APPLICATION OF PART III OF THE BROADCASTING ACT 1981

HL Deb 01 March 1984 vol 448 cc1405-34

1.—(1) In paragraph (a) of subsection (3) of section 53 of the Broadcasting Act 1981 (in this Schedule referred to as "the 1981 Act") after the words "the IBA" there shall be inserted the words "or of the Cable Authority".

(2) At the end of paragraph (b) of subsection (3) of that section there shall be inserted the words "or for inclusion in a cable programme service".

2.—(1) In paragraph (a) of subsection (1) of section 54 of the 1981 Act there shall be inserted after "1981" the words "actually included in licensed services".

(2) In paragraph (b) of subsection (1) of that section there shall be inserted at the end of that paragraph the words "or included".

(3) In subsection (3) of that section there shall be inserted before the definition of "complaint" the following words:— cable programme service" has the same meaning as in Part 1 of the Cable and Broadcasting Act 1984.

(4) After the definition of "complaint" in that subsection there shall be inserted the following words— licence service" has the same meaning as in Part 1 of the Cable and Broadcasting Act 1984.

3.—(1) In paragraph (a) of subsection(4) of section 55 of the 1981 Act after the words "the broadcasting" there shall be inserted the words "or the inclusion in a licensed service".

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

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

4.—(1) In paragraph (b) of subsection (2) of section 56 of the 1981 Act after the words "was broadcast" there shall be inserted the words "or, where the complaint relates to a programme included in a licensed service, the Cable Authority and the person who included it in the service".

(2) At the end of subsection (3) there shall be inserted the words "or, as the case may be, the Cable Authority and the person who included it in the licensed service".

(3) In subsection (4) of that section after "broadcasting body" there shall be inserted the words "or a person who has included a programme in a licensed service and after the words "that body" wherever it occurs in that subsection there shall be inserted the words "or person".

(4) In subsection (5) after the words "was broadcast" there shall be inserted the words "or, as the case may be, the person who included it in a licensed service" and after the words "that body" in that subsection there shall be inserted the words "or person or, where that person is an individual, that individual".

(5) In subsection (6) after the words "was broadcast" there shall be inserted the words "or, as the case may be, the person who included it in a licensed service" and after the words "broadcasting body" on the last occasion when it occurs, there shall be inserted the words "or, as the case may be, that person".

(6) In subsection (7) after the words "any such person" there shall be inserted the words "responsible for the making or provision of the relevant programme".

5.—(1) In subsection (1) of section 57 of the 1981 Act after the words "was broadcast" there shall be inserted the words "or to the Cable Authority".

(2) In subsection (2) of that section after the words "a broadcasting body" there shall be inserted the words "or, as the case may be, the Cable Authority".

(3) At the end of subsection (5) of that section there shall be inserted the words "or the Cable Authority or a person providing a licensed service".

6. In section 58 of the 1981 Act after the words "each broadcasting body" there shall be inserted the words "the Cable Authority and persons providing a licensed service".

7. At the end of subsection (3) of section 59 of the 1981 Act there shall be inserted the words "and to the Cable Authority and every person providing a licensed service".")

These are precisely the same amendments that I moved in Committee and which I withdrew at a rather late hour because it would not have been appropriate to divide the Committee at that time. The Committee was very sparsely attended, although I do not know how many noble Lords were lingering outside, waiting to quash me had I forced the amendments to a Division. In any case it did not seem appropriate to do so, because there were not many people here to listen to the arguments.

In replying to my contentions on that occasion, the noble Lord made various suggestions. He suggested that the Cable Authority was very different from the BBC and the IBA and therefore should not be subjected to any form of Broadcasting Complaints Commission, because the authority was not involved in either the production or the transmission of programmes. It was argued therefore that the authority would be able to exercise some entirely independent judgment. I do not believe that is so.

The authority will clearly have a duty under Clause 4 to promote cable services. In other words, it will have a duty to encourage as well as to regulate cable services. It is there to serve not just as a regulatory body. It is there to encourage cable services as well. That duty to encourage cable services may at times conflict with the authority's duty to be seen at any rate as an entirely impartial body when adjudicating upon complaints.

The second of the noble Lord's arguments carried more force, but I hope to demonstrate in a moment that it was a slightly illusory force. That argument was that it will be easier for the consumer to deal with one body about all cable matters—whether about programme quality, privacy, unfair treatment or whatever. Again, there may be some force in that argument if no conflict of interest should arise. The noble Lord's third argument was that the authority would be able to consult with the Broadcasting Complaints Commission with a view to adopting a common approach to standards. I am not quite sure how this could be expected to work but it anyway seems an extremely cumbersome way of proceeding.

The IBA is a regulatory authority. It happens also to transmit programmes, but that is merely a detail because it is not directly responsible for the programmes. The Cable Authority is also a regulatory body. Admittedly the rules by which it regulates the industry are a good deal looser, on the Government's terms, than those which restrain the IBA. Nevertheless, it is a regulatory authority. If we can have the kind of proposal I am putting forward, so that we may refer all these matters to the complaints commission, we are more likely to have a satisfactory state of affairs.

The Broadcasting Complaints Commission exists to provide redress as a statutory independent body to individuals or groups of individuals who believe that they have been traduced or unfairly treated in one way or another in a programme. That is a source of complaint which is not as frequent as some people think, but it is nevertheless a fairly frequent source of complaint. Some people invariably think they have been unfairly treated in a television programme—especially certain Members of the Lower House, and perhaps potential Members of the Lower House in particular. The fact remains that there is an independent body to whom such people can have recourse. But they do not usually approach the independent body in the first instance. They have been known to do so, but frequently they complain first to the BBC or to the IBA, or to ITCA or to a programme company. They frequently complain to the BBC about IBA programmes.

They are then informed that if it is not a general but a specific complaint, their proper recourse is to the Broadcasting Complaints Commission. If it is a general complaint about sex, violence or bad language, then it is something which the BBC or the IBA can be expected to deal with and to reply, for it is part of the statutory duties of the authority and of the charter agreements of the corporation that they should do so.

Why on earth the same procedure should not apply to the Cable Authority I cannot think. I do not believe that the reasons we have been given for not doing it that way are at all valid. Let me return to the argument that it would be simpler if the consumer had only one body to approach. This happens at the moment with the BBC and the IBA, but if it is a singular rather than a general complaint, the complainant is told of the remedies which are available. It seems very curious that the Secretary of State for Home Affairs who produced the statutory Broadcasting Complaints Commission in response to a number of years' of pressure should now in a Bill for which he is equally responsible say. "In this case, there is absolutely no need for the commission to perform that function. It can all be perfectly well dealt with by the Cable Authority".

If one has been traduced in a cable programme, it does not matter tuppence whether that programme has come down a wire or has come over the air because one has still been traduced. The slander or whatever is just the same if it appears on your screen in precisely the same way. Because this new technology is to be supervised with a loose rein, that does not mean that it should be treated differently in this particular respect from broadcasting generally. I beg to move.

Lord Mishcon

My Lords, I should like to support this amendment as strongly as I possibly can. The House will know that we are dealing now with people who see upon a screen—and it is one screen—matters which they feel treat then unjustly or unfairly, or which invade their privacy. As the noble Lord, Lord Howard of Henderskelfe, said, it was very late at night when we last discussed this matter. The Chief Whip was hovering in the background, waiting to ask that the Committee, at that late hour, should adjourn. The noble Lord, Lord Howard, responded most courteously to the presence of the Chief Whip and said that this was a matter that he would prefer to deal with at a later stage.

I have said that it is the same screen. The same question is involved: the invasion of privacy and unfair or unjust treatment. An authority is already in existence—the Broadcasting Complaints Commission—which has, over a period of several years, built up on its experience a whole host of precedents so that it is able very easily, and one may think very properly, to adjudicate on these matters. When, in a short intervention. I made that point in Committee, the noble Lord the Minister replied by saying that he had no doubt there would be consultation between the two authorities. III may say so, that in itself was an admission that they were dealing with precisely the same thing, or the same principles. Why therefore there should be this need to consult when the body is already there, I do not understand.

The next point made by the Minister was, "Well, people are used to dealing with one authority on cable". The person who would be complaining and would want to put his complaints before some quasi-judicial body, as it were, is not an applicant for a licence. He is not a person who is quarrelling about terms and conditions of a licence. Most likely he will have never been in touch with the Cable Authority, and, if I may say so with all deference to that body which we are to create, most likely he will not even have heard of it; but he will most certainly have heard of the complaints commission. Therefore, that argument drops by the wayside.

As his third argument the noble Lord the Minister says that for some reason he feels that the BBC and the independent authority were in a different position from the Cable Authority in the sense that the Cable Authority is not responsible for the production of the programmes. We do not even know at this stage who the personnel of the Cable Authority will be. From these Benches—but your Lordships felt it was wrong and the noble Lord the Minister thought it was wrong—I tried to see that certain interests and expertise were in the statute and were set down as the sort of expertise and representation that one ought to have on the Cable Authority. The Minister replied that one ought to have faith in the Secretary of State—and I certainly have a lot of faith in the present Secretary of State—and one should leave this representation to him; that he would have the general mix of expertise that should be on such an authority and that one ought not to write this into an Act. But we do not know what sort of expertise will in fact be on that body. We do know what sort of expertise is sitting on the Broadcasting Complaints Commission.

All that adds up to this. If this amendment were made to the Bill and we were to find that for some reason or other there was a conflict of interests, or some way in which this was not a convenient procedure, there would not be the slightest difficulty in amending this provision. It would be the shortest possible amendment anyone would ever have to make. If the Minister says, "Please, I do not want to consider amending the Bill at this stage", I answer him by saying that if we happen to have personnel on the Cable Authority who do not satisfy the members of the public who complain he will then, as a result of experience, have to amend the Bill and give this power to the complaints commission.

This is a most sensible amendment, and I believe that we have a very real duty, in safeguarding the interests of those who will be depicted on cable programmes, to see that we give them the protection of being able to complain to a commission which, I repeat, has had a wealth of experience and has, by and large, carried out is duties to the satisfaction of the general public. Therefore, from these Benches we most earnestly support the amendment and hope that the Minister, on a matter which, though not of the greatest principle, is very important, will find that at long last he can yield to sensible arguments which are addressed to him.

Lord Mottistone

My Lords, from these Benches I should like to support in principle the amendment of the noble Lord, Lord Howard of Henderskelfe. It seems to me logical that in the areas which are common to what the Broadcasting Complaints Commission is currently doing, as the noble Lord, Lord Mishcon, has just said, the same body should continue to do the same things. I suggest to my noble friend that this is the aspect of it to which he might like to give some thought with a view to perhaps tabling an amendment of his own incorporating the principles embodied in the three amendments tabled by the noble Lord, Lord Howard of Henderskelfe.

We are debating the terms of Clause 14, which is entitled: Complaints of unjust or unfair treatment etc.". It is the "etc." which worries me slightly, because I think there may be matters which are peculiar to cable in the areas which are not common to broadcasting or the sort of entertainment and information type of programmes, where one may want a different level of expertise for which the Cable Authority might be more suited. I am not sure whether there is a provision elsewhere in the Bill for bodies such as advertisers with a solely advertising programme being able to complain on a technical basis. I am not talking about people complaining about the advertising, I am referring to advertising companies who want to complain that their programmes have not been put on properly as contracted, or something of that nature.

It may be that there is something in the Bill which gives the Cable Authority an overall responsibility for receiving complaints about the programme providers. If that is so, nothing further needs to be done. But we do need, as it were, to narrow down the amendment that is under discussion to make sure that it relates strictly to those areas which are common to what this particular body is currently doing. Apart from that, I am right behind the amendment. I will not, I hope, be asked to go into the Division Lobby. That is the last thing I want to do on this issue because I agree with it in principle rather than in fact.

Lord Aylestone

My Lords, the noble Lord and the House may recall that prior to the setting up of the commission to consider complaints the BBC and the IBA themselves considered any complaint of unfair or unjust treatment, the infringement of an individual's rights, or whatever it might be, One of the main arguments for setting up the commission, the noble Lord may recall, was that the BBC and the IBA were both judge and defendant in their own cases. Therefore, it was essential to set up a new body to do precisely that.

It seems to me that in the Bill the Government have completely gone back to the position where they are allowing the Cable Authority to make the decisions on complaints against programmes which it may not itself have produced but which it is transmitting. In that respect, may I remind the noble Lord that the IBA does not produce programmes either? It transmits programmes made by the programme companies.

6.20 p.m.

The Lord Bishop of Wakefield

My Lords, I should like to add my support to the amendment put forward by the noble Lord, Lord Howard of Henderskelfe. There is no need to repeat the very cogent arguments which he and the noble Lords, Lord Mishcon and Lord Mottistone, also put forward. When we were debating these matters in December I ventured to say that I hoped that the Government would look again at the possibility of the Broadcasting Commission having responsibility for these matters. Everything I have heard this afternoon persuades me that there is a strong case for this. I hope that the noble Lord the Minister might think again and meet the wishes which are so widely expressed from all Benches in this Chamber.

One factor which concerns me in addition to all the arguments that have been put forward is the interest of the general public. Because the existing broadcasting authorities are public service institutions they not only have accountability in their annual reports to Parliament but also are surrounded by a network of advisory committees, and so on. This means that there is a considerable public involvement in what is being done, considerable discussion of programme standards and advice being given to the programme broadcasters. That will not be the case with the Cable Authority. Indeed, by a whisker, the Motion that there should be a code of minimum standards and some kind of public accountability was rejected. An earlier proposal that there should be local councils in different areas in consultation with the programme providers has also been rejected.

While I very much welcome the proposal which the noble Lord will later put forward under Clause 21 that in the annual report the authority might give to Parliament an account of the complaints and how they have been handled, nevertheless, I still think that public interest would be better and more widely served by entrusting these matters to the Broadcasting Complaints Commission. This would bring in expertise, objectivity and across-the-board experience which would undoubtedly be very welcome.

One just has to repeat again that for the ordinary viewer, whether he is receiving a BBC, ITV or cable programme, it is coming through the same set in his living room. He will not make the kind of distinctions which are very easy for us to make. For all those reasons, in addition to those so cogently put forward by other noble Lords, I very much hope that the Government will think again on this matter.

Lord Elton

My Lords, so many of your Lordships have with no great admiration summarised the arguments that I advanced at the Committee stage that I feel it is only a matter of ritual to repeat them, and I shall therefore do so very briefly. But I think that I ought to pull the debate together by saying that there is nothing dividing the noble Lord, Lord Howard of Henderskelfe, and myself on the essential point, which is the belief that it is proper for people considering themselves unfairly treated in cable programmes to have the right to have their complaints considered by a body exercising an impartial and independent judgment. Where we differ is over the question of the suitability of the Cable Authority to act as the complaints body.

With great respect, I begin by putting straight what I believe to be one misconception. The noble Lord, Lord Howard of Henderskelfe, was I think followed by the noble Lord, Lord Aylestone, in substance in saying that, although the IBA transmits ITV and Channel 4 programmes, it has no responsibility for the programmes. It appears that I might have misunderstood the noble Lord. If he did not make that imputation, there is no need for me to rebut it.

Lord Howard of Henderskelfe

My Lords, I said that it did not make programmes; I said that it had a regulatory function.

Lord Elton

My Lords, then I think I do need just to say this. The IBA has a regulatory function and a responsibility for the programmes.

The noble Lord argued that the Cable Authority and the IBA were in all material respects in a comparable position and that it would be anomalous if the Cable Authority could consider complaints when the IBA does not have the last word because of the existence of the Broadcasting Complaints Commission. That is not exactly so. The IBA is statutorily responsible for independent television and radio services. In law they are the I BA's services and it is the IBA which is subject to the statutory duties in respect of the programme content. The analogy between the IBA and the Cable Authority, therefore, does not seem to me to be a good one. But I shall not make a meal of that.

The role of the Cable Authority in relation to programmes included in its service is wholly supervisory. This will enable it to exercise, and to be seen to exercise, an independent judgment on cable programmes in a way that the BBC and IBA cannot in relation to broadcast programmes. That was the first point that I made. The second was the fact that dealing with the whole range of complaints about cable programmes would help the authority to maintain a check on its licensees' performance. I attach some importance to that.

Thirdly, I said that we thought that it was in the interests of simplicity and of positive benefit to cable customers—that is, to those members of the public who receive cable programmes—to be able to put all their complaints about the programmes, whether related to general standards or to alleged unfairness, to a single body. I said that the application of common standards would arise from consultation. At that point of the argument today my noble friend Lord Mottistone and others pointed out that of course there are pictures from more than one body coming on to the screen. But there will be only one screen, as the noble Lord, Lord Mishcon, said, and only one question, but two authorities to whom the viewer would have to address himself. My noble friend pointed out also that the body which we now have is the body which everybody knows, and it would be easier to address it. The right reverend Prelate chimed in with the one screen theme, if I may say so, and pointed to the interests of the public at large. The noble Lord, Lord Aylestone, put his weight on the same side of the balance.

In his elegant speech the noble Lord, Lord Mishcon, asked whether at long last—I am not sure whether I like that phrase—I might yield to sensible arguments used against me. In face of the weight of your Lordships' opinion, I will undertake to take this to my right honourable and honourable friends to see whether they might not be persuaded by what your Lordships have said. If the noble Lord, Lord Howard of Henderskelfe, is prepared to stay his hand until the Third Reading—I cannot give an undertaking to have an amendment ready, he will understand, because that has to be a matter decided by others, but I undertake to take your Lordships' clearly united concern to my right honourable and learned and my honourable friends. I would hope therefore that it might be possible for me to come back with something on the lines that the noble Lord is proposing. If he finds that what I come with is not agreeable to him, or that I have been unable to do this—of which I should advise him in advance—he would still be in a position to put down his amendment again. There would be nothing improper in him deciding to do it then. I must say that I find what your Lordships have said somewhat persuasive.

Lord Howard of Henderskelfe

My Lords, I must thank the noble Lord for what he has said and for his (shall I say?) rather unexpected conclusion after repeating the arguments which he had used in Committee.

May I just clarify one point for the noble Lord, Lord Mottistone? I believe the word "etc." in, Complaints of unjust or unfair treatment etc.", relates to Clause 14(1)(b), which is: unwarranted infringement of privacy in, or in connection with", rather than the rest. I just wanted to clarify that particular point.

Lord Elton

My Lords, before the noble Lord withdraws his amendment, may I say that I have caused understandable confusion by suggesting that we could have an amendment perfected by the Third Reading. This suggests a slight difficulty, because I cannot give a cast-iron undertaking to your Lordships, therefore, that what the noble Lord, Lord Howard of Henderskelfe, wants will be available in precisely those terms. I think I have made it as clear as I can what I believe our position will be. If I may presume to advise the noble Lord, if he felt that the issue was insufficiently decided to let it go entirely, I should have thought the place to pursue it would be in another place, where I do not doubt he has powerful allies, but I expect to be able, as I say, to give a very clear impression to my right honourable and honourable friends of what your Lordships' feelings are and I think that will weigh with them.

Lord Mishcon

My Lords, before the noble Lord sits down—and, of course, with the permission of the House as I have already spoken—I have said this before, would not the noble Lord the Minister agree that it is the duty of this House, if at all possible, to see that legislation goes to the other place with the imprimatur of your Lordships' House upon it and the recommendations of your Lordships' House, as accepted by the Government, finding their way into the Bill before it reaches the other place, especially when the Bill originates in your Lordships' House? In those circumstances, I know the noble Lord the Minister well enough, as do all his colleagues in this House, to know that he will strain every effort to see that an amendment will in fact be before us before the Third Reading.

Lord Elton

My Lords, with your Lordships' leave, I accept that it is alway desirable to send a Bill from this House as near to perfection as possible, though we are—are we not?—in the initiatory rather than the revisory mode as it were—a very clumsy phrase but your Lordships will know what I mean—and there will be revision elsewhere? But I do not think it is a point of honour and principle that we should have everything finalised; and I would rather get it right in another place than wrong in this place to be revised when the other place can say that we did not get it right.

It occurs to me that by the Third Reading I shall be in a position either to give an undertaking or not to give an undertaking, and to give it in fairly precise terms. I will be in touch with the noble Lord in whose name this amendment stands before then, so that if what I am going to say is not going to appear satisfactory to him he will still be in a position to put something down without incurring too much official wrath at putting it down too late.

Lord Howard of Henderskelfe

My Lords, I shall unfortunately not personally be in a position to put anything down if the date of the Third Reading is when I think it is, because I shall be enjoying a few days' sun in a sunnier clime than this. Nevertheless, I am sure there are other noble Lords present in this House who will listen carefully to the noble Lord the Minister's remarks and would be willing to assist by doing so in their own name. Under the circumstances, I beg leave to withdraw the amendment standing in my name.

Amendment, by leave, withdrawn.

The Deputy Speaker

The next amendment is Amendment No. 47. I have to point out that if this amendment is agreed to I will not be able to call Amendments Nos. 48 and 49.

[Amendment No. 47 not moved.]

Lord Aylestone moved Amendment No. 48: Page 13, line 33, leave out ("or").

The noble Lord said: My Lords, if the undertaking that the Minister has given us results in what I hope it will result in, then my amendment will be quite unnecessary. But if the Bill remains as it is at the moment, with the Cable Authority considering complaints made on cable, then I think my amendment would be essential.

May I point out precisely what I think might happen? A programme which could upset an individual because it is unfair or unjust could come to him in more than one way. It could come to him terrestrially from the BBC or the IBA or could come to him, if he pays the requisite amount of money, from cable, or it could come to him from DBS—direct broadcasting by satellite. Having seen something on the box from the BBC which he does not like and which he feels is harmful to him and unjust, he protests. He protests to the Broadcasting Complaints Commission, whose duty it is to look at it, and they may take a little time in doing this. These things cannot be done overnight. Within a day or two, lo and behold, he sees exactly the same programme with exactly the same objections—objections to him, anyway—appearing on cable. He has already complained to the Broadcasting Complaints Commission. What does he do now? Does he complain also to the Cable Authority? All my amendment suggests is that if there is already one complaint either way—either before the Cable Authority or before the Broadcasting Complaints Commission—in fact that complaint should be the one considered and should apply to both of them. I beg to move.

Lord Elton

My Lords, I hope, in view of the possible developments of the next stage, the noble Lord will not wish to press this. At the same time, I think I ought to put on record the response which is appropriate, in my view, to what he has proposed should be done if the position were to remain as it now is. He has drawn attention to the risk that, by having separate bodies to consider complaints of unfair and unjust treatments in broadcasting cable programmes, a form of double jeopardy might arise where a programme is carried by both services.

There is a specific safeguard against that possibility in the case of a simultaneously relayed broadcast programme included in the cable service in Clause 14(2)(a), which provides that the Cable Authority must not entertain or consider a complaint about such a programme. The effect is not simply to prevent the complaint from being considered by both parties but to direct a complainant to the Broadcasting Complaints Commission if he wishes to pursue a complaint against a broadcast programme which orginated as a broadcast and has been simultaneously transmitted by cable.

The present amendment is designed to deal with complaints about programmes contained in broadcasts and in cable services on different occasions, and it would prevent the Cable Authority from considering any complaint which is under consideration or has already been considered by the Broadcasting Complaints Commission.

We agree with the object behind it, so far as it is concerned to prevent a complaint about a programme from being considered by both Cable Authority and the Commission, but the noble Lord's amendment does not address the question of which body is most appropriate to consider any particular complaint. It would not, for instance, stop the Cable Authority from considering a complaint about a programme which has been included in the cable service after having been broadcast which might yet, and more appropriately, be considered by the Broadcasting Complaints Commission

We have considered whether to propose an alternative group of amendments which would specifically prevent a complaint about a single programme from being considered by both the Cable Authority and Broadcasting Complaints Commission and which would at the same time ensure that it is considered by the body best fitted to deal with it: that is, the Cable Authority in the case of a programme originating on cable and the Broadcasting Complaints Commission in the case of a programme orginating over the air. We have found that the amendments would be complex and, moreover, they would be required not only to Clause 14 but also to the corresponding provisions in the Broadcasting Act 1981 which deal with the Broadcasting Complaints Commission's functions, in order to deal with complaints relating to cable programmes which are later broadcast.

On reflection, we have come to the conclusion that specific provision on the point is not necessary. The Cable Authority has a discretion under Clause 14 to refuse to entertain or to consider a complaint if, for any reason, it appears to be inappropriate to do so. The relevant words appear in lines 35 to 37. The Broadcasting Complaints Commission has a matching discretion under the 1981 Act. Both the commission and the authority will be responsible bodies, and it seems to us that these provisions will in practice be used sensibly to avoid both the difficulty foreseen by the noble Lord and the reciprocal difficulty which his amendment does not bear upon, of double jeopardy for programmes complained of in the first instance, not to the commission but to the authority. All that I insert, as I think the Americans would say, on the record, in case it should later become relevant.

Lord Mottistone

My Lords, does my noble friend not think that his remarks have underpinned the debate we had on those earlier amendments? When he cares to consider, as he has so kindly said he will, Lord Howard's earlier amendment and our various statements on it, if he reads the speech he has just made at the same time he will find that he strengthens the case for doing what we hope he will do.

Lord Elton

My Lords, my right honourable friend has many abilities, but that of reading two speeches at once evades even him. However, I know what my noble friend means and I shall take it on board.

Lord Aylestone

My Lords, in view of the explanation given by the Minister, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 49 not moved.]

Clause 15 [Power to give directions]:

6.41 p.m.

Viscount Long moved Amendment No. 50:

Page 14, line 40, at end insert— ("(2) References in this section and section 16 below to programmes or advertisements do not include programmes or advertisements which are included in a licensed service by the reception and immediate re-transmission of broadcasts made by a broadcasting authority.").

The noble Viscount said: My Lords, on behalf of my noble friend Lord Elton, I beg to move this amendment. I hope that it will meet points made during the Committee stage by both the noble Lord, Lord Howard of Henderskelfe, and my noble friend Lord Glanusk. The amendment exempts from the provisions of both Clauses 15 and 16 BBC and IBA services when they are included in cable programme services as simultaneous relays of broadcasts. So far as Clause 15 is concerned, as the noble Lord, Lord Howard of Henderskelfe, pointed out when we were in Committee, it would clearly be inappropriate for the Cable Authority to have any jurisdiction over the content of broadcast programmes and advertisements when they are relayed over cable.

As to Clause 16, my noble friend has already made it quite clear to my noble friend Lord Glanusk that we are prepared to reduce the potential burden on cable companies in respect of keeping recordings of programmes by excepting from the provisions of Clause 16 the broadcast services. There is no reason why the authority should ever need to see recordings of these, either in advance of transmission or afterwards, given that the broadcast services are subject to control by the broadcasters. My noble friend will have seen that there are on the Marshalled List further amendments to do with recordings of programmes, in the name of my noble friend Lord Elton and he will speak to them later. I beg to move.

Lord Glanusk

My Lords. I am most grateful to my noble friend for tabling this amendment. As he says, this is a matter which I raised at the Committee stage, and this amendment will now mean that I shall not have to move my Amendment No. 56, which is almost identical to this one.

Viscount Long

My Lords, I am most grateful to my noble friend for his kind assistance.

On Question, amendment agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Power to require visual and sound records etc.]:

Lord Elton moved Amendment No. 51:

Page 14, line 41, leave out subsection (1) and insert— ("(1) Where the Authority have served on a person authorised by a licence to provide a diffusion service a written notice applying this subsection to programmes specified or of a description specified in the notice, they may, within such period as—

1. (a) begins with the inclusion in that service of any programme to which the notice relates; and
2. (b) is of a length (not exceeding two months) specified in the notice,

direct that person to produce to them for examination or reproduction a visual or sound record of any matter included in that programme.").

The noble Lord said: My Lords, it may assist your Lordships if I speak to all the Government amendments to Clause 16 together. Therefore with your Lordships' leave, in addition to this amendment, I shall speak also to Amendments Nos. 53, 54 and 55. Amendment No. 53: Page 15, line 21, leave out ("(including advertisements)" and insert ("to be included in the diffusion service"). Amendment No. 54: Page 15, line 23, leave out from second ("of') to end of line 27 and insert ("those programmes as will consist of or include recorded matter, to produce to the Authority in advance for examination or reproduction such visual or sound records of that matter as may be so specified:"). Amendment No. 55: Page 15, line 31, after ("a") insert ("notice or").

When we discussed this clause in Committee I said that the Government would be bringing forward a number of amendments dealing with the keeping of records. One—the exemption from Clause 16 of the broadcast services when they are relayed by cable—we have already dealt with by means of Amendment No. 50 (relating to Clause 15). moved by my noble friend. Another—a requirement for recordings to be available in all cases for 14 days after transmission, to assist enforcement of some of the Bill's criminal provisions—is dealt with by the amendments that we have tabled to Clause 32 and by an amendment proposing a new clause, to which I shall speak separately.

The present amendments (Nos. 51, 53, 54 and 55) have two main objectives. The first is to reduce the maximum period during which the Cable Authority may require recordings of programmes after transmission from three months to two, and the second is to re-cast Clause 16 in terms of licensees ensuring that recordings are available rather than having in all cases to make the recordings themselves. This applies to Clause 16(3), which deals with the pre-vetting of programmes, as well as to Clause 16(1). The point is that many programmes will be provided nationally to cable operators, and we accept that it would be an unnecessary burden on the operators if they had in all cases to make their own records of programmes when records might be held centrally by the programme provider. In order to be able to comply with any directions the authority may make in relation to recordings, cable operators will no doubt wish to include appropriate conditions in their contracts with the programme providers.

The first amendment in this group constitutes a complete redraft of Clause 16(1), and sets up a new procedure. It may be helpful if I explain how it will work. If the authority decides that it wants to be able to see programmes after they have been transmitted, it must serve a notice on the licensee. The notice must specify programmes or descriptions of programme, and a period of time lasting not more than two months. During that period after a programme has been transmitted, it may then direct that a recording is produced to it for examination or reproduction. The amendments should mean that the potential burden on cable operators in respect of keeping recordings is considerably reduced while still enabling the authority to do its work effectively. I beg to move.

Lord Glanusk

My Lords, this matter, too, relates to one of my Committee stage amendments. I am not quite clear as to when the authority intends to serve such a notice. Will the operator have to keep the recordings at all times in case a notice is issued, or need he not keep the recordings until he is notified?

Lord Elton

My Lords, my attention flickered minimally right at the end of what my noble friend was saying. I am not quite sure what were the two alternatives he was presenting.

Lord Glanusk

My Lords, Amendment No. 51 states: Where the Authority have served on a person … What I am trying to find out is when will the authority serve such a notice, and does the operator have to keep his recordings whether or not the notice is served?

Lord Elton

My Lords, the notice will be served when the authority feels that it will wish to see the recordings by reason of its belief that in some way or another the person who has put out the programme has infringed the provisions of the statute or the code of conduct.

Lord Mottistone

My Lords, does that therefore mean that all cable companies must keep records of all their transmissions for two months, apart from those in regard to which they are excused?

Lord Elton

No, my Lords. That requirement results from the notice being served.

The Lord Bishop of Norwich

My Lords, the word "Where" in the amendment, at the bottom of page 3 of the Marshalled List, could be the same as "when". It is just a semantic question. "Where" makes it look as though there is a place where it is done, whereas "when" refers to the moment when it might happen. But I think that all recordings are kept for 14 days, are they not? After that they are kept only "Where the Authority" has served a notice. The amendment says "Where"; I should have thought that it should be "When".

Lord Elton

My Lords, that is I think a semantic question, which could be better argued by a lawyer rather than by me. This is a use of the word "where" which I have frequently seen used in both legislation and litigation. I think that I have already made it clear that the operator must start keeping the recordings once a notice is issued. The operator does not have to produce the recordings to the authority until the authority directs their production. The length of time that various recordings must be kept relates to the reason for which they are required.

On Question, amendment agreed to.

[Amendment No. 52 not moved.]

Lord Elton moved Amendment No. 53:

[Printed above.]

The noble Lord said: I have spoken to Amendments Nos. 53, 54 and 55 with Amendment No. 51. With your Lordships' leave, I will move them en bloc.

The Deputy Speaker

My Lords, it is customary to move the first amendment separately, I think, followed by the other two.

Lord Elton

My Lords, I beg to move Amendment No. 53.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 54 and 55.

[Printed above.]

On Question, amendments agreed to.

[Amendment No. 56 not moved.]

Clause 17 [Power to revoke licences]:

Lord Elton moved Amendment No. 57:

Page 16, line 5, at end insert ("or (c) where that person is a body corporate, if any change affecting the nature or characteristics of the body corporate, or any change in the persons having control over or interests in the body corporate, takes place after the granting of the licence which, if it had occurred before the granting of the licence, would have induced the Authority to refrain from granting the licence").

The noble Lord said: My Lords, noble Lords who were present when we discussed Clause 17 in Committee will recall that the Government's withdrawal of the final one of a series of three amendments left the clause in a somewhat less than satisfactory state. The amendment now before us in my name is the third amendment of that group, with which we hope to set the position right.

It may be helpful if I set out again briefly what my noble friend Lady Trumpington said on moving the amendments in Committee. Following a point which the right reverend Prelate—not the right reverend Prelate who is present today, but the right reverend Prelate the Bishop of Wakefield—had put to us on Second Reading, we came to the conclusion that it would be advantageous to give the Cable Authority a specific power in respect of changes of ownership or characteristics of a company after a licence has been issued. The amendment accordingly seeks to add to Clause 17 a third set of circumstances where the authority may revoke a licence. That is where the constitution of a licensed company changes with results that, had they occurred before the licence was granted, would have led the authority not to grant the licence in the first place. A formal breach of the restrictions in Clause 7 would not necessarily have to have occurred: a particular example of a case where the authority might need to use this power might be where, after the full licensing process, an unsuccessful applicant tried to buy out the successful company. The authority might well consider this undesirable in view of the procedures they have gone through and the things they have learnt in granting the licence.

The noble Lord, Lord Mishcon, raised one particular point about the amendment when we were in Committee, and we have since been in correspondence with him. It may be of some assistance to other noble Lords if I summarise what was said in the letter to the noble Lord. The noble Lord's concern was whether the Cable Authority had the power to require licensees to give advance notice of proposed changes in shareholdings. The answer is that Clause 4(6)(a), which gives the authority a general discretion to include in licences conditions reflecting their duties, enables it to include a requirement to give advance notice of proposed changes in shareholdings. In addition, under Clause 4(7)(b) the authority may take power in its licences to require that specific actions—for example, changes in shareholdings—are not carried out without its approval.

The noble Lord also raised in Committee a more general question about revocation of licences; namely, what would be the position of the customers where a company has its licence revoked. The answer—and we touched on this in Committee—is that revocation is very much a final sanction, and the authority will have sanctions short of revocation. The authority has a general duty to promote cable under Clause 4(8), and there is no question of it deciding to revoke a licence arbitrarily. I have no doubt that before ever it considers revoking a licence it will wish to consider very carefully the position of the cable subscribers.

Finally, I should like to come back to a point made by the noble Lord. Lord Howard of Henderskelfe, when we discussed this matter in Committee. The noble Lord suggested that Section 20(5) of the Broadcasting Act 1981, on which this amendment is closely modelled, had proved difficult for the IBA to operate. We have been in touch with the IBA since that exchange, and we understand from them that not only has Section 20(5) given rise to no particular difficulties or interpretation but it has proved extremely useful to them in dealing with the sort of circumstances I have outlined. I am sorry that the noble Lord is not here.

Lord Howard of Henderskelfe

My Lords, I am here.

Lord Elton

My Lords, I see now that the noble Lord is present. I did not wish to traduce him in his absence. In fact, I am not traducing him, but simply putting a gloss on what he said. I beg to move.

Lord Mishcon

My Lords, the noble Lord the Minister with the courtesy to which we have become accustomed so far as he is concerned, did communicate with me, did deal with the points I raised in Committee, and did so to my complete satisfaction. I am most grateful.

On Question, amendment agreed to.

Clause 21 [Annual reports]:

Viscount Long moved Amendment No. 58: Page 17, line 42, leave out ("also include—(a)") and insert ("include")

The noble Viscount said: My Lords, we discussed in Committee an amendment to Clause 21, moved by my noble friend, Lord Nugent of Guildford, to require the Cable Authority to include in its annual report an account of complaints received regarding programme standards and the action taken on them. My noble friend, Lord Elton, accepted the proposal in principle and, as the formulation of the amendment was not quite right, he undertook to bring forward an amendment having the effect which my noble friend intended. This amendment is designed to that end. It imposes on the Cable Authority a specific requirement to include in its annual report an account of complaints received about the discharge of its duties under Clauses 9 and 10 to do with the maintenance of programme standards, and of the action it takes in relation to them.

The authority's account will have to cover all the complaints about programme standards which it receives, whether levelled directly against it or at cable operators distributing the offending programmes. This is because the authority has the general duty to ensure so far as possible that the requirements of Clauses 9 and 10 are met, with the consequence that any complaint about programme standards in effect constitutes a complaint against it for failing to ensure that proper standards are maintained. I beg to move.

Lord Ardwick

My Lords, this was a problem that concerned us. We are most grateful to the noble Lord for the action that he has taken.

Lady Saltoun

My Lords, on behalf of the noble Lord, Lord Nugent of Guildford, and myself, I should like to thank the noble Lord, Lord Elton, very much for this fine, healthy and lusty amendment that has replaced the poor, weak, puny little thing that we put down at Committee stage. We are very happy with it, and most grateful.

Lord Elton

My Lords, may I interpose to say that we think that the amendment is a distinct improvement to the Bill. We are grateful to my noble friend Lord Nugent of Guildford and to the noble Lady, Lady Saltoun, for providing the basis of it.

On Question, amendment agreed to.

Viscount Long moved Amendment No. 59. Page 17, line 45, leave out ("and (b)") and insert ("(3) the report shall also include").

The noble Viscount said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Viscount Long moved Amendment No. 60: Page 18, line 2, at end insert ("and a general account of—

1. (a) any complaints received by the Authority about the discharge of their duties under sections 9 and 10 above; and
2. (b) the action taken by the Authority in relation to those complaints.").

The noble Viscount said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 22 [Copyright in cable programmes]:

Viscount Long moved Amendment No. 61: Page 18, line 19, leave out from ("or") to end of line 21 and insert ("a sound broadcast").

The noble Viscount said: My Lords, before dealing with the substance of the amendment my noble friend would like to take the opportunity to assure your Lordships that although it has not been possible to bring forward Government amendments in time for Report on certain of the other copyright issues which were raised at Committee stage, we have not forgotten our commitment to look closely at them. My noble friend is thinking of the question of whether the word "programme" is wide enough to cover certain types of material that might be put out on a cable service and of whether it might be possible to provide copyright protection for satellite transmissions other than DBS. We are still looking at the difficult problems raised by these questions, but we shall bring forward appropriate amendments in another place if these prove necessary to meet your Lordships' concerns.

The purpose of the present amendment is to make a minor adjustment to the scope of the copyright which is to be given to cable operators by Clause 22 of the Bill. Noble Lords will recall that the intention of Clause 22 is to provide cable operators with a copyright in the programmes which they themselves originate, broadly comparable in extent to the copyrights which broadcasters receive in their broadcasts by virtue of the provisions of Section 14 of the copyright Act 1956.

It was, however, never intended that the cable operator should receive a copyright of his own where his transmissions are no more than simultaneous relays of broadcasts which the public can also obtain directly off-air, and to which the cable operator has made no creative contribution. For this reason subsection (2) of the new Section 14A of the 1956 Act, to be enacted by Clause 22, provides that the cable operator's own copyright only comes into being where the programme transmitted is something other than an immediate retransmission of a broadcast made from the United Kingdom by the BBC or the IBA. The reasons for relating this exception to retransmissions of BBC and IBA broadcasts made from the United Kingdom were that it is BBC and IBA domestic broadcasts which are most likely to be subject to simultaneous relay and that it is only in respect of those services that the cable operator is exempt from any responsibility as to programme content.

It has, however, been put to us that in copyright terms this is a somewhat inconsistent position, and on reflection the Government agrees. It cannot really be said that the cable operator makes any greater creative contribution if he relays a broadcast by Radio Luxembourg or a station in the Republic of Ireland, should he choose to do so, than if he relays a domestic broadcast by the BBC or the IBA. Nor would the foreign broadcaster himself lack copyright protection for broadcasts receivable in the United Kingdom, provided he was located (as in practice seems likely) in one of the countries to which the relevant provisions of the 1956 Act have been applied by the Copyright (International Conventions) Order, 1979. Moreover, the position of authors and others who may have contributed to a foreign broadcast is generally protected separately against unauthorised cable diffusion under the present law.

The Government therefore considers that it would be more appropriate if the exception to cable operators copyright in the new section 14A(2) of the 1956 Act were to apply to all simultaneous retransmissions of broadcasts, from whatever source, and this is the effect of the present amendment. I hope your Lordships understand what I have been saying! I beg to move.

Lord Mishcon

My Lords, may the House congratulate the noble Viscount on his very learned comments relating to a most abstruse subject. I think he would expect that we should study them rather carefully; it is a little difficult to take them in after he enunciated them a moment or two ago.

The noble Viscount also made a general observation—which was a most helpful one—that the various points on copyright (and they are very weighty ones which were raised at Committee stage) were being carefully considered by the Government, and that it might not be possible for the actual amendments to be available—if there were going to be amendments—in your Lordships' House, but they would be available very possibly in another place. It would be helpful to those of your Lordships who are very interested in this matter of copyright—and I can only put this forward as a request—if at Third Reading or in the speech which I have no doubt the noble Lord the Minister will make when he asks that the Bill should be passed by your Lordships' House, some general indication of the line that those amendments will take could be given. That will mean that at least in your Lordships' House there is a record, as there should be, of the Government's attitude on this most important subject.

Viscount Long

My Lords, I am most grateful for the generosity and kindness of the noble Lord, Lord Mishcon, because when it comes to copyright we are really on a very sensitive area.

As to the latter part of his speech, the answer is: yes, we will carry out what he wants and we will try our best to get over the very sensitive areas of copyright.

On Question, amendment agreed to.

Clause 23 [Other amendments of 1956 Act]:

7.5 p.m.

Lord Howard of Henderskelfe moved Amendment No. 62:

Page 21, line 3, at end insert ("unless the broadcast is made in the course of providing a pay service. ( ) In this section "pay service" means a broadcasting service for general reception by virtue of which the Corporation or (as the case may be) the Authority receives money or other valuable consideration in respect of the provision of the service from those to whom it is provided.")

The noble Lord said: My Lords, I beg to move the amendment printed on the Marshalled List. I will try to get on as fast as I can in view of the evident desire of the rest of your Lordships' House to finish as soon as possible. This, however, is another of these slightly complicated copyright matters.

Sub-clause (3) of Clause 23 gives in effect the cable operator a free copyright licence to transmit broadcast programmes which are subject to the must-carry rule. My amendment is designed to withdraw that licence in relation to the relay of pay services so as to give the broadcaster a means which he would not otherwise have of controlling them. It is, of course, vital to the broadcaster that he should be able to do this if services are offered on a paying basis. It is to be hoped that the abuse of pay services will be dealt with by the provisions relating to theft which I appreciate are highly complex and which my earlier amendments did not fully meet. I am not quite sure when the Government will be able to bring forward those provisions.

This is a straightforward means of enabling the broadcaster to attack a particular form of abuse. I did move a similar amendment in Committee and the noble Baroness, Lady Trumpington, who was answering for the Government said the Government would take the matter back and have another look at it, she did see some difficulties, one of which was a cross-reference which no longer applies. The other difficulty she saw was that since a free copyright licence is also given to the cable operator under subsection (4) in relation to copyright works included in a broadcast programme, that licence by the same token shall be withdrawn in relation to those works.

In my view, that is slightly misconceived. The amendment is designed to provide a mechanism whereby through the operation of copyright law the broadcaster could attack the abuse of a pay service. It is not really to protect his copyright as such—although indirectly it is part of the mechanism—still less to protect the copyright of other rights owners; it is designed to protect the subscription income by enabling them to bring a copyright action against the cable operator if his pay service is appropriated without his authority. I beg to move.

Lord Elton

My Lords, the noble Lord, Lord Howard, has once again stressed an important point. As we said in Committee when he tabled a rather different version of this amendment, the Government agrees that it would be inappropriate for cable operators to enjoy the right to diffuse broadcasts within their intended reception area free of copyright royalties where the broadcasts are subscription broadcasts and the operator, because of his exemption from the need for a cable authority licence by an order under Clause 3, is not subject to the operation of Clause 12. Since there could be a number of small relay operators in this position, it is obviously important that the point is dealt with.

We have not forgotten the commitment to look into the matter but there are several questions still to be decided: in particular, whether if licence-exempt operators relaying pay services are to be made liable to the broadcaster for copyright, they should also be made liable in respect of DBS services financed by advertising. I do not think the noble Lord's amendment would in any case do as it stands because in this version it is so drafted as to apply to all cable operators relaying what he calls "pay services"; not just the smaller operators who may be exempt from the need for a licence from the authority.

This is an outcome which we have sought to avoid since it does seem to us to result in an unnecessary overlap which could lead to complications between copyright and the arrangements provided for by Clause 12(3). In the case of the licensed cable operator, the Clause 12(3) arrangements should be sufficient to produce a satisfactory return to the broadcaster in respect of the relay of DBS subscription services by cable. We touched on this on Monday when the noble Lord moved Amendment No. 33A which would have enabled the broadcaster to pull out of the Clause 12 procedures if he did not like the arbitrator's decision, and I explained then why I thought that that approach would not do.

I hope however, in the light of my repeated assurances that the Government do accept the need to do something about the more limited proposition which the noble Lord advanced at the Committee stage, and my noble friend's undertaking that there will be a progress report at the last stage in this House, that the noble Lord will be prepared to withdraw the amendment.

Lord Howard of Henderskelfe

My Lords, I hope that what the Government are able to produce in the way of anti-theft provisions will do the trick. I agree that it is extremely complicated to try to do it by what are almost back-door means relating to copyright. If the ingenuity of those who have assisted me in the drafting has been somewhat overstrained, I can only apologise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Amendment etc. of law relating to obscene publications]:

Lord Elton moved Amendment No. 63: Leave out Clause 24.

The noble Lord said: My Lords, I beg to move Amendment No. 63 and I should like to speak also to Amendments Nos. 64, 65, 66, 67, 74 and 81:

Amendment No. 64: Page 24, line 2, leave out from beginning to ("shall") in line 5 and insert—

1. "(a) a programme included in a cable programme service involves the publication of an obscene article; or
2. (b) a programme included in such a service is such that, if any matter included in it were recorded matter, the inclusion of the programme would involve the publication of such an article,

the person providing that service shall be guilty of an offence. (1A) A person guilty of an offence under this section") Amendment No. 65: Page 24, line 27, leave out ("live"). Amendment No. 66: Page 24, line 33, leave out ("live"). Amendment No. 67: Page 25, line 10, leave out subsection (9) and insert— ("(9) In this section expressions used in the Obscene Publications Act 1959 have the same meanings as in that Act. (10) This section does not extend to Scotland."). Amendment No. 74: Leave our Schedule 2. Amendment No. 81: Page 45, line 12, at end insert—

("The Obscene Publications Act 1959.

7A.—(1) At the end of the proviso to subsection (3) of section 1 (test of obscenity) of the Obscene Publications Act 1959 there shall be added the words "or of including a programme in a cable programme service within the meaning of Part l of the Cable and Broadcasting Act 1984".

(2) It is hereby declared that a person who has an obscene article in his ownership, possession or control with a view to its being shown, played or projected in the course of a cable programme service shall be taken for the purposes of subsection (1) of section 2 of that Act (prohibition of publication of obscene matter etc.) to have that article for publication for gain.").

These amendments all deal with the Bill's provisions on obscenity in cable programmes. Noble Lords will have seen that there are further amendments on the Marshalled List in my name dealing with the enforcement of these provisions, but it will avoid unnecessary complication if they can be dealt with separately, and I will speak to them when we reach them. At this stage I will restrict myself to the offences, not the punishment.

The present amendments may look like radical surgery to the provisions of the Bill dealing with obscene cable programmes in England, Wales and Northern Ireland. In fact, the surgery is to the drafting and not to the substance. The main change of substance is that the power in Clause 32 to require the production of records and scripts will now be extended to apply to the offence of publishing an obscene prerecorded cable programme. We think that this is desirable given that the powers in Clause 32 already extend to obscene live cable programmes. This change is achieved by amending Clause 25 to deal with both pre-recorded and live programmes. As a consequence, Clause 24 and Schedule 2, which applies the Obscene Publications Act to Northern Ireland for cable, are no longer necessary. Unlike the Obscene Publications Acts in general, Clause 25 applies in Northern Ireland, and so there will continue to be an offence of putting out obscene material on cable, whether recorded or live, throughout the United Kingdom.

The final amendment in this series contains two amendments to the Obscene Publications Act itself. The first is to make it clear that the main offence in that Act, that of publishing an obscene article, does not apply to anything done in a cable programme service. That is not a deed of liberalisation; it is simply to avoid duplication. The offence is already contained in Clause 25. The second is to make it clear that the second offence in the 1959 Act, that of having an obscene article for publication for gain, does apply to any article being held with a view to its inclusion in a cable programme. This is currently achieved by Clause 24(2) which is about to disappear.

These amendments, as well as applying Clause 32 to recorded cable programmes, represent—I think your Lordships will agree—a very considerable simplification to the Bill's provisions on obscene cable programmes, and I hope that on those grounds your Lordships will welcome them. I beg to move.

On Question, amendment agreed to.

Clause 25 [Obscene live progammes]:

Lord Elton moved Amendment No. 64:

[Printed earlier: col. 1425.]

The Lord Bishop of Norwich

My Lords, I wonder if the noble Lord would tell us a little more about Amendment No. 64, because I noted that he said that it looks like radical surgery, but it is not. The noble Lord is speaking at some speed and the whole of pages 24 and 25 which deal with obscenity cover very wide matters and I wanted to assure myself, and indeed those of us who sit on these Benches, that in fact it is as watertight as the noble Lord can make it. Clearly the noble Lord wants to make sure that obscene matter does not come on cable television. However, with the whole of Clause 24 now out, Amendment No. 64, which stands in the Government's name, does call to be spelt out a little more clearly to assure us that the question of obscenity is being taken care of with usual watchfulness by the Government.

Lord Elton

My Lords, I would have some difficulty in doing that without repeating myself. Perhaps the right reverend Prelate would be kind enough to look at the print of the Bill that will result from the amendments. I am happy to repeat the assurance that I have given that this is as watertight as it can be. But when he reads it, he will find it a great deal easier to follow than what is in the present print. If he still feels doubt, he may like either to write to me or to raise the matter on Third Reading. I would be very happy to deal with the matter in that way when we can actually see the print in front of us. But I think he will be reassured when he sees it.

The Lord Bishop of Norwich

My Lords, I am most grateful.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 65, 66 and 67:

[Printed earlier: col. 1425.]

On Question, amendments agreed to.

Clause 27 [Incitement to racial hatred]:

[Amendment No. 68 not moved.]

Clause 32 [Power to make copies of scripts and records]:

Lord Elton moved Amendment No. 69: Page 30, line 1, after ("be") insert ("so")

The noble Lord said: My Lords, this is a drafting amendment to insert a word that inadvertently was missed out of the text of the Bill and without which the meaning of Clause 32(1)(b) would be obscure. I believe it was erroneously included in the list of groupings, but it stands in fact on its own. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 70: Page 30, line 13, leave out ("(a)").

The noble Lord said: My Lords, Amendments Nos. 70 and 71 are paving amendments for Amendment No. 73. With your Lordships' permission, I will move Amendment No. 70 and speak also to Amendments Nos. 71 and 73.

Amendment No. 71: Page 30, line 14, leave out from ("exists") to ("if") in line 18 and insert—

1. ("(a) an actual script on which the programme was or, as the case may be, will be based; or
2. (b) a visual or sound record of any matter which was or, as the case may be, will be included in the programme, and")

Amendment No. 73: After Clause 32, insert the following new clause:

(" Availability of visual and sound records.

.—(1) The Authority shall do all that they can to secure that, if an order is made under section 32 above in relation to a person providing a licensed service and a programme included in that service, that person will be able to comply with a requirement under subsection (3)(b) of that section made within 14 days of the inclusion of that programme.

(2) Nothing done under or in pursuance of a condition included in a licence by virtue of this section shall—

1. (a) constitute an infringement of the copyright in any work, sound recording, cinematograph film or television or sound broadcast; or
2. (b) constitute an offence under any of the provisions of the Performers' Protection Acts 1958 to 1972.

(3) In this section "cinematograph film" and "sound recording" have the same meanings as in the 1956 Act.")

When we discussed Clause 16 in Committee I made it clear that, in addition to the various amendments we have already brought forward to Clause 16, we would be bringing forward amendments to assist the enforcement of Clauses 25 and 27. We have already dealt with a group of amendments to make sure that Clause 32 applies to obscentiy in recorded as well as live cable programmes. The purpose of the new clause under consideration, together with the consequential amendments to Clause 32, is to make sure that, once an order under Clause 32 has been made, the Cable Authority's licensees will be able to provide recordings of their programmes to the police within 14 days of transmission.

As I said in Committee, we came to the conclusion that, while the existing enforcement provisions in Clause 31 and 32 were necessary, they were not of themselves fully adequate for the enforcement of the Bill's provisions on obscenity and incitement to racial hatred. This was because, under the Bill as it stands, there would be no guarantee that a record of what actually happened in a cable programme would be available at all.

The new provision will operate by the Cable Authority inserting appropriate conditions in its licences. Licensees will not necessarily have to keep recordings themselves. They will merely have to make sure—through their contracts with the programme providers if necessary—that records will be available. This is consistent with our amendments to Clause 16 and should mean that the potential burden on cable operators in keeping recordings is considerably less than if in all cases they were themselves required to keep recordings of their output. Having made cable programmes subject to the criminal law on obscenity and incitement to racial hatred, it is only sensible that we should make adequate provision for the enforcement of those offences, and I therefore beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 71:

[Printed earlier: col. 1427.]

On Question, amendment agreed to.

7.22 p.m.

Lord Howard of Henderskelfe moved Amendment No. 72: Leave out Clause 32.

The noble Lord said: My Lords, I rise in some difficulty to myself and very considerable apologies to the Government Front Bench. In place of moving that Clause 32 be omitted from the Bill, I had produced a series of much shorter amendments which I had sent down to the House last week and which, for some reason never reached the Printed Paper Office. I am not blaming any official of this House because they work extremely hard and very efficiently; it is probably entirely my fault that something went wrong on the way. I believe that, in fact, officials at the Home Office saw the sense of my amendments, but obviously it would be quite unfair to move manuscript amendments which your Lordships have not had a chance to consider in detail.

Perhaps therefore I may be allowed to say a few words on my amendment to leave out Clause 32. I shall not repeat the speech that I made in Committee on the question whether Clause 32 shall stand part of the Bill; but it seems to me that if obscenity and race relations laws are to apply to cable there should be some means of guaranteeing that evidence of the matter transmitted should be preserved, although there is no overwhelming precedent for this. In particular, there are no enforcement provisions whatever (other than those fixing the penalties) in the Public Order Act 1936 which, as amended by the Race Relations Act 1976, contains the principal criminal provisions relating to the offence of incitement to racial hatred.

In the race relations field the only precedent is the Theatres Act 1968. On the assumption however that powers to preserve evidence should be conceded, my amendments (if I had been able to move them) would have accepted the 14 day and two month periods and the powers to require production of scripts and recordings after transmission.

What is less clear to me is the need for the police to have any powers before transmission, either to require the production of scripts and recordings, or to enter premises and to seize articles which they have reason to believe to be obscene. Obviously it would make the law even easier to enforce, but at the cost of setting what I believe would be a most dangerous precedent in the broadcasting field.

I submit that the ability of the authorities to enforce the law is adequately protected by enforcement powers which are exercisable after the event. Powers which are exercisable before the event are virtually unprecedented for the following reasons. The powers of search and seizure in Section 3 of the Obscene Publications Act 1959 permit a constable, if he obtains a magistrate's warrant, to enter and search "any premises, stall or vehicle" and to seize and remove articles which he has reason to believe to be obscene and kept for publication for gain. The reference to "premises, stall or vehicle" quite clearly indicates the kind of mischief that this is presumably aimed at; we can all envisage the sort of stall or vehicle from which these particular obscene video films, or whatever it might be, are being sold. It is hardly an appropriate weapon to apply against the cable operators, who supposedly are respectable people, or an appropriate precedent for this Bill.

The only precedent for the power to require the production of scripts before the event is in the Theatres Act 1968, a measure which was designed to bring to an end the pre-censorship of plays by the Lord Chamber lain, which had existed for many years. For example, there is no power to require a speaker to produce a script of his speech before he delivers it, however obscene or—much more likely—racially offensive a policeman suspects it may be. In fact, the person who is to deliver it may almost give a policeman an automatic assumption that it will be racially offensive. But nevertheless he has no power to make him produce any form of script or preview of what he will say. Perhaps it was accepted in the Theatres Act because pre-censorship had been a feature of the theatre for so many years—indeed, for so many centuries—and nobody thought to deny the police a somewhat similar power in the legislation that abolished the office of the Lord Chamberlain.

Any power which would, in the case of search and seizure or which might in the case of requiring production of scripts and recordings, amount to a form of pre-censorship of cable services would, in my view—and I hope in the view of many noble Lords—be a most dangerous precedent for broadcasters and possibly others. I beg to move.

The Lord Bishop of Norwich

My Lords, I have listened with the greatest care to the statement made by the noble Lord, Lord Howard of Henderskelfe. It seems to me that the amendment to leave out the whole of Clause 32 calls into question the assurances which the Minister has so clearly and helpfully given on the whole obscenity situation. I happened to prick up my ears when I heard the noble Lord mention obscene video films, because your Lordships will know that next Wednesday we shall be holding a press conference when we shall bring some very assured and some very strong recommendations concerning this whole area of what are colloquially called video nasties. A number of Members of your Lordships' House are concerned with that. Therefore, I hope—

Lord Elton

My Lords, will the right reverend Prelate forgive me, but could he tell me in the context of the word "we", who are giving the press conference? I am sure that that would be useful to know, and I think I missed it.

The Lord Bishop of Norwich

My Lords, I used the word "we" rather lightly. I could name two or three Members of your Lordships' House who are part of a small group concerned with producing a report about video films, and a press conference is to be held next Wednesday. I pricked up my ears when I heard the noble Lord, Lord Howard, speak of this because I believe it is easier for us now to restrain all possible dangers in the obscenity world before they take place rather than, as in this particular case with video work, having to find out how that restraint can take place after they have been released to the world. It is the old business of once you shake a feather pillow up into the air it is very hard to catch the individual feathers and put them back into the pillow. With that rather homely illustration, I hope that the Government will resist this amendment.

Lord Elton

My Lords, might I start by sympathising with the noble Lord, Lord Howard of Henderskelfe, for the loss of his batch of amendments, and admire the restrained and courteous way in which he has reconciled himself to it. I cannot address myself to them because they are not on the Marshalled List. I can venture a faint note of surprise that he should think that their sense had been seen by officials in the department. My impression was that they had not thought them altogether necessary, but we are talking about something which technically does not exist, so may I simply repeat the assurance that I gave when we discussed Clause 32 in Committee that the clause is not intended as the thin end of the wedge. It is necessary, as the right reverend Prelate has rightly said, as a provision to enable the proper enforcement of serious offences which we are creating in this Bill for cable.

While we all hope that prosecutions under Clauses 25 and 27 will be rare, we have thought it necessary—and your Lordships agreed with us—to make it clear that the offences of obscenity and incitement to racial hatred which apply in other areas apply also to cable programmes. Since we have done this it is only sensible to make adequate provision for the enforcement of those offences. I cannot therefore accept the noble Lord's view that this is a dangerous or unnecessary thing to do.

May I briefly make things clear. First, this is not a draconian power. There is no power of entry. There is no power of search. There is no power of detention. There is no power of arrest. It is a power simply to demand a script or recording and the opportunity to make a copy of it. Nor is that rather limited power a power at large. A police officer, not any police officer but one of superintendent rank or above, must first have reasonable grounds for suspecting that one of these offences has been, or is likely to be, committed. If he acted unreasonably his action would be vulnerable to challenge in the courts.

Having his suspicions reasonably aroused because the power is not a power at large, he must then name the person he suspects and write his name on the order. He cannot go fishing for a suspect. Not only that, he must describe the actual programme in terms by which it can be recognised, so he cannot go fishing for programmes, either. Only if the person named does have such a programme available and refuses the policeman at the door—and the policeman, please note, cannot put a foot inside it without his permission—will he be guilty of an offence. The noble Lord's speech had the rattle of breaking doors and wailing of sirens about it. I assure him that his fears are perfectly groundless.

Lord Howard of Henderskelfe

My Lords, I hope that they are groundless. I am certain that if the noble Lord has anything to do with it I need have no fears at all. I am, and remain, afraid of precedents which may be carried over into other fields. It was for that reason that I hoped to be able to improve this particular clause. Having given this an airing which will be reproduced in print, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 73:

[Printed earlier: col. 1427.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment 69. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Application of the 1959 and 1964 Acts to Northern Ireland]:

Lord Elton moved Amendment No. 74:

[Printed earlier: col. 1425.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment 63. I beg to move.

On Question, amendment agreed to.

Schedule 3 [Minor and consequential amendments]:

7.33 p.m.

Lord Elton moved Amendments Nos. 75 to 79: Page 43, line 31, after ("words") insert (" "works to be") Page 43, line 32, after ("words") insert (""works or sound recordings to be") Page 43, line 35, after ("service"") insert ("after the word "works", in second place where it occurs, there shall be inserted the words "or recordings"") Page 43, line 38, after ("section") insert ("after the word "works", in each place where it occurs, there shall be inserted the words"or recordings"") Page 43, line 42, at end insert— ("(14A) In subsection (4) of that section after the word "works", in the first place where it occurs, there shall be inserted the words "or sound recordings"")

The noble Lord said: My Lords, with your Lordships' leave I shall speak to Amendments Nos. 75, 76, 77, 78 and 79. The custom I understand is, having moved 75, to move the remainder en bloc, with your Lordships' permission.

Clause 23(1) introduces for the first time a right for the makers of sound recordings to control the inclusion of their recordings in cable programme services. Section 28 of the 1956 Act, which contains special provisions relating to the exercise of the jurisdiction of the Performing Right Tribunal in relation to the cable relay of foreign broadcasts, is also amended in Schedule 3 to take account of the terminology of the Bill. However, those amendments, as they stand, do not take account of the new rights of makers of sound recordings.

These amendment are designed to set the position right so as to avoid the situation where the Performing Right Tribunal might make an award resulting in double payment to makers of sound recordings. The problem is a relatively limited one in that it concerns only sound recordings which are included in foreign broadcasts relayed to a United Kingdom cable audience and for which the foreign broadcaster had already made the necessary rights payments. But we ought to get the matter right and these amendments, which take account of representation made to us by the British Copyright Council, should do the trick. I beg to move.

On Question, amendments agreed to.

Lord Elton moved Amendment No. 80: Page 44, line 29, leave out ("and") and insert ("or")

The noble Lord said: My Lords, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 81:

[Printed earlier: col. 1425.]

The noble Earl said: My Lords, this amendment also I spoke to with 63. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 82: Page 48, line 39, at end insert—

("The Education and Libraries(Northern Ireland) Order 1972

.In Article 2(2) of the Education and Libraries (Northern Ireland) Order 1972 (interpretation) at the end of the definition of "newspaper" there shall be added the words "or programmes to be included in a cable programme service which is, or does not require to be, licensed under Part I of the Cable and Broadcasting Act 1984".").

The noble Lord said: My Lords, this is a technical amendment designed to bring a particular Northern Ireland provision into line with other analagous provisions which have already been attended to in Schedule 3. This is the last amendment on which I shall have an opportunity to speak, and I should like to take the opportunity to thank your Lordships for notable patience during some difficult passages where it must have been evident that my own understanding—and I should have seen more of this Bill than your Lordships—was straining at its limits. I think between us we have got safely through difficult ground. The number of disagreements between us has markedly diminished. We have a little more way to go which I hope we shall be able to achieve on Third Reading. I should like to thank your Lordships for your patience and considerate handling of the Minister who could otherwise have been in great difficulty. May I return to the matter in hand, and beg to move Amendment 82.

Lord Mishcon

My Lords, I am sure that every Member of the House on whichever side they may sit would want to thank the noble Lord the Minister in turn for his patience and courtesy, and his tolerance of some long debates that have taken place on some of the matters in this Bill. If he thinks that his understanding was in any way lacking, he is so astute that we did not notice it.

The Lord Bishop of Norwich

Amen.

Earl De La Warr

My Lords, may I add my thanks from these Benches from some of my colleagues who have been helping me on a number of amendments. We have enormously appreciated the courtesy we have had from the Minister and the help that has come from him and his department. We are extremely grateful, and we want to say thank you.

On Question, amendment agreed to.

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

[Printed earlier: col. 1405.]

The noble Lord said: My Lords, I am not sure whether I am strictly in order in saying that I am not moving this amendment but thanking the Minister for his courtesy and the help which he has given us throughout this Bill. I have thrown him some really nasty ones, particularly over copyright. He has accepted them always with willing grace, but sometimes with a complaint that they have arrived a little late. That complaint is fully justified.

The work which is put on Ministers' shoulders and on their officials at weekends by proceedings in this House—and by the kind of amendments which we put down on highly technical Bills like this—is not always appreciated by ordinary Members of this House, particularly those who have the backing of others, and I should like my personal thanks also to be recorded among those of others. I do not move this last amendment.