HL Deb 01 March 1984 vol 448 cc1400-5

5.43 p.m.

Report stage resumed.

[Amendment No. 40 not moved.]

Lord Airedale moved Amendment No. 41:

Page 12, line 31, at end insert— (" ( ) Appeal shall lie to the Secretary of State from a decision of the Authority under subsection (2) of this section.")

The noble Lord said: My Lords, in moving Amendment No. 41, I have one piece of good news for your Lordships and one piece of bad news. The good news is that at least we are now discussing only one amendment, which must help. It is a simple and a short one—at least, it is simple in concept. It simply states that: Appeal shall lie to the Secretary of State from a decision of the Authority under subsection (2)".

The piece of bad news is that we are still on the protected event and its definition, and whether a series of events are similar.

An interesting point is that, as I listened to the Minister's speech opposing my Amendments Nos. 44 and 45, I was thinking to myself that he could not have been making a better speech in favour of this one. If I am wrong, I hope that the Minister will stop me. I thought at one moment that he was envisaging a case going before the court from a decision of the authority under subsection (2), but I do not think that that is a practical proposition.

I say that for this reason. Subsection (2) contains the words "in the opinion of the Authority" and whenever you try to litigate in a matter where those words are used you always get the same answer from the court, which is "Whatever the private opinions of the members of the court may be, it is not for the court to substitute its opinion for the opinion come to by the authority, the Minister or whoever it was. Unless we think that the authority were acting perversely, we are not going to substitute our opinion for theirs"—and one can hardly envisage this Cable Authority acting perversely. Therefore, taking a case before the court is not a practical proposition. But I hope to show that taking it on appeal to the Secretary of State is a very much better proposition.

It is extremely difficult—this must be present in all our minds from what has gone on in our discussions on this Bill so far—to decide whether a particular event is one of a series or, being one of a series, is similar to some other event. The noble Earl, Lord De La Warr, dealt in great detail with the difficulties of the series and I do not want to bore your Lordships by going on about them. But I should like to say a few words about the difficulties of similarity between two events.

It is perfectly easy to find some resemblance between a sporting event which occurred last year and one which is taking place this year. The difficulty is that the terms and conditions tend to change, to a larger or a smaller extent, probably according to whether last year's events attracted too many entries or too few entries or, no doubt, for other reasons too. The Minister reminded me that on this subject in Committee I chose, again, a horse racing example to describe what I meant and, if I may, I shall briefly rehearse this argument in case the Members of the House who are present in the Chamber are not identical with the Members of the Committee on the last occasion.

I should like to take a sponsored horse race which is not of the first importance. The first thing which frequently happens is that the sponsor may change from one year to the next, which means that the title of the race changes. Then the new sponsor probably produces different prize money from the last sponsor, so there is that change. What difference does that make? Does that make this year's event dissimilar to last year's or is it similar? Let us suppose that everything is the same as last year, except that the race course is changed. The event is transferred to a different race course over the same distance, but over a different conformation. Does that make it a similar event to last year's or not? If it stays on the same racecourse, but is transferred from the spring meeting to the summer meeting, what difference does that make? Let us suppose that last year's race was over 10 furlongs and this year's is over nine furlongs, or that perhaps last year's race was for three year-olds and four year-olds, but there were not enough entries so this year's race is for three year-olds and upwards. I do not want to go on like this, but I hope I have said enough to indicate that it is not an easy question to answer.

Even if it were, I do not believe that the Cable Authority are the right persons to be the final arbiter in this matter as under the clause, as at present drafted, they are. For one thing, wise people—and no doubt they will be wise in the Cable Authority—will not feel particularly qualified to make nice distinctions between one sporting event and another. The second and more important reason is that they will be much too closely concerned and much too close to the action. Surely, from time to time, there will be disagreements between cable companies on the one hand, and the other broadcasters on the other, as to whether or not a particular event is available to cable.

The authority are going to be in an embarrassing position. They will say, "People will suspect us of giving the benefit of the doubt to our cable companies all too readily or, on the other hand, of leaning over backwards to achieve the opposite result." Therefore I do not believe that the Cable Authority are the right final arbiter of this quite difficult question. For the reasons I have given, I have ruled out the court, if I may use that phrase loosely. Therefore we come to the Secretary of State. In my opinion, the Secretary of State is the satisfactory final arbiter. He already has to go into these kinds of questions because he has to maintain the list of sporting events under the previous subsections, events which are sacrosanct because they are of great national importance. This therefore is an area which the Secretary of State has to investigate. I hope your Lordships will say that it is right that this difficult question should not be finally decided by the Cable Authority but that there should be an appeal from him to the Secretary of State. I beg to move.

5.52 p.m.

Lord Elton

My Lords, all our discussions have borne out the assertion that most of us have made, that the definition of the events which, under Clause 13(2), would be excluded from a pay-per-view cable service in order to safeguard the interests of the viewing public is very difficult to draft. Nor is the interpretation of a clause drafted to achieve this result of its nature easy, either. It is to that that the noble Lord, Lord Airedale, has addressed his careful attention, though I do hope that Amendment No. 43, to which I have already spoken and which I hope I have persuaded your Lordships to agree, will go some way towards clarifying it. Therefore I appreciate why the noble Lord has tabled the amendment, which provides for a right of appeal to the Secretary of State against a decision of the Cable Authority that any particular event is or is not one which should be protected under Clause 13(2) and therefore should be excluded from showing on pay-per-view.

But the involvement of the Secretary of State in decisions of this nature runs counter to the general philosophy of the Bill, which is to let the Cable Authority regulate the new cable services without undue interference from the Government. Moreover, I find it a little difficult to see, on this particular issue, how the Secretary of State, who is not running the cable administration from day to day, is going to be any better placed than the Cable Authority which will be running it from day to day. The Cable Authority will be concerned with these and similar matters on a regular basis. They will have the chance to develop an expertise that my right honourable and learned friend will inevitably lack.

So my first reaction to the noble Lord is that he is suggesting that for the opinion of the Cable Authority, when it does not suit somebody to whom it is applied, there should be substituted the opinion of the Secretary of State, who will not necessarily be any better placed to have a sound opinion than the Cable Authority. The Bill sets out a test for the authority to apply. We believe that the best course is to let them get on and apply it. I do not believe that issues to be decided under Clause 13(2) require an elaborate system of appeal. In other parts of the Bill we are trusting the Cable Authority to take equally important decisions. In the case of Clause 13 we should also trust the Cable Authority to exercise their powers both completely and fairly.

The noble Lord suggested that the Cable Authority might be too closely involved, but these are not questions which the authority will have an unfettered discretion to determine at will. This is very different from the kind of determination procedure under Clause 12(3) which concerns the financial arrangements for the relay of DBS services. There, in our view, it would have been wrong to leave the authority with the last word because there is no clear objective test which can be applied. Here the authority will have to apply the terms of the statute which set out a particular test to be followed in each case. Certainly the authority's judgment will enter into the equation, and certainly the equation will be a difficult one, but it will enter into it only to the extent that it involves a reasonable assessment of the broadcaster's actual practice.

I am advised (here I come back full circle to the noble Lord's first point) that although the opinion of the authority is involved in the Bill—though not now, if your Lordships accept our amendment, in the way that it was before the amendment—nonetheless the authority has to exercise its opinion, whether or not it is written into the Bill. The question as to whether or not it has exercised it reasonably will, I am advised, be justiciable, so there will be an escape to the courts.

Lord Airedale

My Lords, I was not suggesting that the Home Secretary would be any better qualified than the authority to answer these difficult questions. What appealed to me was that he would he seen to be completely impartial and that, however impartial the Cable Authority tried to appear to be, inevitably, in a dispute between the BBC and a cable company, there would be people who would question the impartiality of the Cable Authority. I can only say that if I were a member of the Cable Authority I should be thankful not to have to be the final arbiter of a matter in which my authority was so closely concerned. I should be thankful that the impartial Home Secretary would be the final arbiter. However, I have not had resounding support for this amendment and the Minister does not like it very much, either, so I beg leave to withdraw it.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, does the noble Lord. Lord Howard of Henderskelfe, wish to move Amendment No. 42?

Lord Howard of Henderskelfe

My Lords, yes.

5.56 p.m.

Lord Howard of Henderskelfe moved Amendment No. 42:

Page 12, line 31, at end insert— ("(2A) With a view to preventing the making of exclusive arrangements for the broadcasting of protected events or their inclusion in a licensed diffusion service, the Secretary of State may make regulations as to the grant to any person to whom this subsection applies of the rights or facilities required for the broadcasting of such events or their inclusion in such a service. (2B) Subsection (2A) above applies to the BBC. to the IBA and programme contractors, to the IBA's subsidiary, to the Welsh Authority and to any person to whom a licence to operate a diffusion service has been granted pursuant to section 4 above respectively. (2C) Regulations made under this section shall not apply to the broadcasting of a record of any events specified in the regulations or to its inclusion in a licensed diffusion service where the transmission is made more than seven days after that event. (2D) Any regulations 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.").

The noble Lord said: My Lords, I beg to move Amendment No. 42 very briefly and formally, simply because I want to remind the House once more of the increasing power of the cable programme providers. They will provide the programmes which the multiplicity of people will put down their cables. I have already reminded the House that they are coming together in very powerful consortia—consortia which bid fair to rule cable in a way which has very considerable dangers indeed. The American experience alone teaches us how powerful, especially if they dispose of important sporting and other events, some of these are. It was for that reason that I wished to provide the Home Secretary with a fall-back power, in case he became worried by what was happening. I beg to move.

Lord Elton

My Lords, at an earlier stage I spoke at some length to this amendment—length which your Lordships were good to put up with. But the House will not wish me to repeat the arguments against the amendment. I trust that the noble Lord, having begged to move the amendment, was only seeking an opportunity to withdraw it. If not, I shall lobby your Lordships very powerfully against what the noble Lord proposes.

Lord Howard of Henderskelfe

My Lords, indeed I was merely seeking an opportunity to say a word or two legitimately about this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 43:

[Printed earlier: col. 1140.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 36. I beg to move.

The Deputy Speaker (Baroness Wootton of Abinger)

My Lords, before we agree to this amendment, there are two amendments to it standing in the name of the noble Lord, Lord Airedale.

Lord Airedale

My Lords, these amendments are not moved.

Lord Elton

My Lords, I take it that this is Amendment No. 43 as not amended.

The Deputy Chairman

That is correct, my Lords.

Lord Elton

In that case, my Lords, I am happy to beg to move.

On Question, amendment agreed to.

[Amendments Nos. 44 and 45 not moved.]

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

Lord Howard of Henderskelfe moved Amendment No. 46: Page 13, line 7, leave out ("Authority") and insert ("Broadcasting Complaints Commission")

The noble Lord said: My Lords, with the leave of the House, I will speak to Amendments Nos. 46, 47 and 83.

Amendment No. 47: Page 13, line 14, leave out subsections (2) to (5) and insert— ("(2) Schedule (Application of Part III of the Broadcasting Act 1981) shall have effect with respect to the Commission and to complaints of the kind mentioned in subsection (1) above.")

Amendment No. 83: Insert the following new Schedule—

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