§ 3.3 p.m.
§ Further considered on Report.
§ [Clause 16 [Securing compliance with licence conditions]:
The Lord Advocate (Lord Mackay of Clashfern) moved Amendment No. 63:
Page 19, line 42, leave out ("not complying with") and insert ("contravening or is likely to contravene").
§ The noble and learned Lord said: My Lords, I should like to move Amendment No. 63 and speak also to Amendments Nos. 64, 65, 67, 68, 69, 70, 72, 73 and 75.
§ Amendment No. 64: Page 20, line I leave out ("compliance with") and insert ("that the operator does not so contravene or continue so to contravene")
§ Amendment No. 65: Page 20, line 6, leave out from ("is") to ("may") in line 7 and insert ("contravening or is likely to contravene any of the conditions of his licence, the Director")
§ Amendment No. 67: Page 20, line 9, leave out ("compliance with") and insert ("that the operator does not so contravene or continue so to contravene")
§ Amendment No. 68: Page 20, line 13, leave out from ("if') to end of line 15 and insert ("the provision made by the order (with any modifications) is requisite for the relevant purpose")
§ Amendment No. 69: Page 20, line 22, leave out ("failure to comply with the relevant condition is") and insert ("contraventions or apprehended contraventions are")
§ Amendment No. 70: Page 20, leave out line 32 and insert ("such things as are specified in the order or arc of a description so specified: and")
Amendment No. 72: Page 20, line 37, at end insert—
(" "contravention", in relation to any condition of a licence, includes any failure to comply with that condition and "contravene" shall be construed accordingly")
Amendment No. 73: Page 20, line 44, at end insert—
(" "relevant purpose", in relation to an order under subsection (1) or (2) above, means the purpose mentioned in that subsection.")
§ Amendment No. 75: Page 21, line 6, leave out ("a failure to comply with") and insert ("or would consitute contraventions of")
§ These amendments reflect our response to a technical problem with the present construction of the Bill which has only very recently been brought to our attention. In moving them I should like therefore to indicate to your Lordships that we are dealing with one of the most important and complex aspects of the Bill. We have come forward with these amendments in order that your Lordships may be aware of the point and of the principal changes we propose in order to deal with it. In the light of what your Lordships say, further consideration will be given to the amendments 978 tabled, and also to any other comments upon these matters that come to our attention.
§ Lord Lloyd of Kilgerran
My Lords, may I intervene before the noble and learned Lord goes on with his useful description of what he is talking about? I am sorry, but I missed the numbers of the amendments to which he was speaking. Is it amendments 63 to 74 without any exception? I am sorry to interrupt the noble and learned Lord.
§ Lord Mackay of Clashfern
My Lords, I am moving Amendment No. 63, and I am speaking to Amendments Nos. 64, 65, 67, 68, 69, 70, 72, 73 and 75. I would expect that minor revisions of these amendments may well be required at the next stage of the Bill, and anything your Lordships have to say to help us in connection with this problem will of course be taken into account in that consideration.
The Government have taken a number of steps during the course of this Bill and its predecessor to ensure that the enforcement procedures act as a powerful deterrent to licensees against breaching the conditions in their licences. That was why Clause 16 was amended at Report stage in another place to put a clear duty on the director to take enforcement action either by making a final order or, where it appears to him requisite, by making a provisional order subject to subsequent confirmation. The provisional order procedure was designed to ensure that the director would be able to move sufficiently quickly in cases where, for example, a competitor was suffering significant damage as a result of a licensee's failure to comply. The question which has led us to come forward with these amendments is whether even that power, which would enable the director to act immediately if he judges it necessary, covers all the eventualities.
The present drafting of Clause 16 is such that the director can only make an order if at the time the order is made the licensee is not complying with any of the conditions of his licence. Thus the director could receive a complaint, decide immediately that a provisional order was necessary, but find, even within the matter of hours it might take in a serious case to serve the order, that the licensee had again complied with the licence condition. If that happened, it would demonstrate the efficacy of the enforcement procedures because the mere hint that an order was about to be made would have been sufficient to secure compliance. But—and this is the important matter—let us assume that having begun to comply, and the director having therefore put a halt to the making of an order, the licensee reverted to his previous position and the relevant licence condition is once again breached, perhaps within a matter of hours or days. Once more the director would set out to make a provisional order, but might find that by the time he came to make it the licensee had begun to comply. The net effect could be that the director was powerless to act by somebody going in and out of the complying situation.
Clearly, it was never our intention that the enforcement procedures should be capable of being frustrated in this way. Thus we have come forward with amendments which will place the director under a duty to make either a final or a provisional order 979 (subject to the qualifications already in subsection (5) of Clause 16) where he is satisfied that a licensee is contravening or is likely to contravene a licence condition. In other words, in the example I have described, where the director decides that, although a breach has been remedied, on the evidence before him it is likely to be repeated, he will be able either to set in train the procedures leading to a final order, or perhaps more likely make a provisional order which could come into effect immediately to ensure that the operator does not in future contravene a licence condition. Our objective is to close a loophole so that licensees are not able to circumvent the enforcement procedures by intermittent acts or omissions in contravention of their licence obligations.
I think that this is also the object of Amendment No. 66, and I hope that with the brief explanation I have given of our purpose the proposers of that amendment will see fit to consider our amendment as dealing with the matter, and may feel able to withdraw their amendment and support ours. I am sure that we are addressing the same problem. Perhaps I might add that since seeing Amendment No. 66 we have been reconsidering our own approach because it might well be sensible to seek a remedy in relation to a prospective breach of a licence condition by reference to something that has happened which shows evidence of the probable contravention. We are considering, therefore, what may be needed as an amalgam of the two approaches, and as I indicated in my opening remarks we certainly have this in mind with a view to considering what improvements might be made on these amendments at Third Reading. I beg to move.
Lord Bruce of Donington
My Lords, the House will be relieved that the noble and learned Lord has still left this matter open for possible alterations on Third Reading. The noble and learned Lord was kind enough to give his motivation in bringing forward these amendments and, in the process, mentioned Amendment No. 66. According to the Second Marshalled List, Amendment No. 66 is now no longer there, so I presume the reference is no longer required.
This clause has a fairly long history, as the noble and learned Lord was kind enough to indicate. In the Bill as it came to your Lordships' House on 21st December Clause 16 read like this:(1) Subject to subsections (3) and (5) and section 17 below, where the Director is satisfied that an operator is not complying with any of the conditions of his licence, the Director shall"—then it continues from there.
I think your Lordships will agree that the Bill received a comprehensive treatment in Committee in your Lordships' House. Indeed, the noble Lord, Lord Cockfield, was at his indefatigable best in making a series of corrections to the Bill and bringing a series of amendments to it. As your Lordships will recall, the noble Lord and those sitting behind him devoted twice as much time in Committee stage to this Bill as all the rest of the parties in this House; the Cross-Benches, the Alliance and ourselves.
True enough, after amendment, Clause 16 as it came to us as amended in Committee read as follows:Subject to subsections (3) and (5) and section 17 below, where the Director is satisfied that a person who is authorised by a licence 980 granted under section 7 above to run a telecommunication system (in this Act referred to as a 'telecommunications operator') is not complying with any of the conditions of his licence, the Director shall".Three months have elapsed with the "not complying with" still inserted in Clause 16.
Now we have a somewhat remarkable insertion. I do not in any way impugn the sincerity of the noble and learned Lord, Lord Mackay of Clashfern, in supplying the words "contravening or likely to contravene" substituted for "not complying with". As the noble Lord has indicated, this is a matter for some legal construction and the word "contravening" itself, as defined in legislation up to 1968, includes the words "non-compliance", so the word "contravening" is quite exceptional.
The trouble arises with "or is likely to contravene". When we come to the enforcement of the law, we are not concerned with the interpretation of what Parliament meant or intended to convey when it passed the Act. The Interpretation of Legislation Act 1978 makes that quite clear. We rely on the words themselves. It is a question of interpretation of "or is likely to contravene". Who will assess that, and how? What objective tests will be applied in the mind of the director general, or any of his staff, that there is likely to be a contravention? The noble Lord could perhaps exercise his mind and, for example, go through the draft licence that it is proposed shall be granted to British Telecom. Perhaps the noble Lord can give some instances—not confined to the possibilities that he has just brought before the House—as to where, in what circumstances, in what way, with what aids, subject to what hunches (newspaper reports or any other information at his disposal) he will apprehend that an operator is likely to contravene.
This is of some importance from another point of view. When I first saw the amendment, a possibility, indeed a probability, occurred to me that may not have occurred to the noble Lord. There is the possibility of it being interpreted in a different sense. For example, say there were mooted in the press, or it became obvious in the course of the new successor company's dealings with its employees, that it was apprehended, first by the successor company, the operating company of BT, that an industrial dispute was in the offing. If that industrial dispute resulted in strike action—whether that strike action was general or all out, to use the noble Lord's words in another context on Clause 18, or whether it was selective, as the noble Lord hinted when he was dealing with Clause 18 at Committee stage—would the director general then be in a position to come to the conclusion that, as industrial action was probably in the offing, there might be a contravention by the operator? This is quite possible because, if there were an industrial dispute involving the rights of the unions concerned to exercise their right to strike, which undoubtedly still remains to them even under the existing trade legislation, the only way in which that strike could be effective would be by interfering with the provision by the operator of the service which he was enjoined by the licence to perform. I put it to the noble and learned Lord: is that the kind of circumstance what would be caught by the words "likely to contravene" that he has put in?
981 The noble and learned Lord may say—and all those who know him will not in any way question his good faith—that that is not the way he considers it and that he would like to give an assurance that that is not the way things would work out. I am bound to return to the words themselves and to ask him the straight question: if it were obvious to the director general that if there was an industrial dispute in which the right to strike might be exercised, would that activate Clause 16(1)? The noble Lord will appreciate that there are other rights which we shall be dealing with when we come to Clause 18, whereby, on the face of it and reinterpreting what the noble Lord said in his remarks in Committee under Clause 18, there might be a right to civil action against individual trade unionists or against trade unions themselves, if the operator was prevented by strike action from carrying out the full conditions of the licence. These are matters of some importance. I reiterate that I do not believe that the noble Lord had that in mind but we are dealing with the words themselves. For that reason, on the basis of the interpretation (as we see it) we shall have to oppose this amendment and invite the noble and learned Lord to have another think about it. Although we are quite sensible of the reasons that he gave in his opening explanation of the amendment and although we are quite satisfied with the necessity of dealing with that situation, we are not satisfied that this particular form of wording is going to deal with the other possibilities which are also caught up by the very wording that he has used.
§ 3.21 p.m.
§ Lord Lloyd of Kilgerran
My Lords, as one would expect from so distinguished a lawyer as the noble and learned Lord, Lord Mackay of Clashfern, he clearly indicated that there were serious commercial and legal problems arising from the present drafting of Clause 16. He explained so clearly how by ordinary process, not necessarily being in any way illegal, it would be possible for a person to circumvent the enforcement of certain procedures to which, as he explained, the Government attach great importance. If I may make an analogy, I have been concerned, for instance, with trade mark cases where considerable damage can be done very shortly and where the only way in which a commercial firm can protect its interests is to go along to the High Court to get an interim injunction. You can apply for interim injunctions any day—Tuesdays and Fridays were popular days with me—and no doubt the noble Lords, Lord Elystan-Morgan and Lord Campbell of Alloway, with their experience, will agree with me. But there was a sanction against anybody making such an application that they had to give a cross-undertaking in damages so that if they lost they would have to pay the expenses to which the defendant had been put.
What worries me are the last few words of the speech of the noble and learned Lord. If I can refer to it in this way, he was presenting your Lordships with a package deal. He was speaking to a number of amendments. But at the end of his speech—as I understood him; and I may be wrong—he did not seem to be satisfied with all those amendments clustered together and spoken to so clearly by him because he said (as I understood him) that the Government are proposing to bring other 982 amendments allied to this group of amendments to clarify the position even further at Third Reading. If that is the position that arises from all these amendments then I would not say anything further in relation to these amendments but would await what the Government have in mind as the totality of their dealing with this really serious problem—and the noble and learned Lord opened his speech by indicating that it was a very important matter—in regard to preventing the frustration of the enforcement procedures.
§ Lord Campbell of Alloway
My Lords, as I understand the position, my noble and learned friend the Lord Advocate has opened this question for objective discussion and these amendments relate to the exercise of administrative powers by the director under Clause 16 to deal with likely contraventions and to secure compliance with licence conditions, according to the procedure laid down under Clause 17. Again, the question arises as to whether the rigidity of the drafting structure of this Bill is apt to afford fair play according to the principles of natural justice. This matter was raised earlier on Report by the noble Earl, Lord Halsbury, in the context of general duties under Clause 3, the object of the amendment, which was not withdrawn, being to include a duty to maintain and promote free and fair compatible opportunity.
Three objections were taken by my noble friend Lord Glenarthur. The first was that this would insert an evaluation element into the Bill at the wrong stage. I use his own words; they are not mine; secondly, that the word "fair" introduces (again, his own words and not mine) a vague extraneous standard of evaluation because the clause itself lays down standards of fairness; and thirdly, that this would harm the Bill. This question of due exercise of administrative powers had also previously arisen at Committee stage when an amendment was moved (and which again was not withdrawn) to insert a new clause between Clauses 7 and 8 to seek to secure fair play on that occasion for the applicant. To this my noble and learned friend the Lord Advocate on that occasion took objection.
It is not the intention to harm the Bill, only to introduce some measure to seek to prevent the Bill doing harm. The objection to the introduction of an evaluation element which is generally understood and recognised by our courts in the exercise of their supervisory jurisdiction is not convincing. To stigmatise as extraneous a fundamental concept of natural justice is disturbing as the standard must always be extraneous. If "fair" is vague, so be it. It is a workable concept because of its flexibility. In conclusion, Lord Atkin once said: "Mere administrative difficulties are not enough. Convenience and justice are often not on speaking terms". If the rigidity of this Bill precludes the introduction of measures of procedural safeguard, perhaps some consideration—as the matter is, as I understand it, open—might be given to issuing a code of practice to seek to ensure some measure of due administration.
My Lords, the noble Lord, Lord Lloyd of Kilgerran, has raised, not for the first time, a point of great importance. If I understood my noble and learned friend the Lord Advocate correctly, he seemed 983 to be suggesting that the Government at a later stage are going to rethink points of substance with regard to the series of amendments. Clause 16 has a tremendous knock-on effect to Clauses 17, 18 and 19 of the Bill. The problem there is that within the Rules of the House, ordinary Members of the House, BackBenchers and all Members other than of the Government, are not allowed to put down amendments at Third Reading other than drafting amendments.
Might I ask my noble and learned friend whether I have understood this correctly? If so, he is going to put Members of this House in a very difficult position. Or is he just referring, for instance, to subsection (4) which is covered by these amendments? The corrigenda itself makes the clause worse than it was in the first place. The corrigenda covers ony printing errors but the correction to the printing error still makes the clause a nonsense. Is he referring to that or is he referring to points of substance to which the noble Lord, Lord Lloyd of Kilgerran, referred?
§ 3.30 p.m.
§ Lord Elwyn-Jones
My Lords, the words in the Amendment "or is likely to contravene" constitute a considerable addition to the powers given to the director. The director is not a Minister: he is not answerable to Parliament, so there is no constitutional control over his power in that sense. Secondly, the language of the clause and what is proposed means that on the ipse dixit of the director if he is satisfied that a person, as is now proposed, is said to be contravening or is likely to contravene, the powers given to him will follow. This is a very important addition to the powers of the director. It is a power which is not easily challengeable in the courts, and, in view of its implications in the industrial field in particular, as my noble friend who spoke first indicated. I submit that this is an extension of an unacceptable character.
As my noble friend Lord Bruce of Donington indicated to me, Amendment No. 80, if accepted, would diminish a little some of the anxieties of those who may be involved in these situations. Perhaps it is a little early to ask the noble and learned Lord the Lord Advocate whether he accepts Amendment No. 80, but, whether that be so or not, I submit that, as it stands at any rate, this is an unacceptable amendment. It is a classic attempt to increase executive power in the hands of someone who is not answerable to Parliament or, by virtue of the language of the proposed Clause, not amenable even to the jurisdiction of the courts.
§ Lord Mackay of Clashfern
My Lords, the substantial matters we seek to cover have been dealt with in these amendments. I have indicated that, of course, this is an important and difficult problem and that we are dealing with the matter in a slightly different way from the former Amendment No. 66 but that we shall, in considering whether any further revision of what we propose ought to be made, take account of the fact that that way of dealing with the matter has been proposed. That is what I had in mind when I spoke earlier. In my view, it is entirely acceptable to maintain that sort of 984 attitude in a matter of this sort, but if one of your Lordships, or anyone else, has a suggestion for the improvement of these proposals, we would certainly consider it very carefully.
So far as concerns my noble friend Lord Campbell of Alloway, the proposals which I have sought to introduce by Amendment No. 63 and those Amendments connected with it do not. I think, in any way affect the concepts to which my noble friend made reference.
So far as the noble Lord, Lord Bruce of Donington, is concerned, I think he has agreed with the view that the problem which I set out at the beginning ought to be dealt with. The noble Lord is simply concerned as to whether industrial action, or the possibility of industrial action, might be a circumstance to be taken into account in considering whether there is likely to be a contravention. Whether or not there has been a contravention may depend on circumstances of that kind, I suppose, but the criteria which we are seeking to put into this clause are criteria of a general character: that is to say, the purpose is to enable the director to have effective power of enforcement of conditions already there. I would venture to suggest to the noble and learned Lord, Lord Elwyn-Jones, that that is a considerable restriction on this power and any action taken would require to be related to conditions in the licence already there. If the exercise of the powers of the director were challenged. I should have thought it must be reasonably easy to tell whether or not these powers were being appropriately exercised in relation to the conditions which were there in the licence, and the director would require to proceed upon evidence that a contravention was likely; in other words, he would have to be able to satisfy the court, were it to be a subject of challenge, that his decision had proceeded upon a reasonable basis.
In my submission, the generality of what is proposed is entirely appropriate to the difficulty to which I drew attention at the outset. I cannot see that the fact that industrial action might have some bearing on this matter really has any proper result so far as the amendment is concerned, because that might happen equally with the situation of a contravention having taken place. The director may be faced with considerations of that kind in relation to both aspects of this particular responsibility.
The noble and learned Lord, Lord Elwyn-Jones, has directed my attention to Amendment No. 80, and in due course we shall come to deal with Amendment No. 80—
Lord Bruce of Donington
My Lords, with the leave of your Lordships, may I make one rejoinder to what the noble and learned Lord, has said? The noble and learned Lord was given full opportunity to answer quite concisely the points I made about the application of this particular amendment to the whole question of industrial relations. He did not give any categorical reply to that, so therefore we are left with the assumption which I did hazard at the commencement of the remarks I ventured to address to your Lordships that the words "likely to contravene" most certainly would have an application on the industrial relations scene. This is not satisfactory to us for reasons that I will certainly not wish to repeat to the House. 985 Moreover, I note that the noble and learned Lord, although he was afforded an opportunity of giving an indication as to the way in which he might be prepared to proceed when Amendment No. 80 was reached, was quite noncommittal on that point also. In the circumstances, we are faced with a situation where we are bound to challenge the validity and the application of this particular amendment.
§ Lord Donaldson of Kingsbridge
My Lords, not having spoken before, I can speak now, and will do so briefly. My noble friend here and I came in to the Chamber with the feeling that probably these amendments should be acceptable and by the time the noble and learned Lord said he was going to pass more amendments in the next stage of the Bill we thought he perhaps ought to he given a chance to do so. But personally—I have not had time to consult with my noble friends—I have been seriously shaken by two particular comments from the Front Bench. The first comment was from the noble and learned Lord when he said that the phrase "likely to contravene" is an extension which is not covered in complying; "contravene" is covered in complying but "likely to contravene" is an extension. The second point is the application of "likely to contravene", which is a new thing, to possible industrial action. Now, I do not think that has been satisfactorily explained and unless, by leave of the House, we can have some further explanation. I think we shall have to support the Opposition.
§ Lord Torphichen
My Lords, may I say this to the noble Lord, Lord Bruce of Donington? I should have thought that the words of my noble and learned friend the Lord Advocate were quite sufficient because, if there were an all-out strike which prevented compliance with the licence in some way, it seems to us that the operator would be doing everything in his power to put everything right, otherwise he would go bankrupt. The only case that he could possibly be talking about is one where some form of selective action is contemplated by a union over some particular customer or class of customers—be they black, South African or whatever—whom the union did not happen to like. In such a case I cannot see there is any difference between having the terms of the licence breached by the operator or by his trade union organised staff. It is just as had in either case.
§ Lord Mackay of Clashfern
My Lords, by leave of the House, perhaps I might be allowed a word or two in answer to the noble Lord, Lord Donaldson of Kingsbridge. First of all, it has been necessary, in the way that I explained, slightly to extend the director's powers because otherwise, as the noble Lord, Lord Lloyd of Kilgerran, also explained, there would be a defect in the way these powers could operate. You could have a situation where an operator was moving in and out of compliance. There is an extension which is in my view a necessary, but very limited extension.
So far as industrial relations are concerned, as I sought to explain, the situation is that "contravening or … likely to contravene", which is what we are proposing, would in my opinion make no particular 986 difference. Both of these are apt to have an effect on industrial relations, and these are matters which we shall be discussing later. However, I cannot see that "likely to contravene" is any more difficult than "contravention" from that point of view. Therefore, I do not agree that there is, as it were, any new point arising in that way.
§ 3.42 p.m.
§ On Question, Whether the said Amendment (No. 63) shall be agreed to?
§ Their Lordships divided: Contents, 116; Not-Contents, 83.987
|DIVISION NO. 1|
|Adeane, L.||Lucas of Chilworth, L.|
|Ailsa, M.||Lyell, L.|
|Alexander of Tunis, E.||Mackay of Clashfern, L.|
|Allen of Abbeydale, L.||Macleod of Borve, B.|
|Allerton, L.||Mancroft, L.|
|Alport, L.||Margadale, L.|
|Auckland, L.||Marley, L.|
|Avon, E.||Maude of Stratford-upon-Avon, L.|
|Belhaven and Stenton, L.||Mersey, V.|
|Bellwin, L.||Middleton, L.|
|Beloff, L.||Milverton, L.|
|Belstead, L.||Molson, L.|
|Bessborough, E.||Morris, L.|
|Campbell of Alloway, L.||Mottistone, L.|
|Carrington, L.||Northchurch, B.|
|Clitheroe, L.||Nugent of Guildford, L.|
|Cockfield, L.||Onslow, E.|
|Coleraine, L.||Orr-Ewing, L.|
|Colwyn, L.||Penrhyn, L.|
|Cottesloe, L.||Peyton of Yeovil, L.|
|Craigavon, V.||Plummer of St. Marylebone, L.|
|Cullen of Ashbourne, L.||Porritt, L.|
|Daventry, V.||Portland, D.|
|De Freyne, L.||Rankeillour, L.|
|Denham, L. [Teller.]||Reay, L.|
|Dilhorne, V.||Reigate, L.|
|Drumalbyn, L.||Renton, L.|
|Ebbisham, L.||St. Aldwyn, E.|
|Eccles, V.||St. Davids, V.|
|Effingham, E.||Saint Oswald, L.|
|Ellenborough, L.||Saltoun, Ly.|
|Elles, B.||Selkirk, E.|
|Elliot of Harwood, B.||Sempill, Ly.|
|Elton, L.||Shaughnessy, L.|
|Faithfull, B.||Skelmersdale, L.|
|Fanshawe of Richmond, L.||Somers, L.|
|Fraser of Kilmorack, L.||Spens, L.|
|Gainford, L.||Stamp, L.|
|Gibson-Watt, L.||Stodart of Leaston, L.|
|Glanusk, L.||Sudeley, L.|
|Glasgow, E.||Suffield, L.|
|Glenarthur, L.||Swansea, L.|
|Gray of Contin, L.||Swinton, E. [Teller.]|
|Gridley, L.||Terrington, L.|
|Hailsham of Saint Marylebone, L.||Teviot, L.|
|Thomas of Swynnerton, L.|
|Halsbury, E.||Thomeycroft, L.|
|Harvington, L.||Torphichen, L.|
|Henley, L.||Trenchard, V.|
|Home of the Hirsel, L.||Trumpington, B.|
|Hylton-Foster, B.||Vaizey, L.|
|Ilchester, E.||Vaux of Harrowden, L.|
|KaberryofAdel, L.||Vickers, B.|
|Kinloss, Ly.||Vivian, L.|
|Kinnaird, L.||Westbury, L.|
|Lane-Fox, B.||Whitelaw, V.|
|Lauderdale, E.||Wynford, L.|
|Aberdeen and Temair, M.||Hayter, L.|
|Amherst, E.||Howie of Troon, L.|
|Ampthill, L.||Jeger, B.|
|Aylestone, L.||Jenkins of Putney, L.|
|Banks, L.||Kearton, L.|
|Birk, B.||Kilmarnock, L.|
|Bishopston, L.||Leatherland, L.|
|Blease, L.||Listowel, E.|
|Blyton, L.||Llewelyn Davies of Hastoe, B.|
|Boston of Faversham, L.||Lloyd of Hampstead, L.|
|Bottomley, L.||Lloyd of Kilgerran, L.|
|Brockway, L.||Longford, E.|
|Bruce of Donington, L.||McIntosh of Haringey, L.|
|Burton of Coventry, B.||Mayhew, L.|
|Caradon, L.||Mishcon, L.|
|Carmichael of Kelvingrove, L.||Molloy, L.|
|Cledwyn of Penrhos, L.||Mulley, L.|
|Collison, L.||Northfield, L.|
|Cooper of Stockton Heath, L.||Oram, L.|
|Darling of Hillsborough, L.||Peart, L.|
|David, B. [Teller.]||Phillips, B.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dean of Beswick, L.|
|Delacourt-Smith of Alteryn, B.||Rea, L.|
|Denington, B.||Ross of Marnock, L.|
|Diamond, L.||Sainsbury, L.|
|Donaldson of Kingsbridge, L.||Stallard, L.|
|Donnet of Balgay, L.||Stedman, B.|
|Elwyn-Jones, L.||Stewart of Alvechurch, B.|
|Elystan-Morgan, L.||Stewart of Fulham, L.|
|Ennals, L.||Stoddart of Swindon, L.|
|Ezra, L.||Stone, L.|
|Fisher of Rednal B.||Strabolgi, L.|
|Gaitskell, B.||Strauss, L.|
|Gallacher, L.||Taylor of Blackburn, L.|
|Gladwyn, L.||Tordoff, L.|
|Graham of Edmonton, L.||Underhill, L.|
|Grey, E.||Wallace of Coslany, L.|
|Hale, L.||Wells-Pestell, L.|
|Hampton, L.||Wigoder, L.|
|Hanworth, V.||Wilson of Rievaulx, L.|
|Harris of Greenwich, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 3.51 p.m.
§ Lord Mackay of Clashfern moved Amendments Nos. 64 and 65:
§ [Printed earlier: col. 977.]
§ The noble and learned Lord said: My Lords, I beg to move.
§ On Question, amendments agreed to.
§ [Amendment No. 66 had been withdrawn from the Marshalled List.]
§ Lord Mackay of Clashfern moved Amendments Nos. 67 to 70:
§ [Printed earlier: col. 977.]
§ The noble and learned Lord said: My Lords, I invite your Lordships to agree to Amendments Nos. 67 to 70 en bloc. I have already endeavoured to explain these.
§ I beg to move.
§ On Questions, amendments agreed to.
§ Lord Mackay of Clashfern had given notice of his intention to move Amendment No. 71:
Page 20, line 35, leave out from ("order") to end of line 36 and insert—
("(6A) The Director may at any time revoke a final or provisional order if, at that time, the provision made by the order is not requisite for the relevant purpose.").
§ The noble and learned Lord said: My Lords, we have reconsidered Amendment No. 71 and I do not propose to move it.
§ [Amendment No. 71 not moved.]
§ Lord Mackay of Clashfern: moved Amendments Nos. 72 and 73:
§ [Printed earlier: col. 977.]
§ The noble and learned Lord said: My Lords, I should like, if your Lordships are agreeable, to move Amendments Nos. 72 and 73, to which I have already spoken, en bloc. I beg to move.
§ On Question, amendments agreed to.
§ Lord Mackay of Clashfern moved Amendment No. 74:
§ [Printed earlier: col. 600.]
§ The noble and learned Lord said: My Lords, I explained this amendment in moving Amendment No. 27 on the last occasion. This amendment simply removes code-related licence provisions from the scope of the director's enforcement powers under Clause 16. I beg to move.
§ On Question, amendment agreed to.
§ Clause 17 [Procedural requirements]:
§ Lord Mackay of Clashfern moved Amendment No. 75:
§ [Printed earlier: col. 977.]
§ The noble and learned Lord said: My Lords, Amendment No. 75 is dealing with the same subject matter as Amendment No. 63. I beg to move.
§ On Question, amendment agreed to.
§ Clause 18 [Validity and effect of orders]:
Lord Mackay of Clashfern moved Amendment No. 76:
Page 22, line 30, leave out from ("final") to second ("is") in line 31 and insert ("or provisional order")
The noble and learned Lord said: My Lords. Amendments Nos. 76 and 77 are technical amendments which are designed to remove an injustice.
Amendment No. 77: Page 22, line 33, leave out from ("it") to end of line 37.
§ The intention of the Bill is that the director should be under a duty to enforce licence conditions and to make provisional orders to secure compliance with licence conditions where an operator does not comply with his licence conditions and the director thinks it necessary or requisite for immediate remedial action to be taken. Our aim is that a provisional order made under Clause 16 should be obeyed at once.
§ Clause 18 sets out the arrangements for enforcing provisional orders once made. As drafted, the Bill prevents enforcement action being taken by a person who is affected by any breach of the provisional order until after it has been confirmed. This arrangement gives the operator against whom a provisional order is made the chance to consider his position and whether to challenge the order. An operator could decide 989 deliberately not to obey a provisional order in the hope that it would not be confirmed or that it would be modified before it was confirmed.
§ It has been pointed out to us that this arrangement is seriously unjust to any person who has been damaged by a breach of a provisional order. The affected person could have his telecommunications cut off through no fault of his own, and if he is heavily dependent on telecommunications it is possible that he could go out of business during the 28 day minimum period before a provisional order is confirmed. If this happens, it is no comfort to him that his liquidators could claim damages from the operator whose breach of a provisional order caused him to go out of business. So to remove this injustice we have decided that a person who is affected by a breach of a provisional order should be able to obtain an injunction, an interdict, or damages at any time after the order is made.
§ We have had a serious difficulty in formulating these amendments. We think it right to ensure that provisional orders are enforceable as soon as they are breached, but we have a question in our minds about whether damages should be payable as soon as a breach is made. It is possible that the director could make a mistake with a provisional order and subsequently modify it to require the operator to do something different. The aim of any provisional order, both as originally made and as modified, would always be to ensure compliance with the operator's licence conditions. But an affected person could, under the amendments, obtain damages in respect of a provisional order which was ultimately changed.
§ The Government will certainly listen to any views expressed on this point; but in our view what is proposed in these amendments appears desirable. I wished to have that aspect of the matter drawn to your Lordships' attention, in case it was a matter on which your Lordships wanted to express a view which we would certainly find helpful. I beg to move.
Lord Bruce of Donington
My Lords, this amendment for the insertion of the words "or provisional order", in the space indicated by the noble and learned Lord in subsection (5), only goes to reinforce the observations that we made concerning the earlier amendments. It now appears that a provisional order sharpening up the whole thing will be able to be made in conditions where there is likely to be, or is deemed likely to be, a contravention. We only reiterate the same remarks that we made before upon this matter and undoubtedly, as the noble and learned Lord will realise, this whole question will have to come up again when considering later amendments.
§ Lord Lloyd of Kilgerran
My Lords, I find myself in difficulty after the speech of the noble and learned Lord the Lord Advocate. I agree with him that this is a very difficult matter and that there is an attempt by the Government to put matters right and prevent damage occurring in the circumstances which he has explained. But at the conclusion of his speech he said—and he is the Government spokesman on this matter—that he thinks his own amendments are not satisfactory and he is waiting for us on the other side to make certain suggestions. I find that rather difficult 990 to understand. If he is not satisfied with the amendments, and having heard what the noble Lord, Lord Bruce, and others have said on the previous amendments, surely this is a matter which he should take away and think about again. No doubt it is entirely my fault in not understanding the subtleties of the noble and learned Lord's advocacy in this matter. But if he, as the Government spokesman, expresses in his speech his dissatisfaction, surely it is now his duty to go back and think about the matter again and bring it forward on Third Reading.
§ Lord Mackay of Clashfern
My Lords, what I sought to do—and I think it is fair that I should do that to the House—was to explain the problem that our approach has involved in it. But we have considered what is possible in the way of a solution and what we propose should be done. I expressly directed your Lordships' attention to this, and if any of your Lordships have any point that you wish to make about this aspect of the matter I shall be most grateful and very indebted to hear it. But I am not suggesting that these amendments are not appropriate, and I certainly ask your Lordships to agree with the first of them. The noble Lord, Lord Bruce of Donington, has linked these amendments with previous ones; but I am not sure that the point is in any way the same. In my view, what we are proposing here is the best solution in the circumstances.
§ On Question, amendment agreed to.
§ Lord Mackay of Clashfern moved Amendment No. 77:
§ [Printed above.]
§ The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
§ 4 p.m.
Lord Morris moved Amendment No. 78:
Page 22, line 37, at end insert—
("(5A) Where a final order has been made or a provisional order has been confirmed, any contravention of a condition of the licence to which it applies, which occurred prior to that order taking effect and which would have been in breach of the duty owed by virtue of subsection (5) above had that order then been in force, shall be actionable with the prior consent in writing of the Director at the suit or instance of any person who has suffered loss or damage as a result of that contravention.
(5B) In any proceedings brought against any person in pursuance of subsection (5A) above, it shall be a defence for him to prove that he took all such reasonable steps and exercised all due diligence to avoid contravening the condition of the licence in question.").
§ The noble Lord said: My Lords, I beg to move the amendment standing in my name and in those of the noble Lord, Lord Lloyd of Kilgerran, and the noble Lord, Lord Spens. I am persuaded to seek the support of' your Lordships on this matter because of my concern that despite the detailed scrutiny which has been given to the Bill there remains in it a major flaw.
§ Your Lordships were particularly concerned with the parliamentary scrutiny of' the licence. The Chancellor of the Duchy of Lancaster, my noble friend Lord Cockfield, has now conceded that licences should be laid before both Houses of Parliament. We are now concerned with securing compliance with licence 991 conditions and the effects upon the role of the Office of Telecommunications. We need to ensure that the assurances Her Majesty's Government have given us on so many occasions relating to our detailed concerns, which are achieved through the licences, will at the end of the day stand the test of time. I tabled an amendment on this subject in Committee, but as a result of an amendment tabled by Her Majesty's Government to the same clause on a different matter my amendment could not he moved. I must apologise to your Lordships for raising this matter at apparently so late a stage.
§ My concern is that under the regulatory mechanism by which the intentions of the Bill are brought about—that is, through the underpinning licences—there is no duty for a licensee to comply with the conditions of the licence. Instead, there is a duty on the Secretary of State and the Office of Telecommunications to police the licences, which means that this duty will rest upon the Director General of Oftel. The system therefore relies in its entirety upon the integrity of the licensee and the abilities and, above all, the energies of the Director General of Oftel. What is missing, in my submission, is an incentive for the licensee to conform at all times with his licence. The solution that I propose in the amendment is, I believe, wholly consistent with the policy of Her Majesty's Government and with the structure of the Bill, for it would make the licensee liable for a civil suit for damages if he caused injury by breaching a condition of his licence as opposed merely to disobeying an order.
§ As the Bill is drafted, the citizen has no immediate remedy if the protection and the assurances Her Majesty's Government have given to the public and to your Lordships in this House by virtue of the provisions of Clauses 3 and 8 and the underpinning licences are not met. If the citizen is denied access to the courts for any loss he may have suffered, he can rely only upon the director acting almost instantaneously. Is this a practical reality? Under the clauses of the Bill, the director general has to satisfy himself that such an event has occurred or is likely to occur. In other words, he has to gather hard evidence that this is so, otherwise he himself will be the cause of injustice—or could he. As your Lordships know, this will take time.
§ I have studied carefully the amendments tabled by my noble friends to Clauses 16 and 18. Much as I welcome the amendments, they in no way affect the argument in favour of this amendment. I am looking at whatever length of time may elapse between the breach of the licence condition and the director issuing an order, either provisional or final. Let me describe how I see this aspect of the Bill functioning. The duties of my right honourable friend the Secretary of State and of the director are set out in Clause 3 of the Bill. Additional duties applicable to the functioning of licensees are set out in Clause 8.
§ These duties are primarily carried out by my right honourable friend the Secretary of State by including conditions to that effect in the licence that he grants. The duties of the director are carried out either by a friendly tap on the shoulder or by his powers to issue orders demanding compliance with licence conditions.992
§ But there is an omission. There is no obligation upon the licensee to comply with his licence and no penalty, except the withdrawal of his licence. I would suggest that in the case of major licensees the possibility of withdrawal is inconceivable. A gap, therefore, exists because there is no penalty for breaching a licence condition: there is only a penalty for disobeying one of the director's orders.
§ Let us assume for a moment that my right honourable friend the Secretary of State, in his wisdom and foresight, is able to foresee all the ingenious means that might, over the next 25 years, be deployed to circumvent the obligations placed on any licensee. Once the licence is issued the licensee can ignore the licence. He can lock it up in a safe, or put it on a bookshelf, or file it away until such time as he hears the heavy footsteps of the director coming down his corridor. The director, however brilliant, cannot be all-seeing. When he comes knocking on the door, order in hand, he must be satisfied and have hard evidence that a licence condition is being breached, or is likely to be so breached.
§ I can imagine hardly any instances, but there might be an instance where the breach of a licence condition will be obvious and the director can act instantaneously; but there will be many occasions when it will be much more difficult and when it will take a considerable period of time before the director can be satisfied that a breach of a licence condition has taken place. What happens, for instance, when illegal cross-subsidisation is suspected and a competitor may be forced out of business as a result? How long will it take the director to plough his way through the accounts in order to satisfy himself that cross-subsidisation is occuring to the detriment of others? How long will it take the director to be satisfied that interpretations placed upon value-added services licences by licensees are in accordance with the spirit of that very complicated licence?
§ I believe your Lordships may agree that there will be instances when there will be an interval—in some cases a considerable interval—between the breach of a licence and the director being satisfied and, as a result, issuing an order. Furthermore, all that the licensee has to do when the director does arrive on his doorstep is to say, "Sorry, Mr. Director; I will stop breaching my licence condition". He suffers no penalty, but he may have gained a considerable commercial advantage or saved himself considerable expenditure and caused considerable loss to a citizen whose only crime is a wish to compete.
§ I therefore draw your Lordships' attention to the fact that the citizen has no full remedy, even with the protections and assurances given to him in Clauses 3 and 8 of the Bill, because he has no access to the courts to make good his losses from the time they first occurred. He has only a partial remedy from some time after the director has issued the order, which I believe to be a most grave injustice. What is missing from the system is an incentive for the licensee to conform at all times with his licence without having to wait for the director to arrive. The licence must be an incentive to use his licence as a handbook to guide him in the conduct of his business. He must be in fear of having to make recompense for damage caused if he wilfully or negligently ignores his licence. He must 993 have an incentive to reconcile his motivation for profit and a greater market share with the need to operate within the defined system in the interests of competition and public service, which lie at the very heart of the Bill.
§ The solution being put forward in this amendment is to make the licensee liable for all damage which he may cause if he breaches a condition of his licence. This is after due process; having been found to be in breach of a licence condition and having had an order issued to him, a licensee will be liable to an action for damages for all the losses he has caused to the third party. This is only just. I cannot believe that Parliament would wittingly create injustice.
My noble friend the Chancellor of the Duchy of Lancaster, in the course of answering the eloquent opening innings to this stage of' the Bill by the noble Lord, Lord Lloyd of Kilgerran, said at his sepulchral best:
If anyone thinks that the director is failing to carry out any of these functions, then he can be challenged in the courts. I know that it would be exceptional for anyone to challenge the director in this way, but the fact that he can be challenged is a very effective sanction". [Official Report, 12/3/84; col. 495]
With that I must respectfully agree because, when damage is ensuing, access to the courts is an extremely effective sanction. Hence the purpose of this amendment. But my noble friend said that such action would he both an "exceptional" and a "very effective" sanction. Those two statements are quite irreconcilable.
§ My noble friend implied that it was "exceptional" because, I suggest, he is well aware that a writ of mandamus rarely succeeeds. If it so rarely succeeds, then surely it follows that it is unlikely to be a "very effective" sanction. My amendment seeks to make the enforcement of the licence conditions an effective sanction, to ensure good behaviour by licensees—not merely to pay lip service to a theoretical legal right which cannot in practice be taken up. On the basis of his earlier argument, I hope that my noble friend will be able to accept this amendment.
§ This Bill as presently structured is what Jeremy Bentham called "dog law". By that he meant that when one wishes to stop one's dog from doing something that is not liked, one waits until the poor beast does it and then beats him. This amendment is entirely consistent with the Government's policy. It does not make for a multiplicity of litigation, for an action can only be brought after a breach of the licensing conditions has been established by the director and he—the director—has issued an order. There is a further safeguard to prevent frivolous lawsuits because the director has to give his written consent to the suit and need not do so if he considers the case to be of a trivial nature, or that pecuniary damage lies only in the heart and mind of the complainant. There is also written into the amendment reasonable defence, if the licensee has taken reasonable care to keep to his licence.
§ This amendment lies within the fundamental premise of Government policy, in that the regulation remains firmly and irrevocably in the hands of the director. My right honourable friend the Minister of State has drawn attention to the policy of regulation with a light rein. This amendment goes even further: it 994 positively encourages self-regulation. It would, in a way, serve an even more important purpose in practice. It would relieve the burden of Oftel and act as an incentive not to breach a licence condition. It would remove the director from the firing line and meet the Government's requirements by keeping the director out of the way of internecine struggles in the industry, thus releasing him to create a healthy environment in which to encourage dynamic endeavour in the telecommunications field.
§ At this eleventh hour, I ask my noble and learned friend on the Front Bench to consider carefully. Your Lordships will appreciate that this is a point of legal principle—namely, that the state should never deprive the citizen of access to the courts when he suffers an injustice. I ask my noble and learned friend the Minister and all your Lordships to stand back and think again about this principle. If all the aspirations for a new era in telecommunications development are covered in the Bill, and if all the protections for the public are built into the Bill, will the system work at the end of the day? I suggest to your Lordships in all humility that without a simple mechanism for self-regulation there is a major omission.
§ 4.15 p.m.
§ Lord Lloyd of Kilgerran
My Lords, as my name has been mentioned in connection with this amendment, perhaps I may very briefly add an epilogue to the long and clear statement made by the noble Lord, Lord Morris. What attracted me about this amendment was that it seemed to deal with a mischief and that it was worth trying to fill that kind of lacuna. In brief, the purpose of this amendment is quite simply to ensure that a licensee conforms to his licence at all times and cannot ignore the licence conditions without penalty until such time as the director general makes an investigation.
It seems to me that this amendment, as explained by the noble Lord, Lord Morris, goes a considerable way towards ensuring that the objectives of the Bill—particularly as set out in Clauses 3 and 8—can in practice, when transcribed to licences, be enforceable. In view of the long explanation which the noble Lord has given, and in view of the, I hope, accurate summary which I have attempted to give—and the noble Lord, Lord Morris, seems to be nodding his head in agreement—it appears that this amendment is one that the Government ought to take back and think about again.
§ Lord Donaldson of Kingsbridge
My Lords, perhaps I may seek a word of explanation from the noble Lord when he exercises his right of reply. I am not quite clear about one aspect. He has shown that there will he a gap between the commission of an offence—a breach of the licence—and the pouncing upon it by the director. But, if the first breach causes damage to anybody, the director has a right of law without this amendment. If it does not cause damage, the director will not need it. That is what puzzles me.
§ Lord Elystan-Morgan
My Lords, we on these Benches have very considerable sympathy with and respect for the motivations which lie at the root of this amendment. As we understand it, this amendment is 995 an exhortation to the House to express yet again its horror at the possibility of a retrospective mechanism operating in this context.
As I understand it, the situation under Clause 17(1)(b) of the Bill is that before a final order or the confirmation of a provisional order occurs, the director must have stated formally the relevant conditions of the licence and the acts or omissions which in his opinion constitute a failure to comply. In other words, he will have set out clearly his own judgment in relation to a set of facts. It may well be that, whereas those facts would have been known to all and sundry previous to that decision, it is only the conclusion of the director which adjudicates in a quasi-judical way in an area that may be regarded as a grey area of some dubiety.
Reading Clause 18(5) of the Bill, it therefore seems to me that it is only from that moment onwards that the statutory obligaton to comply with that final order is brought into being. It must be so, because it is that very mechanism which has brought about a final order. Clause 18(6) then spells out the consequences of failing to comply with that order.
In the light of the very pertinent question asked by the noble Lord, Lord Donaldson of Knightsbridge—
§ Lord Elystan-Morgan
I am sorry, my Lords—there is a great difference between a knight and a king. In the light of the noble Lord's question, is it the situation, then, that the liability of the operator runs only from the time of the making of the final order or the confirmation of a provisional order, and that there never was any liability previous to that? If there was, then it does seem to me that the fault of retrospective action can indeed lie in these provisions and that would be a very serious matter.
§ Lord Peyton of Yeovil
My Lords, I had rather hoped that my noble and learned friend the Lord Advocate would leap to his feet after the noble Lord, Lord Morris, had concluded his remarks and say that, at least in principle, he would accept this amendment. Perhaps I can suggest to him a plea that he will now apply to the amendment of the noble Lord, Lord Morris, the same somewhat relaxed standards which he applied to those amendments he moved earlier today.
The amendment may be not without blemish but it does at least seem to me, and perhaps to your Lordships' House, that it seeks to remedy a serious defect. As I understand it, the noble Lord. Lord Morris, in the course of his speech came to the nub of the point, which seems to be that an operator—who enjoys very great privileges under a licence—will incur no penalty whatever for a breach of a licence condition until such time as an order or a provisional order is made; and only from that moment will the injured party be able to recover compensation for any injuries suffered. If that is correct, and if that is all there is to be said on the issue, I cannot see that my noble and learned friend would not be well advised to leap to his feet with alacrity and accept that there is justice in this plea and say that if the noble Lord. Lord Morris, has 996 not hit the nail completely on the head he will nevertheless, at a later stage, produce an amendment which may even go beyond his own high standards.
§ Viscount Trenchard
My Lords, let me add one comment to what my noble friend Lord Peyton of Yeovil has just said. If we are talking of days, weeks or even months, as a regular occurrence, one might not think the importance of this point was so great. However, thinking about the situation leads me to believe that in the majority of cases by the time a practice has been discerned, by the time it has been brought to the attention of the director, by the time he has investigated it, and by the time he has declared himself, we shall, in the majority of such cases if they arise, have covered a period of, probably, years. In that situation I feel that the spirit of the amendment of my noble friend Lord Morris must be met and I hope very much that my noble and learned friend on the Front Bench will be able to tell us how he is to do that.
§ Lord Campbell of Alloway
My Lords, may I also briefly support the general spirit of this amendment. May I ask my noble and learned friend whether he can confirm to the House that there is in the Bill no obligation whatever to work the licence and no machinery for revocation if it is not worked? If that were so, surely in the public interest it would require looking at.
Secondly, and this is my final question, may I respectfully ask my noble and learned friend to consider that damages for breach of any form of statutory duty are never recoverable unless expressly so stated in statute. In this case, is it not right to import an obligation into the statute to give rise to such compensation?
My Lords, I too should like to support this amendment and following on the remarks of the noble Viscount, Lord Trenchard, I should like to draw attention to a Question for Written Answer which is down in my name and indicates that the Office of Fair Trading has taken more than two years to reach a conclusion. That, I think, is likely to be the length of time that the director of British Telecom may take before he reaches a conclusion.
§ Lord Mackay of Clashfern
My Lords, may I first of all indicate the general position, as I see it, and then try to deal with some of the particular matters that have been raised by your Lordships on this amendment. The thrust of this Bill is to impose conditions on those who hold licences and it is clear that the intention is that they should comply with those conditions, the enforcement mechanism being through the director general. I should first like briefly to remind your Lordships that we have decided that licence conditions should not be directly enforceable in the courts by individuals affected, but rather that it should be a matter for the director general and his specialist staff. First, we wanted to ensure that there are swift, cheap and effective enforcement procedures. I emphasise "cheap" because it is one of the intentions that the enforcement procedures should be cheap so far as those concerned are affected by them, and also that they should be swift and effective. I must say that I should have thought the sort of periods referred to by 997 my noble friend Lord Trenchard and by the noble Lord, Lord Spens, could not be regarded as very swift enforcement. I certainly hope, and it is our intention, that the enforcement procedures should be a great deal better than that.
Secondly, we recognise that individuals—and it is often the individual subscribers and small firms who have most problems with these matters—do not have the technological and legal understanding to mount effective action themselves. Thirdly, as I said when we discussed my noble friend's Amendment No. 100 in Committee, we wanted to avoid the problems which have been experienced elsewhere of excessive litigation. Fourthly, and this is a very important matter, it is clear that in some areas we cannot draw up very precise licence conditions so that there will inevitably be some uncertainty about exactly how they are to be interpreted. We believe that it is better to give this task to the director who is in a better position than the competitors to make judgments about, for example, the acceptability of pricing arrangements.
Nonetheless, I accept that there is a point of substance here; namely, whether or not the Government have done enough with their proposed enforcement procedures to ensure that licensees do comply with their licence conditions. I believe that we have. In particular the power for the director to make a provisional order where he judges it necessary, combined with a clear duty on him to take enforcement action unless either the breach of the relevant licence condition is trivial or such action would be precluded by the Clause 3 duties, provides precisely the kind of strong deterrent that the proposers of the amendment are seeking. He will be able to take action very quickly in circumstances where serious damage is being done by issuing a provisional order which can, if necessary, take effect immediately. Thus it will not be possible for licensees not to comply with their licence conditions for significant periods of time without being subject to the director's powers of enforcement and hence subject to action for damages.
The amendments your Lordships have already accepted to Clause 16 mean that licensees will not be able to get away with complying only intermittently with their licence conditions. If a licensee fails to comply with the terms of a provisional order (or a final order) anyone suffering damage as a result of the breach of the initial order will be able to claim compensation from the date of that first order. Thus, it seems to us that the real concern here, which is that a licensee could quite deliberately fail to comply with a licence condition without running the risk of attracting any penalty for a significant period, is fully met. I emphasise that the provisional order procedure is intended to enable the director to act swiftly without the kind of detailed investigation which is obviously needed before a final order is made or a provisional order confirmed.
The Government amendments to Clause 18 which we have just discussed mean that individuals will be able to enforce provisional orders from the moment they are made, without waiting for the orders to be confirmed. We dealt with that and I indicated my concern about that matter to your Lordships. What the present amendment proposes is that where an enforcement order has been made, and subject to the 998 director's written agreement, the person suffering damage should be able to seek compensation in the courts from the moment of the breach of the licence condition. I would not deny that there is some superficial attraction in this proposition as an incentive to self-regulation. If I had yielded to that superficial attraction, I should indeed have leapt to my feet and said that we accepted the amendment in principle. But I would suggest that in principle there are two compelling arguments against it.
First is the difficulty in many cases of ascertaining when the act of non-compliance with a licence condition actually commenced. These things are apt to develop. Secondly, and more significantly as I have already suggested, many of the matters referred to in licences will involve the director in making a judgment as to whether or not a particular activity is in conformity with the licence obligation. Thus making the breach of the licence condition itself open to claims for damages could produce very great uncertainty for the licensees. It is possible that at one moment in time, the director acting, I would remind the House, under his Clause 3 duties, could decide on investigation that a particular activity was consistent with a licence condition. Indeed, the licensee might well have sought the director's advice before embarking on a particular course of action. The licensee would then be in the position of believing that his action was in accordance with the conditions in his licence. If at a subsequent date—perhaps when a complaint was made—the director having considered what was put before him came to a different conclusion, the effect of the proposal would be that the licensee would be exposed to potentially heavy claims for damages in relation to activities that he had judged, in the light of the director's advice, to be perfectly consistent with the conditions in his licence.
In short, there is a balance to be struck between the different interests involved in this area. What the Bill seeks to achieve is a regulatory framework that will be fair to all licensees and all those who may be affected by their actions. I hope therefore that my noble friend and those with him who support the amendment will not seek to press it.
I should like briefly to deal with the remarks made by the noble Lord, Lord Elystan-Morgan. If I understood correctly what he was saying, I think that it gods against the amendment rather than being in its favour. What we have proposed in the Bill is that once a provisional order is made, that will provide a duty, and that duty, if breached, of course will provide liability in damages. As I understand my noble friend's amendment, he proposes that liability and damages should go back before the date of that order to some earlier time at which the original breach may have occurred. With great respect, that seems to me to be much more retrospective than what we are proposing.
We are proposing that the obligation to pay damages should arise when the provisional order is made, although of course the full justification for the provisional order will not come along until the time at which, as the noble Lord pointed out, the provisions of Clause 17(1) will operate. What we are saying is that the liability to damages should arise at the earliest possible moment; that is to say, when the director general decides that a provisional order is made—that 999 is the day on which the duty starts—and then will be measured, as it were, by reference to that provisional order.
§ 4.33 p.m.
§ Lord Elystan-Morgan
My Lords, I wonder whether the noble and learned Lord will kindly deal with one matter which was very much at the root of my questions, and that is the matter which was raised by the noble Lord, Lord Donaldson of Kingsbridge. Apart from the mechanism spelt out in Clause 17 of the Bill, is there not a power in a claimant in any event to make a claim for the breach of this statutory provision? In other words, does that run parallel apart from the machinery that is spelt out in the Bill? That was the matter which greatly exercised my mind.
§ Lord Mackay of Clashfern
My Lords, the situation is that breach of a licence condition is not made actionable of itself. In other words, what is actionable, and the only right of action which arises, is where a breach is ajudged by the director general to have taken place and he expresses that judgment either by a provisional order or by a final order. It is in respect of an order of the director general that liability to damages arises.
In my view, this has the great merit of precision and it allows a measure of judgment to the director general in relation to licence conditions, which my noble friend's amendment would not. One of the consequences of my noble friend's amendment—and it is a very important consequence in principle—is that the licence conditions would require to be specified with the sort of precision that would be required for an enforceable legal obligation without any judgment being made on the particular effect of the licence conditions in particular circumstances, which is retained by the system that we have suggested.
Lord Bruce of Donington
My Lords, will the noble and learned Lord give way on one small question? When he was replying to my noble friend he said that the duty became established from the date on which the provisional order was made. Does not the duty under the licence remain there all the time? Is not there a breach of that duty the moment that it is apprehended that a breach has in fact taken place, rather than when a ruling has taken place?
§ Lord Mackay of Clashfern
My Lords, there is a duty which is actionable in law under the Bill from the time when the provisional or final order is made. There is no duty actionable in law under the Bill as it stands at an earlier time than that for the reasons which I have sought to explain. I think that the noble Lord. Lord Elystan-Morgan, in putting forward what he did earlier was really raising that question. If one answers that question in the way that the Bill does, then it follows that the correct procedure for enforcing these orders so far as damage is concerned is in respect of the orders and not in respect of the conditions in the licence. But of course the whole thrust of the Bill is that the licence conditions are to be obeyed and that the enforcement mechanism for making sure that they are obeyed is the director general with his powers.
1000 For the reasons which I have explained, that seems to us to be the most satisfactory and practical system in the circumstances. I accept at once that it is a corollary of this being an acceptable system that the director general should be able to act very swiftly. One of the reasons for the provisional order procedure is just in order to enable him to do that. I believe that with that incentive, as it were—with that as part of his duty—the difficulty which my noble friends have felt with these provisions may well be coped with.
§ Viscount Trenchard
My Lords, before the noble and learned Lord sits down, may I just ask him this? He has gone some way to relieve my fears by pointing out that the date for damages is effectively the issue of the provisional rather than the final licence. But if heavy damages have in fact occurred before the issue of the provisional order—heavy damages which might be extremely serious to a small firm—am I to understand that the Government are not prepared to consider any way of meeting that point in the Bill and that those damages which have actually been incurred by the breaking of a condition of the licence are not recoverable, and the firm has no redress?
§ Lord Mackay of Clashfern
My Lords, it is a question of whether one can assume that heavy damages could have occurred before the director general takes action. The system is designed to enable the director general to take action in time, really, to prevent the occurrence that my noble friend fears. I believe that speed of action is the key to this matter, but it is a corollary of what I have said: that there is no legal right conferred by the Bill to recover damages in respect of matters before the date of the provisional order. I have sought to explain the reason for that and the background to that, but I do not accept that the situation which my noble friend Lord Trenchard is concerned about should be allowed to arise because the remedy for it is speed of action on the part of the director general.
§ Lord Weinstock
My Lords, before the noble and learned Lord sits down I wonder whether I can ask him if he is telling the House that what matters, so far as this legislation is concerned, is not the Bill and is not even the licence, but is the arbitrary interpretation put upon the licence by the director general?
§ Lord Mackay of Clashfern
My Lords, I think one of the objections that sometimes one gets, in the courts, to questions is that they admit of only, as it were, a "yes" or a "no" answer. The noble Lord, Lord Weinstock, is asking me whether everything is committed to the arbitrary judgment of the director general. Of course the answer to that is that these matters are committed to the judgment of the director general but he has very clear obligations with which to comply in coming to these judgments. He has very clearly defined duties and an obligation, as I pointed out, to take action if there is non-compliance. So it is not a question of arbitrary judgment in the sense of judgment which is not properly principled and not in accordance with the law: it is a judgment in accordance with a very full, and fully set out, range of statutory duties.
§ Lord Stoddart of Swindon
My Lords, I am most obliged to the noble and learned Lord for giving way. We understand of course that he has just said that the director general would resort to speedy action in order that there should not be great damages before that action was taken; hut, bearing in mind that the Government have already assured the House that the number of staff will he kept to the bare minimum, can he give us the assurance that the director general will have the facilities and the resources to react very quickly in order that people are not damaged?
§ Lord Mackay of Clashfern
My Lords, the noble Lord used the phrase "bare minimum", and of course it is the bare minimum to do what? It is the minimum necessary, the staff necessary, to achieve the objects, or the duties placed upon the director general, and one of the objects is that he be in a position to react swiftly to this particular matter. I have no reason to suppose that those who have willed this end for him will not will the appropriate means. That does not mean that he will have an unnecessarily large number of people: it just means that he will have the correct number of people to discharge his function.
Lord Campbell of Allow ay
My Lords, before the noble and learned Lord sits down, could he very kindly deal with the question, which I tried to raise, about the position of the grant of licences that are simply not worked, which could give rise to problems? Is this so? Can they be revoked? What is the attitude of Her Majesty's Government?
§ Lord Mackay of Clashfern
My Lords, I am not absolutely certain that I have comprehended precisely what the question is that my noble friend is putting to me, if I have not dealt with it already. I thought I explained that the enforcement machinery for the licence conditions—and we take the view that the licence conditions are there to be obeyed—is the director general with his powers. Therefore I think I have met the point which the noble Lord was putting to me.
It is not a question of licence conditions just there in the air for the interest of anybody who happens to he passing and might wish to read them: these licence conditions are there to be obeyed, and the full authority of the director general is there to make sure that that is what happens. Of course, that is one of his primary functions: to make sure that the licence conditions are properly obeyed and that damage is not done to anybody by licence conditions being breached. That is part of his responsibility.
§ Lord Peyton of Yeovil
My Lords, before my noble and learned friend sits down—and I am sorry to get in between him and a more or less final resting place—would he bear in mind that the swiftness to which he has been referring is not generally recognised to be a prime characteristic either of Government departments or the creatures set up under statute? There are delays and would it not be as well for my noble and learned friend now to admit that there is at least a possibility that something might go wrong; that somebody might suffer damage and that an opportunity ought to be afforded under the Bill for him to recover damage should it occur?
§ Lord Mackay of Clashfern
My Lords, one of the difficulties is that one has to cut one's obligations in a particular way. If too much is done to undercut the need for that, the very difficulty that my noble friend is suggesting may well arise. It is of the essence of the proper performance of the job of the director general that he should act quickly, and swiftly. I am not—certainly as at present advised—inclined to do anything which would in any way undermine the importance of swiftness of action by the director general. The other point is, as the noble Lord, Lord Elystan Morgan, pointed out. that if you go back to the period before the provisional order is made, you are in an element of retrospection which, as he pointed out, could be regarded as rather damaging. Therefore, while I accept—and my noble friend has much more experience of this matter than I have—that some Government departments might not move as quickly as others would like to see them move, and some agencies of Government might be like that, we believe that it is essential for the director general to be able to move very quickly, and that it would be wrong to put something into the Bill which is in the Bill only upon the assumption that he is not able to move fast enough.
I hope that with these considerations in mind, my noble friends will enable me ultimately to get to this resting place; but I accept that the issue in question is a very important one and we will certainly bear in mind, in considering this, all that has been said. I appreciate what my noble friends and what others have said, and we will certainly take that very much into account in considering whether anything further should be done. But as matters stand, I consider that the disadvantages of this amendment would probably outweigh the advantages. I therefore am not in a position to advise your Lordships to accept it, even in principle.
My Lords, before the noble Lord sits down can he show us anywhere where swiftness of action by the director is written into the Bill?
§ Lord Mackay of Clashfern
My Lords, the swiftness of action is written into the Bill by the obligation to carry out enforcement. That is the place where swiftness of action is implied, if swiftness of action is required. He has the duty of enforcement. As I said, it seems to me, in the nature of matters, that swiftness of action is required for enforcement in this area, at least from time to time.
My Lords, first of all I am most grateful to the noble Lords from all sides of the House who have spoken so beautifully in support of this amendment, and in particular to the noble and learned Lord on the Front Bench of the party opposite. I suppose it is absolutely right and proper that any Lord Advocate should be just that—a great advocate. When any advocate has a problem in a particular case, one way of handling it is first to set up a totally false premise in order to knock down the other side's case. That is, of course, what he did with commensurate skill. He suggested—and this is entirely misleading—that the complainant, or the citizen who has been wronged, will have the duty or the right to enforce a licence condition. He will not have the right to enforce a licence condition. The only thing that the 1003 amendment would give the wronged person is access to the courts to have damages granted to him for pecuniary loss that he has suffered by the negligent or wilful action of another licensee. That can only be just.
There has been reference to the United States experience of the multiplicity of litigation. Any of your Lordships who has ever paid legal fees will know that in this country it is really a nonsense. One only goes to law with the greatest of care. But the legal system in the United States encourages multiplicity of litigation by the way that fees are charged. My noble and learned friend referred to the uncertainty that licensees would suffer under this amendment. It lies entirely in the breast of the licensees to negotiate their licences in the terms best suited to themselves and in terms best suited to the other side; namely, the Director General of Telecommunications, who has the interest of the whole of the industry at heart and, indeed, the national interest. It is at that stage that he can have the protection that he needs.
The vitally important point made by noble Lords on the Benches opposite about retrospection needs to be dealt with. I shall do so quickly. When a licensee is in a position where he can freely ignore the terms of a licence and is encouraged to be negligent about the terms of his licence, he will not be worried about where the wrong starts or where it ends. He knows that he will have a warning as soon as the director moves in, even on a provisional licence. I cannot accept my noble and learned friend's argument about acting swiftly. If he acts swiftly, he will undoubtedly act unjustly to those against whom the complaints will be made. He has to satisfy himself in all justice that there is some soundness in the complaint. As so many noble Lords have wisely pointed out, government departments—or, indeed, sub-departments of government, or whatever you wish to call them—do not have a very good track record in acting as greyhounds. I finish by quoting yet again Jeremy Bentham, who, when referring to the danger of dog law, wrote:God bless the parliament!—No dog-law!—Parliament for ever!".
§ 4.53 p.m.
§ On Question, Whether the said Amendment (No. 78) shall be agreed to?
§ Their Lordships divided: Contents, 113; Not-Contents, 102.1005
|DIVISION NO. 2|
|Aberdeen and Temair, M.||Broadbridge, L.|
|Ailesbury, M.||Brockway, L.|
|Airedale, L.||Brooks of Tremorfa, L.|
|Amherst, E.||Bruce of Donington, L.|
|Ampthill, L.||Caradon, L.|
|Aylestone, L.||Carmichael of Kelvingrove, L.|
|Banks, L.||Cledwyn of Penrhos, L.|
|Beaumont of Whitley, L.||Collison, L.|
|Birk, B.||Congleton, L.|
|Bishopston, L.||Cooper of Stockton Heath, L.|
|Blease, L.||Darling of Hillsborough, L.|
|Blyton, L.||Davies of Penrhys, L.|
|Boston of Faversham, L.||Dean of Beswick, L.|
|Bottomley, L.||Delacourt-Smith of Alteryn, B.|
|Denington, B.||Mayhew, L.|
|Diamond, L.||Mishcon, L.|
|Donaldson of Kingsbridge, L.||Molloy, L.|
|Donnet of Balgay, L.||Morris, L. [Teller.]|
|Elwyn-Jones, L.||Mottistone, L.|
|Elystan-Morgan, L.||Mulley, L.|
|Ennals, L.||Northfield, L.|
|Ezra, L.||Ogmore, L.|
|Fisher of Rednal, B.||Oram, L.|
|Gaitskell, B.||Orr-Ewing, L.|
|Gallacher, L.||Peart, L.|
|Gladwyn, L.||Peyton of Yeovil, L.|
|Glanusk, L.||Phillips, B.|
|Graham of Edmonton, L.||Ponsonby of Shulbrede, L.|
|Grimond, L.||Rhodes, L.|
|Hale, L.||Ross of Marnock, L.|
|Halsbury, E.||Sainsbury, L.|
|Hampton, L.||Saltoun, Ly.|
|Hanworth, V.||Seear, B.|
|Harris of Greenwich, L.||Shackleton, L.|
|Henley, L.||Shinwell, L.|
|Hereford, Bp.||Somers, L.|
|Hylton-Foster, B.||Spens, L.|
|Ilchester, E.||Stallard, L.|
|Irving of Dartford, L.||Stamp, L.|
|Jeger, B.||Stedman, B.|
|Jenkins of Putney, L.||Stewart of Alvechurch, B.|
|John-Mackie, L.||Stewart of Fulham, L.|
|Kaldor, L.||Stoddart of Swindon, L.|
|Kearton, L.||Stone, L.|
|Killearn, L.||Strabolgi, L.|
|Kilmarnock, L.||Strauss, L.|
|Kinloss, Ly.||Tavlor of Blackburn, L.|
|Leatherland, L.||To'rdoff, L.|
|Listowel, E.||Torphichen, L.|
|Llewelyn-Davies of Hastoe, B.||Trenchard, V.|
|Lloyd of Hampstead, L.||Underhill, L.|
|Llovd of Kilgerran, L. [Teller.]||Wallace of Coslany, L.|
|Longford, E.||Whaddon, L.|
|Lovell-Davis, L.||Wigoder, L.|
|Mclntosh of Haringey, L.||Wilson of Rievaulx, L.|
|MacLeod of Fuinary, L.|
|Ailsa, M.||Gainford, L.|
|Alexander of Tunis, E.||Gardner of Parkes, B.|
|Allerton, L.||Gibson-Watt, L.|
|Atholl, D.||Glasgow, E.|
|Auckland, L.||Glenarthur, L.|
|Avon, E.||Gray of Contin, L.|
|Bauer, L.||Gridley, L.|
|Belhaven and Stenton, L.||Hailsham of Saint Marylebone, L.|
|Belstead, L.||Harvington, L.|
|Bessborough, E.||Holderness, L.|
|Campbell of Alloway, L.||Home of the Hirsel, L.|
|Chelwood, L.||Hornsby-Smith, B.|
|Cockfield, L.||Ironside, L.|
|Coleraine, L.||Kaberry of Adel, L.|
|Cottesloe, L.||Kinnaird, L.|
|Craigavon, V.||Lane-Fox, B.|
|Craigmyle, L.||Lauderdale, E.|
|Crawford and Balcarres, E.||Long, V.|
|Cullen of Ashbourne, L.||Lucas of Chilworth, L.|
|Denham, L. [Teller.]||Lyell, L.|
|Dilhorne, V.||McAlpine of West Green, L|
|Drumalbyn, L.||Mackay of Clashfern, L.|
|Ebbisham, L.||Macleod of Borve, B.|
|Eccles, V.||Mancroft, L.|
|Ellenborough, L.||Margadale, L.|
|Elliot of Harwood, B.||Marley, L.|
|Elton, L.||Maude of Stratford-upon-Avon, L.|
|Fairhaven, L.||Merrivale, L.|
|Faithfull, B.||Mersey, V.|
|Fanshawe of Richmond, L.||Middleton, L.|
|Fortescue, E.||Milverton, L.|
|Fraser of Kilmorack, L.||Molson, L.|
|Mountgarret, V.||Sempill, Ly.|
|Murton of Lindisfarne, L.||Skelmersdale, L.|
|Northchurch, B.||Stodart of Leaston, L.|
|Nugent of Guildford, L.||Sudeley, L.|
|Onslow, E.||Suffield, L.|
|Orkney, E.||Swansea, L.|
|Pender, L.||Swinton, E. [Teller.]|
|Penrhvn, L.||Teviot, L.|
|Plummer of St. Marylebone, L.||Thomas of Swynnerton, L.|
|Porritt, L.||Trumpington, B.|
|Rankeillour, L.||Vaizey, L.|
|Reay, L.||Vaux of Harrowden, L.|
|Reigate, L.||Vickers, B.|
|Renton, L.||Vivian, L.|
|St. Aldwyn, E.||Westbury, L.|
|St. Davids, V.||Whitelaw, V.|
|Saint Oswald, L.||Wynford, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 5.2 p.m.
Lord Mackay of Clashfern moved Amendment No. 79:
Page 23, line 3, leave out from ("all") to ("the") in line 4 and insert ("reasonable steps and exercised all due diligence to avoid contravening")
The noble and learned Lord said: My Lords, this amendment removes the requirement that, in order to have a force majeure defence in an action for a breach of an order made under Clause 16, the operator must have taken:
all such steps as were reasonably practicable to comply with the order".
Instead, if the amendment is accepted, he will need to have taken only:
all reasonable steps and exercised all due diligence to avoid contravening the order".
§ The amendment is intended to avoid placing overheavy burdens on an operator. A requirement to take all steps that are reasonably practicable really amounts to a requirement to do everything that is not impossible. This could mean that an operator could be forced to take very expensive steps to comply with an order which, for example, in British Telecom's case could push up telephone bills. The Government think it right not to impose such a strict requirement and we believe the new formula provides full protection for those who may be damaged by an operator's failure to comply with an order, while providing better protection for telecommunication operators. My Lords, I beg to move.
§ On Question, amendment agreed to.
§ Lord Bruce of Donington moved Amendment No. 80:
Page 23, line 4, at end insert—
("()In any proceedings against any person (which, for avoidance of doubt, includes a trade union) in pursuance of subsection (6)(a) or (6)(b) above it shall be a defence for that person to prove that he did the act in contemplation of furtherance of a trade dispute.
The noble Lord said: My Lords, this amendment is designed to ensure that, in the event of breaches of the provisions of orders that are dealt with in Clause 18, in any proceedings which are brought against any member of a trade union or any person there should not be the onus on that person of having to fight any
action for civil damages. The amendment appears at page 23, line 4, where it inserts:
In any proceedings against any person (which for the avoidance of doubt, includes a trade union) in pursuance of subsection (6)(a) or (6)(b) above it shall be a defence for that person to prove that he did the act in contemplation or furtherance of a trade dispute".
The ultimate way, of course, of interfering with the carrying out of the provisions of a licence may well be for the workforce, or selected portions of the workforce, to go on strike. This amendment is all about the maintenance of the rights of trade unions and of individual trade unionists in such circumstances.
§ It should perhaps be borne in mind that we are not discussing this amendment within the context of large-scale or even intermittent interruption of the telecommunications services in this country by the employees of British Telecom. The history of the employees of British telecoms for the past 100 years, taking into account when the services were provided through the Post Office before the division, has been one of industrial peace. The ideal of the employees of the telephone service (if I may use the term loosely) has been that of service, and it is quite immaterial for present purposes that that attitude of service should have been regarded in some more commercialised quarters as being somehow tainted with service in the telephone system.
§ The fact of the matter is that the history of this industry has been one of industrial peace. It is desired earnestly that that industrial peace should be preserved. As your Lordships will undoubtedly know from observations that have been made publicly in the press, in the media, and in another place, this is a time of some considerable anxiety to the entire labour force employed by British Telecom. They have already made known their views—to which, of course, they are entitled—on the privatisation of British Telecom. It may well be that their objection is grounded on the normal logical reasoning that could be quite usefully employed by people not engaged in the industry. It may also well be that their opposition arises to some extent from their anxiety for the future and, above all, from their anxiety as to the continued ability to exercise their rights as they have hitherto understood them.
§ So it is not a question of fighting for the right to strike on the basis of there being the likelihood of industrial unrest, or anything like that, within the industry. It is merely a question of the retention of that basic right. Indeed, within another context, I observe that even the party opposite can hardly forbear to cheer when, in Poland, for example, trade unionists exert their right to take industrial action whenever they see fit and whenever they think it is justified in pursuance not merely, in the case of Poland, of an industrial dispute, but of course even a political dispute within the Polish context. So it is to be hoped that, possibly even on a modified scale, the party opposite will this afternoon stand up for that regard for freedom and for liberty which so many of them stand up for and assert in the case of the trade unions of Poland.
In order to understand the reasoning behind the amendment it is necessary to analyse Clause 18, and especially subsections (5), (6) and (7). As currently
worded, these subsections arose from an amendment introduced during the Bill's Committee stage by the noble and learned Lord the Lord Advocate. During his very careful speech, when he was taxed with this matter, he explained his intentions as follows:
The main effect of the amendments to Clause 18, which I move now, is to ensure that customers of public telecommunication operators who suffer loss or damage as a result of certain kinds of industrial action are able to sue those concerned. They may also obtain injunctions or interdicts against those responsible. This provides members of the public with a civil remedy against selective industrial action by trades unions and in the circumstances the Government were able to review the provisions of Clause 45 of the Bill which make it a criminal offence for employees of public telecommunications operators to take certain kinds of action there described." [Official Report, 20/2/84; col. 597]
§ As noble Lords will be aware, under subsection (4) of Clause 18 no criminal proceedings are permitted.
At a later stage, presumably in order to allay some of the fears that had been expressed not only in another place but also in the course of debate upon this particular matter, the noble and learned Lord continued:
Similarly, a trade union which called an all-out strike of employees of a public telecommunications operator over a pay dispute which resulted in a breach by the operator of his duty to comply with a Clause 16 enforcement order would not, in our view, be liable because the action was not taken with a view to achieving the result of causing the operator to breach his duty. The breach would be an incidental and unintended result of the industrial action". [Official Report, 20/2/84; col. 599.]
That may be the view of the noble and learned Lord the Lord Advocate, but is the noble and learned Lord quite sure that he is right?—because, in fact, a judge would be entitled to take the view that any industrial action would be taken with the express intention of achieving breaches in licence conditions and eventually breaches in orders issued by the director. In a very real sense that would be the whole point of most forms of industrial action. The only forms of industrial action not certain to be covered would be those by staff in issuing customers with telephone bills, and even under those circumstances it would probably be arguable.
§ Under the provisions of subsection (6)(a), any employee would be liable individually, so that individual employees stand to be bankrupted if they take industrial action. Under subsection (6)(b), individual union officials would also be liable, and could even be liable if they simply asked members to take action. If that is so—and I would suggest to your Lordships that the wording of the whole of Clause 18 has a sufficient degree of dubiety about it—it would mean that the employees of British Telecom would be singled out, as distinct from all other employees who would normally be governed by the Employment Act 1982. We do not think that that is right and we invite the noble Lord to agree with us on this.
§ The amendment that we have tabled this afternoon does not seek any extra privilege for the employees of British Telecom. It merely seeks to place them on the same basis as employees in other industries. This is not a matter of academic importance. It is not moved by those who sit on this side of the House with the object of buttressing any conceivable kind of militant action taken with the deliberate desire to disrupt a public service. It is not moved in that sense at all. If the noble 1008 and learned Lord the Lord Advocate is disposed to accept the amendment or, alternatively, if the House is prepared to support it, it will ensure that industrial peace is more likely to be preserved within the telecom industry than if the doubt and the fear remain. I have pleasure in moving the amendment. I beg to move.
§ 5.16 p.m.
§ Lord Molloy
My Lords, I should like to add just a few points to the superb submission made by my noble friend Lord Bruce of Donington. As he has said, the essence of our amendment is in no way to seek a privilege, but to make good a legal anomaly that was never really intended. I shall say a few words about that later.
The fundamental issue in what we are submitting for consideration this afternoon from this side of the House has been stated by my noble friend Lord Bruce of Donington, and I think it is very worthy of repetition. I want to use the phrase "a group of work people", and that phrase means a group of extraordinarily skilled men and women of high calibre in a specialised industry—an industry which has made a massive contribution to our way of life in the past and in the present and which will undoubtedly do so in the future. It will help all our people—the disabled and the ordinary people as well as commerce, industry and science in the entire field of telecommunications.
Therefore, it is vital that, so far as is humanly possible, anything that could cause some form of industrial action in this field should be eliminated and, indeed, abolished for the sake of the future of the industry, the future of those who work in it and the future of the nation. As has been hinted in some places, this is in no way a desire to enhance secondary action. That is certainly not the idea behind this amendment, and it is certainly not the desire of the people who work in the industry or of their trade union. They appreciate that what may become a tiny cancerous spot in 1984 could start to poison the entire body of telecommunications, perhaps within less than a decade. The people who work in this industry see themselves as victims of legal provisions that were never intended for that purpose. That they have been set aside for special legislation was never intended, but nevertheless they are the victims of special legislation which applies to no one else.
What they are worried about, we would all agree on all sides of the House, is quite right and proper. It is necessary that they would have to negotiate, and perhaps even at some stage have to strike. We would regret it, but it still is a right. It is one of those great rights, the right to strike, which we are always prepared at a moment's notice to thrust into the face of any communist regime, and I hope we always will. Therefore, I ask that this amendment should be given serious consideration this afternoon.
The amendment seeks to ensure that such industrial action does not contravene Clause 41 of this Bill, or indeed Section 45 of the Telegraph Act 1863 or Section 20 of the Telegraph Act 1868, which are vital Acts of Parliament. The sole purpose of this amendment is to place telecommunication workers on a similar footing to most other workers in the United Kingdom. If the Government cannot accept this 1009 amendment in its present form, I hope at least that they will be prepared to take it away and bring it back with its quintessentials intact. If they would accept the principle they would be taking a step which could ensure, so far as is humanly possible, that there would be one element removed that could cause distasteful disruption in British telecommunications' future activities.
I ask that the skilled men and women in British telecommunications, in all the new organisations, shall have the same rights as their fellow workers, which we all agree are fundamental. By seeing that they have these rights afforded to them, we shall at the same time remove a cancerous growth of grievance which could grow in the future and would be to the disadvantage of everyone. It is along those lines that this amendment is worthy of support.
§ Lord Donaldson of Kingsbridge
My Lords, the noble Lord, Lord Bruce, made it clear that under Clause 18 the ordinary worker in the sort of firm we are talking about will not be in the position of an ordinary worker in a firm of builders, or an insurance company, or a business, who has the right to strike. Personally I think that strikers are not by any means always right, although some of my colleagues in other places think they are, but that is a different point.
I also think that in the next decade or so we have to design machinery of a voluntary kind which will persuade certain workers in key industries to agree, for a compensation of some kind, not to strike. On the face of it as presented—and we have not yet heard the Government's reply—this seems to me to be as a side wind depriving a whole community of workers in various firms all over the country of the rights which other people possess. This we must object to.
§ Lord Mackay of Clashfern
My Lords, the Government oppose this amendment. In our view this amendment would do serious harm to those who depend on telecommunications, and I shall try to explain why. I first must remind your Lordships that Clause 18 was amended in Committee to put in the provisions that we are dealing with at the moment at the same time as what is now Clause 44 was radically altered.
Under the Telegraph Acts as they are on the statute book at present, and under the Bill as introduced, many forms of industrial action in telecommunications were criminal offences carrying the risk of imprisonment. We amended Clause 44 to provide that industrial action in telecommunications will no longer amount to a criminal offence, and that is an important improvement in the rights of trade unions and their members in this area. I should like particularly to mention that in view of what the noble Lord, Lord Donaldson of Kingsbridge, has said.
We felt able to amend Clause 44 only because of the amendments we made to subsection (6) of Clause 18 and because of the protection that Clause 18 as now amended gives to the people of this country who are dependent upon telecommunications. It is worth reminding ourselves why prevention of the transmission of telecommunications messages is a criminal offence at present. Telecommunications are of vital importance to a great many people, and your 1010 Lordships have been at pains to ensure that the new licensing arrangements guarantee that telecommunications services will be provided in future in rural areas, and so on. An employee of an operator who deliberately prevented the provision of a telecommunication service could, however, thwart all the guarantees that are written into the Bill and into licences. Our Victorian forefathers thought it so important to prevent this that they made such actions criminal offences, and they are still so on our statute book at this moment. That is an important point from which to start.
Clause 18 needs to be seen in the context of the Bill as a whole and the measures it proposes to guarantee the provision of telecommunication services. Each public telecommunication operator will have a licence and Clause 8(1) will ensure that each of their licences will contain formal obligations to provide the services that are specified in each licence. Clause 16 places a duty on the director to ensure that these obligations are observed; if he is satisfied that an operator is committing, or is likely to commit, any contravention of the conditions of his licence, the director has a positive duty to issue an enforcement order, except in the limited circumstances specified in Clause 16(5). Once a Clause 16 order is made, the operator is under a duty to comply with its terms. If the operator does not comply with an order he is liable and can be sued for an injunction, or interdict, or damages.
This carefully prepared arrangement will not protect those who depend on telecommunications if a third party can cause an operator to breach his duty to comply with an order and the third party himself is not liable in damages. We have therefore provided in Clause 18(6) that where an act induces an operator to breach his duty to comply with an order made under Clause 16 or interferes with the performance of that duty, the person who does that act is liable to be sued in exactly the same way as the operator. I think those who propose the present amendment accept this structure since their amendment does not seek to change it.
The noble Lord, Lord Bruce of Donington, in proposing the amendment is concerned about the position of trade unions and their members who take industrial action which causes an operator to breach his duty to comply with a Clause 16 order. We, of course, understand that concern. The noble Lord, Lord Molloy, also spoke to the same effect, voicing that concern. That is why we drafted sub-paragraph (b) of subsection (6) of Clause 18 with particular care. It provides that a person who induces an operator to breach a Clause 16 order shall be liable only if his act is done wholly or partly for the purpose of achieving the result of causing a breach of an order. It is only acts which are done wholly or partly for the purpose of achieving the result of causing a breach that will give rise to actions for damages, injuctions, interdicts, et cetera. The important thing is that the person who is seeking that remedy will have the burden of proving that that was the purpose with which the act was done. So we are making it plain, as I said when we moved this amendment in Committee, that we are looking to the purpose as being the matter that determines the 1011 issue. So far as we are concerned that appears to be a fair way, to go about it.
Now I turn to the amendment which attacks the matter from a different point of view. In looking at the amendment we have to start from the proposition that customers of the telecommunication operators ought not to have their rights to services interfered with, certainly not when the director has imposed an enforcement order which authoritatively lays down what the operator is to do. We believe that anyone—workers, suppliers, trade unions—who adopts the purpose of bringing about such interference should, whatever other purpose he has in mind, not be able to escape liability. It will, therefore, not be enough for the defendant to show that his main purpose is to secure improved terms and conditions of employment: if his purpose includes a desire to bring about the breach of an order, then he should be liable. Only if that is so will the customer, in our view, be adequately secured.
The effect of the amendment would be to allow a person interfering with an order to escape liability on the ground that his main purpose was to achieve results within the trade dispute field, but he could still have as an additional purpose the object of interfering with the service provided under the order because the amendment deals only with the point that the act is done in contemplation or furtherance of a trade dispute and to escape liability it would be sufficient, therefore, if he could show that his action was wholly or mainly designed to that end.
§ 5.31 p.m.
§ Lord Donaldson of Kingsbridge
My Lords, will the noble Lord allow me to clarify this? The noble Lord, Lord Bruce of Donington, said in his opening speech that he could not see that industrial action against a company could ever not involve stopping that company from functioning, or risking stopping it from functioning. If that is the case, it means that every industrial action breaches Clause 18(6)(b) and (7).1 do not believe that that is what the noble and learned Lord is saying. If the noble and learned Lord is saying that this is a dispute about pay, or a dispute about hours, which are proper industrial matters to argue about, and the fact that it will have some harmful effects does not make it in breach of this, I shall be content. If he cannot say that—and I do not see how he can—I shall still be disturbed.
§ Lord Mackay of Clashfern
My Lords, if I could go back for a moment to the provisions of Clause 18(6), what a person founding on Clause 18(6) has to show is not only that the act has the result of breaching the duty (in other words, destroying the service) but that it was done wholly or partly for the purpose of achieving that result. In other words, the purpose was to bring about a cessation of service rather than to secure for the person in question and his colleagues an increase in remuneration.
§ Lord Donaldson of Kingsbridge
My Lords, I am sorry to come back, but that is exactly what I have just said: that it is impossible to strike against a company without the knowledge that if the strike is successful 1012 one will interfere with its normal performance. It seems to me that it is, in effect and round the corner, removing the right to strike from these people. I do not believe that the noble and learned Lord means to do that, but that is what I think he is doing.
§ Lord Mackay of Clashfern
My Lords, with great respect to the noble Lord, Lord Donaldson of Kingsbridge, I do not think he is giving enough effect to the use of the word "purpose". It is not just a question of achieving the result. He is saying that any industrial action is likely to achieve that kind of result. We are not saying that that is the test. We are asking: what is the purpose with which this was done? Was it the purpose of achieving that particular result, wholly or partly, or was it the purpose of achieving something completely different; namely, for example, an improvement in the terms and conditions of service of the people in question?
§ Lord Molloy
My Lords, with the greatest of respect, there seems to be hardly any other reason for industrial disputes. I am not talking about strikes, negotiations, sitting round the table, talking, arriving at some modus vivendi. One does not think that perhaps there is nothing else to do: that all the rich people will be going to witness the Derby on Derby Day, so all the miners will go on strike instead. Those sorts of things do not really happen. That is only in the imagination of stupid people. All we are asking for is what the noble and learned Lord has not yet answered: that these skilled people shall simply have the right that exists for people in other similar parts of industry. All this massive stuff that he has read out in no way seems to answer that question: that if there should be industrial unrest it will come because long negotiation has broken down. This is the point that we are trying to submit, that these people shall in no way be put out on a limb and become some form of industrial lepers simply because they work for the equivalent of British Telecom.
§ Lord Mackay of Clashfern
My Lords, the noble Lord. Lord Molloy, is not perhaps giving sufficient consideration to what I have put before your Lordships. He talks about "massive stuff" that I have read out. He can describe it in that way if he wishes, but it is important to remember the background and to remember that Parliament long ago thought that it was important to put into the statute book criminal offences in connection with these matters. That is because of the importance that Parliament attached to the giving of these services.
We have felt able—I think this is quite important—to propose changes in that matter by withdrawing the criminal offences, provided that the service is properly protected. We are saying that it should be an act which induces a breach of the duty or interferes with its performance, and which is done wholly or partly "with the purpose of". In other words, the person seeking to found on this has to prove that the purpose of those taking part in this action was to deprive people of the service rather than for the purpose of, for example, improving their own conditions.
§ Lord Donaldson of Kingsbridge
My Lords, I am sorry to interrupt again, but this is a vital point. The amendment says:it shall be a defence for that person to prove that he did the act in contemplation of furtherance of a trade dispute".This is exactly what the noble and learned Lord says is all right. If so, would it not be much safer to have it here? The employees of British Telecom have asked for this. Is there any point in not accepting it if we are saying exactly the same thing? I think that perhaps we are.
§ Lord Mackay of Clashfern
My Lords, I have sought to explain that we are not saying precisely the same thing. As far as I understand the amendment, it is saying that it will be sufficient for a person to escape this liability if he shows that his main purpose is, for example, to secure improved terms and conditions of employment. If his purpose includes a desire to bring about a breach of an order, in our view he should be liable. That is the difference between us.
The clause as put in this amendment appears to me to carry with it the result that a person could have a desire to bring about a breach of the order and have a purpose to do that, could have other purposes as well, and could escape liability on that account. That is the difference between us; and in our view the clause as we have drafted it achieves the result that it is only where the person in question has the purpose of achieving a breakdown of service that the person's act will be struck at. In our view that is the correct balance to maintain. We are, after all, removing criminal offences altogether in this area concerning industrial action. It is important to secure that sufficient protection is maintained for that service. We say that is done by the words that we have adopted, where the person seeking to claim against a person who has interrupted the service would have to show that the interruption was done wholly or partly for the purpose of achieving that result—namely, the interruption—rather than, for example, securing an improvement in his or her conditions or the conditions of other people, his colleagues.
§ Lord Tordoff
My Lords, I can understand the "wholly" part of the Bill. It is the "partly" which is worrying us. It is surely a concomitant of industrial action, of strike action, that you seek to damage the person against whom you strike. It is the necessary corollary of industrial action. It is a thing that one may deplore but it is a fact of life. Surely a court could find easily that, although it was not the primary aim, it was the secondary aim in order to achieve the primary aim. It is the interpretation that the courts might put on the word "partly" that is worrying us on these Benches.
§ Lord Mackay of Clashfern
My Lords, perhaps, with the leave of the House, I could answer that by saying that, as the noble Lord explained it in the example which he gave, the ultimate result he has in mind is the improvement of conditions. That is the crux of this matter. The word "partly" does not interfere with that in any way; "partly" does not mean that the ultimate purpose is replaced by some intermediate purpose. If the purpose is to achieve the result of improved 1014 conditions, then it is not caught by this. If the purpose of the action is to destroy the service, and that is part of the purpose of the action, it will be caught by this—and, we think, rightly.
§ Lord Molloy
My Lords, is the noble and learned Lord really saying that what can happen is that the working people will think of some excuse to negotiate about; that they are not concerned about any real reason like poor conditions or better pay; that the object of the exercise is ultimately to have a strike? Is that really what the noble and learned Lord the Lord Advocate is saying? Is that why he cannot accept the amendment?
§ Lord Somers
My Lords, I quite agree with the noble and learned Lord that there are certain services where strike action should be avoided if possible. I think, for example, of nursing. Would the noble and learned Lord explain one thing which might put at rest the minds of those who are pressing for the amendment? Supposing that there was a widespread feeling of grievance among telephone workers about some conditions of their employment, what would be their possible course of action to persuade their employers that their case was a valid one?
§ Lord McIntosh of Haringey
My Lords, in order to avoid the noble and learned Lord having to seek the leave of the House too frequently, may I ask further questions which he might like to consider at the same time as those of the noble Lord, Lord Somers? At Committee stage he made a rather seductive speech. It is true that, in taking away the criminal liabilities from the employees of British Telecom and the employees in the telecommunications industry, there was a considerable and welcome concession to the justified fears of those employed in the industry. It is true that at Committee stage he made great play of the phrase, which he has repeated a number of times, about the purpose of the action, whether wholly or partly, being to secure a breach of the operator's liabilities.
However, he cannot make the same seductive speech this time because he has already put through the House the amendments to Clause 16 which change the nature of the argument. The position now is that the director of telecommunications has a duty—a duty which he does not always have to exercise, but it is a duty on him under Clause 3—to take such steps as may be necessary to stop a contravention or a likely contravention of the conditions of a licence. That means that the director of telecommunications has to make up his mind before any such offence takes place, not just whether it contravenes the licence but also whether the action of employees is going to be in accordance with Clause 18(6)(a) and (b). In other words, this is becoming almost a metaphysical question of what is the responsibility of the director of telecommunications. How is he going to make this complicated judgment and say that the operator ought to be prevented from going against the conditions of his licence?
The situation is not what it was in Commitee. The situation is now worse. The threat of litigation is now greater and the threat of civil action—which is what we are talking about; it is not now criminal action—is now that much greater than it was before. It seems to 1015 me that every time the noble and learned Lord seeks to explain the phrase, "wholly or partly" against the purpose, he makes it more and more difficult for himself and more and more difficult for the Government to resist the amendment.
This amendment is absolutely straightforward. It contains no problems of wording, no problems of "wholly or partly", no problems of purpose or of effect. It simply says that employees in telecommunications shall have the same rights—no more, no less—as are enjoyed by other employees under legislation brought forward by this Government. There is here no attempt to repeal the employment legislation of the Conservative Government. We are accepting everything that has been done and accepting that this should be the situation for telecommunications employees. If the Government have any intention other than to discriminate against telecommunications employees, why can they not accept the amendment as it stands?
§ Lord Mackay of Clashfern
My Lords, if I may, with the leave of the House, answer the question of the noble Lord, Lord Somers, the situation is that our clause does not prevent industrial action, because industrial action will be taken for the purpose of improving the terms and conditions of work of the employees. There is no provision in this Bill which prevents that. What this Bill is dealing with is a situation where employees take action not for the purpose of improving their terms and conditions of employment but for the purpose of bringing about a breach of the licence conditions.
§ Lord McIntosh of Haringey
My Lords, if the noble and learned Lord will permit me, has there ever been an occasion when employees have voluntarily forgone their wages and incomes for that sort of purpose, as distinct from improving their own conditions?
§ Lord Mackay of Clashfern
My Lords, if the noble Lord is right—if I may continue, with the leave of your Lordships—then he has nothing to fear from the Bill's provisions and his amendment is utterly worthless. It is because we have to guard against exactly the situation that he is figuring that we need to put in such a clause. Accordingly, the situation is that we are dealing with that position in which the person in question has the purpose not of improving his own terms and conditions but of doing something different, namely, bringing about some interruption of the telecommunications service for some purpose which has nothing to do with that but achieves that result. It is that particular situation we are dealing with. We are not interfering in any way otherwise with the right to strike or the possibility of industrial action by those involved.
If I may come to the substantive point made by Lord McIntosh of Haringey, that the situation is altogether different because of the amendments which I moved earlier to Clause 16, I must say that I cannot see that at all. These amendments deal with a situation where breach of the licence conditions is in contemplation and the director is in the position where he may make an order for enforcement of the licence conditions in a 1016 situation where he anticipates it likely that they will be breached. This clause will apply in that situation exactly as it would apart from these amendments which I have moved. That is to say that the question is, was the purpose of the action in question a purpose of damaging the telecommunications service, or was it some other purpose? It is for that reason that we say that the clause as drafted is adequate as far as the points made so far are concerned.
The amendment of the noble Lord, Lord Bruce of Donington, would seek to avoid liability if the principal or main purpose was the improvement, for example, of the terms and conditions of employment. But there might be another purpose—namely, the purpose of bringing about a breach of an order made by the director general. We say that, if the purpose includes the purpose of bringing about a breach of the order by the director general, then that is a situation which ought not to be protected.
§ 5.50 p.m.
§ Lord Mottistone
My Lords, very briefly. I really think that noble Lords opposite have been confusing not only themselves, but possibly noble Lords on this side of the House as well. It seems quite clear from what my noble and learned friend has said—and he has said it many more times than he should have been invited to do on a Report stage—that subsection (6)(b) entirely meets what noble Lords opposite genuinely, legitimately and rightly mean, and, indeed, covers the whole of the amendment that we are discussing in the areas in which it is relevant to what they really want. I do not see that noble Lords opposite need this amendment in addition to subsection (6)(b). If they get it, it will give a loophole for the wrong application of industrial action in a way which it would not be helpful to the users of the telecommunications system or, indeed, to the people who supply the services. I do not think the noble and learned Lord should leap to his feet again on the Report stage of a Bill; it is not the Committee stage. I am just making a statement to say that I think my noble and learned friend the Lord Advocate has made a very good case and I hope the House will support him from all sides.
§ Lord Stoddart of Swindon
My Lords, I am really quite surprised that the noble and learned Lord the Lord Advocate feels unable to accept our amendment, which in fact would clarify the situation beyond all shadow of doubt. What we are seeking to achieve is that people working in the telecommunications industry should be equal with all other workers—no more and no less. I believe that, as the Bill is drafted and without the amendment we are proposing, telecommunications workers will be in a worse case than any other group of employees throughout the country. I cannot believe that that is what this House intends.
The noble and learned Lord mentioned that at Committee stage the Government had made a great concession by taking the criminality out of any industrial action by telecommunications workers, and that in fact that was a great concession. But that was no concession at all, because no other group of workers throughout the country are involved in a criminal act if they take action in furtherance of an industrial dispute. The noble and learned Lord defended his 1017 action by saying, "Of course, a telecommunications service is vital to many people and many communities". We agree. But of course the electricity and gas services are also vital. There is no service more vital than the electricity service to consumers of all kinds in this country. Indeed, if electricity supplies were interfered with and cut off, our very existence as a civilized nation would be at stake. That is not the case with telecommunications. But telecommunications employees will in fact be in a worse case than will be the employees of the electricity or gas industries. We think that that should not be so.
The noble and learned Lord gives us assurances that all will be well: that, provided any action they take, whether it he local, regional, or national, is in furtherance of a trade dispute and in defence of their conditions of employment and their wages, then they will be safe. But we have only his word for it. The interpretation of this Bill will not be made by the noble and learned Lord the Lord Advocate; it will be made by other people and perhaps eventually the courts. Therefore we believe that, without our amendment, the employees of the telecommunications industry are at great risk and are worse off than other employees up and down the country who are covered by the 1982 Employment Act.
Why on earth cannot the Government rely on their own legislation, which applies in every other industry up and down the country? They appear to believe that telecommunications workers should be in a worse case. But we believe that they should not. We also believe that our amendment would make those workers safe. All we want is for the noble and learned Lord the Lord Advocate to accept that amendment.
There are a number of questions that I should like to ask. For example, what would happen if a local union branch took action over a local dispute concerning, say, installation procedures, and blacked all installation work? What would be their position under present circumstances and without our amendment? If a national union took selective industrial action as part of, say. a wage claim, and the action affected only certain parts of the country, would people in those affected parts of the country take action? Would they be entitled to claim that the telecommunications union was inducing a breach of the licence by causing disruption, if you like, in only one part of the country? What would happen if a union's national leadership asks its members to strike and it is clear to a customer that he will be affected by this, so he switches to an alternative telecommunications operator? Will that customer be able to take action against the union's executive, irrespective of whether the strike finally takes place, on the grounds of the cost to him of switching to another company?
Those are the sorts of question which arise from the present situation. I believe that if the noble and learned Lord does not either accept our amendment or go further than he has done this afternoon, then with regard to industrial relations and industrial action the industry will he treading on a legal minefield which will blow up not only around the trade unions themselves, but around the industry and its customers. I believe that the noble and learned Lord has a duty to this House and, indeed, a duty to the 1018 telecommunications industry either to accept our amendment or to give us the assurance that he will take back what has been said during this debate, reflect upon it, and come forward with something very much better than he has put before us this afternoon.
§ 6 p.m.
§ On Question, Whether the said Amendment (No. 80) shall be agreed to?
§ Their Lordships divided: Contents, 82; Not-Contents, 115.1019
|DIVISION NO. 3|
|Airedale, L.||Irving of Dartford, L.|
|Avebury, L.||Jeger, B.|
|Avleslone, L.||Jenkins of Putney, L.|
|Birk, B.||John-Mackie, L.|
|Bishopston, L.||Kaldor, L.|
|Blease, L.||Kilmarnock, L.|
|Blyton, L.||Kirkhill, L.|
|Boston of Faversham, L.||Leatherland, L.|
|Bottomley, L.||Listowel, E.|
|Briginshaw, L.||Llewelyn-Davies of Hastoe, B.|
|Brockway, L.||Lloyd of Hampstead, L.|
|Brooks of Tremorfa, L.||Lloyd of Kilgerran, L.|
|Bruce of Donington, L.||Longford, E.|
|Caradon, L.||Lovell-Davis, L.|
|Carmichael of Kelvingrove, L.||McIntosh of Haringey, L.|
|Cledwyn of Penrhos, L.||MacLeod of Fuinary, L.|
|Collison, L.||Mishcon, L.|
|Darling of Hillsborough, L.||Molloy, L.|
|Davies of Penrhys, L.||Mulley, L.|
|Dean of Beswick, L.||Northfield, L.|
|Delacourt-Smith of Alteryn, B.||Ogmore, L.|
|Denington, B.||Peart, L.|
|Derby, Bp.||Phillips, B.|
|Diamond, L.||Pitt of Hampstead, L.|
|Donaldson of Kingsbridge, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Ennals, L.||Ross of Marnock, L.|
|Ezra, L.||Seear, B.|
|Fisher of Rednal, B.||Shinwell, L.|
|Gaitskell, B.||Stallard, L.|
|Gallacher, L.||Stewart of Alvechurch, B.|
|Gladwyn, L.||Stewart of Fulham, L.|
|Graham of Edmonton, L. [Teller.]||Stoddart of Swindon, L.|
|Gregson, L.||Strabolgi, L.|
|Grimond, L.||Taylor of Blackburn, L.|
|Hale, L.||Tordoff, L.|
|Hampton, L.||Underhill, L.|
|Hanworth, V.||Wells-Pestell, L.|
|Harris of Greenwich, L.||Whaddon, L.|
|Hooson, L.||Wilson of Rievaulx, L.|
|Houghton of Sowerby, L.|
|Alexander of Tunis, E.||Craigmyle, L.|
|Allerton, L.||Cullen of Ashbourne, L.|
|Atholl, D.||Daventry, V.|
|Avon, E.||Denham, L. [Teller.]|
|Bauer, L.||Dilhorne, V.|
|Belhaven and Stenton, L.||Drumalbyn, L.|
|Bellwin, L.||Eccles, V.|
|Belstead, L.||Ellenborough, L.|
|Bessborough, E.||Elliot of Harwood, B.|
|Brougham and Vaux, L.||Elton, L.|
|Broxbourne, L.||Enniskillen, E.|
|Bruce-Gardyne, L.||Faithfull, B.|
|Caithness, E.||Fanshawe of Richmond, L.|
|Campbell of Alloway, L.||Fortescue, E.|
|Cockfield, L.||Fraser of Kilmorack, L.|
|Craigavon, V.||Gardner of Parkes, B.|
|Gibson-Watt, L.||Murton of Lindisfarne, L.|
|Glanusk, L.||Norfolk, D.|
|Glasgow, E.||Northchurch, B.|
|Glenarthur, L.||Nugent of Guildford, L.|
|Gowrie, E.||Onslow, E.|
|Gray of Contin, L.||Orkney, E.|
|Gridley, L.||Orr-Ewing, L.|
|Grimston of Westbury, L.||Pender, L.|
|Hailsham of Saint Marylebone, L.||Penrhyn, L.|
|Peyton of Yeovil, L.|
|Halsbury, E.||Plummer of St. Marylebone, L.|
|Harvington, L.||Portland D.|
|Henley, L.||Quinton, L.|
|Holderness, L.||Rankeillour, L.|
|Home of the Hirsel, L.||Reigate, L.|
|Hornsby-Smith, B.||Renton, L.|
|Hylton-Foster, B.||St. Aldwyn, E.|
|Inglewood, L.||St. Davids, V.|
|Kaberry of Adel, L.||Saltoun, Ly.|
|Killearn, L.||Sandford, L.|
|Kinloss, Ly.||Selkirk, E.|
|Kinnaird, L.||Sempill, Ly.|
|Lane-Fox, B.||Shaughnessy, L.|
|Lawrence, L.||Skelmersdale, L.|
|Long, V.||Somers, L.|
|Lucas of Chilworth, L.||Spens, L.|
|Lyell, L.||Stamp, L.|
|McAlpine of West Green, L.||Stodart of Leaston, L.|
|Mackay of Clashfern, L.||Sudeley, L.|
|Macleod of Borve, B.||Swinfen, L.|
|Mancroft, L.||Swinton, E. [Teller.]|
|Margadale, L.||Terrington, L.|
|Marley, L.||Teviot, L.|
|Maude of Stratford-upon-Avon, L.||Thomas of Swynnerton, L.|
|Merrivale, L.||Trenchard, V.|
|Mersey, V.||Trumpington, B.|
|Middleton, L.||Vaizey, L.|
|Milverton, L.||Vaux of Harrowden, L.|
|Molson, L.||Vivian, L.|
|Morris, L.||Whitelaw, V.|
|Mottistone, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.9 p.m.
§ Lord Bruce of Donington moved Amendment No, 80A:
Page 23, line 4, at end insert—
(" () In any proceedings brought against a trade union under subsection (6)(a) or (6)(b) above the amount which may be awarded against the union by way of damages in those proceedings shall not exceed the limits provided in section 16(3) of the Employment Act 1982.")
§ The noble Lord said: My Lords, I beg to move this amendment. The House has just decided that civil actions may be brought in certain circumstances in the event of a trade dispute against individual members, and indeed even under the more stringent conditions that are now provided for in the earlier amendments to Clause 16 which were passed earlier. That is now behind us, although I fancy a lot more will be heard about it in the future. This amendment seeks to put the trades unions in the telecommunications industry in exactly the same position as those which are governed by the Employment Act 1982. There, the damages proposed were limited to £10,000 if the union has fewer than 5,000 members; to £50,000 if the union has 5.000 or more members but fewer than 25,000; £125,000 if the union has 25.000 or more members but fewer than 100.000; and £250,000 if it has 100.000 or more members.1020
§ The moving of this amendment does not imply our approval of those particular portions of the Act of 1982. In fact we think that most sections in the Employment Act 1982 will not achieve the purposes for which they were designed and will of course at some future stage on the return of a different Government be repealed. But there they are for the moment and this amendment seeks to import exactly the same limitations into the current Bill. I trust that the noble and learned Lord will see fit to accept the amendment. I beg to move.
§ Lord Mackay of Clashfern
My Lords, the situation so far as this amendment is concerned is that Section 16 of the Employment Act 1982 applies to these provisions in any event, and therefore it appears to us that this amendment is quite unnecessary. If anything else were to be achieved, a specific amendment would have been required. So the provision of Section 16 applies to this, and therefore in our view the amendment which the noble Lord has proposed is unnecessary.
Lord Bruce of Donington
My Lords, I am most grateful for the noble and learned Lord's confirmation that that is the case. I am not a member of the legal profession and my advice up to this time was that the amendment was necessary in order to protect the rights of the telecommunications trade unions. Therefore, on the assurance of the noble and learned Lord that that is not the case, and that Section 16(3) of the Employment Act 1982 does in any case apply, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 [Register of licences and orders]:
§ Lord McIntosh of Haringey moved Amendment No. 80B:
Page 23, line 33, at end insert—
(c) every code of practice and other information which may be required to be prepared and published in accordance with a licence and the telecommunications code and every modification, cancellation or substitution of such code of practice and other information.").
§ The noble Lord said: My Lords, this amendment and Amendment No. 80C—I refer rather a long way ahead and I apologise to your Lordships for that—refer to Amendment No. 129B.
Amendment No. 80C: Page 24, line 4, at end insert—
(" () Where the telecommunications code is applied to any person under section 7 above—
§ Amendment No. 129B: Page 122, line 18, at end insert—
§ ("Code of Practice for Telecommunication Installations
§ .—(1) Without prejudice to the above provisions of this code or to particular requirements of the court or local planning authority, the operator shall install and maintain all telecommunication apparatus in accordance with a code of practice prepared, published and kept up-to-date by the British Standards Institution in accordance with the following subparagraphs.
§ (2) The code of practice shall be prepared and revised in consultation with representatives of appropriate government departments, statutory bodies, local authorities, telecommunications operators, apparatus manufacturers and suppliers, professional societies, environmental organisations and with the Director.
§ (3) The code of practice shall be initially published within one year of the commencement of this Act.
§ (4) The code of practice shall include provisions and procedures to govern—
- (a) the policy for avoiding the installation of overhead or exposed telecommunication apparatus which might damage sensitive areas of the physical environment;
- (b) means of reducing to the minimum the impact in the physical environment of telecommunications apparatus where it cannot be placed underground or hidden completely;
- (c) the joint use of existing subways, ducts, poles and brackets or their replacement with provisions adequate for joint use;
- (d) the positioning of telecommunication apparatus in relation to highways, private accessways, buildings, trees or any other feature;
- (e) the temporary and permanent restoration of anything affected by the installation, repair, alteration or removal of telecommunications apparatus;
- (f) the repair, renewal or removal of faulty, dangerous or superfluous telecommunication apparatus;
- (g) the fixing and renewal of notices required by paragraph 18 above;
- (h) the keeping of adequate records of all telecommunication apparatus belonging to the operator and the availability of the information to those whom it is reasonable should have the information.").
§ That amendment proposes a code of practice to protect the environment which it is suggested should be appended to the telecommunications code, which comprises Schedule 2 to the Bill. The proposal here is that the code of practice should be prepared and published. It is necessary to put it here because there is no other way in which the telecommunications code can contain such a provision.
§ I would prefer to raise again the issue of environmental protection when we come to Schedule 2 to the Bill, and it would have been easier for me and for my noble friends if Schedule 2 had been taken with its relevant clause, Clause 10, as was done in Committee. I appreciate that that is not the custom of the House at Report stage, but your Lordships will forgive me if I say that it makes it a little difficult to have the argument the wrong way round. Because it is important to see these as a whole, I shall do my best to put the essence of the case without the long speech which I made at Committee stage and which attempted to introduce 10 or 11 proposed amendments.
§ The issue here is relatively simple. I believe that there is a general agreement between the Government and those on this side of the House, and a number of other noble Lords in different parts of the House, that it is necessary to build into the new provisions for telecommunications adequate provision for the 1022 protection of the physical environment. The disagreement, as I am encouraged to think by the Government's answers last time, arises not on what protection is required, although there may be particular aspects of the protection where we might disagree—for example, the flying of lines, tree lopping or whatever it may be—but on what form this protection should take.
§ The view which we take in putting forward these amendments is that, as far as possible, the protection should be written into legislation and put in in the form of strengthening amendments of the telecommunications code. The view of the Government, as I understand it, is that the protection should be in the form of the licences rather than in the code and in the statutory requirements. I quite appreciate the reasons why the Government should wish to have it in that way. I appreciate that legislation is that much more difficult to amend. I appreciate that times change and that statutory requirements change with them. I can quite see that no Government would wish to see themselves in the position of having to introduce amending legislation at any time when there was a change in the circumstances.
§ But I believe there is an overriding consideration, which means that that inconvenience of difficulty of amendment ought not to take priority and that arises in Amendments Nos. 80B and 80C. It arises because of the difficulty of securing that those who are affected by the actions of telecommunications operators, and those who are concerned with the preservation and protection of the physical environment, have a real and clear opportunity to see what their rights are and in what way their rights are likely to be infringed by any action of telecommunications operators.
§ The problem with having this part of the provision for protection of the physical environment in the licence is that there is not just one licence, and in due course there will be many licences. There is no obligation at the moment on licensees to see to it that the conditions of a licence are made publicly available in all accessible places. The Government themselves moved a number of welcome amendments in Committee to say that notices which affected the public should he made available to those members of the public who were likely to be affected. The spirit behind those amendments is very welcome, but they ought to apply to the provisions for the protection of the physical environment as well.
§ There is no way of ensuring that the licences will provide protection in the same form, one with another. It will be extremely difficult for a member of the public or for a local authority in its role as the protector of the physical environment in its area to know whether the licence given to company A and the licence given to company B are in the same terms, and whether they can act to protect the physical environment in the same way. The cost to individuals and to local authorities who seek to protect the environment will be very great, unless there is real provision for standardisation of protection, and unless there is real provision for the conditions under which protection is to be provided to be made easily available to those who need it in order to secure that protection.
§ That is why, having apologised for standing the argument on its head, I can come hack to these 1023 amendments and say that it is essential that at this stage we should have some assurances from the Government about standardisation, about publicity and about this information being made available without fee to those who are affected by it before it would be possible for us to withdraw the long series of amendments which would be written into Schedule 2 to the Bill. Having spoken to both Amendment No. 80B and Amendment No. 80C, and having urged the Government to make some concessions which would encourage us to think that we are, as I believe, working towards the same objective. I beg to move Amendment No. 80B.
§ 6.21 p.m.
§ Lord Mackay of Clashfern
My Lords, it may be convenient if I were to speak, as the noble Lord, Lord McIntosh of Haringey has done, to Amendments Nos. 80B and 80C, and also to Amendment No. 129AA which deals with the same matter.
Amendment No. 129AA: Page 121, line 4, at end insert—
("(5) Every notice required to be given to any person for the purposes of any provision of this code shall contain information, in such form as shall be approved by the Director, on where and when a copy of the operator's licence, code of practice and other relevant information published in accordance with the licence and a copy of the telecommunications code may be inspected and copies purchased.").
§ I regret to say that I shall find it hard to be as brief as the noble Lord, Lord McIntosh of Haringey, because the issues are a little complicated. However, there are some matters which we are able to view in much the same way as does the noble Lord.
§ The amendments seek to achieve several things. First, it is desired that, when the telecommunications code set out in Schedule 2 to the Bill is applied to any operator, the register of licences which the director is obliged to establish under Clause 19(1) of the Bill should include on it full details of any code of practice or similar arrangement which is imposed on that operator. We agree with this. The whole purpose of Clause 19 is to establish a publicly available record of what operators are licensed to do, so that any person who is affected by what an operator does can establish swiftly and effectively what his rights are. To be effective the register must include full details of the arrangements for applying the telecommunications code to an operator, including any arrangement like a code of practice. We therefore agree entirely with what the noble Lords seek to achieve in their first amendment.
However, we think that the Bill already achieves what they want. Paragraph (a) of subsection (2) of Clause 19 requires the director to cause to be entered on the register not only every licence granted under the Bill and every modification or revocation but also,
every direction or consent given or determination made under such a licence".
If noble Lords will now turn to Clause 10 of the Bill they will see that subsection (5) says that a condition falling within subsection (4) can require the operator,
to comply with directions given in a manner specified in the condition and by a person so specified".
§ If the two passages I have quoted are read together, noble Lords will see that any direction given under Clause 10(5) must be included on the register, and if 1024 noble Lords read the print which will be produced after Report they will find that Amendment No. 53 which we adopted last week has merged subsection (5) with subsectoion (4) so that the words I have quoted appear as the tailpiece to subsection (4).
I now ask noble Lords to turn to Part 5 of the draft licence to be granted to British Telecommunications. This sets out the exceptions and conditions under which the telecommunications code is to be applied to British Telecommunications. Paragraph 5 of Part 5 says,
The Licensee shall prepare in consultation with the Secretary of State a code of practice on the installation of telecommunications apparatus not contained in a building and shall comply with a direction"—
I emphasie the word "direction"—
given to him in writing by the Secretary of State which requires him to follow that Code of Practice.
§ This means that the code of practice to be followed by British Telecommunications when it installs outdoor apparatus will be the subject of a direction. Such a direction would be made under what will be printed as Clause 10(4) of the Bill and as a result Clause 19 obliges the director to include the direction in the public register. I hope that in the light of this somewhat complicated explanation, noble Lords will agree that the objective of the first part of their first amendment has already been achieved.
§ The amendment would also apply to any other codes of practice made under licences which have nothing to do with the telecommunications code. I can assure your Lordships that these would also have to appear on the register. The draft BT licence provides for two other codes of practice. One is about consumer affairs and the other is about the confidentiality of information about customers. Both of these codes will be adopted under Clause 7(6) of the Bill and will be matters to which the director will either consent or about which he will make a direction. Both codes will have to be included in the register because Clause 19(2)(a) covers both "consents" and "directions".
The second part of the amendment refers to,
other information which may be required to be prepared and published in accordance with a licence".
§ I am not sure precisely what this is intended to cover. If the noble Lords mean to refer to price lists, then these are already covered by Clause 8(1)(e) of the Bill. It is not envisaged that price lists will be included in the register but that the operator himself should publish them and make them available for inspection in his local offices. If what is meant are the notices given under the code, then it would be impracticable for them to appear on the register. There could be many thousands of notices every year and these have only a very limited life. The register would soon be cluttered up with out-of-date notices.
§ I turn now to the second amendment. I think that it seeks to ensure that, whenever the code is applied to an operator, arrangements are made which ensure that three things happen: first, details of licences and related documents which apply the code to an operator should be available for inspection on the register free of charge: second, copies of the licence and related documents should be sent to every local authority affected by any telecommunication system 1025 to which the code is applied; and, third, the operator concerned should be obliged to make details of his licence, any code of practice and other documents available for inspection by members of the public free of charge at places which are convenient for individuals who may be affected.
§ This kind of arrangement seems eminently sensible and I can tell your Lordships that the Government are considering amendments to Clause 10 to achieve broadly the results which the noble Lord who moved the amendment wishes to achieve. The amendment appeared on the Marshalled List only on Friday, so I cannot go into details; but we do foresee minor difficulties on some points of detail. For example, we would not want one part of the register to be open for inspection free of charge while other parts were not open to free inspection. It is well established that other comparable registers such as the register of companies and the register of restrictive agreements are open for inspection only in return for payments which are calculated to cover the administrative costs of maintaining the registers.
§ These however are points of detail. I can give your Lordships an assurance that we are considering the matters raised by Amendment No. 80C and intend to bring forward at Third Reading an amendment to Clause 10. This will ensure that whenever the Secretary of State applies the telecommunications code to an operator he will include in the operator's licence a condition requiring him to make available for inspection free of charge full particulars of the licence applying the code to him, together with related directions, any codes of practice, et cetera, at places which are convenient for those in the relevant areas who may be affected by the exercise by the operator of rights under the code.
§ I turn to Amendment No. 129AA. Here again we are in sympathy with what the noble Lord has proposed. He wishes, as I understand it, to ensure that when an operator gives a notice to someone else under the various provisions of the code—for example, when he requires an agreement to erect a telegraph pole—he should have to explain not only what it is that he wants the person who receives the notice to agree to but should also explain to the other person the basis on which he can object. That seems fair and reasonable. Operators will be relatively powerful and will know the law. Objectors will not normally be as powerful and their legal advisers are perhaps less likely to be familiar with the full details of the code.
§ Although we agree with the broad principle, we doubt if the amendment is right as it stands. It would, for example, apply to objectors as well as to operators and would require objectors to include in any counter-notice they give to the operator details about the operator's own licence, code of practice and so on. That is not, I suppose, what is intended. More important, the amendment is precisely the kind of condition or exception which qualifies the rights an operator can exercise under the code, for which the Bill makes special provision in Clause 10. When we come to that part of Schedule 2, the structure of the Bill will be explained in more detail and the rights which can be conferred on an operator will be the subject of a little more detail. The suggestion made in 1026 Amendment No. 129AA is precisely the kind of matter which should be included in a condition, particularly since the amendment itself refers to matters approved by the director, who is not actually mentioned in the code.
§ I can say therefore that we are sympathetic to the idea behind the amendment. We believe that the powers contained in Clause 10 are already sufficient to include appropriate conditions in operators' licences but we understand the anxiety that the Bill should ensure that licences do actually contain the necessary conditions. We shall therefore consider whether we can bring forward a second amendment to Clause 10 at Third Reading to back up these assurances. I hope that that rather lengthy list of assurances will be sufficient to enable the noble Lord to withdraw this amendment.
§ Lord McIntosh of Haringey
My Lords, the noble and learned Lord's reply was so meaty that we can forgive its length. Indeed, it was scarcely longer than my introduction and managed to say a great deal that is welcome and positive. I am happy to accept his undertaking to consider at Third Reading our Amendments Nos. 80C and 129AA and I shall read with great care what he has said, particularly about Amendment No. 80B.
In repeating my gratitude to the Government for what I believe to be, subject to further reading, substantial improvements to the Bill, I beg leave to withdraw Amendment No. 80.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 80C not moved.]
§ Clause 22 [Approval etc. to apparatus]:
§ 6.31 p.m.
Lord Cockfield moved Amendment No. 81:
Page 26, line 18, leave out ("should") and insert ("must").
The noble Lord said: My Lords, with the leave of the House, in moving Amendment No. 81 I will speak to Amendments Nos. 81 to 90 inclusive.
Amendment No. 82: Page 26, line 24, at end insert ("and a standard so designated may apply subject to such exceptions as may be determined by or under the designation").
Amendment No. 83: Page 26, line 30, leave out subsection (8).
Amendment No. 84: Page 27, line 1, leave out from ("Before") to ("designating") in line 2.
Amendment No. 85: Page 27, line 4, leave out ("give the approval of").
Amendment No. 86: Page 27, line 7, leave out ("approval or").
Amendment No. 87: Page 27, line 11, leave out ("approval or").
Amendment No. 88: Page 27, line 16, leave out from beginning to ("such") in line 20 and insert ("to the person running the system and").
Amendment No. 89: Clause 24, page 29, line 8, leave out ("should") and insert ("must").
Amendment No. 90: Clause 24, page 29, line 14, at end insert ("and a standard so designated may apply subject to such exceptions as may be determined by or under the designation").
§ These amendments make technical changes to the arrangements in Clause 22 for the approval of apparatus which is connected to telecommunications systems, and in Clause 24 for the approval of meters. Arrangements for approving apparatus for connection 1027 to telecommunication systems are necessary to avoid the connection by one person to another person's system of apparatus, which might do harm or damage.
§ Connected apparatus might harm people working on the other system; for example, a poorly-insulated item of apparatus could send mains voltage down the other system, with real danger to those working on the other system. Connected apparatus could damage the other system, either by sending down the wrong electrical current or by sending signals designed for an overseas system which could cause an exchange to malfunction. Connected apparatus could also impair the quality of service provided by the system: for example, connected apparatus could receive a telephone call too faintly to be heard properly. From time to time, obviously, differences of opinion arise as to precisely how, as a practical matter, accepted criteria could be incorporated into standards. The merits vary from case to case and differences are worked out in the British Standards Institution on a voluntary basis. The department keeps a general eye on progress and arbitrates from time to time.
§ The present group of amendments is concerned with the arrangements for what are called "concessionary approvals", which are given when standards are not yet in force or where they set too difficult requirements. Clause 22(8)(b) as drafted deals with such concessionary approvals by laying down the broad tests the Secretary of State or the director must apply when making a concessionary approval. At Committee stage, my noble friend Lord Orr-Ewing tabled amendments seeking to relax these broad tests. Quite independently, we ourselves had been in discussion with British Telecom about the need for Clause 22(8). We have now reached agreement on this.
§ The conclusion we have come to is that Clause 22(8) is unnecessary and, perhaps more importantly, is technically defective, in that it does not achieve the required results. It is unnecessary because approvals of apparatus which could cause harm to individuals are prevented by the common law duty on the Secretary of State and the director not to exercise their standard designating and approval-giving powers in a way which could cause harm to others. Approvals which could cause physical damage to the network are prevented by Clause 3(1)(a), which requires the Secretary of State or the director to exercise their functions in the way best calculated to secure the provision of services. They would breach this duty if they approved apparatus which caused damage and so prevented or hindered the provision of services. Approvals causing any significant impairment to the quality of service are prevented by Clause 3(2)(a), which requires the Secretary of State and the director to exercise their functions in ways which promote the interests of telephone users in the quality of services provided.
§ Clause 22(8) is defective because it is drafted in terms of approval being given to apparatus for connection to a telecommunication system only if it will not cause the death, et cetera, of any person engaged in the running of the system and if it will not impair the quality of service provided by means of the system. This means that apparatus comprised in a private system must not be approved if it will cause 1028 harm to the people working on the private system or impair the quality of service provided by the private system. But Clause 22(8) is really intended to protect the safety of those working on public systems to which private systems are connected.
§ As drafted, Clause 22(8) could, for example, permit the approval of an item of apparatus which did no harm to the employees working on the private system but could harm British Telecom employees when the private system was connected to British Telecom. Clause 4(5) prevents the word "connection" in Clause 22(8) covering such indirect connection. Thus, Clause 22(8) fails to achieve the result everyone agrees is needed.
§ We intend to achieve the desired result by deleting Clause 22(8) and toughening up Clause 22(6) by specifying that apparatus "must" conform to the standard (not "should" as appears in the present draft) and by arranging for the designation of the standard itself to contain any exceptions, or to set out the arrangements for making concessionary approvals which could have been arranged under Clause 22(8). A concessionary approval would be made an exception determined in accordance with the designation of the standard relating to the class of apparatus in question. This will give us flexibility to deal with cases of indirect connection, so that apparatus could be approved for connection to a private system provided the private system itself was not connected to a public system.
§ The important amendment is Amendment No. 81. It deletes "should", which imposed a relaxed requirement, and substitutes the compulsory "must". Amendment No. 82 provides that concessionary approvals can be made but the exceptions under which they are made are to be set out in the designation of the standard. Amendment No. 83, deletes subsection (8) of Clause 22, which is no longer needed and which is inappropriate for the reasons I have explained. Amendments Nos. 84 to 88 are consequential on Amendment No. 83 and delete the references to "approvals". Amendments Nos. 89 and 90 bring Clause 24 relating to meters into line with Clause 22.
§ I felt that it was important to explain these matters in detail, as what I have said is designed as a reassurance to those people concerned. It is therefore important that it should be on the record. I beg to move.
Lord Bruce of Donington
My Lords, the House is obliged to the noble Lord for having explained this series of amendments. One aspect troubles us a little. It may be that, technically, subsection (8) does not meet all the requirements that the noble Lord has in mind, but it has the advantage—particularly paragraph (b)—of specifying the matters to which he referred, and of writing them into the Bill. Subsection (8)(b) states:the Secretary of State or the Director is satisfied that the connection of the apparatus to the system in accordance with the approval would not be liable—I entirely accept the point that those words may still leave much to be desired, but they are something. They cover something that is not covered, if I may say 1029 so with respect, in the generalised responsibilities of the Secretary of State and the director as set out in Clause 3(1)(a) or in Clause 3(2)(a), which specify in general terms the responsibilities—and they must be high ones of the Secretary of State and the director.
- (i) to cause the death of or injury to, or damage to the property of, any person engaged in the running of the system; or
- (ii) to impair the quality of any telecommunication service provided by means of the system".
I should much prefer to see somewhere in Clause 22 some of the words that actually specify the matters which the noble Lord has in mind and which were originally in mind when the drafting of subsection (8)(b) was contemplated. After all, the Bill has been a long time in gestation. It was before another place last year; partially before your Lordships' House last year; reintroduced in another place last year, and in this House this year. Many months have passed. I believe we ought to do a little more with it.
The fear many of us have with the connection of other systems into the main British Telecom system is that owing to the commercial pressures, to which noble Lords have referred many times, somehow in the competitive struggle that goes on inferior apparatus will ultimately find its way into the hands of subscribers. Alluring stuff may be put out, possibly at a lower price or on attractive credit terms, but which is not of the real quality that is required by the whole system and which might conceivably impair the quality of any telecommunication service provided by the system.
At this stage we shall not oppose this series of amendments; but we hope that the noble Lord will keep this in mind with a view to producing, on Third Reading, a further specific statutory obligation concerning impairment of the system. If the noble Lord does not, we shall be happy to oblige on that occasion.
§ Lord Lloyd of Kilgerran
My Lords, may I briefly thank the noble Lord the Minister for his very clear and concise speech explaining the reasons for the amendments? Perhaps he can clarify a point for me. I may be wrong about this, but he said that subsection (8) is defective. He then went on to say, to use his own words, that he is toughening up subsection (6) by putting the positive "must" instead of "should". Is he satisfied, and can he therefore confirm, that the detailed matters to which the noble Lord, Lord Bruce of Donington, referred arising out of subsection (8)(b) are adequately covered by that simple amendment?
§ Lord Cockfield
My Lords, may I briefly respond. The answer to the noble Lord, Lord Lloyd of Kilgerran, is yes.
§ Lord Cockfield
My Lords, the clause as it stands at present is defective, and what we set out to do—I am certain we have achieved it—is to ensure that the protection we all want to give is given. We have done this in two ways: first of all, by being absolutely specific by using the word "must", so that there is no room for doubt or argument; and, secondly, by insisting that the exception should be put into the standard itself. This is a very much better protection than is available under 1030 the Bill as drafted. I would only ask the noble Lord, Lord Bruce of Donington, if he will be kind enough to read in detail the very long and difficult exposition which I gave. It was perhaps asking rather a lot for him to follow every point that I made.
§ Lord Orr-Ewing
My Lords, before my noble friend sits down, can he assure the House that the standards will not be unduly delayed? This is what has happened to date. The Government set up an approvals board for telecommunications which was to be an independent body to judge standards and make sure that new equipment came quickly into public use. In fact, 300 new pieces of equipment have been approved at the last count, two by the independent board and 298 by British Telecom. If one submits new designs to British Telecom and there is much merit in them, British Telecom pinch them, go direct to the suppliers and buy in greater quantities. That is not the sort of competition or the sort of standard which I am sure my noble friend wishes to see. I can only hope that henceforward decisions on new equipment will be speeded up and effectively judged by an independent body and not by British Telecom, the main competitor.
§ Lord Torphichen
My Lords there seems to be one thing which the change from "should" to "must" might unnecessarily rule out in future. I shall need to read the speech of the noble Lord, Lord Cockfield, to see exactly what the effect of these amendments will be, but it seems to me that they might increase the separation between the public system and private systems built with the same components and the same technology, in parallel, and which, quite rightly, when they are built, do not have to conform exactly to the letter of those standards which are right for the public system. However, they are likely to be built using very similar basic components, similar methods and to the same standards.
It might happen that a large chunk of a private system could become available as an arm of the public system. The example I have in mind is if a large company vacates a site, such as Lynwood, which has a comprehensive internal telephone system and where the SDA wishes to farm out the site into smaller units and not tear up and throw away all the machinery inside it. The change from "should" to "must" might mean that one could not look at the standard of installation of the system and decide whether it could be re-used. One would simply have to say, "It must conform and therefore we must tear down the existing system and rebuild with a British Telecom system". It seems rather a pity to rule out the possibility of reusing private systems, if they are of a sufficient standard, as part of the public system at another date.
§ On Question, amendment agreed to.
§ Lord Cockfield moved Amendment Nos. 82 to 90:
§ [Printed earlier.]
§ The noble Lord said: My Lords, I have already spoken to these amendments, and I beg to move them together.
§ On Question, amendments agreed to.1031
§ Clause 26 [Grants and loans to persons exercising certain functions]:
§ 6.49 p.m.
Lord Cockfield moved Amendment No. 91:
Page 31, line 9, leave out ("3") and insert ("2").
§ The noble Lord said: My Lords, this is simply to correct a typographical error. I beg to move.
§ On Question, amendment agreed to.
§ Clause 43 [Improper use of public telecommunication system]:
Lord Lyell moved Amendment No. 91A:
Page 41, leave out lines 41 and 42 and insert ("in the course of providing a cable programme service (within the meaning of Part IV of this Act).").
The noble Lord said: My Lords, I hope that it will be for the convenience of your Lordships if I speak also to Amendments Nos. 110A and 110B.
Amendment No. 110A: Clause 55, Page 50, line 41, leave out from ("service") to ("shall") in line 42.
Amendment No. 110B: Clause 55, page 50, line 43, at end insert ("unless he is authorised to provide the service by a licence granted under section 56 below").
§ All three amendments are designed to bring the Telecommunications Bill and the Cable and Broadcasting Bill into line. At present Clause 3 of the cable Bill makes it an offence to provide a cable programme service without a licence. The wording in Clause 55, which is the equivalent provision in the Telecommunications Bill, creates a much wider offence, which is not the intention. Amendments Nos. 110A and 110B therefore bring Clause 55 into line with the provision in the cable Bill. The amendment to Clause 43, Amendment No. 91A, follows from this. At present it follows the wording in Clause 55, but since we wish to change that, as I have described, we also need to make a change to Clause 43. I beg to move.
§ Lord Mottistone
My Lords, I am sorry to bother my noble friend. Part IV is going to be struck out when the cable Bill becomes law. That is fine. In the Committee stage we amended parts of Part IV, but that did not matter because it is to be struck out. Can I be assured that the cable Bill will acquire the necessary amendment to remove the reference to Part IV in Amendment No. 91A?
§ Lord Lyell
My Lords, with the leave of your Lordships' House, my response is that we shall have to wait to see about this when we come to the cable Bill. I would not want to declare any responsibility for that this evening. But I would not think that there would be any inconsistency with what I have said. I hope that satisfies my noble friend.
§ Lord Mottistone
My Lords, with the permission of the House, may I point out that the cable Bill has left this House? Perhaps my noble friends could note this point so that the necessary action can be taken in another place if it has not been thought of already.
§ On Question, amendment agreed to.1032
§ Clause 45 [Interception and disclosure of messages etc.]:
§ The Lord President of the Council (Viscount Whitelaw) moved Amendment No. 91B:
§ Leave out Clause 45 and insert the following new Clause—
§ ("Interception and disclosure of messages etc.
§ 45.—(1) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty—
- (a) intentionally intercepts a message sent by means of that system; or
- (b) where a message so sent has been intercepted, intentionally discloses to any person the contents of that message, shall be guilty of an offence.
§ (2) A person engaged in the running of a public telecommunication system who otherwise than in the course of his duty intentionally discloses to any person the contents of any statement of account specifying the telecommunication services provided for any other person by means of that system shall be guilty of an offence.
§ (3) Subsection (1) above does not apply to anything done in obedience to a warrant under the hand of the Secretary of State; and paragraph (b) of that subsection and subsection (2) above do not apply to any disclosure in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings.
§ (4) A person guilty of an offence under this section shall be liable—
- (a) on summary conviction, to a fine not exceeding the statutory maximum;
- (b) on conviction on indictment, to a fine.").
§ The noble Viscount said: My Lords, in rising to move this amendment I should like to make it clear at the outset what I am not doing. I am most certainly not seeking simply to reverse the decision which your Lordships' House took in Committee, against the advice of the Government. I believe that that would be wrong for many reasons, not least in terms of the relations between this House and another place.
§ On this occasion, however, I wish to invite your Lordships to support this amendment on the basis of an alternative proposition which I can now put forward. The amendment which was moved by the noble Lord, Lord Mishcon, in Committee reflected a determination that the whole business of telephone interception should be regulated by statute. The amendment found favour with a majority of your Lordships. At the same time, what has become known as the Malone case has served to bring the subject to the forefront of public attention. The case went through the machinery of the European Commission and was heard by the European Court on 20th February. The judgment is expected some time in the summer. We cannot at the moment be certain what, if any, changes in the law might be needed as a result of that judgment.
§ Having recently been Home Secretary for four years, I understand all the arguments which surround the whole question of the interception of communications. I fully appreciate the importance of interception as a weapon to be used—but used sparingly—in the fight against terrorism, drug smuggling and organised crime and for the safeguarding of our national security. In this way, the power can be used to protect the rights of individuals, rather than to undermine those rights.
§ On the other hand, I also appreciate the very real feelings of anxiety which surround this subject. Quite apart from the natural distaste which everyone feels, 1033 advances in modern technology serve to increase the citizen's appprehension about intrusions into privacy and about the erosion of individual rights. Perhaps I understand better than many how very difficult it is to preserve the right balance between the needs of the state and the rights of the individual citizen, because that was a lesson which I learned by experience and at the cost of considerable personal anxiety.
§ It is now quite clear to me that, unless the rules governing the interception of communications are put on a statutory basis, there will always be some suspicion that the Government use their powers to the detriment of some citizens. I could give an assurance that as far as my own experience goes that has not happened. But I understand increasingly today that assurances of that kind cannot alone allay many people's fears and concerns.
§ Against all this background, I am now able to give an undertaking which is in no way dependent on the outcome of the Malone case. I can give your Lordships' House, with the full authority of the Government, this assurance: we will bring forward legislation on the interception of communications in the next Session of Parliament. It will be a separate Bill on this subject. It will of course include the matters now covered in the existing Clause 45 and in addition any matters arising from the judgment in the Malone case. For the avoidance of any doubt, I state again that this is a firm commitment.
§ I should like also to give this House a second firm assurance. On the basis of existing law, the Government regard themselves as bound, and act as if bound, by an obligation to adhere to the criteria and procedures set out in the White Paper for the interception of communications in Great Britain on behalf of the police, Her Majesty's Customs and Excise and the security service. I hope it goes without saying that the Government will continue to act in accordance with this obligation until the legislation which I have promised is on the statute book. I do most sincerely hope that the undertakings I have just offered as alternatives to the provisions inserted into the Bill in Committee will commend themselves to your Lordships.
§ I think, however, that I should deal with one argument which could be advanced against the procedure I propose. It rests in this simple question: why should Clause 45 as passed by this House in Committee not remain on the statute book as a useful stop-gap measure? I hope your Lordships will accept that we cannot do justice to this matter by inserting provisions into legislation that is primarily concerned with other matters, however attractive such a course may at first appear. The Government have concluded that it would be right to bring together in comprehensive legislation all the necessary statutory provisions relating to interception so that the individual citizen, and those responsible for requesting, authorising and carrying out interception, can never be in any doubt about the precise statutory limits and criteria which apply to interception in this country. It is important that the legislative provisions adopted should he carefully worked out to take account of all the different situations that must be catered for, and I believe it is right that, on a matter of this kind, legislation should 1034 be brought forward by the Government in a separate Bill.
§ In addition, there would be some problems of detail if Clause 45 were to pass into law in its present form. First of all, the drafting of the clause is naturally enough based very closely on the drafting of the 1980 White Paper, with which, of course, in a previous incarnation I was closely associated. It therefore repeats words which were sufficiently precise as a general description in a White Paper of the scope of interception, but which were never intended as a definition of a criminal offence. As an illustration of this, the clause so drafted makes offences of some perfectly legitimate activities. It would, for example, he an offence for an operator to listen to a call to check that the line was actually in use and not faulty, or to break into a call to offer a higher priority call to the subscriber. The clause also seems to make it unlawful for a third party to listen to a call with the consent of one of the parties, as for example when a secretary listens to his or her boss's calls, or when malicious calls are monitored at the customer's request. All these different circumstances need to be taken into account when framing legislation, and really do, I am afraid, make it quite impracticable to tackle the matter in a single clause provision of the kind which is now in the Bill.
§ I should also like to explain why the amendment seeks to reinstate Clause 46 of the Bill as it stood before the changes we are now discussing were made in Committee. The only reason for that is that the clause reinforced the existing offences relating to unauthorised interception by telecommunications employees and it is as well that we should update the existing statutory provision while we can. It also introduced significant new safeguards over the disclosure by employees of the contents of itemised telephone bills. It may be helpful to the House if I mention at this point that this provision goes a long way to meet the concerns which seem to lie behind the proposed new clause after Clause 45 which we shall come to shortly. This issue was mentioned in the proceedings before the European Court in the Malone case. If the Court were to say something about it in its judgment, the Government would consider the implications of the findings in the context of the legislation on interception which I have promised.
§ I have today given an absolutely firm assurance on future legislation. I hope this House will appreciate fully from what I have said when indicating that the Government wholly accept the spirit of the amendment carried in Committee. We accept that the time has come to legislate on this difficult subject. We shall do so even if, as we hope, we are found by the European Court to have complied with our obligation under the European Convention on Human Rights. But my undertaking on behalf of the Government to this House is that we shall bring forward legislation anyway, and at the earliest practicable opportunity. If there were adverse comments by the European Court, we should then be able to make sure that we complied fully with them.
§ I hope your Lordships will regard these firm undertakings as a helpful response to your clearly expressed wish to see interception put on a firm statutory basis. My intention was to meet in full the 1035 wishes of the majority of your Lordships who voted for this clause in Committee. This House has by that action led the way to new legislation. I hope it is clear from what I have said that the House will in full measure get what by its vote in Committee it demanded from the Government. I beg to move.
§ Lord Cledwyn of Penrhos
My Lords, we are grateful to the noble Viscount the Leader of the House for explaining the Government's position and the reason for moving this amendment. My noble friends and I are glad that the Government now recognise the force of the amendment so ably moved by my noble friend, Lord Mishcon, an amendment which had in fact been moved in the last Parliament by my noble and learned friend Lord Elwyn-Jones.
It is reassuring that the noble Viscount with his great experience, especially as Home Secretary, appreciates the genuine anxiety which so many noble Lords feel about the dangers inherent in the interception of communications. We welcome his conclusion that the rules should now be put on a statutory basis. Where individual rights are concerned, it is always better to be safe than sorry. We also welcome and accept the noble Viscount's firm undertaking that legislation on this subject, including the matters now covered in the existing Clause 45, will be introduced in the next Session of Parliament.
The noble Lord's second assurance is equally welcome: namely, that the Government will, between now and the passing into law of the new Bill, regard themselves as bound by the provisions on interception in the White Paper and will act accordingly. We accept, without question, the noble Viscount's two important commitments. We also note his reasons for not retaining Clause 45 as a stop-gap measure. Nevertheless, as the noble Viscount has said, the House, in passing Clause 45, has ensured that legislation to deal with this important problem will be brought before Parliament at any early date. We are therefore glad to support the noble Viscount's statement and his proposals.
§ Lord Diamond
My Lords, I rise shortly to add the support of these Benches to the noble Viscount's statement and to assure him that we accept his undertakings and his assurances in full. I just want to add that we are particularly grateful to the Leader of the House for his courtesy in coming here and explaining the matter in such detail, and for his—if I may say so—wise and constructive suggestions and understanding of the true function of this House. I congratulate him, and of course we shall support his proposal.
§ Lord Lloyd of Kilgerran
My Lords, I should like briefly but nevertheless very sincerely to thank the noble Viscount the Leader of the House on two counts: first of all, for his great courtesy in the way he initiated consultations with my party on this very important matter. Secondly, to thank him for his two assurances: namely, that the Government consider that for the interim period before the introduction of new legislation, the spirit, at any rate, of the Clause 45, which he seeks to have withdrawn, will be continued, 1036 and that in the interim the Government will also abide by the spirit of the Green Paper. May I also congratulate the noble Viscount the Leader of the House on his explanation of this very important matter.
Lord Home of the Hirsel
My Lords, may I just say that I am sure that the course of action proposed by my noble friend and to which he has committed the Government is far better than trying to include these matters of interception in the Telecommunications Bill. I listened carefully to the speeches of the noble and learned Lord, Lord Edmund-Davies, the other day and to the noble and learned Lord, Lord Elwyn-Jones, and I came to the conclusion that these matters would be far better dealt with in a separate Bill. I have no doubt that we can and will pay the same scrupulous attention to national security when we come to that Bill as we have tried to do in this Bill. I have in my time known two governments virtually wreck their secret services by attempts at open government and we cannot afford anything like that in this country. I am sure that my noble and learned friends would agree that this is a wise point of view.
§ Lord Mishcon
My Lords, as the one who had the privilege on behalf of the Opposition of moving this amendment, may I simply express my thanks to the noble Viscount and say that it was with very great joy that all of us heard the respect that is paid to the voice of this House.
§ On Question, amendment agreed to.
§ Lord Denham
My Lords, I think that we have probably reached the right stage for the dinner adjournment. If I may give guidance to those of your Lordships who wish to come back to this Bill, we shall not resume the Report stage before ten minutes past eight o'clock. I beg to move that consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.