasting service

§ 124A . The Secretary of State shall as soon as practicable set up an inquiry to consider whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service, and if so what legislative or other measures are called for to achieve this objective.")

§ The noble Lord, Lord Howard, in moving his last series of amendments with the moderation for which he is known, had to make some introductory remarks about the fortunes of this Bill and certain sections of it. I am not going to register a complaint at this stage that in another place in Committee and on Report there were 207 Government amendments, if my count is correct, and 37 new clauses. Nor am I going to complain that there are 242 amendments at least on the Marshalled List. Indeed, there must be more, because we have some As, Bs and Cs before your Lordships today. What I am going to complain about now is legislation by afterthought. That is something 1603 for which Parliament ought not to be grateful in the very slightest. Indeed, Parliament ought to rebel against it.

I am going to read immediately—and it will not take me long—what precisely happened in the other place with the amendment now brought before your Lordships to set up a situation where we are to authorise the minimum expenditure of £2½ million—and it may be more—for transmitters to be constructed, and where as a matter of policy we are supposed to say "Amen" to a new Government thought.

§ The new Government thought was first placed before Parliament on 26th June. Your Lordships know how long this Bill has been before your Lordships and the other place. That was done three weeks ago, and this is how it happened. I am allowed, as your Lordships know, to quote what a Minister said. This was being dealt with for the very first time, and had never been discussed before. Mr. Hurd, the relevant Minister, said: I beg to move that the clause be read a second time. This is an important new clause that will give the IBA the power to equip itself to provide a national radio service. The background is as follows. As a result of international decisions made at the World Administrative Radio Conference in 1979"— and I pause for a moment to point out that these decisions were made in 1979 and we are now in 1984, and, I repeat, they were first thought of by the Government for this Bill on 26th June this year— the spectrum available for radio broadcasting on VHF will extend significantly over the next decade. The Government announced last year that this new spectrum was likely to permit two new national networks in 1990. One of these will go to the BBC. The Government propose to allocate the other to the IBA to provide for the first time a service of independent national radio".

§ Mr. Hurd continued: The new clause does not give the IBA the power to provide such a service. That must wait for later legislation, and there is a great deal to he discussed and decided before INR comes into being, particularly the nature of the service and the franchising arrangements". Your Lordships will permit me to omit the next few sentences, which are not relevant from my point of view. Mr. Hurd continued: New Clause 8 authorises it to do so. It follows similar provisions in the IBA Act 1979"— again in parenthesis, your Lordships will hear me on that in a moment— which authorised the IBA to start constructing the transmitter network for the fourth channel in advance of any decisions about the nature of that service". Then I omit an irrelevant portion from my point of view, and continue with Mr. Hurd's last remark: The IBA will have to raise a commercial loan to finance the early work on the transmitter network, and once it has appointed an INR contractor it will look to the contractor's rental to finance the rest". The right honourable gentleman then concluded, after a mere intervention of nine or ten lines from one member of the Committee—that is all that happened—by repeating that nothing in the clause decides the nature of the service, and he went on to make some remarks about local radio.

§ Your Lordships are therefore confronted with an important decision of policy that this is going to happen, but precisely how nobody knows at the 1604 moment. Its effect nobody knows at the moment. The nature of the service nobody knows at the moment. But your Lordships are asked to be good enough, without knowing anything of those matters, to authorise the capital expenditure of £2½ million, at least, because there is authority within this amendment for the Secretary of State to decide that more should be granted—that is of course with the co-operation with the Treasury.

§ May I first deal, as I said I would, with the excuse of the Minister that there was a precedent for deciding to spend money without going into why you are spending it. He referred of course to the Independent Broadcasting Authority Act 1979. That authorised the IBA to start constructing a transmitter network. It did it for the fourth channel and in advance of any decisions about the nature of that service. I concede that. But there had been considerable discussion about that prior to 1979 and your Lordships will remember that the Annan Committee sat from 1974 to 1977 and dealt with matters like the fourth channel.

§ Your Lordships may feel, "Well, why should there be an inquiry? Why should we throw out these amendments from the other place and substitute for them the setting up of an inquiry?" I give the following reasons, and I do so I hope succinctly. The first reason is that there cannot be any urgency at all about this matter. If there were an urgency about the matter, please will the Government kindly explain their negligence in not thinking of it before three weeks ago? That is the first point. The second point is that an inquiry can obviously be conducted if the Government are so willing within a very short period of time—certainly within 12 months. I repeat, if the Government had not had this afterthought three weeks ago—the first time anything like this has ever been mentioned in this Bill—it would have taken, I have no doubt, quite a long time—indeed, a year—for an enabling Bill to come before your Lordships in order that this expenditure could be effected. So there cannot he any reason why the inquiry should not take place.

§ There are other considerations which I must bring before your Lordships; not that I am asking your Lordships to conduct the inquiry. There is a very distinct matter of principle as to whether another national network should be set up when many of us know that a lot of local radio stations are in trouble. They are in trouble by virtue of advertising revenue which is now going to be competed for all over the place; and one just does not know where the BBC and ITV are to end up after all this competing for advertising. Quite apart from the competing for advertising and its effect on the BBC, and so on, the fact of the matter is that audience figures have been plummeting. There was a fall in all radio listening between 1982 and 1984 to the order of 10 per cent. and the independent local radios' overall audience fell in the same period by twice as much.

§ The problems of local radio have to be considered by an inquiry and also whether the whole concept of another national radio service of this kind, or of any kind, should be created. I take it that, rather more than a very long speech, your Lordships will appreciate the putting of four succinct reasons as to why there should he an inquiry. So I am going to sit down with a protest. 1605 I am not trying to make this a political matter. I am making this complaint, if I may humbly do so, as an individual Member of your Lordships' House. This Government are pushing through legislation with afterthoughts in a way that certainly many who have much longer experience than I have find absolutely extraordinary and intolerable. I must say that the Mother of Parliaments ought now to consider a bit of birth control!

§ 9.36 p.m.

§ Lord Mottistone
My Lords, some of what the noble Lord, Lord Mishcon, had to say I find satisfactory; some not satisfactory. That is something of a curate's egg of a statement. Perhaps I may expand on it. I think the complaint that was made, that the other place put this in apparently without any argument, is one to which my noble friend was referring earlier, that we are unaccustomed to be the originators of a Bill and find ourselves confronted with amendments of another place, in the way that they must be accustomed to in the reverse sense. I do not see it at all as strange or unreasonable for this particular provision to come in in the way that it has. There have been occasions in this House when we have done that. I would also suggest that the figure of £2½ million which was mentioned came through, as the noble Lord spoke, as though it were a kind of gift. However, if you look closely at subsection (4) you will see that it is to be borrowed. I think that makes a difference. The third point that I would make is that it would be very ponderous to set up an inquiry, as suggested in the amendment.
However, having said all that, I have my own query which I want to put to my noble friend, which really comes out of this in a different way and which was not mentioned by the noble Lord, Lord Mishcon. I have no objection—and indeed welcome—the principle of the amendment. However, I am deeply worried about the implications for frequencies. It is all very well but we will always be short of frequencies. We will always be short of frequencies available for being shared among the various competing services. It seems to me a little strange that this new national service should come into being and that there is, so far as one can see, no mention at all in the amendment. Perhaps that is reasonable. Of course, we have not heard what my noble friend has to say. However, I would be very concerned that this new provision should come into being without being quite certain that we were not depriving other possible competitors of frequencies.
So my conclusion is not to support Amendment No. 124A, which I think is just another inquiry—and Oh God! we have too many—hut to say we reject Amendment No. 124 unless there is very strong justification from my noble friend on the frequency situation.

Lord Winstanley
My Lords, I share Lord Mishcon's view that without any question at all this whole matter as contained in the Commons' Amendment No. 124 is one which needs a great deal more thought before irreversible steps are taken. Whether or not the spending of £2½ million is an irreversible step is arguable. The noble Lord, Lord Mottistone, said that nobody is talking about giving anybody £2½ million; it 1606 is going to be borrowed. It is only going to be borrowed so that it can be spent and if it is to be spent that would seem to me to be an irreversible step.

§ Lord Mottistone
But—if I may intervene—if you borrow you have to repay.

Lord Winstanley
Indeed, my Lords, but you cannot get it back when you have spent it. You have to get the money back to repay it from some other source. However, I do not think that we are here to discuss how we dispose of our debts in one way or another. There are many matters that need a great deal of thought. The whole question to which the noble Lord, Lord Howard of Henderskelfe, drew our attention with regard to radio and DBS is a very different matter about which there could be outstanding advantages. But this is something rather separate. We have to pause for a moment to consider its possible implications for commercial radio.
The noble Lord, Lord Mishcon, said that many local commercial radio stations are having a thin time. They are. One that was created folded and was not able to continue. I should perhaps declare an interest in that I am a director of Radio Piccadilly, the commercial station in Manchester, that is extremely successful—so successful that it is at present paying the Government around £1 million a year in rent and secondary rental, and doing that despite the fact that throughout its areas there are a number of pirates that are paying no one anything. They are not paying anything to the Government. They are paying nothing in royalties to the performing rights people. But they are collecting money in advertisements. The Government are at the moment doing nothing to suppress the pirates or using the powers that they possess to suppress them.
Independent local radio already has enough difficulties to contend with without suddenly having another placed on its back. This has to be thought about carefully. I am not saying that it should necessarily be rejected. But to take an irreversible decision in this kind of way without considering its implications further is very unwise. I am inclined to share the view of the noble Lord, Lord Mottistone. I am not sure that I want an inquiry. The purpose of the inquiry that the noble Lord, Lord Mishcon, sets up is to decide whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service. I think that it is undesirable. It would therefore perhaps not be wholly logical for me to support an inquiry, and rather more logical to support the attitude of the noble Lord, Lord Mottistone. This is a matter that should be thought about a great deal more. Whether there is need for an independent national radio is arguable.
I am very glad that we have not had a re-emergence of the rumours that were coming from certain Government sources not long ago about the possibility of enabling the BBC to take advertisements on Radio 1 and, perhaps, Radio 2. That would have been extremely undesirable, perhaps even more undesirable than this proposal. But this proposal has implications that go far beyond the matters contained in the Commons amendment. Therefore, for us to take an 1607 irreversible step with regard to that at the moment would be undesirable. As the only possible alternative, I must advise noble Lords to support the amendment which the noble Lord has moved.

§ Lord Ardwick
My Lords, the idea of an independent national radio has been lying about for some time. It certainly came as a shock to me to learn suddenly only three weeks ago that the Government were fully committed to the principle. The Minister said in another place that this Bill did not give the IBA the power to provide such a service; that must wait for later legislation. But the Minister added that there was a great deal to be discussed before it was known how the INR—it is so well-founded that it already has initials—would come into service. What is the case for such a service? It has not been argued; it has not been presented. All that has been said is that a new spectrum in radio broadcasting will be available that will permit two national networks for radio broadcasting on VHF in 1990; one will go to the BBC and the other to the IBA.
The BBC has heavy responsibilities to schools and students that are taxing its present resources. But how is the INR to be financed? Only, presumably, by advertising. Do the Government think that advertising will grow simply to match the media available for it? There is no such law. On the contrary: to expand radio broadcasting at a time when the radio audience is shrinking and when cable television will provide a new competitor for advertising revenue seems to me a dangerous folly.
It is unfair to everybody, but, as my noble friend has said, particularly to the independent radio stations already in being, which are having a hard enough struggle.
It looks to me as though the Government have rushed into this, as though they have rushed into broadcasting by cable without thought, without inquiry, without wide consultation. Maybe I am suffering from a kind of contemporary paranoia, but when I looked through this Bill I thought that concealed in all these amendments there was a little paving Bill trying to get out. It is very similar to another measure; it proposes to make provision for something which is not yet decided. I support very strongly my noble friend's amendment.

§ 9.46 p.m.

§ Lord Elton
My Lords, I must say that I was a little surprised by the surprise expressed by noble Lords opposite. It is true that this provision was not in the Bill when it was introduced into your Lordships' House. That is a matter for regret. The clause was not agreed in time. But the noble Lord's suggestion that the Government have given no notice of their intention is one that I cannot accept. It was in March of last year—15 months ago, and not three weeks—that my noble friend Lord Whitelaw announced the United Kingdom's plans for the expanded VHF radio band. He said then that the IBA had asked for one of the new national networks for a service of independent national radio, and that the Government found the IBA's proposal attractive.
1608 That was a clear signal, not simply tucked away in the back pages of Hansard in a parliamentary Answer, but published by the Home Office in a press release and duly reported in the press. Nor was his announcement by any means the first mention of the subject. The Times ran an article in 1980—four years ago—under the headline: "BBC faces first challenge to the last bastion of broadcasting monopoly; IBA stakes a claim on national radio network". That was on 20th November 1980, three-and-a-half years ago.
Several noble Lords referred to a space of three weeks since the proposal actually saw the light of legislative day, which is another matter. If they wish to pretend that it was a surprise to them and to everybody else that this was in the Government's mind, they are free to do so. But it was not three weeks ago that it first saw the light of legislative day. My right honourable friend the Home Secretary made the Government's position clear at Second Reading in another place on 8th May, and the provisions were added in Committee there. So there has been rather more parliamentary notice than the noble Lord was kind enough to give us.
In any case, for those who take an interest in broadcasting matters, there has been plenty of notice of the IBA's bid for a national radio service and of the Government's favourable attitude towards it. They will have noticed also that no other use has been proposed for the new national radio networks that will become available on VHF in 1990. The BBC has not opposed the idea of one of them going to the IBA; it will, after all, receive the other one for a separate VHF network for Radio 1; and no other bidders have come forward.
So on the first point, on the need for an inquiry, which was implicit in the noble Lord's amendment and explicit in his speech, I hope that I have shown that there has been opportunity for public discussion about the use to which the two new national networks on VHF might be put. His amendment goes on to ask whether it is desirable that the IBA should be enabled to make provision for a national sound broadcasting service. The Government believe firmly that it is. The frequencies will exist. To make use of them by 1990, the work of transmitter construction will need to start soon, and they ought not to be left vacant thereafter.
The BBC faces competition in television and local radio. Viewers and listeners have benefited from this, and I think most noble Lords would accept that the BBC has also benefited from the spur of that competition. National network radio is the last area in which the BBC has a monopoly of domestic broadcasting. The opportunity now exists to end that monopoly, and it would be quite wrong for a Government who believe in competition—as we do—not to seize it.
The second object of the noble Lord's proposed inquiry was to consider what legislative or other measures are called for to enable the IBA to provide a service of INR. The answer lies in the new clause which is before the House in Amendment No. 124. As regards that clause I was taken by surprise by the procedural methods of this House. I did not know that the noble Lord has stolen a march on me by moving a Motion rather than an amendment, and I congratulate him on that and, therefore, I have not made the situation clear, but I shall do so shortly.
1609 I shall be asking your Lordships to agree to Amendment No. 124 in preference to the noble Lord's Amendment No. 124A. Nothing in the clause which I shall be moving decides the nature of the service—that will all be decided in a later round of legislation. There will be ample time between now and then for discussion of the many questions raised by the noble Lord in moving his amendment and by others, as to what form independent national radio should take, its relationship with independent local radio, and so on. However, in the meantime, if they are to go on air by 1990, it is necessary to get on with the considerable job for which there is a precedent—as my noble friend has reminded us—of getting the equipment available for this purpose.
Therefore, I would now ask your Lordships to consider Amendment No. 124 which comes to us from the Commons. That amendment provides a new clause which will give the IBA the power to equip themselves to provide a national radio service. The background is as follows. As a result of international decisions made at the World Administrative Radio Conference in, as the noble Lord has rightly reminded us, 1979, the spectrum available for radio broadcasting on VHF will extend significantly over the next decade. I draw this particularly to the attention of my noble friend who sits resolutely immediately behind me in spite of the acres of space on either side. The Government announced last year that this new spectrum was likely to permit two new national networks in 1990. One of these will go to the BBC, so that Radio 1 will at least have a VHF outlet of its own. The other the Government propose to allocate to the IBA, to provide for the first time a service of independent national radio. No other radio service will be deprived of frequencies. These are new frequencies available for a new purpose and no alternative uses have, as I have already twice said, been proposed for them. I hope that my noble friend finds that reassuring.
This new clause does not give the IBA the power to provide such a service. That must wait for subsequent legislation, which will prescribe the nature of the service and the franchising arrangements, and so on—and if we are all sitting on the same Benches we shall he debating them furiously in years to come. But if the service is to go on air in 1990 the IBA need to start work constructing the transmitters in 1985–86. The new clause authorises them to do this. It follows similar provisions in the IBA Act 1979, which authorised the IBA to start constructing the transmitter network for the fourth channel in advance of any decisions about the nature of that service.
The IBA will thus be enabled to begin the programme of transmitter construction before a contractor is appointed. Once a contractor is appointed the remaining construction work should be financed through rentals paid by the contractor. The Government's intention is that before 1990 the IBA and the contractor should each contribute about half the construction costs. The IBA will need to borrow for this purpose. Subsection (4) limits their borrowing power—and my noble friend was good enough to emphasise the difference, which seems to have escaped some noble Lords, between borrowing and merely spending—to £2.5 million, which the IBA have 1610 estimated to be approximately half the cost at 1983 prices. Should prices or cost estimates change, there is flexibility in the power given to the Secretary of State to increase the borrowing ceiling with the consent of the Treasury, and £2.5 million is reckoned to be approximately half the cost.
The noble Lord, Lord Winstanley, made reference to Piccadilly Radio and £1 million. That is the figure that I thought I caught from him. I think that that is the rental and secondary rental paid, not to the Government but to the IBA. I understand that the levy paid by Piccadilly Radio to the Government is less than £100,000.
I should repeat that nothing is this clause decides the nature of the service. That is perhaps the burden of the charge of noble Lords opposite. But they cannot have it both ways. Either there should be lengthy discussion in order to decide exactly what service is wanted—and that should be encapsulated in legislation in the future—or there should be a decision to advance in principle and the detail should be decided later.
We do not have the detail in this Bill and I believe that that is a virtue and not a vice, because I agree with the noble Lord that the detail, and the fairly general detail, of the scheme is a matter which ought to be publicly and thoroughly debated and cannot be thrust swiftly into legislation now. But we ought not to await the next legislative train to go through the station. If we want to go on air in 1990 and if we do not want to waste the very scarce resource of vacant frequencies until the next legislative train goes through the station, we have to catch this one. That is what my amendments do, and I hope that when your Lordships have considered the noble Lord's amendments, and if you follow my advice have rejected them, you will prefer those from the House of Commons to those from the Front Bench opposite.

§ Lord Mottistone
My Lords, before my noble friend sits down, is he aware that his reassurances about very high frequency outlets only marginally satisfy me? As it does not specifically mention that the frequencies will be high frequency, can he reassure me further that there is no possibility of this wireless station operating on the medium frequency?

§ Lord Elton
My Lords, subject to technical confirmation (which I do not doubt the noble Lord, Lord Howard of Henderskelfe, could give me if it does not arrive from elsewhere in time) we are committed to the MAC system, which would not carry the medium frequency. In any case, I can give my noble friend the assurance he wants, that the medium frequency will not be used.

§ Lord Mishcon
My Lords, in his concluding remarks the noble Lord the Minister said that we had to catch a train in regard to this matter, and had better catch it. I can only say that he has arrived on the station very late and he has had to jump on the train almost as it 1611 started off, which is not the healthiest way of catching it.
I repeat only this. If one commits oneself to this expenditure—and the noble Lord knows this perfectly well—one is, in fact, making the decision almost irrevocable and somebody has to make an inquiry as to whether or not the decision is right. It is no answer to say that the noble Viscount the Leader of this House, in another capacity, some years ago mentioned that the Government favoured this, and then to say in May of this year in a Second Reading speech that the general principle was enunciated. That was eight weeks ago instead of three weeks ago. If it was so essential, why did not the noble Lord the Minister himself mention this on Second Reading? It was only because the Government had not even thought up the idea at that stage.
This is hopeless, and being hopeless, with very great deference, I say this. It may be that this matter will be decided on party lines. I think that it would be an awful shame if it is; and, if I may say so with a smile, noble Lords opposite have had the advantage of a Conservative Party function in your Lordships' House which may account for rather more people who have not heard this debate voting in the Division than my noble friends and I can command. But on a matter of principle divide we will.

§ 9.59 p.m.

§ On Question, Whether this House doth disagree with the Commons in their Amendment No. 124, but proposes Amendment No. 124A in lieu thereof?

§ Their Lordships divided: Contents, 18; Not-Contents, 37.

DIVISION NO. 3
CONTENTS
Airedale, L.	McCarthy, L.
Ardwick, L.	Mackie of Benshie, L.
Blease, L.	Mishcon, L.
Cledwyn of Penrhos, L.	Ponsonby of Shulbrede, L. [Teller.]
Elwyn-Jones, L.
Graham of Edmonton, L. [Teller.]	Stoddart of Swindon, L.
	Taylor of Blackburn, L.
Grey, E.	Underhill, L.
Howard of Henderskelfe, L.	White, B.
John Mackie, L.	Winstanley, L.

NOT-CONTENTS
Belhaven and Stenton, L.	Lawrence, L.
Belstead, L.	Long, V.
Caithness, E.	Lucas of Chilworth, L.
Coleraine, L.	McFadzean, L.
Crathorne, L.	Margadale, L.
De La Warr, E.	Massereene and Ferrard, V.
Denham, L. [Teller.]	Mottistone, L.
Drumalbyn, L.	Polwarth, L.
Elliot of Harwood, B.	Rankeillour, L.
Elton, L.	Rochdale, V.
Ferrier, L.	Saltoun, Ly.
Glanusk, L.	Skelmersdale, L.
Glenarthur, L.	Southborough, L.
Gray, L.	Stodart of Leaston, L.
Gray of Contin, L.	Swinton, E. [Teller.]
Greenway, L.	Trumpington, B.
Grimston of Westbury, L	Whitelaw, V.
Hornsby-Smith, B.	Wise, L.
Kinnaird, L.

1612

§ Resolved in the negative, and Motion disagreed to accordingly.

§ COMMONS AMENDMENT

§ 124 [Printed earlier: col. 1601.]

§ 10.7 p.m.

§ Lord Elton
My Lords, I beg to move formally that this House doth agree with the Commons in their Amendment No. 124.

§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ ("Directions in the interests of public service broadcasting

§ 125 After Clause 41, insert the following new clause:

§ .—(1) This Section applies where—

(a) the broadcasts in a television or sound broadcasting service are made from a place outside the United Kingdom for reception in the United Kingdom; and
(b) programmes are proposed to be broadcast in that service by the reception and re-transmission (whether immediately or after an interval) of material sent by means of a telecommunication system licensed under Part II of the 1984 Act.

§ (2) If it appears to the Secretary of State, after consultation with both broadcasting authorities, that it is requisite or expedient to do so in the interests of public service broadcasting in the United Kingdom, he may by a direction under this section prohibit any person from sending material either for programmes generally, for programmes of a particular description or for particular programmes.

§ (3) Without prejudice to the generality of subsection (2) above the Secretary of State may give a direction under this section if it appears to him, after such consultation as aforesaid, that any of the programmes—

(a) would consist of or include the whole or any part of listed or protected events; or
(b) would be such that they could not be included in a television or sound broadcasting service provided by the IBA.

§ (4) A direction under this section shall be published in such manner as the Secretary of State considers appropriate.

§ (5) A person who knowingly contravenes a direction under this section shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum:
(b) on conviction, on indictment, to a fine.

§ (6) Without prejudice to subsection (5) above, compliance with a direction under this section shall be enforceable by civil proceedings by the Crown for an injunction or interdict or for any other appropriate relief.

§ (7) So much of section 14(10) of the 1956 Act as relates to the place from which a broadcast is to be treated as made shall apply for the purposes of this section as it applies for the purposes of that Act.

§ (8) In this section— broadcasting authority" means the BBC or the IBA; listed event" has the same meaning as in section 14 above; material" means sounds or visual images or both; programme" includes a teletext transmission; protected event" means a sporting or other event, which in the opinion of the Secretary of State, is one of a series of similar events the whole or any part of which—

(a) it was at the commencement of this section the practice of a broadcasting authority to broadcast; and
(b) but for the acquisition of rights to include the whole or any part of events in that series in external broadcasting services, it would still be the practice of that authority to broadcast;

and for the purposes of this subsection anything broadcast by either of the broadcasting authorities shall be treated as broadcast by each of them.")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 125. In May this year my right honourable friend the Minister of State announced that the Government had decided to lift the restrictions that for many years had been placed on the provision of telecommunications facilities to foreign broadcasting organisations who wished to transmit material from this country to be rebroadcast back to the United Kingdom from their foreign transmitters. That decision made it necessary to provide various regulatory provisions. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 126 to 131 [Printed earlier: cols. 1576, 1587, 1590 and 1591.]

§ Lord Elton
I beg to move that this House doth agree with the Commons in their Amendments Nos. 126 to 131. These amendments are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 132 Before Clause 44 insert the following new clause:

§ Fraudulently receiving certain programmes

§ .—(1) A person who dishonestly receives a programme included in a service to which this section applies with intent to avoid payment of any charge applicable to the reception of that programme shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

§ (2) This section and section (Proprietary rights in respect of certain programmes) below apply to—

(a) any cable programme service;
(b) any television or sound broadcasting service provided by the BBC or the IBA; and
(c) any service (other than a television or sound broadcasting service) which consists wholly or mainly in the sending by means of a telecommunication system, of sounds or visual images or both and is provided for a person providing a service falling within paragraph (a) or (b) above;

and for the purposes of this subsection a service provided for the Welsh Authority, the IBA's subsidiary or a programme contractor shall be treated as provided for the IBA.

§ (3) Her Majesty may by Order in Council make provision in the case of any country specified in the Order, for applying this section and section (Proprietary rights in respect of certain programmes) below to—

(a) any service provided in that country which would be a cable programme service if subsection (7) of section 2 above and references in subsection (1) of that section to the United Kingdom were omitted;
(b) any television or sound broadcasting service provided in that country by an organisation constituted in, or under the laws of, that country; and
(c) any service provided in that country (other than a television or sound broadcasting service) which consists wholly or mainly in the sending, by means of a telecommunication system, of sounds or visual images or both and is provided for a person providing a service falling within paragraph (a) or (b) above.

§ (4) Her Majesty shall not make an Order in Council under subsection (3) above in the case of any country unless Her Majesty is satisfied that provision has been or will be made under the laws of that country whereby adequate protection will be given to persons making charges for programmes included in services falling within subsection (2) above.

§ (5) Any statutory instrument containing an Order in Council under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

§ 133 Before Clause 44 insert the following new clause:

§ ("Proprietary rights in respect of certain programmes.

§ .—(1) Every person who makes charges for the reception of programmes included in a service to which this section applies shall be entitled to the proprietary rights conferred by this section.

§ (2) The rights conferred by this section are infringed by the manufacture, importation, sale or letting on hire of any apparatus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to receive the programmes without payment.

§ (3) Subject to subsection (5) below, infringements of the rights conferred by this section on any person shall be actionable at the suit of that person; and in any proceedings for such an infringement all such relief, by way of damages, injunction, interdict, account or otherwise, shall be available as is available in any corresponding proceedings in respect of infringements of other proprietary rights.

§ (4) Where rights conferred by this section on any person have been infringed by the manufacture, importation, sale or letting on hire of any apparatus or device, then, subject to subsection (5) below, that person shall be entitled in respect of the conversion by any other person of the apparatus or device to all such relief, by way of an order for its delivery or otherwise, as he would be entitled to if he were its owner and had been its owner since the time of the infringement.

§ (5) A person shall not be entitled to recover damages from another person by virtue of this section if, at the time of the infringement or conversion, that other person was not aware, and had no reasonable grounds for suspecting, that the rights conferred by this section on the first-mentioned person would be or had been infringed.

§ (6) Section 72 of the Supreme Court Act 1981 and section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against incrimination of self or spouse in certain proceedings) shall each have effect as if the proceedings to which subsection (1) of that section applies included proceedings in the High Court brought by virtue of this section.

§ (7) In the application of this section to Scotland, for any reference to the conversion by any person of any apparatus or device there shall be substituted a reference to an intromission by any person with any apparatus or device.")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 132 and 133. I beg leave to speak also to Amendment No. 232:

§ 232 Schedule 2, page 53, line 17, at end insert— ("(2) In subsection (1) of section 42 of that Act (fraudulent use of telecommunication system) for the words "service provided by means of a licensed telecommunication system" there shall be substituted the words "service to which this subsection applies". (3) In subsection (2) of that section for the words "In this section 'licensed telecommunication system' means" there shall be substituted the words "Subsection (1) above applies to any service (other than a service to which section 1615 (Fraudulently receiving certain programmes) of the Cable and Broadcasting Act 1984 applies) which is provided by means or.")

§ We return here to territory which we first explored in Committee on 2nd February when considering amendments from the noble Lord, Lord Howard of Henderskelfe. He pointed out, quite correctly, that legal safeguards for people providing paid television services were inadequate. It is a problem that we had already been studying and I was able to give an assurance on that day that we would subsequently bring forward amendments of our own in an attempt to deal with it. That is what these three clauses do. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 134 and 135 [Printed earlier: cols. 1576 and 1585.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 134 and 135. These amendments are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 136 Clause 45, page 35, line 15, leave out ("55 of the Telecommunications Act 1984") and insert ("57 of the 1984 Act")

§ 137 Page 35, line 20, leave out ("56 of the Telecommunications Act 1984") and insert ("58 of the 1984 Act")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 136 and 137. With your Lordships' leave, I will speak at the same time to Amendments 145, 146, 225, 233, 238 and 241.

§ 145 Page 39, line 7, at beginning insert ("(1)")

§ 146 Page 39, line 8, leave out from ("premises)") to end of line 12 and insert ("the words "under Part IV of the Telecommunications Act 1984" shall be omitted.

§ (2) This paragraph does not extend to Northern Ireland.")

§ 225 Page 52, line 18, leave out from ("pictures)") to end of line 21 and insert ("the words "under Part IV of the Telecommunications Act 1984" shall be omitted")

§ 233 Page 53, line 17, at end insert— ("(4) In section 43(2) of that Act (improper use of public telecommunication system) the words "(within the meaning of Part IV of this Act)" shall be omitted.")

§ 238 Page 54, line 35, at end insert—

("1982 c. 33.

The Cinematograph (Amendment) Act 1982.

In section 1, the words "under Part IV of the Telecommunications Act 1984".")

§ 241 Page 54, line 37, at end insert ("The repeal in the Cinematograph Act 1909 does not extend to Northern Ireland.".")

§ These amendments are all technical ones to take account of the fact that since this Bill left this House, what is now the Telecommunications Act 1984 has arrived on the statute book. Amendments Nos. 136 and 137 simply correct two references in Clause 45 to the numbers of sections in that Act. Amendments 1616 Nos. 145, 146, 225, 238 and 241 take account of changes which will be made to the Cinematograph Acts 1909 and 1982 by the Telecommunications Act when it comes into force, and Amendment No. 233 adds a new consequential amendment by means of Schedule 2 to Section 43 of that Act. There is no change of substance.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 138 Clause 46, page 35, line 29, leave out ("Part II of").

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 138. This is a technical amendment to the provision in the Bill dealing with its extension to the Channel Islands and the Isle of Man.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 139 [Printed earlier: col. 1588.]

§ 140 [Printed earlier: col. 1570.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 139 and 140. They are consequential. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 141 [Printed earlier: col. 1591.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No.141.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ [Amendment No. 141A as an amendment to the Commons Amendment No. 141, not moved.]

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 142 [Printed earlier: col. 1592.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 142.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ [Amendment No. 142A as an amendment to the Commons Amendment No. 142, not moved.]

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 143 Schedule 2, page 38, line 40, leave out ("within the meaning of Part I of this Act") and insert ("which is or does not require to be licensed")

1617

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 143, and I think it will be for your Lordships' convenience if I speak also to Amendments Nos. 149, 152, 174, 196, 197, 199, 201, 204, 223 and 234.

§ 149 Page 39, line 29, at end, insert ("as they apply in relation to newspapers").

§ 152 line 46, at end insert ("as it applies in relation to newspapers").

§ 174 Page 43, line 17, after ("or") insert ("for").

§ 196 Page 46, line 32, at end, insert ("as they apply in relation to newspapers").

§ 197 line 36, after ("or") insert ("for").

§ 199 line 43, after ("or") insert ("for").

§ 201 Page 47, line 7, after ("a") insert ("licensable").

§ 204 line 20, after ("a") insert ("licensed").

§ 223 Page 52, line 13, after ("a") insert ("licensable").

§ 234 Page 53, line 17, at end insert—

§ ("The Video Recordings Act 1984

§ 46. For paragraph (b) of section 3(8) of the Video Recordings Act 1984 (exempted supplies) there shall be substituted the following paragraph— (b) a cable programme service which is or does not require to be licensed." ").

§ That concludes the block of amendments to which I shall be speaking. Of those, Amendments Nos. 143, 149, 152, 174, 196, 197 and 199 are all technical ones to improve the drafting of some of the enactments amended by Schedule 2 and to make the drafting of the various paragraphs of that schedule consistent. Amendments Nos. 201 and 223 are slightly more substantial. They deal with the amendments made by the Bill to the legislation governing employment agencies.

§ Amendment No. 204 deals with paragraph 29 of Schedule 2, which amends the Fair Trading Act 1973 to exempt the provision of cable programme services from reference by the Director-General of Fair Trading to the Monopolies and Mergers Commission.

§ Finally, Amendment No. 234 is a technical amendment to update a reference to cable programme services in the Video Recordings Act 1984, which has recently reached the statute book.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 144 to 153 [Printed earlier: cols. 1576, 1615 and 1616.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 144 to 153 inclusive. They are consequential.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 154 Page 40, line 4, leave out ("after paragraph (d)") and insert ("the word "and" immediately preceding paragraph (d) shall be omitted and after that paragraph")

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 154. With the leave of your Lordships, I will speak 1618 also to Amendments Nos. 158 to 164, Nos. 166 to 169 and Nos. 179 and 180.

§ 158 Page 41, line 5, after ("words") insert ("cause the work or an adaptation thereof to be")

§ 159 Page 41, line 6, leave out ("included") and insert ("include the work or an adaptation thereof")

§ 160 Page 41, line 12, after ("words") insert ("cause")

§ 161 Page 41, line 13, leave out ("work or sound recordings to be included") and insert ("include works or sound recordings")

§ 162 Page 41, line 21, leave out from ("the") to end of line 26 and insert ("words "the works", in both places where they occur, there shall be inserted the words "or recordings", for the words "cause those works to be transmitted to subscribers to diffusion services" there shall be substituted the words "include those works or recordings in cable programme services provided" and for the words "cause those works to be so transmitted" there shall be substituted the words "so include those works or recordings". ")

§ 163 Page 41, line 43, leave out ("word"") and insert ("words "the programme to be")

§ 164 Page 41, line 44, leave out ("included") and insert ("including the programme")

§ 166 Page 42, line 13, leave out ("subsection—"(3)") and insert ("subsections— (3) References in this Act to the inclusion of a programme in a cable programme service are references to its inclusion in such a service by the person providing that service. (3A) For the purposes of this Act no account shall be taken of a cable programme service if, and to the extent that, it is provided for—

(a) a person providing another such service;
(b) the Corporation; or
(c) the Authority;

and for the purposes of this subsection a cable programme service provided for the Welsh Fourth Channel Authority, the subsidiary mentioned in section 12(2) of the Broadcasting Act 1981 or a programme contractor within the meaning of that Act shall be treated as provided for the Authority. (3B)")

§ 167 Page 42, line 19, after ("words") insert ("the causing of a work or other subject matter to be")

§ 168 Page 42, line 21, leave out ("included") and insert ("including a work or other subject matter")

§ 169 Page 42, line 23, leave out from ("for") to end of line 25 and insert ("paragraph (c) there shall he substituted the following paragraph— (c) including the work or an adaptation thereof in a cable programme.".")

§ 179 Page 44, line 13, leave out ("transmitted") and insert ("causes")

§ 180 Page 44, line 14, leave out ("included") and insert ("includes a performance to which the principal Act applies, or any part of such a performance,")

§ They all deal with provisions in Schedule 2 which amend the Copyright and Performers' Protection Acts.

§ Moved, That this House doth agree with the Commons in the said amendment.— (Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 155 to 226 [Printed earlier: cols. 1573–4, 1576–8, 1582, 1587, 1615 and 1617.]

§ 227 Schedule 2, page 52, line 33, leave out ("under Part I of the Cable and Broadcasting Act 1984")

§ 228 line 40, leave out ("within the meaning of Part I of the Cable and Broadcasting Act 1984")

§ 229 Page 53, line 2, leave out ("Telecommunications Act 1984") and insert ("1984 Act")

§ 230 line 9, leave out ("established under section 1 of the Cable and Broadcasting Act 1984")

§ 231 to 234 [Printed earlier: cols. 1577 and 1614–15–17.]

1619

§ Lord Elton
I beg to move that this House doth agree with the Commons in their Amendments Nos. 155 to 234 inclusive, which I am happy to tell your Lordships are all consequential.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 235 Schedule 3, page 54, line 3, at end insert—

("9 Edw. 7. c. 30.	The Cinematograph Act 1909.	In section 1(3), the words "under Part IV of the Telecommunications Act 1984".
12, 13 & 14 Geo. 6. c. 54.	The Wireless Telegraphy Act 1949.	In section 19(1), the proviso.
15 & 16 Geo.6 & 1 Eliz. 2 c. 66.	The Defamation Act 1952.	Section 16(4).
1955 c. 11 (N.I.).	The Defamation (Northern Ireland) Act 1955.	Section 14(3).
4 & 5 Eliz.2 c.74.	The Copyright Act 1956.	In section 2(3), the word "and" immediately preceding paragraph (d).")

§ Lord Elton
My Lords, I beg formally to move that this House doth agree with the Commons in Amendment No. 235, and I wish to speak to Amendment No. 239.

§ 239 Page 54, line 36, column 3, at beginning insert— ("In section 43(2), the words "(within the meaning of Part IV of this Act)". Section 92(3).").

§ Both amendments simply affect a number of repeals to other enactments which are consequential on amendments to which I have already spoken. I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendment.—(Lord Elton.)

§ On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 236–242 [Printed earlier: cols. 1583, 1593, 1601, 1615 and 1618.]

§ Lord Elton
My Lords, I beg to move that this House doth agree with the Commons in Amendments Nos. 236 to 242, and it is with even greater relief that I tell your Lordships that Amendments 236 to 242 are consequential. I do not have any more amendments and I beg to move.

§ Moved, That this House doth agree with the Commons in the said amendments.—(Lord Elton.)

§ On Question, Motion agreed to.

§ House adjourned at a quarter past ten o'clock.