Broadcasting Bill

HL Deb 26 July 1990 vol 521 cc1641-769

12.47 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD NUGENT OF GUILDFORD in the Chair.]

Schedule 14 [Amendments of the Marine, &c., Broadcasting (Offences) Act 1967]:

Lord Monson moved Amendment No. 316A:

Page 204, line 22, leave out ("is capable of being received in, or").

The noble Lord said: There may be a case for draconian and unprecedented measures on the high seas against foreign owned and foreign crewed ships which interfere with emergency services in this country. There may even be a case, although we doubt it, for draconian and unprecedented measures against foreign ships whose broadcasts interfere with non-emergency services. However, I submit that there is absolutely no case for such high-handed measures, with all their dangerous international implications—many of which were referred to last night—against ships which cause no interference and consequently no harm to anyone. The purpose of Amendment No. 316A is that it effectively provides that so long as there is no interference then there should be no strong-arm tactics on the part of Her Majesty's Government or their agencies.

It is perfectly true that no licensing fees are paid to anyone in Britain by a foreign ship broadcasting from international waters. It is equally true that Her Majesty's Government have no control over the programme content. But exactly the same applies to all programmes received in this country from anywhere abroad. I cannot be the only Member of this Committee who enjoys switching his radio to French programmes on long wave when stuck in a traffic jam.

Although we can probably rely on our near neighbours not to pump out over our airways the subversive or obscene material about which the Government seem to be so concerned, the same cannot be said about countries further afield. If they choose to do so, they do so with impunity. There is nothing that Her Majesty's Government can do about it. The point is largely academic because I do not believe that any offshore radio station has ever broadcast anything offensive—quite the opposite. Radio Caroline broadcasts innocuous material. It does not interfere with the emergency services, despite the black propaganda put out by its enemies, among whom one must number the Home Office. Apart from anything else, Radio Caroline broadcasts on medium wave, unlike the emergency services.

The amendment permits, albeit reluctantly, a degree of draconian reaction only where interference is caused, and not otherwise: certainly not merely for the purposes of censorship, which is not applied, has never been applied and cannot be applied to other broadcasts receivable in Britain from locations outside United Kingdom jurisdiction. I beg to move.

Lord McNair

I should preface my remarks by saying that I am speaking personally and not for Liberal Democrats as a whole, nor for any of my noble friends; nor am I speaking from a brief from any company or organisation. In 1966, I was at the Young Liberal conference at Great Yarmouth which voted overwhelmingly in favour of legalising so-called pirate radio stations. It seemed to us then, as it does to me still, a nonsense to prosecute, and to persecute, companies which gave so much harmless pleasure to so many.

I reserve judgment on the Minister's assertion that the frequencies used cause interference until I have been able to ascertain the facts from various sources. I apologise for not having already done so. The libertarian approach to any question is to say that the limit of one person's freedom should be the point where the chosen method and direction of a course of action interferes with the personal freedom of another.

Amendment No. 316A illustrates that point exactly, even in the words that remain in line 22 after those which my noble friend Lord Monson seeks to have removed. Although those words refer to electro-magnetic interference, I feel that the point is nicely made. The Government's attitude towards, and their actions against, the personnel and equipment of Radio Caroline in August last year went far beyond the proverbial sledgehammer to crack a walnut. An important issue of principle is involved. It seems that the more power and control that any goverment have, the more they want, until situations which most would regard as outside the governmental sphere of operation come to be regarded by a government as a threat to that power—a state that has been called the "laager mentality".

The events that took place about a year ago aboard the motor vessel "Ross Revenge", the ship from which Radio Caroline operates, were a shameful example of overkill, if the news reports are accurate. Not only was the equipment impounded, for which there could, if interference with other transmissions were a definite fact, have been some justification, but it was destroyed in the process. That, whatever the legal position, was an act of wanton vandalism and an example of the "lager mentality".

Baroness Birk

When we were discussing this matter late last night my noble friend Lord McIntosh to some extent supported some of the amendments moved by the noble Lord, Lord Monson. We feel that at least two of them offer some sensible compromise to the measures proposed by the Government, but that is not because we hold any brief for Radio Caroline. The main point made by the Government relates to interference to existing legitimate incremental broadcasts in London. The amendment puts that point right, and it deserves some consideration.

Lord Wilberforce

I support the amendment. I shall not speak generally on the whole subject of Radio Caroline. The amendment can be justified on two grounds, the first of which has been stated by the noble Lord, Lord Monson, with the words, capable of being received in". If I were having regard to the interests of my friends at the Bar, or even of my noble and learned colleagues here, I should welcome the retention of those words as they are pregnant with the possibility of delightful litigation. What is the test of capability? What does one assume is available in the way of technology in order to receive? Does it mean capable of being received by GCHQ at Cheltenham; or is it capable of being received by a normal set; or under what conditions; or in all parts of the United Kingdom or in some parts?

It may be said that generally prosecution would be brought only where a broadcast had actually been received. Actual reception is obviously evidence of capability of reception. I see the validity of that point. If that is so, why not include a test of actual reception or actual interference in instead of one of capability? By retaining the words "causes interference" the noble Lord has dealt with the only situation that requires to be dealt with. A vague test of capability is not one that we should take on board.

The second objection to the phrase rests on considerations of general international law. I was unable to be present at last night's debate, and I have not of course been able to read the report of it in Hansard; but I have no doubt that the Committee was apprised of, or in any case is familiar with, the obvious objections to that type of extraterritorial legislation. It must be re-emphasised that in the clause we are dealing with the possibility of a broadcast from a ship on the high seas, not registered in the United Kingdom, by a person who is not a British subject. That is a strong case of extraterritorial legislation.

The Committee will be aware that in such a case the only basis for legislation by this country rests upon what is called and understood as the effects doctrine—the doctrine that one may prosecute action or take civil action against action taken abroad if it has effects on one's territory. The Committee is no doubt aware that this country has for many years stood out against the effects doctrine. I have been present at numerous international conferences at which the United Kingdom view has been taken. We do not accept the effects doctrine as stated by the American courts or by the European Community. Yet here we are inroducing a clause which rests on that very same effects principle. It is worse than that, because the American effects doctrine is now limited, on the best authority, to direct and substantial effects; otherwise the principle is not recognised even by the American courts.

Here we have something which goes way beyond that principle: capacity to receive. There is no actual effect, no direct effect, and no substantial effect. It is merely capacity to receive. Apart from its presence in the Bill, I very much fear that if Parliament lends its countenance to jurisdiction based upon capacity to receive, going way beyond actual effects, that will be used against us in the international context. One has only to think of the law of competition. Extraterritorial legislation is of great importance in relation to anti-trust and anti-competitive proceedings. If they are to be based and are to be capable of being dealt with in the United States, on the basis of capacity to effect the United States economy, we shall see a great extension of the United States jurisdiction and indeed of the European Community's legislation, to which so far we have been able successfully to take exception.

I hope that on those rather broader grounds the Committee will be inclined to support the amendment, which is a modest one. The only objection to it, to my mind, is that it does not go far enough. At any rate, it should be given a welcome by the Committee.

1 p.m.

Earl Ferrers

I was surprised at the speech of the noble and learned Lord, Lord Wilberforce, because I should have thought that one who was so learned in the law would wish to ensure that the law was preserved. Pirate radio stations deliberately anchor themselves outside territorial waters and then transmit from those structures using up frequencies which are allocatable, in this case in the United Kingdom, and thereby prevent them from being allocated to other people who are prepared to accept the frequencies and to pay for them. They pay no fees towards those who have made the material that they transmit. They are outside the law. They deliberately put themselves outside the law by planting themselves outside territorial waters. It therefore surprises me that the noble and learned Lord appears to back up those people and say that the amendment of the noble Lord, Lord Monson, is a modest one.

The enforcement powers in Schedule 14 are needed to deal with the problem of offshore broadcasters. Paragraph 2 of the schedule is modelled on Articles 109 and 110 of the United Nations Convention on the Law of the Sea which covers both interference and reception. Amendment No. 316A would limit the new powers to cases in which a station causes actual interference. That would not be sufficient, as pirate broadcasters can cause problems if they can be received here even if they are not actually causing interference. Let me give an example of that. A pirate station might broadcast on a frequency which it is desired to allocate to a legitimate broadcaster. That could effectively block that frequency without causing actual interference. Again, radio signals from a pirate may inadvertently combine with another signal so as to cause interference. The amendment would prevent action being taken in such cases as it would not be possible to say that the pirate station itself was causing interference.

The noble and learned Lord, Lord Wilberforce, referred to extra territorial powers. The Government are fully satisfied that the exercise of the new powers will be in accordance with international law. We are simply upholding the international radio regulations in a manner which is modelled on the United Nations Convention on the Law of the Sea.

Much was made of the fact, particularly last night, that the United Kingdom has not yet signed or acceded to the convention, but that is irrelevant because the convention is not the source of the new provisions. Our view that the powers would be exercised in accordance with international law does not depend on the convention. The only reason that the United Kingdom has not acceded to the convention is our objections to the provisions on deep-sea mining. We are currently engaged in international discussions to resolve those differences. The articles on broadcasting were adopted unanimously with all the other participants to that convention, which shows the degree of international agreement about the need to take action against pirate broadcasters.

I sometimes wonder whether noble Lords would be so indignant about fishery protection matters, for example, or about legislation against dumping at sea outside territorial waters. I rather suspect not. However, if that is so, one wonders why the dumping of radio pollution on the airwaves instead of chemical pollution on sea waves is supposed to be so much less offensive. Similar powers to board vessels on the high seas are available against drug traffickers under Part II of the Criminal Justice (International Co-operation Act) 1990 which the Committee may recall. Those powers go wider than those that we seek in respect of offshore broadcasters.

All that we seek to do, which the amendment seeks to frustrate, is to suggest that those who operate pirate radios should come within the law. I should have thought that that was something that should commend itself to the Committee, particularly to the noble and learned Lord, Lord Wilberforce. All they have to do is to get a licence and to stop jamming up the frequencies, which prevents legitimate broadcasters from broadcasting properly and puts the safety-of-life services at risk. For those reasons, I cannot advise the Committee to accept the amendment of the noble Lord, Lord Monson.

Lord Orr-Ewing

I am sorry that I have to speak slightly in criticism. I well remember that same excuse of putting at risk ships at sea and aircraft in the air having been used before. In 1922 a Dame Nellie Melba concert was broadcast by Marconi on the 2ET (Emma Tock) call sign from Writtle. Mr. P. P. Eckersley, who later became chief engineer of the BBC, was an excellent engineer and had a good sense of drama. He hired Dame Nellie Melba to sing on the first experimental broadcast. There was a Statement in the House saying that it was outrageous that the wireless waves should be used for such trivial matters as entertainment while putting at risk ships at sea and aircraft in the air.

The same phraseology has come out of the same pigeon-hole at the Home Office some 68 years later. When I first came to the House in 1950, the same row was going on. In this day and age, are ships at sea and aircraft in the air, which have every conceivable modern technology, using telegraphy on the broadcast waves of Europe, where there are thousands of stations? After dark, they all interfere with each other. It is better during the day because they are on the ground wave, but we should not say that there is interference.

I agree that the activity is illegal, but I find it difficult to stomach the fact that we must take such absolutely amazing powers. Drug smugglers are not allowed on the high seas, but the powers to go aboard pirate radio ships appear even greater.

Pirate radio operators are against the law. I wish that they paid the musical fees for copyright. I hope that those people will apply for the new wireless frequencies that will be available. They may not be on medium wave, but some frequencies will be available. As they have so much experience, I have no doubt that they would be given some of the earliest ones. Perhaps the Government might say, as a slight amelioration, that if they applied they would stand a good chance.

Technically, the pirate radio operators are illegal, but it is unnecessary to take a great sledgehammer to crack this tiny nut. I hope that the Government will think again. Other people must be broadcasting all around the world. I cannot believe that these are the only people who are broadcasting. They will be subject to the most incredible overreaction by the government of the day. I hope that the Government will consider the matter more sympathetically than they have done.

Lord McIntosh of Haringey

The Minister accused me last night of leaping to my feet. I hope that I have not merited that charge today, but his answer was defective in a number of important ways. The most important way in which it was defective was in his claim that, even if those people were not causing interference, they were prohibiting the allocation of frequencies to other users. That could be easily overcome. All you have to do is to allocate the frequencies which Radio Caroline presumes to use and then it will cause interference. The law could therefore take its course according to the amendment of the noble Lord, Lord Monson. I was also surprised to hear the Minister refer to dumping at sea. The controls that we rightly have over dumping at sea are controls over British citizens dumping on the high seas. Those controls are already in place under the 1967 Act. This amendment does not seek to take them away.

Lord Colwyn

Before my noble friend the Minister replies, I wish to say a few words in support of his earlier reply. The Government must be satisfied that they exercise their duty to co-operate in the suppression of these unauthorised broadcasts in accordance with international law. I have received over 50 letters from supporters of Radio Caroline, all of whom were concerned that the new powers in this Bill are excessive. However, powers are needed to enable enforcement of the law. I do not believe that the powers in this Bill are any more excessive than is necessary for effective enforcement.

Comparisons with the powers given to fight drugs trafficking are misleading. They fail to take into account, for example, the severity of the penalty that may be imposed, which is a far better indicator of an offence. The heavy penalties for drug smuggling are much more severe than for offshore broadcasting. In general, enforcement powers are not a good indicator of the seriousness of any offence as they also reflect a variety of other factors. I am sure my noble friend the Minister will confirm that the powers in this Bill against offshore broadcasting are in line with other legislation relating to marine offences.

It is for those responsible for running Radio Caroline to decide whether to follow other former pirates in applying for a broadcasting franchise although they must be aware of the automatic barring of unlicensed broadcasters after 1st January 1989. I must support the Government's policy which is already being put into effect through the licensing of the first batch of community radio stations. The Government's policy is to cater for the broadest possible range of tastes. There is no longer any justification for feeling that lack of opportunity makes it necessary to go offshore. The circumstances that gave rise to pirate radio in the 1960s no longer apply.

Lord Airedale

I believe my noble friend Lord McNair suggested that the Government had already used a sledgehammer in smashing up valuable radio equipment. Supposing that the Government succeed in what they are now trying to achieve, will they repeat that process or will they allow Radio Caroline to dispose of its valuable assets in a civilised manner?

Earl Ferrers

I could not help feeling surprised at the remarks of my noble friend Lord Orr-Ewing who referred back to 1922. He said that the arguments that were used in 1922 were just the same as the ones that are used nowadays. However, that was nearly 70 years ago. Things have moved on in terms of telecommunications, wireless and radio. I was also surprised that my noble friend brushed off in such a cavalier fashion the remarks that I made about the effect on the safety of air services. My noble friend was once himself a parliamentary-secretary for air. I should have thought that he cared about what happened to aircraft. My noble friend may find this difficult to believe, but I can tell him that if one broadcasts on a frequency which one has not been allocated one may interfere with other frequencies inland. Further, one may inadvertently combine with another frequency and mess up the beacons which helicopters in particular home in on.

Therefore there is a distinct risk to life. The noble Lord, Lord McIntosh, said he thought the argument about prohibiting the allocation of some frequencies to other people was absurd. He said all one had to do to deal with this problem was to give the frequency which Radio Caroline is using at the moment, to someone else in this country, thereby creating an offence. If I may say so, the noble Lord appears to have an astonishing lack of commercial expertise. I wonder whether the noble Lord, if he were an erstwhile broadcaster, would happily pay for a licence for a frequency which he knows perfectly well is being used by another body, in this case by Radio Caroline. The noble Lord would not pay in that case because he would not be able to broadcast over that frequency as it would be jammed by Radio Caroline.

Lord McIntosh of Haringey

Is the Minister suggesting that the Home Office would delay enforcement in such a case and would cause me, if I were involved in the matter, to lose money as a result?

1.15 p.m.

Earl Ferrers

I am merely suggesting that if the noble Lord were a commercial operator and he was offered that frequency, he would say, "No thank you. I would rather take another one".

I now turn to the point of the noble Lord, Lord Airedale, who asked whether the Government would smash up equipment. The Government have no such intention. We are seeking to establish whether some organisations are operating illegally in that they are outside territorial waters, and they are using frequencies that are allocated to this country and are denying those frequencies to other people. If that is the case, the Bill, in its present form, enables action to be taken to counteract that. The action to be taken is the minimum necessary to achieve the desired result. I cannot tell the noble Lord, Lord Airedale, whether that would involve smashing up equipment. However, I very much doubt whether that would occur. If action was unjustly taken, the person against whom the action was taken would have redress in the courts.

The basic principle here is that some organisations are using frequencies that are allocated to this country in a manner which is unfair, unjust and illegal. All we seek to do is to rectify that position. If noble Lords who are so concerned about this wish to remedy the situation, they should ask the people they seek to support to come within the law and obtain a licence like everyone else. Then there would be no problem.

The noble Lord, Lord Monson, referred, incidentally, to foreign services such as French services. Those operate on the long wave and can be received in the United Kingdom. However, those services operate on internationally allocated frequencies which have been cleared. That is not the case with the pirate stations. If there were a problem with the foreign services, it could easily be resolved through the international radio regulatory machinery. For the reasons I have given, I hope the noble Lord, Lord Monson, will not press his amendment because it would not be in the interests of the law.

Lord Annan

Before the noble Earl sits down, I hope I may make a further point. I am not talking about Radio Caroline and whether it is illegal or not. We have heard a most carefully argued and technical discussion about the wording of this amendment from the noble and learned Lord, Lord Wilberforce. Would it not be wise for the Government to say that although they do not wish to give way on the principle of the matter which they are determined to uphold, they will re-consider it? We have the Report stage ahead of us. In view of what the noble and learned Lord, Lord Wilberforce, has said, I should have thought that was a wise thing to do.

Earl Ferrers

I have the greatest respect for the noble and learned Lord, Lord Wilberforce. Anything which he says commands the greatest respect. I shall of course consider what the noble and learned Lord has said and take further advice.

Lord Monson

I am extremely grateful to the noble Lord, Lord McNair, the noble Baroness, Lady Birk, the noble Lords, Lord McIntosh and Lord Orr-Ewing, and, above all, to my noble and learned friend Lord Wilberforce, for their splendid support. My noble and learned friend with his massive experience warned us of the serious and worrying international consequences for this country if the amendment is not accepted. The noble Earl uncharacteristically was somewhat illogical. If Radio Caroline causes interference, why did the Government recently allocate the wave band on which Radio Caroline hitherto broadcast to another company, thereby incidentally putting Radio Caroline off the air for the time being? That does not seem like the action of a Government who are genuinely worried about interference.

In any case, if interference is caused, the noble Earl has absolutely nothing to worry about because this amendment would then have no effect and the Government would get their way. The amendment is not about protecting Radio Caroline as such. There are two important elements here. The first is that the Bill represents a wholly disproportionate reaction to a minor nuisance, and the second, as my noble and learned friend has reminded us, is the counterproductive aspect in that the commercial interests of this country in the United States above all, and in the rest of Europe, may be jeopardised if this amendment is not agreed to. We must test the opinion of the Committee.

Lord Annan

Did I understand the noble Earl to say that he would look at the wording again?

Earl Ferrers

I said that I would look at what the noble and learned Lord, Lord Wilberforce, had said. That would be irrespective of whether the Committee voted on the amendment. That should in no way give the Committee the impression that I regard the amendment as acceptable.

Lord Monson

That is a very honest answer. It reinforces my feeling that we must test the opinion of the Committee.

1.19 p.m.

On Question, Whether the said amendment (No.316A) shall be agreed to?

Their Lordships divided: Contents, 29; Not-Contents, 93.

CONTENTS
Airedale, L.	Listowel, E.
Annan, L. [Teller]	Lloyd of Hampstead, L.
Bottomley, L.	McIntosh of Haringey, L.
Bruce of Donington, L.	McNair, L.
Craigavon, V.	Monson, L. [Teller.]
Darcy (de Knayth), B	Morris, L.
Foot, L.	Mulley, L.
Galpern, L.	Pitt of Hampstead, L.
Howie of Troon, L.	Quinton, L,
Hughes, L,	Stallard, L.
Hylton Foster, B.	Stoddart of Swindon, L.
Kilbracken, L.	Strabolgi, L.
Killearn, L.	Torphichen, L.
Lawrence, L.	Wilberforce, L.
Lindsay of Birker, L.

NOT-CONTENTS
Arran, E.	Diamond, L.
Attlee, E.	Dilhorne, V.
Auckland, L.	Effingham, E.
Aylestone, L.	Elibank, L.
Balfour, E.	Faithfull, B.
Belstead, L.	Ferrers, E.
Bessborough, E.	Flather, B.
Bethell, L.	Fraser of Carmyllie, L.
Blatch, B.	Gainford, L.
Blyth, L.	Gisborough, L.
Boardman, L.	Grade, L.
Bonham-Carter, L.	Hanworth, V.
Boyd-Carpenter, L.	Henley, L.
Brabazon of Tara, L.	Hesketh, L.
Brougham and Vaux, L.	Hives, L.
Butterworth, L.	Hooper, B.
Caithness, E.	Jenkins of Putney, L.
Campbell of Croy, L.	Kimball, L.
Carnegy of Lour, B.	Kinnaird, L.
Carnock, L.	Kinnoull, E.
Clanwilliam, E.	Lauderdale, E.
Colnbrook, L.	Lindsey and Abingdon, E
Colwyn, L.	Liverpool, Bp.
Crathorne, L.	Long, V.
Davidson, V. [Teller.]	Lucas of Chilworth, L.
Denham, L. [Teller.]	Mackay of Clashfern, L.

Macleod of Borve, B.	Selkirk, E.
Merrivale, L.	Stedman, B.
Mersey, V.	Stodart of Leaston, L.
Mountevans, L.	Strathcarron, L.
Mountgarret, V.	Strathclyde, L.
Mowbray and Stourton, L.	Strathmore and Kinghorne, E
Norfolk, D.	Taylor of Blackburn, L.
Nugent of Guildford, L.	Thomas of Gwydir, L.
Oxfuird, V.	Thomas of Monifieth, L.
Pender, L.	Trumpington, B.
Platt of Writtle, B.	Vaux of Harrowden, L.
Plummer of St. Marylebone, L.	Walpole, L.
Reay, L.	Walston, L.
Renwick, L.	Warnock, B.
Rodney, L.	Westbury, L.
Russell, E.	Wharton, B.
Sainsbury, L.	Willis, L.
St. Davids, V.	Wilson of Langside, L.
St. John of Fawsley, L.	Wise, L.
Sanderson of Bowden, L.	Zouche of Haryngworth, L.
Seear, B.

Resolved in the negative, and amendment disagreed to accordingly.

1.27 p.m.

Lord Monson moved Amendment No. 316B:

Page 204, line 37, leave out ("annulment in pursuance of a resolution of either") and insert ("the approval of each").

The noble Lord said: We now come to what might be called the safeguarding amendments—Amendments Nos. 316B to 316DA inclusive. My name should have been shown against all of those amendments.

Amendment No. 316B provides for the affirmative resolution procedure rather than the negative resolution procedure to apply to all orders made under this clause. That is very important where such touchy matters as international law and civil liberties are concerned. Amendments Nos. 316BA and 316BB would remove the power of Her Majesty's Government to send in officers of our Armed Forces, presumably carrying weapons, or fisheries officers against radio operators and disc jockeys. The use of the military is particularly inappropriate in an offence which is effectively scarcely more heinous than failing to pay one's road fund licence. It has been said that such powers do not apply in relation to far more important offences such as smuggling or drug trafficking.

Amendment No. 316BC would remove the power to search men and women on the high seas—a quite unnecessary power and one which is likely to give rise to physical confrontation. Presumably the Government envisage both strip searches and intimate body searches. If so, what safeguards will be provided to ensure that people are only searched by someone of their own sex, assuming that the power of search is needed at all? If intimate body searches are to be carried out is it to be stipulated that only qualified medical practitioners can carry out such searches? In any case, ought it not to be written into Schedule 14 if such searches are envisaged? I hope that the noble Earl will be able to give an answer to that point this morning. Amendment No. 316C is of particular importance. The paragraph which it seeks to delete gives an enforcement officer the power to arrest people on suspicion that they might earlier have been on a pirate ship when they were not actually on the ship at all at the time of arrest. For instance, they might have been on a car ferry plying between Holland and Belgium. That adds to the undesirable extraterritorial aspect of the whole matter.

Amendment No. 316CA would remove the power of an enforcement officer to force people on ship to produce documents. That is a power which seems quite excessive.

Amendment No. 316D would prevent enforcement officers from using force in pursuit of their objective. It should be noted that, as the Bill stands, there is no stipulation that force may only be used in self-defence. One would be less worried if that proviso had been written in, but it is not.

When Radio Caroline was boarded a few months ago by a mixed British and Dutch team some of the boarders carried firearms—not, I think, the British; but the Dutch certainly did—and violence was employed against some of the men and women involved. That is totally unacceptable. In Britain we use the phrase "Using a sledgehammer to crack a nut". The French have a rather better phrase. They say "Using a cannon to kill a fly". In this case it seems as if Her Majesty's Government are thinking of the word "cannon" not only in its metaphorical sense but also its literal sense.

Amendment No. 316DA would confine the scope of this section to United Kingdom tidal waters except where United Kingdom registered ships are concerned or in certain other specifically defined circumstances. To what extent, one wonders, have specialists in international law been consulted about the implications of that. In the first instance, I beg to move Amendment No. 316B providing for the affirmative resolution procedure.

1.30 p.m.

Earl Ferrers

All these amendments (Amendments Nos. 316B to 316DA) seek to reduce the powers of enforcement in the Bill.

Amendment No. 316B would substitute the affirmative resolution procedure for the negative resolution procedure for orders prescribing areas of the high seas under paragraph 2 of the schedule. The negative resolution procedure is appropriate. The order which defines the area will effectively set the extent of the United Kingdom's jurisdiction over radio broadcasts. Similar limits have hitherto been set up without the need for each House to approve them; for example, orders under the Continental Shelf Act and the Territorial Sea Act. It would be most unusual to require affirmative approval of each House for a matter of this kind. The negative resolution procedure provides adequate parliamentary accountability and is in line with precedent.

Amendments Nos. 316BA and 316BB seek to restrict the persons who may exercise these new powers. I would anticipate that the main enforcement agency will be the radio investigation service. But there will be occasions when it might need assistance from other authorities—for example, if there were a risk of resistance. Therefore the schedule provides for others, such as commissioned officers and sea fishery officers, to help. That is analogous to the position with onshore enforcement where the police often accompany the radio investigation service. I think that it is sensible and necessary.

Amendment No. 316BC would remove the power to search ships, structures or other objects. It is an essential element of enforcement to be able to search for possible evidence of offences. Otherwise, the authorities would be severely handicapped in their efforts to bring the offenders to book. Transmitting equipment, for example, might be hidden or locked away. It would make enforcement extremely difficult if the authorities could not search for evidence.

Amendment No. 316C seeks to omit sub-paragraph (5) (c) (ii) of the new Section 7A, inserted in the Marine Etc. Broadcasting (Offences) Act—known as the MEBO Act—by paragraph 8 of Schedule 14. New subsection 7A(5) (c) gives authorised enforcement officers the power to arrest and search persons who are suspected of committing an offence under the MEBO Act. Sub-paragraph (5) (c) (i) deals with the case of a person on board the ship, structure or other object. But this is not sufficient. A person might jump overboard or be taken off in a boat, in which case, without sub-paragraph (5) (c) (ii), he could not be followed. He might take with him vital evidence. It is important that officers should be able to pursue him.

Amendment No. 316CA would remove the power to require persons on board to produce documents or other items that could be used in evidence. Again, that is central to effective enforcement. It is unlikely that those involved will volunteer the evidence that is needed to prosecute them. Those sorts of powers of compulsion are quite usual.

Amendment No. 316D would remove the enforcement officers' power to use reasonable force. The use of reasonable force is necessary to effective law enforcement operations, wherever they may be. That was why the power to use it was included in, for instance, Section 117 of the Police and Criminal Evidence Act, which gave the police powers to investigate crime on shore. This applies equally to the radio investigation service, which undertakes a difficult and sometimes dangerous job.

I recognise the concerns which the noble Lord, Lord Monson, expressed. I should like to make some points to reassure him. First, the powers can only be exercised by a properly authorised enforcement officer. That provides safeguards against the arbitrary use of the new powers. Secondly, although obviously I cannot give a precise definition of what constitutes reasonable force, since that will depend on the circumstances, if an enforcement officer went beyond what was reasonable in the circumstances he would be exceeding his powers and the person affected would have a legal remedy.

Amendment No. 316DA omits a reference to external waters. That is the legal term for territorial waters. If the noble Lord is concerned about the exercise of the powers outside the 12-mile limit, which I suspect is what his amendment is aimed at, I can assure him that the Government are satisfied that the exercise of the powers will be in accordance with international law. We shall normally consult the flag state if the vessel in question is under another flag.

All the amendments would make the job of the radio investigation service unnecessarily difficult and in some respects virtually impossible. They would defeat the purpose of the schedule. I believe that the schedule strikes the right balance between the need for effective enforcement and the concerns which understandably have been expressed today. In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Stallard

Before the noble Earl sits down, I wonder whether he could help me to understand this amendment on, annulment in pursuance of a resolution of either House". I am not too sure that I understand the situation. I am not clear as to whether this House could annul a statutory instrument. I am not aware that that is normal practice. I wonder whether the noble Earl could tell me whether, if this House decided to annul the statutory instrument, that would be binding on the other House. That is how this passage seems to read.

Earl Ferrers

All orders which come up for negative resolution can be spoken to and voted on by both Houses. They have to pass both Houses. Therefore if one House did not pass an order it would fall.

Lord Monson

I am grateful to the noble Earl for his reply. Obviously time is short and he has had no time to reply at any great length. I am afraid that he was under a misapprehension when he replied to Amendment No. 316BC, which says nothing about preventing the enforcement officers from searching a ship. That would have been so if that amendment had referred to line 16 of the text. However, it refers to line 23, which relates to searching people. That is why the amendment is important. I do not object to a ship being searched but I object to people being searched. I do not think that that is necessary.

During the Recess perhaps the noble Earl will be so kind as to write to me stating whether it is envisaged that people will be strip searched, and, if so, whether they will be searched by people of their own sex; or whether they are to be intimately searched, in which case whether qualified medical practitioners will be employed to carry out that distasteful task. I think that we must deal with the matter in greater detail in mid-October, and therefore for the time being I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 316BA to 316DA not moved].

Lord Monson moved Amendment No. 316E:

Page 208, leave out lines 27 to 32.

The noble Lord said: The purpose of the amendment is to delete the paragraph which indemnifies both the enforcement officers and those assigned to assist them—who need not be enforcement officers themselves—against any civil or criminal proceedings provided that those individuals were deemed to have acted reasonably and in good faith. It is extremely worrying when one knows that firearms and other weapons are likely to be carried by enforcement officers and possibly by those assisting them.

The noble Lord, Lord Annan, last night gave us an all too likely tragic scenario. We might indeed have a "Rainbow Warrior" situation all over again if we are not careful. Why is such a sweeping degree of indemnity needed? What precedents exist for it? I beg to move.

Lord Annan

It is one of the most serious aspects in the whole of this business. The noble Earl will know that I am not defending the legality of Radio Caroline. But I am concerned with a situation in which the Government can send on board a ship not merely police and customs officers but anybody they care to employ—strong-armed men from some private firm. To grant immunity in such a situation is an extremely dangerous infringement of the liberty of the subject.

Lord Airedale

Perhaps I may draw attention to the word "purported" in this subsection. Immunity appears to be granted to an enforcement officer for anything done in the purported exercise of any of his the powers conferred upon him.

Could not the following situation arise? A case comes before the court. It is admitted on all sides that the enforcement officer exceeded his powers. Will he be allowed to say, "Yes, but under the subsection I am entitled to be acquitted because I purported to be in exercise of my powers"? What is the word "purported" doing here?

Will the noble Earl consider this matter before the next stage to see whether we can get rid of the word "purported"? It appears to have no proper stance in this subsection.

Earl Ferrers

I believe that it does. For instance, when the police go to a house they very seldom know that there will be evidence there. They go to the house expecting there to be evidence and they might find that there is no evidence. It is the same situation. People who will operate this part of the Bill when it becomes an Act may go onto a ship or structure genuinely expecting to find certain evidence and in fact not find it. In that case, they would purport to be in exercise of their powers even though when they arrived they found that the expected evidence was not there. In other words, it justifies their act.

The noble Lord, Lord Annan, has a fairly vivid imagination in saying that this will allow strong-armed men and private eyes to go crawling all over ships at sea. I do not think that that is the case. Immunity provisions such as those in subsection (9) are standard for marine enforcement officers. If a boarded vessel were under a foreign flag, the flag law might be cited as the proper law to be applied in the case of a dispute in the United Kingdom courts. The officers would not then be able to rely on the right, which is a United Kingdom legal concept, to act on reasonable suspicion and could then be found liable. That would frustrate the purposes of the schedule.

The immunity will provide a necessary but only limited degree of protection against legal proceedings. I must stress that the immunity is conditional upon the enforcement officers being able to satisfy any court that they have acted reasonably and in good faith. The immunity does not give enforcement officers carte blanche to exceed their powers in the way that the noble Lord, Lord Annan, so vividly conjured up. If an enforcement officer acts unreasonably, or indeed in bad faith, he will be legally accountable to the United Kingdom courts.

The immunity is therefore both necessary and subject to safeguards. It is in accordance with precedents. I hope that your Lordships will accept that.

Lord Airedale

In answer to the argument addressed to me by the noble Earl, perhaps one may consider paragraph (g) on page 207. It states that the official can use reasonable force, if necessary, not in the purported exercise of his powers but in exercising his powers. We shall have to return to this word "purported" when we come to Report because I believe that it is mischievous in the place in which it occurs.

Earl Ferrers

We may easily return to the issue at Report. However, perhaps I may help the noble Lord in order to prevent him finding the necessity to do so.

It is right that paragraph (g) states that the person may use reasonable force if necessary in exercising any of those powers. What are those powers? They are the powers in subsection (5) which states that he can board and search a ship, he can seize and detain, he can arrest and search, and so forth. Those are his powers.

The point about purporting is this. If he goes to a ship expecting to find, for instance, transmitting material and finds that it is a fishing boat or a holiday ship, he has made a mistake. He went there expecting to find transmitting material and therefore he was carrying out his work in exercise of his powers where he thought that there was likely to be a defence.

Lord Airedale

If he throws a fisherman into the sea, he gets away with it because of the word "purported". Is that right?

Earl Ferrers

That is not right.

Lord Torphichen

He might board a fishing vessel or a holiday ship in error but if the transmitter were so small that he could make a mistake about it, the transmission would not reach the land. If the transmitter is seriously capable of reaching land some 12 or 20 miles away and causing interference, there is no question that he could make a mistake about a holiday ship. That does not wash.

Earl Ferrers

My noble friend says that it does not wash. I can only tell him that when one constructs an Act of Parliament it is necessary to cater for all problems. The provision merely indemnifies a person who goes to carry out a task in the full belief that he is doing so correctly and suspects he will find something.

As I said earlier, one never knows when one goes to search a house that one will find evidence. If one searches the house and does not find evidence because someone has put it away, that person could not then say to the police, "You have no right to come here," when the police thought that they had a right. The policeman might say, "I came here not to bust your house up. I was carrying out my duties". It is for precisely that reason, translated to the circumstances about which we are talking here, that it is necessary to have such a provision.

Lord Monson

I am grateful to the noble Earl for his reply. I note with interest that he says that there is a precedent for including a paragraph of this nature. The seven-page legal opinion that I have in front of me takes a rather different view. It states that it represents a very wide immunity and is particularly objectionable when it is remembered that it is proposed to be exercised extra-territorially.

There is wide-ranging concern over the implications of this paragraph cutting right across party lines. Now may not be the moment to pursue the matter further as it is the last day of our deliberations. But we shall certainly return to it with a vengeance in mid-October. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 14 agreed to.

Clauses 160 to 162 agreed to.

Clause 163 [Use as of right of sound recordings in broadcast and cable programme services]:

Lord Colwyn moved Amendment No. 316F:

Page 124, line 1, after ("in") insert ("connection with").

The noble Lord said: It had been my intention to speak to all the amendments associated with Clause 163 which are standing in my name and the names of my noble friends Lord Colnbrook and Lord Glenarthur and the noble Lord, Lord Mulley. However, I have been advised that as the first group are specifically involved with the parts of the clause concerned with dubbing they should be taken first. The main group concerned with needletime and statutory licensing can be dealt with later. In moving the amendments I have been briefed by and have the support of the BBC—

Lord Lloyd of Kilgerran

The noble Lord says that he has been advised of the rearrangement of the groupings. He was kind enough to come across to tell me about it. However, such last minute rearrangements are somewhat embarrassing for Members such as myself who have been acting on the groupings put forward by the Government.

Lord Colwyn

I understand that those taken out of the large grouping for this initial discussion apply only to the dubbing aspects of the clause. The matter will become evident as we proceed.

The Minister of State (Lord Sanderson of Bowden)

Perhaps I may explain that at this stage we shall discuss Amendments Nos. 316F to 316K, 316Z, 316BB, 316CC, 316FF and 316TT.

Lord Lloyd of Kilgerran

I should have been grateful to have received notice of the rearrangement. The jungle of copyright issues is severe and I should have been helped had I known of it earlier.

Lord Colwyn

As it currently stands, Clause 163 does not take account of the fact that broadcasters need to be able to pre-record their programmes and retain them for repeats, archive use and programme sales; in other words, dubbing rights. There is a serious risk that, unless Clause 163 deals on the same footing with the collective exercise of dubbing rights, as with the collective exercise of broadcasting rights, the record industry could either reimpose needletime restrictions as a condition in dubbing licences or use the threat of injunction proceedings as a bargaining weapon to impose excessive prices for dubbing licences.

My amendments as grouped, including Amendment No. 317A, remove the right of performers to object to the dubbing by broadcasters of commercial recordings and so bring the rules on dubbing into line with those on the broadcasting of commercial recordings. That will avoid the risk that needletime restrictions might be reimposed by performers whose trade union, the Musicians' Union—and I must declare that I have been a member for more than 20 years and have not received a single word or brief during the passage of the Bill—made it clear to the Monopolies and Mergers Commission that it remained in favour of restrictions on needletime. I beg to move.

Lord Sanderson of Bowden

I have listed the amendments to which we are speaking at this stage. This group of amendments has two effects. First, it replaces all references to "including sound recordings in a broadcast" by references to "broadcasting sound recordings". This is a change which would bring the language of the new sections to be incorporated into the Copyright, designs and Patents Act 1988 into strict conformity with the language of that Act. Naturally, I cannot object to that. I must, however, resist the amendments because, in addition, they extend the scope of Clause 163 and the Government consider this to be unacceptable.

Clause 163 gives effect to the Monopolies and Mergers Commission's recommendation that a system of statutory licensing should be introduced which would permit anyone wishing to broadcast sound recordings to do so without fear of needletime limits. In the past the body responsible for licensing the broadcasting of sound recordings, Phonographic Performance Limited, has imposed a ceiling on the amount of time a broadcaster may devote to playing records and the MMC found that this has had detrimental effects on radio companies' management of their business. Although the Government are aware that PPL no longer impose any limit on needletime, we believe that it is necessary to give effect to the MMC's findings in order to ensure that there can be no reversion to previous practices and no question of needletime limits being effectively reimposed by means of oppressive pricing policies.

It is important to note, however, that the MMC's recommendations were confined to the record companies' broadcasting right and not to their reproduction right. My noble friend may believe that this was a failure on the MMC's part to recognise a loophole which would allow the record companies to impose needletime limits by the backdoor. I would say that this is a separate issue which the MMC was right not to address.

It is of course true that in modern broadcasting most programmes are pre-recorded, even when they consist of a disc-jockey playing commercially available sound recordings. Record companies cannot, however, use their reproduction right to prevent broadcasters from making such recordings, provided of course that they are entitled to broadcast the music in the first place. This is achieved by Section 68 of the Copyright, Designs and Patents Act 1988 which allows such pre-recording to be done, provided that the recording is destroyed within 28 days of its first broadcast. Consequently there can be no way, under Clause 163 in its present form, that record producers can prevent a broadcaster from playing sound recordings for as long as he wishes.

In any event, I must point out to my noble friend that his amendment would put the United Kingdom in breach of its obligations under the Rome Convention for the Protection of Performers, Producers and Phonograms and Broadcasting Organisations. Article 10 states that producers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms. While ephemeral reproduction of the kind that I have already described is allowed, there is no provision that would allow the statutory licensing of such reproduction for long-term retention.

I hope that in the light of that explanation my noble friend will feel able to withdraw his amendment.

Lord Lloyd of Kilgerran

The Minister's helpful presentation of the issue has saved the Committee considerable time. I have been asked to put forward several points on behalf of Phonographic Performance Limited, known as PPL. It takes the view that the amendments to which the noble Lord has spoken are attempts to expand the remit of the statutory licence from broadcasting to that of dubbing by inclusion in a cable programme service. The amendments also introduce the words "copying for other purposes".

As the Minister has said, that is contrary to the MMC report and the Government's stated intention behind Clause 163. It is also in direct contradiction of the Rome Convention on copyright law to which this country is a signatory. Article 10 of the convention states that producers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms. Therefore any provision that overrules this right by compelling the producers of phonograms to authorise copying under statutory licence would be in breach of their duties under the convention.

Lord Mulley

Before the noble Lord sits down, to avoid any misunderstanding, it is possible that some noble Lords may have thought that the first observation of the noble Lord concerned the "Pornographic Performance Society". I am sure that we would not wish that to appear in Hansard! While I am not pleased that the noble Lord speaks for Phonographic Performance Limited, I should be less pleased if he were speaking for the other organisation!

Lord Lloyd of Kilgerran

The noble Lord is some distance from me and he misunderstood what I said. I thought that I said "phonographic", but he will have his little joke and I am grateful for his intervention.

Lord Jenkins of Putney

It would certainly liven proceedings up if it had been the "Pornographic Performance Society"! The Government's amendment already goes far enough. One could argue that it goes a good deal too far. Equally it could be said that it is already, if not in breach, very nearly in breach of the Rome convention as it stands. The amendment would blow a hole right through it and remove all protection. It therefore cannot, in my view, be supported and I hope that the noble Lord will withdraw it.

Lord Colwyn

I am grateful to all noble Lords who have contributed to this short debate. I regard the answer as unsatisfactory as to the requirements I have made. I shall take away what has been said and possibly come back to it at a later stage in the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 316G to 316K not moved.]

2 p.m.

Lord Colwyn moved Amendment No. 316L:

Page 124, line 18, after ("which") insert ("all the conditions and terms for broadcasting, for including in the cable programme service or for copying for either such purpose the recordings would be acceptable to him").

The noble Lord said: We now come to a complex subject and it is important that your Lordships are able to understand the underlying basic facts that have prompted my amendments this afternoon. However, your Lordships will be pleased to hear that I am not planning to deal with them in fine detail. Despite the complicated nature of the subject there are at its heart some important and basic points of principle.

At this time I wish to declare an interest. I am about to set before the Committee a problem; the failure to find a solution to it could be extremely damaging to the broadcasting industry in which I am involved as a director in London's new jazz station, Jazz FM. I should also point out, however, that my concerns are shared by both the commercial radio industry and the BBC, who support these amendments and have been most helpful at meetings we have had.

One of the principal problems which my amendments seek to address is a serious concern over the way in which the Bill intends to deal with the age-old problem of needletime. This is the practice by which record companies, via their licensing body, the PPL, have required radio stations in the past to limit the number of gramophone records they play on the air. This restriction dates back to the early days of radio and results from arrangements designed to force broadcasters to employ musicians.

I have to admit that it was of benefit to my own band at one time as we were employed to record sessions at Capital Radio, providing the station with some of the live music that was required under the restricted needletime arrangements.

Noble Lords may have varying views on this practice, possibly depending on their taste in music. However, upon a reference to the Monopolies and Mergers Commission concerning the practices of PPL, needletime was clearly condemned as being an anti-competitive practice. Here I quote from its report in December 1988: We cannot endorse the needletime and employment requirement constraints. They are anti-competitive practices which we think should be abandoned". They also agreed that there had been an adverse effect on ILR companies' management of their businesses. This recommended abandonment of the practice of needletime was one of a range of measures recommended by the MMC, intended to prevent the unfair use of PPL's monopoly position. Indeed, with a rather spectacular act of foresight, PPL suspended needletime restrictions just prior to the publication of the MMC report.

All the principal findings of that report were subsequently accepted by the Government, who in turn made a commitment to give expression to the key findings in the Bill. Clause 163 to which my amendments relate have the effect of amending the copyright Act 1988. We should not be hesitant in making necessary changes that retrospectively disturb a recent Act of Parliament. These matters were specifically held over after exhaustive study in this House to allow the MMC to undertake its investigation of PPL.

An amendment to the Copyright, Design and Patents Bill before the House on 14th December 1987 in the name of the noble Lord, Lord Mulley, sought to establish a framework for this change. My noble friend the Minister at the time—Lord Beaverbrook—said, at col. 511 of Hansard: this is a difficult issue and any decision must be fair to both sides. We shall therefore need more time to come to a conclusion. I have to say that this might be before the Bill leaves your Lordships' House".

Unfortunately, the Bill gives only partial effect to this important Monopolies and Mergers Commission recommendation on needletime. The mechanism contained in the Bill, as presently drafted and designed to abolish needletime, is widely recognised to leave broadcasters exposed to the danger of a consequential price burden, with the potential to be every bit as oppressive as the original abuse. We are running a risk of leaving in the hands of the PPL a device, the results of which could effectively mean that the victim of abuse—in this case the broadcasters—could end up paying compensation to their abuser in the form of increased rates to the PPL.

No amount of complexity will dissuade me and, I hope, your Lordships from the belief that this is fundamentally unfair and that we must protect broadcasters from ever being exposed to the possibility that a supply abuse might be replaced with a consequential price abuse.

I believe that the amendments in my name and the names of other noble Lords enjoy considerable support in the Committee and have emerged from extensive discussions with the DTI. They are based on some most useful suggestions made by my honourable friend the Minister, Douglas Hogg. Their effect would be to address the specific problem and they have the merit of otherwise leaving the tribunal free to increase or decrease rates for any other reason than as a result of the abolition of the needletime abuse.

I hope that I have been able to state my position in a way that allows my noble friend the Minister and your Lordships to see beyond the obscuring wall of detail and grasp the basic injustice that could be perpetrated against British broadcasters by a predominantly foreign controlled licensing body. I hope noble Lords will join me in taking decisive measures to prevent this loophole remaining a part of the Bill, and therefore head off the danger of any further misuse by the PPL of its monopoly powers. Unless we take action to prevent it, needletime could—whether it be contractually or financially—continue to be extremely damaging and continue to haunt British broadcasters.

I should now like to turn to another aspect of the Monopolies and Mergers Commission Report. It is another recommendation accepted by the Government that has only found partial expression in the Bill. At present the PPL possesses an injunctive right; that is to say, as a monopoly supplier, PPL has the right to prohibit broadcasters from broadcasting records if they fail to accept PPL's licensing conditions. With effectively no alternative source of supply the broadcasters are subjected to enormous pressures to concede. Their alternative has been the possibility of the destruction of their business or a lengthy and expensive reference to the Performing Rights Tribunal. The last case to be brought before that tribunal took more than eight years. I am sure that we can all imagine the legal and human costs involved.

Broadcasters have consequently been at a distinct disadvantage in negotiations with the PPL. Not surprisingly, the benefit to record companies as a result of organising themselves into a monopoly pricing body has been manifested in royalty rates widely recognised as being among the highest in the world. I understand that while the UK may represent only around 7 per cent. to 8 per cent. of the world record market, the international record industry has been able to extract from the UK what could be in excess of 30 per cent. of all world broadcast royalties. While that might be an alarming scenario, it is by no means a surprising one when one has a monopoly supplier and an entirely dependent customer with the full weight of the law backing the supplier's right to refuse or withdraw the supply. The resultant market distortion has cost British broadcasters dearly.

A number of options were considered by the Monopolies and Mergers Commission in order to provide a fairer balance between the parties. One option was to effectively open up an alternative source of supply by removing the control of American recordings from the grip of PPL. A device known in shorthand as "first fixation" would have made UK copyright recognition and therefore protection dependent on reciprocal treatment in the country from where the recording originated. As the United States of America do not even recognise a copyright in records, material produced in that country would have been available to broadcasters and would doubtless have had a moderating effect on prevailing royalty rates.

Sadly, the Government declined to adopt that option, despite it becoming a widely adopted international standard. There were obvious balance of payments advantages to first fixation, and the broadcasting industry assumed that, in the absence of overwhelming evidence to the contrary, it would have been the Government's wish to adopt this criteria and therefore bring about something of a market in these rights. However, I must concede that the Government have been quite adamant in their refusal to make the change and I will not continue the argument at this stage.

The Monopolies and Mergers Commission identified another extremely important device that would also have the effect of bringing about a fairer balance. That was simply by the removal of PPL's injunctive right. The Bill attempts to bring about that removal by providing a statutory licence which would be available to broadcasters faced with the threat of an injunction. The commission was quite specific on that point, and I quote from their report: where the owner of a copyright in the sound recording entrusts the management of that right to PPL, it seems to us appropriate for that body, as the price of its monopoly, to be obliged to permit the use of its repertoire in return for equitable remuneration. This would require legislation under which users of PPL's repertoire would have the right to a statutory licence".

The commission went on to say that the licence should only be subject to compliance with various procedural requirements relating to notification. Unfortunately, as the Bill is currently drafted, the circumstances under which the statutory licence is available and the qualifications necessary for broadcasters are highly conditional and selective. They therefore fail in their principle objective in that the Bill still entertains circumstances under which a broadcaster could suffer the full pressure of PPL's monopoly power as manifested by the injunctive right.

I am aware that only recently there are newly-licensed and highly vulnerable radio stations struggling to get on air which have been frustrated by PPL, and are being subjected to threats of injunction in an attempt by PPL to discriminate against them by imposing licensing conditions notably worse than those available to existing broadcasters. The record industry is attempting to justify this discrimination by, among other things, claiming that stations should pay royalties according to their public service merits as judged by PPL.

That action is outrageous. Public service is a matter upon which the record industry is neither equipped nor entitled to judge. The thought that through PPL a predominantly foreign-dominated record industry could effectively silence British broadcasters because of its arbitrary judgment of their public service intentions, is astonishing. That they should exercise the power of injunctive right in this way while its fate hangs in the balance before this House is extraordinary. I suspect that that more clearly than I could ever describe, illustrates a monopolies capacity to ride roughshod over a dependant customer. It is exactly the sort of abuse of monopoly power that the MMC sought to curtail. I have no doubt that the MMC meant the removal of PPL's injunctive right to be absolute and universal, therefore providing all bona fide broadcasters with an important measure of protection.

My amendments make the statutory licence available to all such bona fide broadcasters where a failure to agree terms and conditions exists. I have good reason to believe that my amendments give effect to what the Government already thought was the purpose of this Bill. It is with some confidence that I hope these amendments will enjoy the Government's full support.

Similarly, I have included amendments that attempt to establish fair treatment for broadcasters at the hands of the tribunal. At present, a radio station making an offer of payment under statutory licence to PPL, and thought by the tribunal to be unreasonably low, runs the risk of having costs awarded against it. That is fair only so long as there exists a similar right for broadcasters to be awarded costs against PPL if it is judged to have made an unreasonably high demand. As I said, my understanding is that this concept also enjoys government support and will therefore find its way into the Bill.

I conclude by stressing that the complexity of the issues addressed by my amendment is every bit the equal of their importance and that those of us with even a passing interest in or knowledge of the radio industry will know that these matters have frustrated and in some cases damaged broadcasters for over a decade. The relief offered to them in the findings of the MMC's report finally addressed an accumulation of years of dissatisfaction. To deny broadcasters the full interpretation of what has been judged to be their right would be to strike a terrible blow to the radio industry, which in many respects is still very much in its formative stages. Such a blow could seriously undermine the radio industry's potential to continue and to develop as a marvellous national cultural and commercial asset. We must ensure that we fully honour undertakings made to implement the MMC's findings on the removal of both needletime and the injunctive right and thereby strike a fair balance in what has clearly been for too long an unfair state of affairs.

I apologise for spending so long on this matter of vital importance. I beg to move.

2.15 p.m.

Lord Mulley

I support the amendments moved and spoken to by the noble Lord, Lord Colwyn. Like him, I have a small interest to declare. I make clear that I do not share his taste in music. My interest is that I am a director and small shareholder of the Yorkshire Radio network. I was very much involved in the discussion on this matter when the copyright Bill was before this Chamber two years ago.

In retrospect, I pay tribute to the noble Lord, Lord Beaverbrook, who almost single-handed on behalf of the Government steered that very difficult Bill through the Chamber. It was largely as a result of our discussions at that time that subsequently the matter was referred to the Monopolies and Mergers Commission. It was made clear that a Bill on broadcasting was almost certain to come along soon and the matter would be dealt with accordingly, so there should be no fear that we are going back by amending a Bill where the matter has already been dealt with.

I do not intend to go into great detail because the noble Lord, Lord Colwyn, has already covered much of the ground. However, as I see it the amendments have the full support of the Association of Independent Radio Contractors. They are designed to give full effect to the MMC's report, which we understood the Government favoured.

I dare say that when the noble Earl replies he will say that the drafting is not exactly right. It is a well-known fact that if an amendment were drafted by one parliamentary draftsman his colleague, unaware of that fact, would want to redraft it. I remember that many years ago in another place a Private Member's Bill, having had the benefit of government drafting approval, was talked out on the basis that it was badly drafted, although it had been drafted by the chief parliamentary draftsman of the time. We shall understand, therefore, if that is the only problem but we hope that there will not be any arguments of substance from the Minister. It is a matter that must be dealt with.

The history is extremely sound. Although the whole business of the IBA and independent radio stations was governed and set up by an Act of Parliament, it could not be implemented until the individual radio stations agreed to pay ransom to PPL. That was not only a scandal but to some extent it remains a scandal. For example, there is still a big differential between the fees charged to independent radio companies as against those charged to the BBC. However, in both cases they are grossly overstated. The noble Lord, Lord Sanderson of Bowden, in a previous discussion, referred to the need to conform to the Rome convention.

One of the difficulties is that we do not follow what most of our co-signatories to the convention do. Putting the matter very simply, I have often said in this Chamber that, instead of banging the table at meetings and declaring our ministerial concern to look after our national interest, we should learn lessons from our French friends, who do not shout about such things but get on with doing them. They would not extract money from their companies and pay it to record producers in the United States because the Americans do not pay for anything. They do not pay for any British records that they use and neither do the Canadians.

In Australia they charge 0.25 per cent. as against sums varying between 4 per cent. and 7 per cent., of the revenue, as the noble Lord, Lord Colwyn said, for the use of records over here. I have not got the up-to-date figures, but I think that in 1988 the cost to Capital Radio, which is a very big station, was about £50 or £60 for each record played. It probably costs much more now. No one objects to the proper remuneration going to the performers and the composers. The difficulty is that, unlike many of our co-signatories to the Rome convention, we are paying fees for the use of their records when there is no reciprocation at all.

That nonsense is compounded by the fact that they have this phoney first fixation, where a record is played to two people, or something of that kind, and that counts as a fixation. It does not have to be a production. I know that the Bill does not deal with this matter, but it is an issue that needs to be addressed. My recommendation would be that we follow the example of many of our co-signatories and not make our people pay, through the PPL, to countries which do not reciprocate by giving us fees when they use British recordings and British records.

The noble Lord referred to another matter which is also very unfair. We accept that there should be equitable remuneration. If a station is dissatisfied, thinking that it is being charged too much, and it goes to the tribunal and loses, it has to pay the PPL's costs. Incidentally, that organisation is very much better off than the station. Conversely, if it is found that the demands made by the PPL are excessive, and it is so ruled, there is no way in which the station can get its costs. That is quite contrary to the normal practice in British courts of justice.

These are all matters which need to be looked at. When the noble Earl replies, I hope very much that, if he is unable to accept these amendments as they are, he will say firmly that, at the next stage of the Bill, the Government will introduce amendments to give full effect to the recommendations of the MMC. I hope that he will also look at the question of first fixation. I am not sure in exactly what way he will think it best to deal with the matter but this nonsense, as well as the other matters I have raised, needs to be dealt with pretty sharply and soon.

Lord Lloyd of Kilgerran

I deplore the somewhat extravagant way in which the noble Lord introduced his amendments. I want to make quite sure where we are. I believe that he was speaking to Amendments Nos. 316L to 316V. I assume that most of his remarks were directed to that series of amendments. I have said that his remarks were extravagant. I wish firmly to repudiate the unwarranted attacks on the PPL that he has quite unnecessarily made in his presentation. It is the old trick. When someone has a bad case he makes personal attacks against anyone who is around, particularly the fellow who is presenting the case that he cannot deal with. The facts presented by the noble Lord, Lord Colwyn, in introducing the amendments were almost totally inaccurate.

I say at once that the PPL is a licensing body acting on behalf of the record industry. It collects and distributes its revenue with administration costs of only about 10 per cent. The amendments in question are directed against the PPL. The amendments are also a radical and extensive departure from the Government's proposals in this area. The Government's proposals represent statutory enactment of recommendations made by the Monopolies and Mergers Commission in its report entitled Collective Licensing. Regardless of the submissions made on behalf of the radio stations, all of which are behind the amendments and in effect are trying to do away with the rights of copyright owners and to get something for nothing wherever they can, the MMC made no criticism whatsoever of the rates paid by stations in respect of the use of copyright material. It recognised that these rates were set by a decision of the Performing Rights Tribunal, the predecessor of the Copyright Tribunal under discussion here.

The MMC stated (at paragraph 7.31 of its report): Radio use of recordings must be of greater value to the radio stations because without that use they would have great difficulty in staying in business. In our view this value to the radio station is one of the elements that could properly be recognised in the charges that an owner sought to make for the use of his copyright". The noble Lord rather implied that there was some kind of coercion on the part of copyright owners to set rates or conditions. Those currently applied were set by the predecessor to the Copyright Tribunal after extensive hearings during which the radio stations—I am sure that the noble Lord, Lord Mulley, was also in the group that made the representations—made lengthy, comprehensive and ultimately unsuccessful submissions.

The amendments are all concerned with the operation of radio stations and are, in brief, attempts to undermine or seriously dilute the present policy of the Government on statutory licensing and the basic rights of the owners of copyright as expressed in the recent Copyright, Designs and Patents Act 1988, on which many of us spent so much time. The amendments seek to limit the responsibility of any broadcaster, particularly any commercial broadcaster, towards the copyright owner. In other words, they try to get round the rights of the copyright owner. The amendments, particularly those relating to cable programmes, contain the words "copying for either such purpose". That is entirely contrary to the MMC's report and the Government's stated policy underlying Clause 163.

I should add here that the past restrictions on needletime were measures originally undertaken for the benefit and at the behest of the Musicians Union. They were introduced in order to protect opportunities for the employment of live musicians on radio, as opposed to the incessant use of recorded material. I did not quite understand what the noble Lord who introduced this amendment meant to say when he referred to needletime. However, there is no need for us to go into that matter further.

The policy of radio stations has changed recently. I am told that these radio stations have no further obligation to assist talented musicians in their attempts to find outlets for their live performances. The stations are proposing to replace them with limitless numbers of records. Indeed, as the Committee will be aware, the most recent station to go on air, known as Melody Radio, states in its publicity that it provides a service of uninterrupted music by virtue of an automated pre-programmed selection of records.

It is in that unrestricted environment, and with the forthcoming deregulation of radio brought about by the Bill, that the clause under discussion will play a vital role. As commercial entities, the radio stations quite understandably wish to reduce their outgoings at every opportunity, even in respect of the very material which represents their raison d'être; namely, recorded music.

The amendments which have been put forward seek to limit the responsibility—I repeat the word "responsibility"—of any broadcaster towards copyright material that he is exploiting. In respect of the payments he intends to make, he wants to reduce them as much as he can—quite rightly—at the expense of the copyright material. The conditions under which he proposes to use such material are deleterious to the copyright owner. Therefore, I hope that the Minister will reject these amendments out of hand.

2.30 p.m.

Lord Colnbrook

My noble friend Lord Colwyn rightly described these amendments when he introduced them as being complex, and so they are. I intend to comment only briefly on one aspect. However, before I do so I must remind the Committee that I too have an interest as I am a director of Transworld Communications plc which owns four local radio stations.

The point on which I wish to comment does not concern needletime; it concerns the matter of this injunctive right. Parliament has always looked very carefully at anyone who owns a monopoly of anything. It has taken steps throughout the years to ensure that such monopolies are not abused or misused. I think that noble Lords on all sides of the Committee will agree that that is a proper position in which to be.

However, we have a situation here where Phonographic Performance Limited, PPL, has a virtual monopoly on the supply of records. That is backed up by a right which I do not think any other monopoly has: PPL can say to a company wishing to broadcast music, "You can do so on certain terms—our terms. If you do not agree to our terms, we can go to the court and get an injunction which will put you out of business". I do not know of any other monopoly having that power which has not attracted the attention of Parliament. I believe that it should also attract our attention because that, as I understand it, is the position.

Successive governments have agreed that monopolies must be carefully looked at. That is why the MMC has been supported by noble Lords on all sides of the Chamber and that is why the commission looked especially at this point. It is well recognised—I know that the noble Lord, Lord Lloyd of Kilgerran, will agree with me—that it made recommendations that this injunctive right should be restricted. The Government seek to do so and have achieved a partial restriction. The object of the amendments in this regard is to ensure that what I believe the Government want to do actually happens; that is to say, that the right of, in this case PPL, or for that matter anyone else, to say to me, the noble Lord, Lord Mulley, or anyone else, "You cannot carry on your business except on my terms", is not available. Everyone will agree that that must be the right way to go forward.

The noble Lord, Lord Lloyd of Kilgerran, said that the radio companies are—I wrote down his words—trying to get something for nothing. Oh no, that is not the case. Mark you, if we lived in America it would be. The United States does not recognise royalties in that regard. None is paid, but we do not live in the United States; we live here. It is recognised, by me at any rate and others connected with the industry, that something should be paid; but the question is, what? Who is to determine the what? Of course in the end it must be a tribunal.

However, it seems to me that the right way for this matter to go forward is for it to be recognised, as it is by me and, I think, by the broadcasting industry as a whole, that PPL should be fairly remunerated; that what is fair should be decided in the end by an impartial tribunal; but that while that decision is pending it should not be within the power of anyone to say to a new, or for that matter an old, radio station, "You cannot operate in the meantime. You are silenced", because we all know, do we not, that recourse to any court or tribunal does not happen the day after tomorrow. It takes a long time. In his opening remarks my noble friend said that the only case that has gone before a tribunal took eight years.

If I am to be stopped from doing anything at all for eight years, or even one year, it will ruin me. None of her Majesty's subjects should be put in the position of ruining me on that basis. I hope that with regard to this part of what my noble friend has advanced, the Government will agree that the injunctive right currently available to PPL should be removed, that a statutory right to broadcast should be put in its place and that what is fair remuneration, which everyone agrees must be paid in this country, should be determined by a tribunal. The amendments against which my name appears seek to achieve that. I hope they do, and I commend them to the Committee.

Lord Aylestone

It is perhaps worth reminding the Committee at this stage of what happened when independent local radio was first introduced just 18 years ago. The Conservative Government asked the IBA, of which I was chairman, to go ahead with independent local radio. We did that with a great deal of pleasure. There was no difficulty about obtaining applicants for the licences. They poured in. Our difficulties arose when we had to negotiate on the two problems of, first, copyright, about which it was regrettably impossible to obtain any sense, and, secondly, needletime under the PPL.

My then director of radio—he had a different title at that time; he was called the radio officer because there were so few of us—spent months and months negotiating on copyright and needletime. From our point of view, he did the job as well as it was possible to do it. The up and coming new licensees felt that it was restrictive but nevertheless went ahead. To put it shortly, they had us over a barrel at that time. It was a question of take it or leave it, and we had to take it. That is the fear of many of the 300 new radio companies that will come on the air.

Lord Thomson of Monifieth

I should like briefly to support the amendment. In doing so, I stress that I differ a little from my noble friend Lord Lloyd of Kilgerran. I shall not repeat the arguments that have been used, but my noble friend Lord Aylestone has said something about the history of the matter which is also my starting point because of my past association with the IBA.

We are all agreed that this is one of those cases in which one tries to strike a difficult balance of fairness between, in this case, the gramophone companies and the radio companies which use their output. Having looked at the evidence closely over many years, it seems to me that the system that has existed until now has struck that balance unfairly against the local radio companies, particularly the local commercial radio companies, for the reasons that my noble friend Lord Aylestone has given. Certainly, when you look at the matter internationally in terms of balance and reciprocity, you see an industry which has a predominant American element to it that has enjoyed considerable monopolistic privileges in this country without this country enjoying any kind of balance and reciprocity in terms of the United States.

There is now an opportunity to strike a fairer balance than there has been in the past. Striking that balance is still a difficult job but there is now the opportunity of doing so. The Government's legislation offers that opportunity. The amendment helps to improve the legislation, so I support it.

Lord Sanderson of Bowden

I apologise in advance for what will be a lengthy answer. I hope that my noble friend will realise that I am trying to look beyond the obscuring walls of detail to which he referred. I am also well aware that, as the noble Baroness, Lady Birk, has sometimes said of the Bill, this goes to the heart of the Bill. It goes to the heart of the problem of needletime and it is therefore important that I deal with all the amendments in this group. I realise that the noble Lord, Lord Lloyd of Kilgerran, has not necessarily spoken to his own amendments grouped in this connection, but I hope that, when I have finished, what I have said will give him a guide as to the Government's thinking on his amendments.

Lord Lloyd of Kilgerran

In order to avoid any misunderstanding, I understood that I could speak to my amendments when they were called. However, if the Minister wants to help me by giving his reply to them now, before I have spoken, I cannot stop him.

Lord Sanderson of Bowden

In that case perhaps we shall wait until we hear from the noble Lord.

First, there is a large group of amendments relating to the circumstances in which a statutory licence for broadcasting shall become available. Under Clause 163 at present, anyone dissatisfied with the amount of needletime that he is offered by a licensing body, or with the payments that he is asked to make for the needletime he desires, is entitled to a statutory licence. Amendments Nos. 316L, 316M and 316N, in the name of my noble friend Lord Colwyn and others, would make that licence available if a licensee were dissatisfied with any terms and conditions proposed by the licensing body.

Furthermore, Amendments Nos. 316AA, 316DD and 316EE would have the effect that the broadcaster would be able unilaterally to decide what conditions he should observe before the Copyright Tribunal, which will be the final arbiter of the terms and conditions of the statutory licence, is able to come to a decision. The only exception would be that the broadcaster must observe conditions designed to inhibit the unauthorised recording of broadcast records.

I do not think that that would be right. Clause 163 is designed to outlaw needletime limits and pricing policies which would have similar effects to needletime limits. If a broadcaster feels that other conditions proposed by a licensing body are unreasonable he can under existing law refer them to the tribunal. Moreover, if he begins broadcasting under statutory licence then he is only required to observe conditions which are reasonable. By comparison, under these amendments the licensing body would have no redress against those who adopted practices which could be harmful to the interests of the record companies; for example, the practice of playing a particular record whenever a particular product is advertised so as to imply an endorsement of that product by the artist involved.

I shall now turn to the amendments moved by my noble friend. I particularly refer to the second limb of Amendment No. 316N, in the name of my noble friend Lord Colwyn and others. This would prevent a licensing body from proposing a needletime restriction except on request. I understand the logic of this proposal. If the purpose of Clause 163 is to outlaw needletime restrictions, then why not prevent their being proposed in the first place? There is, however, a difficulty with the formulation proposed as it could have the undesirable effect of preventing a licensing body from publishing a tariff relating charges to particular levels of needletime. What I think may be needed to meet the concerns of my noble friend is a provision making the statutory licence available should a licensing body propose a licence or licence scheme which does not provide for unlimited needletime. I should be grateful if my noble friend would withdraw his amendment to allow us to consider this matter further and to come back at a later stage.

I come next to Amendment No. 316JJ, which in its second limb would impose a restriction on what the tribunal is to regard as relevant when settling the terms of payment for a licence. The amendment provides that a previous restriction on needletime shall not be taken as relevant to the terms of a licence containing such a restriction. Again, I am sympathetic to the concern underlying the amendment, which is, as I understand it, intended to prevent a licensing body from benefiting from removing a needletime restriction by having the rates prevailing when the restriction was in place simply extrapolated. But I have to say that the formulation proposed would appear to leave the tribunal in considerable uncertainty. On the other hand, I agree that the tribunal should not be guided by rates it decided outside the framework of the new statutory licensing provisions, and I should be grateful if my noble friend would withdraw that amendment on the assurance that the Government will return to this matter on Report with their own amendments.

A further group of amendments—namely, the first limb of Amendment No. 316JJ, and Amendments Nos. 316MM and 316 NN—deals with the recovery of costs in certain circumstances. My noble friend has explained that the present provisions do not fairly balance the interests of the licensing body and licensees, and I am happy to be able to say that I agree with him. The Government would, however, like to give further consideration to how this balance is best achieved and to bring forward amendments on Report. I hope that my noble friend will again withdraw these amendments in the light of this commitment.

Finally, there are two drafting matters. Amendment No. 316T proposes a new definition of needletime which I have to say seems unsatisfactory because it fails to relate the amount of time records are broadcast to any particular period of broadcasting. The existing definition does not have this defect and seems perfectly satisfactory. Amendment No. 316HH is, I think, an attempt at improving the English of new Section 135D, but seems to make it worse.

I shall of course reconsider the debate on the amendments. If there is anything else I need to address, I shall do that. However, I have recorded my impression of the amendments. I apologise for taking up the time of the Committee on this matter, but it is extremely complex. We shall carry out the measures that we have committed ourselves to in this reply by the next stage of the Bill. In the meantime, I hope my noble friend will be prepared to withdraw his amendments.

2.45 p.m.

Lord Mulley

We are grateful to the Minister for his assurance that the Government will look at these matters. I hope he can give a firm commitment that some government amendments will be tabled on Report to cover some of the points we have made. If he can give us that assurance, I shall be satisfied. In the meantime, I wish to draw the attention of the Minister to two of the recommendations of the Monopolies and Mergers Commission as set out in the summary of its report. It recommends at paragraph 1.5(h) the, abandonment of PPL's needletime constraints". It is on that basis that Members of the Committee have proposed these amendments.

The report of the MMC further states at paragraph 1.5(b): users should be entitled to a statutory licence, initially on the basis of self-assessed royalties". Unlike our American and Canadian friends, no one is seeking to play the records in question in this country free of charge. However, someone with an independent mind said to me on one occasion that he was surprised that stations had to pay to play the records. He said he would have thought gramophone companies would pay stations to play the records because that is the best advertisement for those records that can be devised. Speaking only for myself, I can say that my company would be glad to receive fees for playing records, if that could be arranged.

The report continues at paragraph 1.5(b): pending a Copyright Tribunal order on equitable remuneration … PPL's injunctive right should be limited". That was a point which was made very eloquently by the noble Lord, Lord Colnbrook. I hope that the Minister can assure the Committee that the MMC's recommendations will be taken very seriously in the Government's amendment, which I am looking forward to seeing at Report stage.

Lord Lloyd of Kilgerran

I also should like to thank the Minister for his comprehensive reply. I do not want to prolong the proceedings, but at least two Members of the Committee who have spoken today have totally misunderstood the basic features of intellectual property rights. I am very surprised that the noble Lord, Lord Colnbrook, with all his experience of these matters, should have talked glibly about monopolies such as he had never seen before—and his voice dropped as he made a fearsome attack on the monopoly of copyright owners. Copyright owners have a right which should be capable of subsisting. It is the same as if you have a house. If you own a house you do not expect someone to dash in and say "I am going to pay that rent, get out". Intellectual property rights are totally misunderstood by so many people when dealing with these matters.

I must declare an interest. I have spent most of my life dealing with intellectual property matters as a member of the Bar. There are always misunderstandings as to what is meant by intellectual property rights. The Prime Minister said some three or four years ago in the foreword to the Green Paper on innovation and intellectual property rights that British industry was very bad at preserving intellectual property rights for the purposes of creating wealth in this country.

The noble Lord, Lord Colnbrook, and the noble Lord, Lord Thomson, who sits before me, would not have made the remarks that they made this afternoon had they understood the basic principles of monopoly rights extended to people who have a copyright. They want a fair remuneration for that copyright. There is a tribunal and the PPL does not want to override that.

In conclusion perhaps I may mention a matter which may help to dissuade many Members of the Committee who have been carried away by the speeches of those who are against PPL. PPL has recently expressed to the Community Radio Association its desire to fix concessionary rates for those fledgling enterprises, as, for example, with hospital radio services, which PPL elects not to charge. The amendments bar any distinction between such stations and commercial radio—the proposed 24-hour juke boxes which are coming on to the air. The amendments before the Committee which the Minister has dealt with are a simple attempt to introduce a principle that what you pay for a product should bear no relation to the volume at which you intend to use it.

Lord Sanderson of Bowden

I do not believe that I need to add very much to what I have already said except to say to the noble Lord, Lord Mulley, that I have made commitments and they will be carried out. The noble Lord, Lord Lloyd of Kilgerran, has placed me in the position of referee—rather like at a rugger or football match—between my noble friend Lord Colnbrook and himself. I understand the difficulties to which he alludes regarding copyright law. For that reason the Government have to take measured steps to try to resolve the issue.

Lord Colwyn

I am very grateful to all noble Lords who have taken part in the debate, particularly to my noble friend the Minister, whose words were encouraging. It is far too complicated a matter for me to comment on at this stage. I shall have to read what he said and I look forward to seeing the amendments which he proposes.

I should also like to thank the noble Lord, Lord Lloyd of Kilgerran, for taking part in the discussion. We respect his experience in the field of copyright. I had thought that he might have been an ally. I have in front of me a Hansard of 14th December 1987 which covers the debate on an amendment moved by the noble Lord, Lord Mulley, on a similar subject. The noble Lord, Lord Lloyd, then said that he supported the amendments. However, he has obviously changed his mind. I hope that he is incorrect about what he said on PPL. But I shall look into the matter. In the meantime I beg leave to withdraw the amendment.

Lord Lloyd of Kilgerran

Before the House gives leave to withdraw the amendment, perhaps I may say that the noble Lord is once again adopting a well known trick. He says that I supported amendments but he has not disclosed what the amendments were. He simply said that I supported amendments moved by the noble Lord, Lord Mulley. I probably did. But we have not heard what those amendments comprised. That shows the attitude of these radio station fellows who are terribly anxious to produce their broadcasts over the air and want to pay as little as they possibly can.

Amendment, by leave, withdrawn.

[Amendments Nos. 316M to 316V not moved.]

Lord Clinton-Davis moved Amendment No. 316VA:

Page 125, line 12, after ("and") insert ("in a case where paragraph (b) or section 135C(3) applies").

The noble Lord said: In moving this amendment, it may be for the convenience of the Committee if I speak also to other amendments in this group. I can be reasonably brief in dealing with this point which I have been asked to raise by the international federation of the phonographic industry. I see that my noble friend Lord Mulley has left the Chamber. It is necessary to emphasise, having regard to previous comments that were made, that it is the phonographic industry. Only the other day I chaired a meeting on the environment and the speaker who intended to refer to genetically modified organisms unfortunately spoke of genetically modified orgasms. One has to be terribly careful about these things.

In my submission there are certain mischiefs attaching to Clause 163. It is those to which my amendments are specifically addressed. I ought perhaps to summarise the objections in the following way. First, the existing powers of control given to the Copyright Tribunal over the licensing of rights of sound recordings when administered by a licensing body are extensive and fully protective of the public interest. Consequently, there is little or no need or justification to introduce additional powers.

My second point is that the imposition of the proposed statutory licence changing the copyright owner's right, when administered by a licensing body, to a mere entitlement to remuneration, together with a right for any user, whether an authorised broadcaster or not, to pay whatever he pleases until the amount is finally settled by the tribunal, represent an unwarranted expropriation of private property.

Consequently the modification that I seek in the amendments—I shall come to them in a moment—can be summarised as follows. First, it is to provide that when a person exercises the right to broadcast or distribute by cable a sound recording without the licensing body's permission, he should pay the remuneration fixed by the licensing body until the tribunal settles what the amount should be. That seems to me to be an equitable way of regarding the situation.

Secondly, the tribunal should have the power to consider representations from the licensing body that it would be unreasonable for the user to continue to broadcast the sound recording or indeed to distribute it by cable. If satisfied by those representations, then the tribunal should have the power to direct that the statutory licence should be terminated.

I refer briefly to the amendments which stand in my name. Amendment No. 316VA together with Amendment No. 316DDC will limit the right of the applicant to fix the rate of interim payment in a case where the licensing body fails to propose terms of payment after receiving notice from the applicant under Section 135B(1)(a).

Amendment No. 316AYA gives the tribunal power to consider representations from the licensing body that there are reasons why the applicant should not continue to enjoy a compulsory licence.

Amendment No. 316DDC with Amendment No. 316GGA limits the right of the applicant to fix the rate of interim payment to the case where the licensing body fails to propose terms of payment after receiving notice from the applicant under Section 135B(1)(a).

Amendment No. 316GGA and the other amendments are consequential. Under its general powers the tribunal has power to award costs to a party in its discretion, if that would be reasonable.

I promised to be brief. I have tried to be as concise as possible. I hope that that explanation is helpful to the Committee.

3 p.m.

Lord Sanderson of Bowden

I thank the noble Lord for moving his amendment. I take it that in Amendment No. 316VA there is a misprint. It should refer to paragraph (b) of Section 135C(3).

Lord Clinton-Davis

Yes.

Lord Sanderson of Bowden

In other words, I assume that it is only when the licensing body has proposed unreasonable terms or no terms that it will be necessary for the broadcaster to notify his own terms. I feel that that is inherent in the structure of the clause as it stands, but I shall certainly consider whether the amendment proposed helps to clarify matters.

Amendment No. 316AYA would, as I understand it, require the tribunal not only to decide the terms of payment of the statutory licence but also to confirm that a broadcaster may continue to enjoy the benefit of that licence. I have to say that I do not see the need for this, since the tribunal decision on terms of payment will in practice supersede the right given by Section 135C. There will, in other words, be an ongoing licence in terms decided by the tribunal rather than a licence under Section 135C where the payment terms are decided by the broadcaster.

Amendment No. 316DDC—the main issue—would have this effect. Before the tribunal comes to a decision the broadcaster would have to pay whatever is proposed by the licensing body except in the unlikely event of that body failing to propose payment terms.

I believe that that would be contrary to what the MMC proposed and the Government intend to achieve since it may enable a licensing body to limit needletime by unreasonable pricing policies. That would be unacceptable to the Government even for a limited period, and I feel that I have to resist that amendment.

I must again resist Amendment No. 316FFA. It is a drafting suggestion that appears to result in a circularity, in that the existing reference to Section 135B(3) to an application being made under Section 135D would be countered by a reference in Section 135D to the application being made under Section 135B(3).

I believe that the amendment would confuse the issue rather than clarify it. We feel that the provision is reasonably clear in the existing text.

The final amendment in the group, Amendment No. 316GGA, would delete the provision empowering the tribunal to award costs in the event that the broadcaster has made unreasonably low interim payments. When the issue of costs arose during the course of the previous debate I undertook to look again at the existing provisions with a view to ensuring that they are even handed. I assure the noble Lord that I shall also carefully consider his amendment in that context.

Lord Clinton-Davis

I am obliged to the Minister. He agreed to examine the question of whether my first amendment is consistent with the thinking of the Government. Therefore, we can return to that matter at a later stage. In so far as the last amendments relate to costs they will be dealt with within his previous remarks. I am obliged and wish to consider what the Minister has said. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 316W to 316AYA not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 316YA:

Page 125, line 26, at end insert: ("(c) not broadcast sound recordings or include the recordings in a cable programme service prior to the date specified in a notice under subsection (1) (b) when he does not have a licence to do so").

The noble Lord said: The amendment endeavours to ensure that on the enactment of a statutory licensing scheme no broadcaster need deliberately infringe copyright by going on the air without any form of licence.

We are now dealing with a complicated set of new sections in the Bill. They are entitled, "Use as of right of sound recordings in broadcasts and cable programme services". The object of the new sections is to determine the circumstances in which that right is available; how one gives a notice of intention to exercise that right; and the conditions for exercising that right. The new sections are helpful in avoiding piracy and unnecessary infringements of copyright rights.

My amendment is to page 125 of the Bill at the end of line 26. It is inserted at the end of new Section 135B(3)(b). The new section states: A person intending to avail himself of the right conferred by section 135C". Before that person begins to exercise the right he must give notice to the Copyright Tribunal and apply to the tribunal to settle the terms of payment. Therefore, in putting forward the amendment in an attempt to be helpful, Phonographic Performance Limited state that there should be an additional amendment to the subsection. It will provide that the person wishing to exercise any right should: not broadcast sound recordings or include the recordings in a cable programme service prior to the date specified in a notice under subsection (1)(b) when he does not have a licence to do so".

The broadcaster will retain full rights to reject the terms of the licensing body and adopt his own under the statutory scheme. However, he will not be able to ignore both licences and commit an infringing act only to resort to a statutory licence under his own terms once the infringing broadcast has been discovered. The proposed amendment dovetails with other provisions in the statutory licence to cover the question of inadvertent broadcasting, which sometimes causes trouble. I beg to move.

Lord Sanderson of Bowden

I note that Amendments Nos. 316YA and 316YB are in identical terms so we shall deal with them first. As I understand it, the amendments prevent a broadcaster who has already infringed copyright by broadcasting sound recordings without authority from benefiting from the statutory licence.

While I agree that in an ideal world broadcasters applying for a licence should have clean hands, I have to point out that under this amendment a broadcaster, having once infringed, would be at a permanent risk of an injunction from the licensing body seeking to prevent him from broadcasting sound recordings. This is very oppressive where the broadcaster is prepared to abide by the conditions attaching to the statutory licence. I do not believe either that it is consistent with the MMC recommendation that the licensing body should lose its right to an injunction where the statutory licence procedures are being observed. Therefore I have to resist that amendment.

Perhaps I may move on to Amendment No. 316DDB which would give guidance on what should be taken into account in relation to whether a particular condition or requirement laid down by a licensing body was reasonable. The amendment refers to determining the question. I therefore take it that the guidance is for the court and the tribunal. I have to say that I do not think that that is necessary. The tribunal is already obliged to have regard to the terms of licences other than the one in dispute. The courts already take account of terms and conditions voluntarily arrived at when deciding these matters in cases of non-voluntary licensing. Both bodies will also have regard to all other relevant circumstances.

If, on the other hand, the guidance is intended for prospective licensees, I would say that it is not the function of the legislation to give signposts of this kind. It is for the licensee to seek proper legal advice on the way in which the relevant authorities will approach the question. That is my answer to Amendment No. 316DDB.

We now come to Amendment No. 316YC, also in the name of the noble Lord. It would require a broadcaster to provide cash or security equivalent to the difference between his and the licensing body's estimation of what amounts to a reasonable payment for a three-month licence. His objective is to ensure that funds will be available to meet any further payments ordered by the tribunal. I do not think that this is necessary either. The licensing body's main income will continue to come from well established broadcasters and the amounts at risk will be very small indeed.

In the circumstances, it would not be justifiable to add yet a further condition to the exercise of a statutory licence, particularly one that would impose a cost on even those broadcasters who have made payments with which the tribunal ultimately agrees.

I hope that that explanation of this group of amendments will, once the noble Lord has had a chance to digest them, persuade him that I have covered the points he raised. Of course, if between now and Report stage he wishes to come back on any points, I shall be prepared to consider what he has to say.

Lord Lloyd of Kilgerran

I am grateful to the Minister for his comprehensive reply to the only amendment which I moved, Amendment No. 316YA. As he so rightly pointed out, Amendment No. 316YB is in identical terms and I shall not move it.

However, a curious practice seems to have grown up that, before I have put my case in support of an amendment, the Minister has replied to it. He has his paperwork to get rid of, but it seems to me a curious position. I have not put my case in regard to Amendment No. 316DDA, and when we reach it I shall make certain observations. Meanwhile, I beg leave to withdraw Amendment No. 316YA.

Amendment, by leave, withdrawn.

[Amendment No. 316YB not moved.]

3.15 p.m.

Lord Lloyd of Kilgerran moved Amendment No. 316YC:

Page 125, line 26, at end insert ("and (d) deposit in Trust Account in the name jointly of himself and the owner of the copyright, or provide security by way of bank guarantee for, an amount equal to the difference between the amount that would have been payable in the first three months of the licence in accordance with any proposal for terms of payment made pursuant to a request under subsection (1)(a) and the amount which the person intending to avail himself of the right has notified he is willing to pay in the first three months of the licence under subsection (1)(b), on terms that the owner of the copyright shall be entitled to have recourse to up to the whole of the amount, so deposited or secured and any interest thereon in satisfaction of any order of the Copyright Tribunal").

The noble Lord said: This amendment was intended to be helpful. It is rather a long amendment that was intended to cover this position. In the forthcoming deregulated broadcasting environment, with perhaps 300 radio stations in operation, according to the Home Office, it is likely that some stations will become insolvent and cease trading. Unlike many creditors, PPL will have no physical assets on which to place a lien. It would therefore remain a wholly unsecured and deferred creditor which has infringed statutory copyrights. That danger is further exacerbated in circumstances relevant to other amendments whereby an infringing broadcaster simply uses the statutory licence as a method of avoidance, and subsequently becomes insolvent.

I beg to move Amendment No. 316YC, but only in order immediately to withdraw it. I have heard that the Minister, without hearing my argument, has already rejected it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 316Z to 316DD not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 316DDA:

Page 125, line 45, at end insert: ("( ) In determining what are reasonable conditions and information reasonably required under subsections (1)(a) and (b), regard shall be had to such conditions and information complied with and supplied by other persons in similar circumstances, the provisions of this Act and all other relevant considerations").

The noble Lord said: This amendment provides an objective guidance to the standards of conduct to be applied under a statutory licence. It gives a proper reference point—that is, broadcasters in similar circumstances—from which the statutory licensee can justify the manner in which the material is used in its business relationship with the licensing body.

I do not propose to elaborate on the amendment. The Minister, with that courtesy by which he is characterised, has already pre-empted me by his decision on this matter which his very helpful and hard-pressed advisers have given him the authority so to do. I beg leave to move the amendment. Having done so, I beg leave immediately to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 316DDB to 316LL not moved.]

Lord Thomson of Monifieth moved Amendment No. 316LLA:

Page 126, line 38, after ("recordings") insert ("which comply with subsections (1A) and (1AA) of section 168").

The noble Lord said: This is a paving amendment for the main amendment on this matter, Amendment No. 320. It may be for the convenience of the Committee if I speak to both amendments together.

The purpose of Amendment No. 316LLA is to ensure that the so-called listed events—10 great sporting occasions—continue to be broadcast by one or other of the two great terrestrial broadcasting systems in this country, the BBC or independent television. I believe that they are likely to be the major source of television viewing for the rest of this century.

I am aware that this is a popular issue on which to speak, but I concede immediately to the Government that it is not as simple as it seems. The sacred list of 10 great sporting occasions is rather arbitrary. It includes the Boat Race, which I am bound to say I have never regarded as a great national sporting occasion. But I am one of the ignorant Scots who when people speak of dark blues and light blues think of Dundee and Rangers football clubs.

Although the issue is not as simple as it seems—I concede that to the Government—I hope after the argument has been heard by the Committee that the Government may concede that the balance of public interest is strongly in favour of the amendment.

The matter was put with characteristic urgency by Paul Fox, now managing director of Network Television and formerly managing director of Yorkshire Television. He said that the licence fee has traditionally bought viewers a ticket to these great occasions and that they should not be deprived of major events which they are used to seeing on BBC and ITV. I should like to add that viewers should not have to buy either a Sky dish or a BSB squarial as the price of a fireside seat on these famous occasions.

It is worth remembering the origins of the protection round these listed events. It goes back to the Television Act 1954 and the establishment of commercial television in this country. It was designed precisely to prevent these great national events from being cornered by commercial television at a time when commercial television was confined to the more populated areas in the South and the Midlands and was spreading only slowly to the rest of the country.

The Government propose to abandon this long-established provision and to leave the matter to the market-place, although the Minister in another place who is responsible for this Bill admitted in the debate on 9th May that there is a risk that at some point in the future a major sporting event may go to a minority channel. That is not simple speculation or scaremongering. As is well known, it happened in Germany last year. There were great German tennis players in both the men's and women's singles at Wimbledon but coverage of Wimbledon had been purchased by one of the German satellite broadcasting systems which was seeking to establish itself. Only 4 per cent. of the German public were able to watch that great event.

The only statutory protection offered by the Government in the Bill is that the ITC shall do all it can to secure that programmes dealing with listed events shall not be included on pay-for-view terms. I am bound to say to the Government that if they are unwilling to accept an amendment with the same purport as the one I have moved it will be extremely difficult for the ITC to hold that line on pay-for-view. The information one receives about the pressures from the various new competing television stations on pay-for-view operations indicates that there could be very high charges to see these events. The best protection against that possibility and the best way to reinforce the very welcome proposition that the Government have put in the Bill on pay-for-view is to adopt an amendment similar to the one I have moved.

As I said, this is not a simple black and white matter. There is another side to it—the right of various sporting bodies, in a world where media exposure is so important, to gain the maximum possible revenue. As we know, sport is now very big business. However, in making this point I am saying that this matter is much more important than the interests of the Murdochs or the Mark McCormacks in the new big business of sport.

I think all of us have to take on board the truth and take action to maintain the balance properly—that is to say, that media royalties refresh the parts of the sporting world that more direct forms of revenue do not reach. The BBC has proposed a formula to meet that problem which I commend to the Government and the Committee. It proposes that while preserving the position that one or other of the terrestrial channels should have the right to carry one of the listed events, there should be proper competition between the BBC and independent television as to who will bid the most for the right to transmit it.

If that takes place it will enable the sporting bodies to benefit from a competitive element which is consistent with the public interest. Perhaps I may say in parenthesis that it will also serve the public interest in another direction. It will prevent the enormous damage to the public interest which occurred during the World Cup. One had to watch exactly the same sets of football pictures which were transmitted from Italy, with slightly different commentaries, on both the main television channels.

That principle needs to be drafted in an amendment because I do not stand by the text that we have formulated and put before the Committee. It states the main thrust of the argument. The second part of Amendment No. 320 would then bite. It would be an obligation on either the BBC or independent television—whoever had won the competition for the listed event—to make proper arrangements for the sub-contracting of that event to the other newcomers to the broadcasting scene, such as the satellite broadcasters and cable television. In that way the interests of the viewing public and the owners of the sporting event would be properly safeguarded. I beg to move.

Baroness Birk

I support this amendment, to which my name is attached. I think the noble Lord, Lord Thomson of Monifieth, has very clearly explained it. He has made an extremely persuasive case that it would be hard to reject. As he pointed out, this question of listed events goes back a long way. After its introduction in the Television Act 1954 it was carried forward in Section 30 of the Broadcasting Act 1981 which allowed the Secretary of State to make regulations, with a view to preventing the making of exclusive arrangements for the broadcasting of sporting or other events of national interest". An informal list had been agreed in private discussions between the BBC and ITV companies but at that time the list had not been published. The Cable and Broadcasting Act 1984 also anticipated the arrival of channels with restricted availability. It reiterated the listed events provision. It added another tier of protected events which could not be bought on pay-view terms, as mentioned by the noble Lord, Lord Thomson of Monifieth. Essentially, it consisted of all events which terrestrial channels had traditionally covered.

Therefore, the provision was strengthened in 1984 and that brings us almost to the present day. The list of 10 events was formally published by the Home Secretary on 12th July 1985. I shall not take up the time of the Committee reading out the events because I believe that we all know them. According to research carried out last year, 80 per cent. of viewers watched at least one of these 10 events last year. Of that number, 82 per cent. said that they would be positively concerned if any other of these events were restricted to cable or satellite television.

It would be both sad and ironic if a Bill whose White Paper progenitor bore the title Competition, Choice and Quality resulted in less choice for most viewers. The Government have pointed out during these lengthy discussions that the Bill is about choice. If one cannot receive on a terrestrial channel the events that one wants to watch, one does not have much choice. To receive them one has to be able to afford or want a dish or a link-up to cable. That cannot be right for the majority of our population who expect the universal coverage that we have been used to for the past 30 or 40 years.

Since the advent of competitive television Parliament has ensured that every viewer has access to events of national importance for nothing more than the cost of a licence fee. Removing the listed events provision will undermine a 35 year old guarantee of universal access to which all parties have been traditionally committed. The noble Lord, Lord Thomson, pointed out a way in which the matter could be worked out. The organisers of sports events are naturally anxious to sell what they can, presumably for as much as they can, but the Government argue that organisers of sporting events should be able to benefit from competition for the sale of broadcasting rights of the event. That is understandable.

However, if the terrestrial broadcasters were able to match the bid of a satellite service at an auction similar to the Channel 3 licence allocation, the sporting event would reap its just rewards and universal coverage of the event would be retained. Instead, I fear that what the Government have done is to remove the right of the BBC and ITV to match other high bids in order that the free market will be able to operate in favour of the new satellite services which quite desperately need to show high profile sporting events to sell satellite dishes.

We should come back to the basis of what we are told the Bill is about. We are told that it is about best value for the viewer and giving the viewer a proper choice. I hope that the Government will accept the amendment.

3.30 p.m.

Lord Swann

I entirely agree with what the noble Lord, Lord Thomson, and the noble Baroness, Lady Birk, have said about the amendment, to which I was glad to add my name. The amendment is essential if the Government are not to generate a great deal of ill will towards themselves. I say that as an erstwhile chairman of the BBC. I remember well the volume of complaints that we used to receive throughout the year. It may still go on—I do not know. They were complaints about the fact that people had poor reception, or, in those days, even no reception of television at all. I also remember—this brings me to why I think that unless this amendment is carried the Government will generate ill-will—that those complaints came in waves that coincided with the listed events. I suspect that being deprived, not by the difficulties of geography or by the lack of transmitters, of programmes that vast numbers of people want to watch simply by a quirk of legislation may cause much trouble.

The Lord Bishop of Liverpool

This question of the great sporting events is one of prime importance. They are the symbols which stand for great principles touched by the Bill. In many of our discussions we have seen that there is a debate about broadcasting, or narrowcasting. Many features of our national life are leading us to know less and less of a common fabric to our life. Television as we know it—that is, broadcasting—is possibly the greatest single shared material in that fabric. The new technology, which this Bill seeks to regulate with freedom and responsibility, can lead to much more fragmenting of our experiences: push a button for a narrow casting of whatever particular interest you have.

Television is the window of the poor. It is the main way in which those who cannot travel widely, by reason of age or because of a shortage of cash, are enabled to share in the mainline events of our nation's life. A government who are concerned that people may feel that they belong to one nation will want to safeguard this concept.

Perhaps I may talk about cricket. I think that it is a fair example of what is at stake. Indeed, some noble Lords were watching Graham Gooch in full flight just a few moments ago. According to a lobbying letter from the Central Council of Physical Recreation, the CCPR, the Test and County Cricket Board, argues that we should not support this requirement about the listed sporting events which is proposed in the amendment because it believes that substantially increased income would come into cricket. Is that all that the TCCB should be interested in? As a cricketer, I believe that it would be greatly to the loss of the game of cricket if test matches were only shown on channels for which people had to pay a second time, beyond the licence fee, for a satellite dish or by way of subscription.

Cricket is one of those games which has an immense support among people who follow it from afar, especially through watching television or by listening to "Test Match Special" on the radio. They include boys whose enthusiasm can be won in that way, which is something that the future of the game needs. I imagine that the position is the same as regards athletics, lawn tennis and football, especially when people do not live in places where there is easy access to see a great game being played. These people also include pensioners, who love the game of cricket and who have been part of it. Test matches belong to them as much as they belong to the TCCB.

In my view any responsible sporting authority would hate to be put in the position of having to choose between, on the one hand, a huge "punt" which a satellite or cable company might offer in order to break into the market for perhaps two years, and a fair market price which enabled all viewers to see the great sporting events at a price which lasted for years.

It is reasonable to fear such a punt. Companies who have invested vast sums of money into satellite, having only made a small penetration into the British audience, could find themselves in a position where they argued that to make a huge desperate throw would be worth it. However, it would not assist sporting bodies, except for the shortest period of time. Indeed, it would distort the market.

As the noble Lord, Lord Thomson of Monifieth, explained, the BBC is not arguing to keep the status quo or to keep a special right for the corporation alone; it is proposing a two-tier framework in which live access could now be sold exclusively to one or other terrestrial channel, and that such channels should be obliged to offer secondary rights to satellite or cable. For example, there is a considerable market for highlights. Earlier this year the BBC entered into a partnership with Sky Television in respect of the West Indies tests. The corporation paid £450,000 for the highlights, while Sky Television broadcast ball-by-ball coverage of the matches. That would mean the possibility of larger sums for sporting bodies. Indeed, it would be surprising if they did not materialise.

The Government have said that there is no need to worry, because it is in the interests of the sporting bodies to want the events to be available to all viewers. I hope that they all acknowledge that fact. However, if there is no need to worry, why have I received a lobbying letter from the CCPR which argues exclusively about substantially greater income? Such an approach by the sporting bodies is profoundly short-sighted. As I have tried to say, safeguarding access to those events for all viewers is symbolic of an important principle. The Government's hopes need to be supported on the face of the Bill. I hope that the amendment will be carried.

Baroness Blackstone

I should like to add my name to those supporting the amendment. A high proportion of the population, from all social groups, greatly enjoys watching major sporting events on television. The right reverend Prelate the Bishop of Liverpool referred to boys and pensioners; but many women and girls also enjoy watching those sporting events. One of the great benefits of television has been its capacity to bring exciting and entertaining sport of the highest quality to millions of people who would never have been able to obtain a ticket to go to any of those events, because they cannot afford to buy them, they cannot travel or there are not enough tickets to go round.

It is clear from the survey carried out by Gallup earlier this year that most people believe that those events are of interest and are followed by a wide audience, not just enthusiasts of the particular sport. The survey indicated that there was a great deal of concern about the possibility that those events might be restricted to cable or satellite broadcasters. Were that to happen, as the noble Lord, Lord Swann, said, it would be a development highly unpopular with the electorate. I hope that the Government are aware of the survey.

As my noble friend Lady Birk has said, it would also be a strange state of affairs if a Bill designed to increase choice ended up with less choice for most viewers in the important area of the coverage of major sporting events. For those reasons, there should be a safeguard in the Bill beyond the existing safeguard, with respect to the prevention of the transmission of listed events on a pay-per-view basis. There must be a safeguard against the sole transmission of those events on services which are not widely available. One cannot assume that the sporting bodies would reject an excessively high bid for the rights to broadcast in favour of the wide availability of the event. In any event, they should not be forced into that unfortunate dilemma.

Amendment No. 320, as has already been said, is not restrictive; it does not seek merely to maintain the status quo. Instead, it combines a guarantee of widespread availability with an opportunity to expand viewing through a secondary market. By imposing a duty to make available rights to new players in the satellite and cable business on those broadcasters who obtain the initial rights, we surely have the best of all possible worlds.

I do not want a dish. I do not want cable. I want to watch at least some of the events, although I agree with the noble Lord, Lord Thomson of Monifieth, that the boat race is not one of them. I am a supporter of the University of London. I believe that what I have said is the position of many people. I support the amendment.

Lord Morris

I feel lonely at the moment. I am the only person so far to speak in support of the amendment. I shall speak as vigorously as I can against this monstrous amendment. In arguing for the amendment, the noble Lord, Lord Thomson of Monifieth, appears to have resurrected the principle beloved by monarchs through the ages; namely, that of divine right. In this context, it is the divine right to publish. That is wrong. In firmly supporting the amendment, he speaks of the terrestrial channels as though there is some virtue—

Lord Thomson of Monifieth

If I am seeking any divine right, it is not the divine right of kings; it is the divine right of the people.

3.45 p.m.

Lord Morris

With respect, that is not the case. The noble Lord is seeking only the divine right of the established publishers to publish certain events and to deny other entrants into the market the opportunity to publish. That is wrong for the reasons that he hinted. It might seriously deprive funds that go to the benefit of sport and of the young men and women who indulge in sport. The idea is highly illiberal and rather strange coming from the Benches opposite.

Perhaps I may return to the point about terrestrial channels that I was discussing before I was interrupted. There is no virtue whatsoever in a channel being what is rather oddly called "terrestrial". It does not matter a fig to the public, whose interests the noble Lord appears to be protecting, how they receive the signal. Has he any idea how the BBC or the ITV received the signals during the broadcasting of the World Cup? They received them by satellite. The BBC and the independent television companies are satellite broadcasters.

In support of the amendment, the noble Baroness, Lady Birk, quoted, as if there were some virtue in antiquity, the 1954 Act and regulations going back 30 or 40 years as an argument for the same system to be maintained. I entirely agree with her and with W. S. Gilbert that, there is a fascination frantic in a ruin that's romantic". There have been great changes in the past 36 years. I take the point made by the right reverend Prelate the Bishop of Liverpool, who inspired me greatly as a boy. My fascination with and love of cricket was born of cricket literature which fired my interest in the game on the principle that, if people could write like angels on a subject, the subject itself must be worth paying attention to. What would he think if the essays of Neville Cardus and the writings of Robertson Glasgow should be published only by Rupert Hart Davis or by Collins? That is a monstrous thought. For those reasons, the amendment should be vigorously resisted.

Lord Bonham-Carter

The noble Lord said that it would be monstrous if the writings of Neville Cardus were published only by Rupert Hart Davis. He published one or two, but that is exactly how publishing is run. Publishers publish authors and they have the exclusive right to publish those authors. I happen to know, as I published Neville Cardus for many years.

Lord Morris

A writer has the exclusive right to change who publishes his works, should he so wish. Indeed, Neville Cardus did.

Lord Ardwick

The noble Lord does not appear to have grasped that it is advocated that those programmes should be on terrestrial television for a single reason: everyone has it. It is available to the whole nation. If it is available only on cable or satellite, only a minority will have it. The situation might change one day, but we are years away from most people having satellite and few people having terrestrial television, if that ever happens.

I wonder whether someone in the Government or in Whitehall has not made a terrible mistake. Has he not recognised that these listed events are great national occasions that unite the nation just as they divide us into partisans at the same time? A few weeks ago I was driving home and found that Fulham was a deserted village. There were hardly any cars on the road and very few people on the streets. I had been engaged in the House all day so I did not know what was happening. Suddenly, two young men carrying a huge Union Jack at each corner ran cheering along the streets. That followed the game that England had played and won. That is the kind of thing that happens. To suggest that it should be confined or should not be available to everyone at the same time on the same day is a great error.

Lord Orr-Ewing

I am torn on this matter, having been involved in the business from the beginning. I believe that the BBC does a wonderful job and that its coverage of test matches and Wimbledon is quite outstanding. However I am still a little worried about this matter. This summer there has been a tremendous clash as regards sporting events. There have been two lots of test matches—there is one on today—Wimbledon, Royal Ascot, Henley, golf events and, above all, the World Cup. All those events took place at the same time. Some people want to watch one event while others want to watch another. However, we had to take what the broadcasters gave us, although I appreciate the situation will not be the same in future.

Sometimes one was driven barking mad by the situation. One could turn on the television and reach the final two overs of a one-day test match only to find that the coverage was suddenly switched to horses at Ascot walking round a paddock. If the horses were at the start of a race I might find it forgivable, but coverage should not be switched when a test match is being decided. At present one has no choice in these matters. One is switched by the BBC, or whatever company is broadcasting the event, to something else.

I am waiting to hear what the Government propose in this regard. I find it difficult to believe that these so-called listed events should always remain the same. When the original list of events to be covered was drawn up, the boat race was considered to be a great occasion. It is not now a great occasion and it has dropped out of the list. That is sad for those who row. Equally, there never used to be a world cup event. The listed events were the Grand National, the Derby, the boat race, the test matches and the cup final. Now, however, many new events have appeared on the scene. Even snooker takes priority over a lot of other sporting events. There is great difficulty in this area. I know that showing highlights of events is one solution to the problem. Highlights enable one to watch events between 6 o'clock and 8 o'clock in the evenings for example.

People ask whether the events are transmitted by those organisations that pay the greatest sums for doing so. I am slightly allergic to that idea. On the other hand, last year Wimbledon gave £7 million to the Lawn Tennis Association for the building of facilities and the coaching of youngsters. I do not know how much was given this year. For many years the BBC paid—I negotiated it originally—£300,000 for the coverage of the whole of Wimbledon. That seems a small figure today. It is believed that nowadays, under competitive bidding, the sum of money could easily reach £20 million, of which £19 million could be allocated to the coaching of youngsters.

One cannot close one's mind and say that an artificially low rate should be maintained for all time. I look forward to hearing of a solution which steers between the course suggested by the right reverend Prelate and that suggested by my noble friend Lord Morris and others. This is a complicated subject.

Wimbledon, incidentally, does not constitute one event. It comprises, for example, the men's singles, the women's singles, the men's doubles and the mixed doubles. There is no reason why the same company should broadcast all the events. I happen to like watching the men's doubles. I think it is simply fantastic. It always used to be shown at about 7 o'clock in the evening. It provided some of the best tennis available. I find that is still very interesting, whereas other events are rather dull. Is there any reason why a different company to that which broadcasts the rest of Wimbledon should not broadcast the men's doubles? This is a desperately complicated matter and I look forward to hearing the Government's proposals.

The Earl of Glasgow

I wish to support the amendment standing in the name of my noble friend Lord Thomson. If this amendment were not accepted, I believe that a shrewd owner of one of the satellite channels might be tempted to make an outrageously high offer for, say, the exclusive rights of an event such as Wimbledon. That would have the desired, and I believe undesirable, effect of forcing large numbers of viewers to spend £300 or £400 to receive that satellite channel. If they could not afford that, they would not be able to watch Wimbledon at all. Many people can ill afford to spend that kind of money over and above the price of their licence fee. I do not think it is right that such people should be denied some or any of the listed events.

I would have liked this amendment to prohibit any satellite, cable or non-domestic franchise holder from buying the exclusive rights to all or any part of any listed event. However, as I am sure that view would be considered too severe, I wish to support the amendment of my noble friend Lord Thomson.

Earl Ferrers

As my noble friend Lord Orr-Ewing said, this is a desperately complicated position. We sometimes think that it is perfectly simple, but that is not the case. However, it is the subject of major public interest and controversy.

The noble Lord, Lord Ardwick, said that we were considering great national events which unite us and at the same time divide us. That is true. The noble Lord, Lord Swann, said that he did not want to see people deprived of programmes that they wanted to watch. The noble Lord, Lord Thomson, in introducing the amendment quite rightly said that it is not a simple matter of black and white. I thought that my noble friend Lord Morris came in for a certain amount of hammering, particularly as I thought that he was right.

This is a complicated matter and it is of particular importance that we should all have a common understanding of the facts of the existing law and of the proposals contained in the Bill. They have sometimes been shrouded in mystery and controversy. I should like to explain the provisions in the present law and how the proposals in the Bill relate to them.

The existing law, set out in Section 14 of the Cable and Broadcasting Act 1984, protects the access of viewers to listed events in two ways. First, it provides that listed events may not be shown on cable television on a pay-per-view basis. Pay-per-view is where viewers are charged an additional sum for watching a particular event. Secondly, it provides that where a channel carried on cable systems proposes to show a listed event the BBC and ITV must have had an opportunity to acquire the rights to show the event on comparable terms. That is to say, if Sky or a similar channel bid a certain sum for a listed event the BBC and ITV would have to be given an opportunity to match the bid. If they did, they would win the rights to the event. The 1984 Act does not however, say that satellite or cable channels may not show listed events on an exclusive basis.

Perhaps I may give an example. If a satellite channel—Sky, for example—were to offer £100,000 for the right to broadcast a listed event and the BBC and ITV had offered, say, only £80,000, the BBC and ITV would have to be given the opportunity to match the bid of £100,000. If either the BBC or ITV offered the same amount then the rights would go to whichever had made that offer. However, if they did not match that bid then the satellite broadcaster would have the rights to those events on an exclusive basis. That is the existing position. I believe that many people do not realise that.

That shows that the position of the BBC and ITV is less protected by the present law than many people think. The impression is sometimes given that the terrestrial broadcasters have an absolute right to show major sporting events. A number of speeches this afternoon have indicated that. That is not the case. If Sky or one of the other satellite channels should outbid the BBC and ITV for the exclusive rights to, say, Wimbledon or the FA Cup Final there would be nothing in the present law to stop them showing it.

That is the position under the existing law. Of the two safeguards in the 1984 Act the Bill preserves the prohibition on the showing of listed events on pay-per-view terms. Indeed, it extends it to all channels, whereas it applies at the moment only to those carried on cable. That restriction is an important protection for the viewer. Given the relatively small proportion of homes which are able to receive cable and satellite channels the only way in which, for the foreseeable future at least, those channels would be able to show listed events profitably would be by charging for them on a pay-per-view basis.

But the Bill denies them that option. The Bill removes the second protection, which is the matching bid safeguard. It does so simply because the Government believe that in an increasingly complex and competitive broadcasting industry it would rapidly become virtually impossible for the ITC to enforce it. Indeed, we have strong doubts about whether this safeguard could ever have been practically implemented. In fact, it never has been implemented. The Bill therefore simplifies and updates the safeguards of the 1984 Act. I do not think that this is an act of what some people would call cultural vandalism of popular sporting events.

Perhaps I may now turn to the amendment under consideration. It would extend the existing restrictions in three main ways. First, it would mean that no channel at all could acquire the exclusive rights to show a listed event. Secondly, it would in effect mean that for the foreseeable future only the BBC, Channel 3 and Channel 4 would be able to show listed events live. Thirdly, it would set up an artificial market in the sale of secondary rights to cable and satellite channels.

It is entirely legitimate for the noble Lord, Lord Thomson, to propose such an extension of regulation. That is how the proposal must be viewed. It must be justified as such—not as the preservation of the status quo but instead as an extension of regulation of a very complex and fairly intrusive kind. There is an important point of principle here. I do not believe that Parliament should constrain the rights of people to dispose of their own property in the way that they wish unless there are very compelling reasons of public policy to do so. In the past it has not done so. The rights to sporting events are, after all, a form of property. The sale of those rights is one of the principal means by which sporting bodies generate their income. The amendments which we are debating would restrict the ways in which those sporting bodies which stage listed events could raise revenue. The Committee would therefore have to consider whether the apparent mischief which the amendments seek to prevent warrants such a measure.

The apparent mischief is that listed events would soon be available only on satellite channels. I wonder how realistic is that fear. For a start, the pay-per-view safeguard in the Bill would mean that a satellite channel would not be able to show a listed event on a pay-per-view basis. It would therefore almost certainly only be able to show a listed event at a substantial loss. Perhaps even more importantly, money is not the only factor which is involved for the sporting bodies. The All England Tennis Club has gone on record as saying that audience reach and level of coverage would both be major factors in the disposal of its rights. It has also said that in any future arrangements for the televising of Wimbledon there will be scope for the terrestrial channels as well as satellite channels to show the main matches live.

We should also consider the consequences for sport of restricting the sporting bodies' income from listed events. Such income is not used for the personal enrichment of those concerned. It does not go to make rich men richer. Large amounts of it are ploughed back into sport. For example, last year Wimbledon made profits of £9.2 million, all of which was passed to the Lawn Tennis Association, which is using it to support tennis at the grass-roots level. By selling rights to satellite as well as to terrestrial channels, it expects to be able to put even more money into tennis.

The noble Lord, Lord Thomson, and the noble Baroness, Lady Birk, referred to Section 30 of the Broadcasting Act 1981. That originated in the Television Act 1954, which established ITV. It empowers the Secretary of State to make regulations about the grant to ITV and BBC of broadcasting facilities with a view to preventing the exclusive showing of sporting or other events of national interest. This provision has no real bearing on our debate today for two reasons: first, because no Secretary of State has ever made any regulations under that power; and, secondly, because it bites only on the BBC, Channel 4 and IBA contractors and does not touch Sky or other similar satellite channels.

I do not believe the case for the amendment has been made out although I understand the anxieties that prompted the amendment. I believe that it would create a complex regulatory mechanism which goes way beyond what I think the Committee would agree is justified or necessary. In doing so it could also damage the interests of sport in a way that we would all regret and in a way that I do not believe the mover of the amendment intends. I hope therefore that the noble Lord will consider that possibly the Bill is best left as it is.

Lord Thomson of Monifieth

I wish to ask a question before the noble Earl sits down. He is right to remind us of the provisions under the 1984 Act because we are inclined to forget them.

Are there any occasions in which these provisions have been used where a satellite cable operator has acquired exclusive rights? When he answers the question will the noble Earl bear in mind that the 1984 Act did not create the situation which we fear this Bill may create? The cable audience in this country is small. However, we are now in a very different situation. We have the development of two new highly competitive satellite systems. They might find it worth while in the competition that we all know will take place to run for a couple of years as a loss leader in order to compel or persuade as many people as possible to pay the necessary subscription for the equipment and so on. That is our fear. Can the noble Earl tell us whether the 1984 provisions have produced any results?

Earl Ferrers

As I understand the position, the 1984 provisions allow a satellite broadcaster to outbid the BBC. If it does so, under the law it can have exclusive rights. My information is that such broadcasters have not yet done so. That is the answer to the noble Lord's first point.

In answer to his second point, I accept that there are likely to be more cable contractors throughout the country. The noble Lord suggests that one of them may make a tremendous bid which is way above anyone else's bid. That is perfectly true. However, it would be extravagant to do so for one week of Wimbledon or for the broadcasting of the FA Cup match. A contractor would soon go bust if it did that too often. However, if it did so because cable broadcasting had extended to such an extent that many people would benefit, then it is a straightforward commercial judgment.

I understand the noble Lord's fears but my guess is that they would not be realised.

Lord Airedale

Surely we are in a particular difficulty over the matching of bids. I understand that the satellite companies are having some difficulty in persuading the public to install the dishes and other equipment. A satellite company might say to itself, "If only we could get hold of an exclusive licence to broadcast the Derby, Wimbledon or Ascot, it would tip the scale. That might persuade half the population to install the equipment, and half the population might make our enterprise viable". They might therefore make some fantastic bid for Wimbledon or the Derby which the BBC could not possibly match. The satellite company would be all right. It has gained half the population as viewers. But the other half of the population would not be able to see the Derby.

Earl Ferrers

The noble Lord, Lord Airedale, who is always ingenious, has a vigorous imagination on this occasion. If a satellite channel were to make an outrageous bid, way above any bid that the BBC or ITV would make, does he say that Wimbledon or the lawn tennis body should be denied the right to have that money for the use of its property? Is he saying that that amount of money could be bid for such an event but that the body could not have it? That is the first issue.

Does the noble Lord really believe that if the companies were to make an outrageous bid for, say, Wimbledon, half the population would buy dishes in order to watch? Does he really believe that on the basis that everyone will fly around to buy satellites dishes a commercial judgment will be made to risk capital in making an outrageous bid?

Lord Airedale

The noble Earl has asked me three questions. I believe that the acquisition of an event such as the Derby would swing the balance in favour of the satellite company. A large number of people will say, "We were teetering on the brink of getting a dish. This swings the scales and we are going to have it". However, the rest of the population will not be able to see the Derby.

Earl Ferrers

The questions that I asked the noble Lord were rhetorical. However, I am delighted that he has taken the opportunity to answer. He must be somewhat distanced from commercial reality. The Derby lasts for only a quarter of an hour and it is unlikely that half the population will run around buying satellite dishes in order to watch that event.

Lord Thomson of Monifieth

The noble Earl will not be surprised to hear that I found his reply deeply disappointing. We on this side of the Committee accept the fact that those who own sporting rights have a property for which they are entitled to obtain the best possible price. We also accept that the revenue received by some companies which own sporting rights goes back to the grass roots and helps to promote sport in this country.

The proposition that we put forward initiated competition between the BBC and the ITV as regards the main price to be paid for such events, followed by the subcontracting. We believed that it dealt reasonably with the problem. The difference between us is that the Minister gives extra weight to the owners of such sporting rights. The figures were given by the noble Baroness, Lady Blackstone, showing that, according to a Gallup poll, 70 to 80 per cent. of viewers in this country will feel deeply deprived if such great events are not on either the BBC or the ITV, for which they have paid their licence. That is not a bridgeable gap at this stage in our debate, and certainly not on the last day of the Session before the Summer Recess. It is right for me to test the opinion of the House, and I do so.

4.12 p.m.

On Question, Whether the said amendment (No. 316LLA) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 67.

Division No. 2
CONTENTS
Airedale, L.	Lloyd of Hampstead, L.
Annan, L.	Lloyd of Kilgerran, L.
Ardwick, L.	Macaulay of Bragar, L.
Aylestone, L.	Ogmore, L.
Birk, B.	Peston, L.
Blackstone, B.	Peterborough, Bp.
Blease, L.	Prys-Davies, L.
Bonham-Carter, L.	Rea, L.
Bruce of Donington, L.	Rochester, L.
Carter, L. [Teller.]	Russell, E.
Clinton-Davis, L.	Sainsbury, L.
Dacre of Glanton, L.	Scanlon, L.
Darcy (de Knayth), B.	Seear, B.
Ewart-Biggs, B.	Stallard, L.
Falkland, V.	Stedman, B.
Foot, L.	Strabolgi, L.
Galpern, L.	Swann, L.
Glasgow, E.	Taylor of Blackburn, L.
Graham of Edmonton, L.	Thomas of Swynnerton, L.
Hanworth, V.	Thomson of Monifieth, L.
Houghton of Sowerby, L.	Tonypandy, V.
Howie of Troon, L.	Tordoff, L. [Teller]
Hughes, L.	Underhill, L.
Hunt, L.	Whaddon, L.
Irvine of Lairg, L.	Wharton, B.
Jenkins of Putney, L.	White, B.
Kilmarnock, L.	Williams of Elvel, L.
Lawrence, L.	Willis, L.
Lindsay of Birker, L.	Wrenbury, L.
Liverpool, Bp.

NOT-CONTENTS
Ampthill, L.	Elton, L.
Auckland, L.	Ferrers, E.
Balfour, E.	Gisborough, L.
Belstead, L.	Grimthorpe, L.
Blyth, L.	Halsbury, E.
Boyd-Carpenter, L.	Henley, L.
Brabazon of Tara, L.	Holderness, L.
Brightman, L.	Hooper, B.
Broadbridge, L.	Hylton-Foster, B.
Brookeborough, V.	Inglewood, L.
Brougham and Vaux, L.	Kimball, L.
Caithness, E.	Kinnaird, L.
Campbell of Croy, L.	Kinnoull, E.
Clanwilliam, E.	Long, V.
Colnbrook, L.	Lonsdale, E.
Colwyn, L.	Lucas of Chilworth, L.
Cox, B.	Mackay of Clashfern, L.
Davidson, V. [Teller.]	Mancroft, L.
Denham, L. [Teller.]	Massereene and Ferrard, V.
Dilhorne, V.	Merrivale, L.
Downshire, M.	Mersey, V.

Montgomery of Alamein, V.	St. John of Fawsley, L.
Morris, L.	Sanderson of Bowden, L.
Mottistone, L.	Stockton, E.
Mountevans, L.	Strathclyde, L.
O'Hagan, L.	Strathmore and Kinghorne, E.
Orr-Ewing, L.	Swinfen, L.
Oxfuird, V.	Thomas of Gwydir, L.
Pearson of Rannoch, L.	Torphichen, L.
Platt of Writtle, B.	Ullswater, V.
Quinton, L.	Wade of Chorlton, L.
Reay, L.	Westbury, L.
Rippon of Hexham, L.	Young, B.
Rodney, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.20 p.m.

[Amendments Nos. 316MM to 316VV not moved.]

Clause 163 agreed to.

Lord Lloyd of Hampstead moved Amendment No. 317. After Clause 163, insert the following new clause: Offence of unauthorised dealing with apparatus, etc. ("In Part VII of the Copyright, Designs and Patents Act 1988 (Miscellaneous and General), there shall be inserted after section 298— "Offence of unauthorised dealing with apparatus, etc. 298A. (1) A person who makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to decode—

1. (a) encrypted programmes included in broadcasting or cable programme service provided from a place in the United Kingdom where any charge is applicable to the reception or decoding of the programmes, or
2. (b) encrypted transmissions of any other description sent from a place in the United Kingdom

without the authority of the person making the charges or sending the transmissions with intent to enable or assist any person to do so commits an offence. (2) A person guilty of an offence under subsection (1) is liable—

1. (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;
2. (b) On conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.

(3) The provisions of sections 108 to 112 shall apply in relation to any apparatus or device of the kind described in section (1) as if—

1. (a) the apparatus or device were an infringing copy of a copyright work;
2. (b) the person making the charges or sending the transmissions referred to in that subsection were the owner of the copyright in such work;
3. (c) the references to offences under section 107 in sections 108 to 110 were references to offences under this section;
4. (d) the person referred to in subsection 3(b) was a person entitled to give notice under section 111(3).").

The noble Lord said: In moving Amendment No. 317 I propose to speak also to Amendment No. 317AA, which also stands in my name and which is ancillary to the main amendment. Amendment No. 317 proposes to add a new section to the copyright Act of 1988 to deal with what appears to be a gap in that Act.

Stated briefly, the gap arises in the case where the decoders are made or used to decode encryptive satellite TV programmes provided from the United Kingdom without the authority of those who make charges for the programmes. The aim of the new section is to make it an offence to carry out that unauthorised dealing with intent to enable any person to receive such programmes.

The amendment has the support of a number of bodies, especially the BBC at whose principal initiative it is put forward. It is also supported by Sky Television, the producers association and the British Screen Advisory Council of which I am, and have been since its inception, a member.

It is felt that it is wrong that unauthorised people should be able to decode television programmes emanating from this country and broadcast by satellite without making payment to those who charge for the broadcasting of such programmes. In order to give a full picture of the background I must refer briefly to the present Section 298 of the copyright Act. That section enables a broadcaster of programmes which emanate from this country to have the same remedies as those a copyright owner has as against everyone who makes or deals with a decoder to enable persons to receive those programmes who are not entitled so to do.

There has been considerable uncertainty as to the interpretation of the provision. It has been the subject of a recently reported decision in the case of BBC Enterprise Limited v Hightech Extra vision Limited, (1990) 2 All England, page 118. In that case an electronics company made decoders adapted to decode BBC TV Europe, a satellite service which sends coded transmissions of BBC programmes to other western European countries. That was done without the authority of the BBC.

Proceedings were brought under Section 298. It was held in the High Court that the section did not apply because it could not be said that the persons receiving the programmes were not entitled so to do. Subsequently that decision was reversed by the Court of Appeal, but I understand that an appeal is pending to this House in its judicial capacity, so the scope of Section 298 remains uncertain.

Apart from that uncertainty, it is the view of the BBC, and many others, that even if the decision of the Court of Appeal is upheld so that Section 298 can be applied to the situation, the position would remain unsatisfactory and there would still be a need to strengthen, on the lines of this amendment, the position of broadcasters who send coded satellite programmes from the UK.

The reasons for this unsatisfactory state of affairs can be summarised as follows. In the first place, Section 298 would only afford a civil remedy by way of comparable proceedings to those for infringement of copyright, as in the BBC Enterprise case. The fact is that this is an elaborate and expensive procedure. It would be much simpler, cheaper, more effective and a more adequate deterrent to deal with many cases by way of an offence, especially by summary conviction before a magistrate.

The BBC believe that what may arise is a whole number of relatively small infringements on a local scale. For example, someone might make a decoder available on a housing estate, without authorisation. It would be troublesome, expensive and possibly unproductive to launch a multiplicity of civil proceedings to deal with such small scale infringements.

In the second place, it was found in the case of piracy of films and TV programmes that it was possible to set up a federation against copyright theft, funded by a consortium of film distributors and TV companies. That machinery has been very successful in dealing with this kind of piracy. It could easily be extended to cover offences under this new clause.

Thirdly, in France this measure was taken when it was found that the existing law was inadequate to deal with the improper manufacture of decoding equipment for the use which I have explained. In France it was decided to introduce further clauses in the penal code. Under the general French procedure that means that proceedings can also be brought by way of a partie civile action if a prosecution is launched. Therefore, under the French system one has the alternative of a civil action, as one will have under Section 298 assuming the decision of the Court of Appeal is upheld. At the same time, there is an offence created under the penal code which is found to be a much more practical, simple, cheaper and efficacious way of enforcing the law in this situation.

The BBC consider that there is a close analogy between this case and the existence of an offence to evade payment of licence fees. The BBC cannot see why it should not be appropriate to have an offence in the case of the improper manufacture of decoding equipment.

As regards the details of Amendment No. 317, I do not wish to take up the time of the Committee by explaining them at great length. I simply point out that the principal provision is contained in subsection (1)(a) of the new clause which deals with the situation of: A person who makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to decode— (a) encrypted programmes included in broadcasting or cable programme services provided from a place in the United Kingdom where any charge is applicable to the reception or decoding of the programmes … without the authority of the person making the charges … with intent to enable or assist any person to do so commits an offence". Then there is provision for the offence to be dealt with either on summary conviction with a penalty of imprisonment for a term not exceeding six months or a fine. If the conviction is on indictment there will be a fine or imprisonment for a term not exceeding two years. There are a number of consequential provisions that I shall not trouble the Committee with at this stage.

I refer to Amendment No. 317AA which is also in my name. It aims to bring into line Sections 297, 298 and 299 of the Copyright, Designs and Patents Act 1988. It refers to decoding instead of reception or receiving. The most important provision in this amendment is contained in the new clause under paragraph (d). It provides that in Section 298 "decoding" should be substituted for "receiving" and the words, without the authority of the person making the charges", should be substituted for, when they are not entitled to do so", and so forth. The importance of that provision is that it eliminates the difficulty of interpretation which arose in the BBC case to which I have referred. It will mean that the law will be clarified on that point. It will then be possible to apply the section, as amended, to the situation concerning decoding. Those are the principal provisions of the amendments which I am putting before the Committee. I beg to move.

4.30 p.m.

Lord Sanderson of Bowden

These amendments, taken together, seek to create both criminal and civil remedies to deal with the problem of satellite signal theft. This is a problem which we recognise is capable of causing considerable financial loss not only to foreign but also to UK broadcasters. This is an area to which the Government have recently been giving a good deal of thought. My right honourable friend Mr. Mellor announced on 2nd May that the Government were launching a consultation exercise with a view to introducing further measures to curb satellite signal theft. I am pleased to be able to tell the Committee that we have made progress with this and that we intend to introduce our own provision on the subject into the Bill at Report stage. We have not done so earlier simply because we were not ready to do so. This is a complicated area and we want to be sure that we have our proposals exactly right.

Perhaps I might first turn to Amendment No. 317, which the noble Lord, Lord Lloyd of Hampstead, said was the critical amendment. This proposes the creation of a criminal offence for making, importing, selling or letting for hire of unauthorised decoders. The noble Lord will be pleased to learn that I am happy to accept the amendment in principle. The Government believe that there is a case for applying criminal sanctions to these activities, which presently attract civil remedies under Section 298 of the Copyright, Designs and Patents Act 1988. We shall be bringing forward our proposals on this point in due course.

I now turn to the second of the noble Lord's amendments, Amendment No. 317AA. It proposes both the creation of civil remedies against the illegal supply of decoded programmes to others and of a criminal offence of decoding a programme with intent to avoid payment for the service. The point about the creation of civil remedies, if I have interpreted it correctly, is intended to clarify Section 298 of the Copyright, Designs and Patents Act 1988, which has come under scrutiny as a result of a recent judicial comment to which the noble Lord referred. Once again, this is an area in which the Government intend to bring forward their own proposals. We intend to amend these sections of the Act to confirm the broadcasters' proprietary rights and to ensure that they are protected. Perhaps I may call it a belt and braces move.

The amendment also proposes the creation of a criminal offence for decoding a programme with intent to avoid payment for the service. As a result of the consultation exercise to which I referred, the Government considered the criminalisation of what might be termed the other end of this activity; that is, the illegal supply of services to others. We believe that the reception end of such activities is adequately covered by the criminal offence which already exists under Section 297 of the Copyright, Designs and Patents Act.

The Government have carefully considered whether it would be appropriate to criminalise the illegal supply of services, but have decided against it. It would be wholly inconsistent with the structure of copyright law as a whole if we were to criminalise this particular form of piracy of television services, but not at the same time to criminalise parallel pirate activities in other areas—for example, the playing of music without a copyright licence by a radio station. To seek to criminalise all such activities would involve a major amendment to copyright law, which should not be undertaken lightly. It would also go well beyond the scope of this Bill. Furthermore, some remedies are already provided by the general criminal law—for example, aiding and abetting the commission of an offence under Section 297—which should be of some assistance in this area.

Perhaps I may take this opportunity briefly to comment on the final change which the Government intend to make to the law in this area; that is, to extend the protection already offered to United Kingdom television services under the Copyright, Designs and Patents Act to services from abroad, regardless of whether the country of origin offers reciprocal protection for United Kingdom broadcasters, in circumstances where it appears to the Secretary of State that the reception of those services in the United Kingdom is materially affecting United Kingdom broadcasters. We believe this will be a useful measure which will deter the piracy of foreign satellite television services at the expense of British satellite broadcasters. As I have already said, the Government hope to be in a position firmly to announce their proposals at Report stage. I hope that the noble Lord will be reassured by the answers I have given.

Lord Lloyd of Hampstead

I am naturally most delighted by the reaction which the amendments have provoked on the part of the Minister. I am grateful to him for his detailed and careful explanation of how the Government propose to deal with these matters. Clearly, one was not able to follow in detail the precise points that the noble Lord made. I propose to study his remarks when they appear in Hansard. I look forward with considerable anticipation to the publication of his proposed amendments on Report. I should like once again to thank the noble Lord and the Government for the careful consideration they have obviously given to this quite important matter. In those circumstances, it is obviously appropriate that I should ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 317A and 317AA not moved.]

Clause 164 [Duty to provide advance information about programmes]:

Lord Sanderson of Bowden moved Amendment No. 317AB:

Page 127, line 43, leave out ("schedules of and other").

The noble Lord said: In moving Amendment No. 317AB I shall speak also to a sizeable number of amendments tabled in the name of my noble friend Lord Ferrers; namely, Amendments Nos. 317AC, 317AD, 317C, 317D, 317E, 317F, 319ZA, 319BA, 319ZC, 319ZD, 319ZE, 319DA and 344M. I also believe that it may be for the convenience of the Committee if other amendments tabled in the names of other noble Lords were dealt with in this grouping. I apologise to the noble Lord, Lord Lloyd of Kilgerran, if I refer to some of the amendments tabled in his name as I deal with the government amendments.

Lord Lloyd of Kilgerran

I shall be delighted for the noble Lord to do so on this occasion. I am most grateful to him.

Lord Sanderson of Bowden

Following the debate on programme listings which took place during Committee in another place the Government undertook to take away and reflect upon a number of the issues raised. Since then a further round of consultations with the major interests concerned has taken place. In the light of that exercise the Government announced on 24th April details of their proposals to end the listings duopoly which in some respects modify the original proposals. Two of the modifications to our original proposals relate to the extent of the information which broadcasters will have to make available and the timing of the release of that information.

We are proposing that the information which broadcasters will be obliged to make available should be limited to the date, time and title of programmes. All those we consulted agreed that this was a sensible limitation. It will of course be open to broadcasters to make available, as they do already, other information about programmes if they wish.

Perhaps this is an appropriate moment at which to address Amendment No. 319CCA tabled in the name of the noble Lord, Lord Annan. This would make information on time, date and title—the only copyright which is claimed in the area of programme information—freely available to prospective publishers. They would pay only an administrative fee to the broadcaster for the cost of supplying the information, but nothing in respect of the copyright. The Government made it clear during discussions in another place that they are not in the business of taking away copyright, which is, after all, a form of property. It has never been our intention to remove that copyright. We are simply ending the monopoly of the use of the material copyright and requiring that the copyright holders should licence others to use it.

We have carefully considered this proposal throughout our deliberations on this scheme, but we have concluded that it would not be right to require that this information should be made available for no charge. But there is nothing in the Government's scheme which would prevent the copyright assignees from making their information freely available if they considered it in their interests to do so. But that would be a commercial matter for them to decide. However, I understand that the BBC has stated that it is its policy only to seek nominal fees for daily listings. I hope that what I have said has reassured the noble Lord, Lord Annan, and that in the light of what I have said he will consider withdrawing his amendment.

I return now to the Government's proposals. The timing of the release of schedules is another tricky area. There are quite clearly conflicting interests here. Some broadcasters are concerned about releasing such commercially sensitive information too soon. But publishers naturally wish to have as much time as possible to prepare their magazines. We had to try to strike a reasonable balance. We believe that our revised proposals do just that. We are proposing that in general broadcasters should be required to make information available at such time as a publisher may reasonably require it and to make it available to all publishers simultaneously. But they will not be required to make available a complete schedule for any one week period more than 14 days before the first day of that week. This 14-day limit will be variable by order, subject to negative resolution.

I think that the noble Lord, Lord Lloyd of Kilgerran, will see that we have gone for the period of 14 days, whereas his amendment proposed a limit of 10 days. I hope in the light of what I have said that he will agree that the 14-day limit upon which we have decided, after great thought, should stand.

Some publishers may be concerned that not receiving a complete schedule until the 14-day point may not give them enough time to prepare their magazines; but it should not be forgotten that they will be able to ask for skeleton schedules before that point. We understand that the TV Times and the Radio Times receive skeleton schedules at the moment well in advance of the 14-day point. Under our proposals publishers of other magazines would be entitled upon request to receive them at the same time. Failure by the broadcasters to provide them to all publishers at the same time would be a clear breach of a statutory duty.

I turn now to transitional arrangements. There was a great deal of discussion in Committee in another place about the position of Reed, the copyright assignees, in respect of the ITV and Channel 4 listings. We have concluded that it would be fair and reasonable for Reed to be able to negotiate licence fees with publishers until the end of 1992 when the assignment expires. Any disagreements will of course be subject to resolution by the Copyright Tribunal.

There was some discussion in Committee in another place about the operation of the Copyright Tribunal. There was some concern, which we share, that the tribunal should be able to deal with any disputes about listings as rapidly as possible and that any party to the dispute should not be able to spin the proceedings out for no good reason. The procedures of the Copyright Tribunal have recently been streamlined. The chairman has wide powers to get cases moving, and we understand that he intends to use them where necessary. We are confident that he will arrange for listings cases to be heard as expeditiously as possible. In the absence of any good reasons for delay it might be possible for a hearing to be completed in about three months. There is certainly no question of either party to an application being allowed to put a brake on the proceedings merely to delay the outcome.

I turn now to Amendment No. 319D tabled by my noble friend Lord Stockton which relates to the workings of the Copyright Tribunal. It would introduce a new subsection establishing guidelines for the Copyright Tribunal when it has to consider what charge it is reasonable for someone who publishes the work in question to pay to the copyright owner. It would not be right to restrict the tribunal in that way. It is for the parties involved to bring relevant circumstances to the tribunal's attention. They are not matters which should be directed by statute. It would be particularly difficult to expect the tribunal to attempt to distinguish between the "copyright" and "information" elements of the value of a work. The general approach which the tribunal will adopt in all areas of copyright is to establish what is a reasonable market value for the licence in question. I see no need to depart from that approach here. I hope that in the light of what I have said my noble friend will understand the Government's point of view.

I shall now address the three other amendments which have been introduced by my noble friend, Amendments Nos. 319A, 319B and 319C, They concern a single point of drafting; namely, whether the Bill is correct to talk of "the copyright in information" to which Schedule 15 applies. I accept that that is not technically correct since copyright subsists in works and not the information they convey. I am happy therefore to accept these points and am grateful to my noble friend for bringing them to our attention. He may have noticed that the Government have tabled their own equivalent amendments, Amendments Nos. 319ZA, 319BA and 319ZE. On that basis I hope that he will agree to withdraw his own.

I turn to the final set of amendments, Amendments Nos. 319CA, 319CB, 319CC and 319CD tabled by the noble Lord, Lord Lloyd. They would require a prospective publisher to give both the broadcaster and the Copyright Tribunal three months' notice of his intention to begin exercising his right to publish programme information in any case where he had not been able to agree terms with the broadcaster. They would also require him to deposit money in a trust fund for the duration of any dispute about the level of fees to be paid for programme information. We believe that that would slant the operation of the scheme against the publisher. The purpose of the Government's scheme is to open up the market for listings information by allowing publishers to have access to it. The amendments would place unnecessary restrictions on publishers. The possibility of a three-month delay would put the broadcaster in an unduly strong position in the copyright negotiation.

I appreciate that the noble Lord is concerned that some fly-by-night publisher might have disappeared by the time the Copyright Tribunal has settled any disputes; but there is good reason to believe that the tribunal will be able to deal with those matters briskly. In any case, I am not sure that the possibility of the mischief which the noble Lord fears would justify applying his proposed mechanism to the generality of respectable, substantial publishers who will be the main users.

Perhaps I could conclude, by saying that the Government announced on 4th June that the licensing scheme which will end the programme listings duopoly will be introduced on 1st March 1991. We believe that that will be a fair date for all concerned. Naturally, we are anxious that the market should be opened up as soon as possible, but we recognise at the same time that there are preparations and business plans to be made. We therefore believe that 1st March 1991 is a sensible date. I should like to apologise for having been so long in putting those important points to noble Lords. I beg to move.

The Deputy Chairman of Committees (Lord Aylestone)

I should point out at this stage that if Amendment No. 317AD is carried I cannot call Amendment No. 317B in the name of the noble Lord, Lord Lloyd of Kilgerran.

The Earl of Stockton

For the convenience of the Committee, I too shall speak to the listings amendments in the grouping. I thank my noble friend the Minister for considering Amendments Nos. 319A, 319B and 319C. He has tabled more adequate replacements and I am therefore happy not to move those amendments when the time comes. My Amendment No. 319D and that standing in the name of the noble Lord, Lord Annan—Amendment No. 319CCA—as well as those in the name of the noble Lord, Lord Lloyd of Kilgerran, deal with a different issue.

It must be in the interests of the viewing public to know what is available on their screens from the growing plethora of television in as wide a range of publications as possible. It is a question of how fair terms can be arranged between the copyright holders and the companies that wish to publish the listings. No one disputes the right of owners to receive a reasonable reward for licensing their copyright material. I should be in a strange position were I so to do.

However, the problem as I see it is how you fix that fairly. What may be a reasonable return to a copyright holder may be an unreasonable fee to have to pay if you are a small publisher of a provincial or weekly newspaper. My amendment attempts to give some guidance to the Copyright Tribunal in the event that the publishers and holders of the copyright cannot come to an agreement over the costs.

At the Report stage of the Bill in another place, my right honourable friend the Member for Putney stated that he expected the charge to be relatively modest. This afternoon my noble friend the Minister has said that the BBC has undertaken that they should be reasonable, but I have a great deal of trouble with "relatively modest" and "reasonable". These are extremely imprecise terms. Without guidance in the Bill as to what "relatively modest" or "reasonable" might mean, the Copyright Tribunal will have no criteria on which to judge the possible licence fee.

In my amendment there are three guidelines which should help the Copyright Tribunal to understand the reasons behind the legislation and thereby aid it in that somewhat Solomonic task. The first two spell out exactly what the copyright entails. At present the law does not recognise copyright in "information" as a category of copyright. It is therefore necessary to ensure that the Copyright Tribunal does not take into account the value of the information when assessing a reasonable licence fee. That point has been covered in the amendments tabled by my noble friend.

However, there remains the question of the real value of the copyright; that is, that the copyright holder may be recompensed for the skill and labour in compiling the basic schedule of date, time and title. As cited in Lord Justice Buckley's judgment in Catnic Components Ltd. v. Hill & Smith Ltd. 1982: what is protected is the plaintiff's 'artistic work' as such, not any information which it may be designed to convey … what is protected is the skill and labour devoted to making the 'artistic' work itself, not the skill and labour devoted to developing some idea or invention communicated or depicted by the 'artistic work'". This is a matter which the Committee should address.

The third provision in my amendment outlines the reasons why the legislation was introduced. For many years there has been concern that the duopoly has acted against the public interest. This was first brought to the attention of the public in 1977 by the report of the noble Lord, Lord Annan. That committee decided by a majority that the duopoly was an unfair and unnecessary imposition on the public. In 1984 the Office of Fair Trading referred the BBC and the ITV to the Monopolies and Mergers Commission as it considered the duopoly to be anti-competitive. The MMC was split on the matter and the chairman had to resolve it by using his casting vote.

The amendments that have been tabled by the noble Lord, Lord Lloyd of Kilgerran, are too restrictive in their timescale. Many of the publications we are talking about prepare their schedules some time in advance. One of the reasons that they should have the schedules as far as possible in advance of publication is that there are good possibilities of commercial exploitation from tying in advertising with the schedules. Agencies need time to prepare that advertising. We should remember that lead times for the colour magazines of the Sunday newspapers now run into months rather than weeks.

I shall not press the amendment to a Division because I believe that my noble friend the Minister has given us a reasonable explanation. However, I hope the Government will think again before Report and reconsider the possibility of the Bill laying down some guidelines for the Copyright Tribunal. I would hate to be on that tribunal having to decide these extremely nebulous matters. It is only fair both to the tribunal and to publishers, particularly of smaller weekly journals and local papers, that we provide some more specific guidance.

Lord Morris

I am in the happy position of being able to support my noble friend Lord Stockton in principle on these matters. Like my noble friend I drew little comfort from the statement of my noble friend the Minister when he said that the BBC had informed him that it wished to be reasonable with regard to the charges. I feel about as comfortable about that as I would if a doctor took out a scalpel and said, "This will not hurt".

As my noble friend Lord Stockton suggested, the matter of reasonableness is a highly subjective concept. I was interested to hear what my noble friend the Minister stated. He will recall that BBC Enterprise Limited recently published a consultative document on the licensing of programmes' listing information. What he has just told us flies very much in the face of the view of the BBC as promulgated in that consultative document.

In summary, the BBC considers that it has copyright on its schedules which is highly valuable. We should consider how much income Radio Times has generated. It makes so much money because it has a total monopoly on the advanced publishing of the listings. The open marketing of the listings would expand revenue for publishers. Therefore the BBC considers it deserves a cut of that revenue. The fairest way to achieve that would be to charge a percentage royalty on the revenues of publications using the BBC's listings. That is plainly monstrous, but I should be most grateful to my noble friend if he would put a little more meat on the comforting assurances that he has received from the BBC in regard to this matter.

Lord Lloyd of Kilgerran

I too wish to express gratitude to the Minister for his comprehensive treatment of the four amendments standing in my name. The BBC asked me to table these amendments as probing amendments. The Minister referred to two of them which concern a modification of the phrase "reasonable notice". As the noble Earl, Lord Stockton, pointed out, the word "reasonable" can be construed in many ways. The noble Earl, Lord Stockton, is a very reasonable man. How does one judge that? One judges it from how he spoke, when he spoke and the charm with which he spoke. However, from a commercial point of view it is very difficult to decide what is reasonable. Therefore, in two of the amendments relating to time the BBC considered that it would be appropriate to delete "reasonable" and insert "three months".

When the noble Earl, Lord Stockton, referred to my amendments I was not quite sure why he objected to the period of three months as inappropriate. Nevertheless, I have heard what the Minister said and what the noble Earl, Lord Stockton, said. No doubt the BBC, with its brilliant copyright adviser, Tom Rivers, will be able to tell me, or somebody else, what to say at the next stage.

There is a further point with which the noble Earl, Lord Stockton, did not deal sufficiently charmingly or reasonably, if I may say so without being challenged as to what those terms mean. The BBC is concerned that the market should be orderly and the right balance should be struck between the interests of the copyright holder and of the publisher. Under the proposals in the Bill, in the event of disagreement between the rights owners—usually the Radio Times and TV Times (and perhaps I should say here that the BBC agrees that it is a good idea to open up the market)—and the publisher over the level of remuneration, the publisher should be able to pay what he considers a reasonable amount to the rights owner pending adjudication by the Copyright Tribunal. It is surely just and equitable that rights owners should be protected against unreasonable self-assessment.

I am sure that on the parameters that I have adumbrated the noble Earl, Lord Stockton, would not pay anything that was unreasonable. However, I understand that a group of prospective publishers is already committed to the proposition that payments to rights holders at that stage should be no more than minimal. That seems to me to be quite wrong. As it stands at present, the Bill does not give publishers sufficient incentive to reach a reasonable agreement.

Therefore, an arrangement by which the customer—namely, the publisher—sets his own price does not, in the view of the BBC, constitute a fair market. At the very least the publishers who self-assess should lodge a bond pending adjudication by the Copyright Tribunal and there should be a cooling-off period before self-assessment can be implemented, as an incentive to agree reasonable terms. That is the purpose of Amendments Nos. 319CC and 319CD.

Having regard to the helpful discussions that have taken place this afternoon I shall not proceed any further but I reserve the right to raise the matter again at Report stage if so advised.

5 p.m.

Lord Annan

Perhaps I may speak to my amendment. I very much follow the line taken by the noble Earl, Lord Stockton, in this matter. I believe that what happens in other countries is relevant. My balance comes down on the opposite side from that of the noble Lord, Lord Lloyd of Kilgerran.

In nearly all European countries listings are widely disseminated in a variety of publications. The weekly schedules are available to publishers entirely free of charge. In France, for example, broadcasters do not have copyright in listings. In West Germany broadcasters' copyright in TV schedules is free. In the United States and Canada, so far from broadcasters charging publishers for the use of listings the publishers charge the broadcasters. That is indeed what happens in Britain in one case. I understand that Radio Times has struck a deal with British Satellite Broadcasting, which pays Radio Times to carry BSB listings.

The BBC and the ITV companies provide European publishers whose countries receive United Kingdom TV signals with free weekly schedules. It is possible to buy Belgian or French TV guides which include BBC and ITV listings for weeks ahead. This results in the situation whereby the BBC and ITV viewers on the Continent receive a better service than do viewers in Great Britain.

It matters very much indeed how one defines the word "reasonable" and how the Copyright Tribunal will interpret that definition. I am perfectly prepared to withdraw my amendment in the light of what the Minister said, but I believe that some more thought is required and some guidance given to the tribunal as to what is a reasonable sum. Although we hear that BBC Enterprises is willing to charge only a nominal amount, we have not yet heard what Reed International or whoever is the owner of TV Times will charge. I leave the matter there and thank the Minister for the care that he has taken in preparing his answer.

Lord Howie of Troon

I shall be very brief. First I must say that I am vice-president of the Periodical Publishers Association, but I make absolutely clear that the magazines with which I personally am involved have nothing to do with listings or cultural matters of any sort whatsoever. I am therefore entirely innocent in terms of this debate.

I support the amendment proposed by the noble Earl, Lord Stockton, and hope that the Minister will accept it. I have looked around for an analogy which would illuminate the matter under discussion. The one that struck me is that of the cinema. When noble Lords wish to go to the cinema they look up the listings in, for example, the Evening Standard. They find that the listings are advertisements placed by the purveyors of cinema. I know that the analogy is in no sense exact; nonetheless it is interesting in the way that it illuminates the problem. In the case of the cinema, the advertisers tell us freely what is on and pay for it, as the noble Lord, Lord Annan, almost said in another context, whereas with television and radio programmes they do not.

The whole crux of this matter, as the noble Earl, Lord Stockton, said, is the question of what is reasonable and what is modest. We have a situation in which the organisers or arrangers of the listings—the BBC and ITV—are in a monopoly position. They sit on their golden egg, as it were, and hope to profit from it. It is an unseemly attitude for them to take. It is a dog in the manger attitude. It is probably right that they should be recompensed in some way for the use by others of the work that they have done, but they should not be recompensed for the relief of their monopoly because the monopoly goes rather further than merely the monopoly in the ownership of the listings.

The monopoly in the ownership of the listings gives the Radio Times and the ITV magazine an especially privileged position in the advertising world. To my mind that is not quite right. It is legal and lawful for them to use their monopoly ownership of information to realise their revenues to the utmost advantage, but it is not right that they should deny others access to that information to the disadvantage of their advertising competitors.

I do not wish to take up the Committee's time any longer. I understand that the noble Earl does not intend to press his amendment. However, the Minister should consider it very carefully and give us strong reasons why it should not be accepted if, indeed, he thinks that it should not be approved.

Lord Sanderson of Bowden

I have listened to everything that has been said and I am delighted that the "Voice from Troon", if I may say so, believes in the Government's view that the duopoly should be broken. I refer again to what I said to my noble friend about the question of separation of the copyright and information elements of the value of the work. I believe that it will be difficult to expect the tribunal to attempt to distinguish between copyright and information elements of the work. The general approach which the tribunal will adopt in all areas of copyright is to establish what is a reasonable market value of the licence in question.

I feel that I have not yet been persuaded. I shall carefully consider what my noble friend and the noble Lord, Lord Annan, have said. However, without considering the matter carefully, as I shall do, I feel that it would not be right at this stage that we should establish guidelines. It would restrict the tribunal. I believe that it is for the parties involved to bring the relevant circumstances to the tribunal's attention. Those are not matters which should be directed by statute. We should leave the matter there at this stage. I commend the amendment.

Baroness Birk

I have listened carefully to all that has been said. Over the past few months I have heard from all sides of an ongoing dispute. I have come to the conclusion that the Government are to be congratulated on finding a compromise in what was a very difficult and irate situation. Noble Lords look surprised. Whether the solution will stick, I do not know. The noble Lord was right to say that he would consider whether there was a need to issue any guidelines to the copyright tribunal. There may be some hitches but the latest information that I have received from TV Times and from the BBC was that they appear to be quite happy now, whereas when I communicated with them before they were very unhappy about the situation. At least we have achieved some provision that has satisfied most people to some extent, although not entirely.

Lord Morris

Perhaps I may say this before we leave the amendment. I shall not delay the Committee for more than a short moment. The Minister has voiced his distaste for restricting the work of the Copyright Tribunal. I may be wrong, but as I understand it Amendments Nos. 317 to 319 in the grouping relating to Clause 64 and Schedule 15 do not have the effect that Her Majesty's Government wish. I believe that the amendments restrict the remit of the Copyright Tribunal only to the time, date and title type of listing. Anything beyond that is not within the remit for consideration by the Copyright Tribunal. If that is the effect, I should be grateful if my noble friend will say that the Government will consider that point with care before the next stage.

Lord Sanderson of Bowden

Yes, of course I shall consider the point with care before the next stage.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 317AC:

Page 127, line 46, leave out ("information relating to the programmes") and insert ("such information").

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Strabolgi)

Before calling Amendment No. 317AD I should inform the Committee that, if it is agreed to, I cannot call Amendment No. 317B.

Lord Sanderson of Bowden moved Amendment No. 317AD:

Page 128, line 1, leave out from ("available") to end of line 3 and insert ("information as to the titles of the programmes which are to be, or may be, included in the service on any date, and the time of their inclusion, to any publisher who has asked the person providing the programme service to make such information available to him and reasonably requires it.

(2A) Information to be made available to a publisher under this section is to be made available as soon after it has been prepared as is reasonably practicable but, in any event—

1. (a) not later than when it is made available to any other publisher, and
2. (b) in the case of information in respect of all the programmes to be included in the service in any period of seven days, not later than the beginning of the preceding period of fourteen days, or such other number of days as may be prescribed by the Secretary of State by order.

(2B) A statutory instrument containing an order under subsection (2A) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

[Amendment No. 317B not moved.]

Lord Sanderson of Bowden moved amendments Nos. 317C to 317F:

Page 128, line 25, column 2, leave out ("company formed in pursuance of") and insert ("body corporate referred to in").

Page 128, line 29, after ("reception") insert ("wholly or mainly"). Page 128, line 45, leave out from ("Commission") to end of line 49. Page 129, line 8, at end insert: ("(5A) This section does not require any information to be given about any advertisement.").

The noble Lord said: I have spoken to these amendments with Amendment No. 317AB. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 164, as amended, agreed to.

5.15 p.m.

Lord Willis moved Amendment No. 318: After Clause 164, insert the following new clause:

("Rights in formats

.—(1) Subject to the provisions of this section and of section (Rights in formats: supplementary), the owner of the rights in an original format shall have the same rights and remedies against a person who copies or includes in a broadcast or cable programme a substantial part of that format as he would have if the format were a dramatic work and he were the owner of copyright in it; and accordingly the provisions of Part I of the 1988 Act shall apply in relation to the rights in formats conferred by this section as they apply in relation to copyright in dramatic works. (2) For the purposes of this section and of the provisions of Part I of the 1988 Act in their application to formats, "copying", in relation to a format, means making another format with format features which (taken together) substantially resemble those of the first mentioned format; and a combination of format features may be taken substantially to resemble another such combination even if some or all of the features have been translated into a different language or have been modified to suit a different society. (3) The rights conferred by this section in relation to a format—

1. (a) shall expire at the end of the period of 25 years from the end of the year in which the author dies, and for all other purposes of determining whether the owner of those right has any cause of action references in the 1988 Act to any period of 50, 75 or 100 years shall be treated as being references respectively to a period of 25, 50 or 100 years;
2. (b) is transmissible by assignment, by testamentary disposition or by operation of law as personal or moveable property in the same way as copyright.

(4) Sections 159 and 160 of the 1988 Act (which enable provision to be made by Order in Council applying provisions of Part I of that Act to countries to which that Part does not extend or restricting the rights conferred by that Part in relation to works of authors connected with countries not giving adequate protection to British works) shall apply in relation to the provisions of this section and section (Rights in formats: supplementary) as they apply in relation to the provisions of that Part. (5) Nothing in this section shall affect any copyright in the work in which the format is first recorded. (6) The rights conferred by this section shall apply in relation to formats whether made before or after this section comes into force; but no act done before this section comes into force shall be actionable by virtue of this section.").

The noble Lord said: The two new clauses suggested in this amendment and the next amendment are needed urgently to plug a gap in the Bill and to close and lock a door in terms of television copyright. The door was recently forced open rather violently.

On Second Reading I referred to what has become known as the Hughie Green case and the question of "Opportunity Knocks". I shall remind the Committee of the circumstances, which are a little shameful. One day the Inland Revenue approached Mr. Green and said, "We understand that 'Opportunity Knocks' has been running in New Zealand for three or four years and you have not declared any revenue or paid any tax". Mr. Green was entirely innocent of the fact that the programme was being shown on New Zealand television. He went to considerable expense to take the New Zealand broadcasters to court.

He won his case on the grounds that they had infringed the copyright of the format of his show. However, the broadcasters appealed to the Judicial Committee of the Privy Council, which overturned the decision. As a result, the law relating to formats of television shows is in considerable disorder. No format show is safe from theft. For example, "Mastermind" is not safe; neither is the "Antiques Roadshow", "A Question of Sport" or "Countdown". One could go all the way down the spiral.

Lord Lloyd of Kilgerran

Does the noble Lord have advice to the effect that "Mastermind" is not safe?

Lord Willis

I know that the noble Lord is an expert in this field and I can assure him that "Mastermind" is not safe. As a result of the committee's decision, such programmes can be reproduced exactly as they were invented. They can even be shown under the same name, as in New Zealand. There may be recourse in law in terms of passing off, and so forth, but it would be difficult and costly to establish proof.

The basis of the Judicial Committee's decision was that there is no format. It said that there is no way in which one can write down a show such as "Opportunity Knocks" or "Mastermind". One can write an outline or a blueprint. The committee even said that to have a complete copyright of a show one should write down not only the questions but also the answers. As regards most of the quiz and panel shows now on television, that suggestion is palpable nonsense. One cannot do so; one will lose the show. One can provide the seating for "Mastermind", the black chair and the lighting. One can also have recognisable features such as the division of questions into specialist and general knowledge and well-established phrases such as, "I've started, so I'll finish". However, not even Magnus Magnusson knows how each programme will finish. Uncertainty is the name of the game and without it there would not be a show.

Much the same applies to other shows which have the competitive element. Even a show such as "Desert Island Discs", which is simply an interview, has a well-established and well-loved framework. However, it is no longer protected. Someone could produce "Desert Island Discs" under that title and steal the work that someone has put in for 30 or 40 years.

Such shows often take years to develop and they cost a great deal of money. Therefore, we believe that they should be protected. My amendments are designed to provide such protection. It was significantly impaired not only by the Judicial Committee's judgment but by Section 3 of the Copyright, Designs and Patents Act 1988. That was not recognised at the time and therefore my amendments are an attempt to correct the position.

The amendments lay down a number of tests which can be summarised briefly. The problem which recurs is how to define a format. I suggest the following, which is outlined in my amendments. The format may have a copyright protection if, first, it has established parameters; secondly, the subject is suitable to be part of a series; thirdly, it is partly spontaneous and partly has fixed format features. Next, the concept must be substantially original. Finally, the format features must be peculiar to the series. I know that may sound complicated and difficult to take in at one mouthful. What it tries to establish is that when one has worked out a show like "Mastermind" and put a considerable amount of thought into the lighting and mystery of it, when one has worked out and established a show like "Desert Island Discs" over many years as a result of one brilliant idea and it has a format—what would you take on the island, and that kind of thing—it has a format and parameters and it ought to be protected.

I emphasise that I am not asking for a copyright in ideas. Many shows on television have a similar basic idea. For example, there was "Opportunity Knocks", to which I have already referred, and "New Faces", a talent show, and several others. There is "A Question of Sport", a popular BBC show which was rivalled by "Sporting Triangles", an ITV show. They are similar in approach but with basically different parameters and a basically different format.

It is into the creation of that format that the originality, expertise and money go. I suggest that this must have the protection of copyright. These formats have distinct and separate features which can be clearly seen as the pith and marrow of each show. The public can see and understand that. They can see and understand the difference. I find it difficult to comprehend why the Government find it so hard to do so and I hope that they have now changed their mind.

The Government's position seems to be curious. As the Committee may imagine, we have been making approaches on this issue to them for the past few months. On the one hand, they say that in their opinion the law as it stands gives adequate protection to the shows. When we point out that it did not give protection to Mr. Hughie Green, that New Zealand broadcasting stole his show and that the Privy Council upheld it, they say, "Oh, well, that was a one-off case. Maybe we should allow it to be tested in law again". So somebody else will be robbed and there will be no opportunity to put it right in Parliament, where we have that opportunity at the moment through this Bill.

The Government have argued with me and others that there is no generally accepted definition of the word "format". Perhaps I may direct the Minister and others to the Library and to the dictionary. My dictionary has several clear definitions: a thing that is formed; an arrangement of parts; a structure. That seems to me to be a perfectly good basis on which to start.

We have also been told that the Government are afraid of creating a monopoly in this area. That is nonsense. Copyright does not create a monopoly; it simply protects against copying. There is all the difference in the world between the two. "Opportunity Knocks" did not create a monopoly in talent shows. It spawned several others which found different formats and different ways of doing it because the show was so successful. What we object to is that someone should come along and steal the work.

There is a clear injustice here. I recognise that there are difficulties in formulating a new law to meet the injustice, to meet the genuine moral and commercial requirements of the producers of these shows. I suggest that since the Government are aware of the situation it is their clear and bounden duty to assist in solving the problems. They seem reluctant to do so at the moment.

This is not just an issue of games shows. First, it is a vital matter of principle in terms of copyright. Secondly, the livelihood of a great number of small producers is at stake. Most of the games shows are produced in back rooms by little producers who suddenly have a great idea. They take it along to the big TV companies. They will be driven out of business unless we can change.

Other countries are watching this debate and the development of this Bill with great interest. Ironically, I received a fax from the copyright council of New Zealand wishing us all success with the amendment because it is of great importance to New Zealand. The television network in Canada said that it regarded the amendment as essential and much needed legislation, and that it would be welcomed there.

To sum up, the question is not whether it is absolutely impossible to make an argument for the protection of a format. The question is whether the format deserves protection. If there is serious doubt as to that protection, should not some protection be extended towards it? I beg to move.

Lord Colwyn

I am almost hesitant to become involved with another amendment on copyright, having earlier been put severely in my place by the noble Lord, Lord Lloyd of Kilgerran. However I added my name to the amendment to support, and urge other Members of the Committee to support, everything that the noble Lord, Lord Willis, said.

We heard that the creators of original works, whether in writing, music, choreography, design, computer programming, art or invention, are protected by copyright or patent laws. Those creative works are rightly seen as intellectual property which may be sold outright or sold while retaining all rights in copying.

We heard also that around 20 hours a week are taken up on BBC and ITV, and no doubt to some extent on satellite and cable channels, by programmes derived from formats. These formats are detailed specifications from which the programmes can be produced. The format is commonly seen as the intellectual property of its creator, which may again be sold outright or with restrictions honoured by broadcasters in much the same way as if the creator had copyright protection.

The events described by the noble Lord, Lord Willis, are causing concern for both the creators and the broadcasters. At Committee stage in another place an attempt was made to introduce an all-party amendment to provide the necessary protection. My right honourable friend David Mellor expressed sympathy for the amendment and undertook to discuss the problem with the DTI. Those meetings were inconclusive. The amendment before the Committee this evening is a new attempt to provide protection for creators of formats, which I am sure Members of the Committee will agree can best be written into the Bill rather than waiting for a chance to make changes in the copyright and designs Bill.

5.30 p.m.

Lord Peston

In speaking on this amendment I emphasise that we are discussing a matter of copyright law and that no political implication is involved. Having said that, I cannot resist the remark that I find it somewhat paradoxical that I, from this Front Bench, should be pressing for the protection of property rights and that noble Lords opposite on the Government Front Bench are the ones resisting. Legal historians in the future will be extremely puzzled at the exchange of what would be thought to be the normal philosophical positions on this matter.

I do not hesitate to press the point. The issue raised by my noble friend Lord Willis and the noble Lord, Lord Colwyn, is fundamental. I have no axe to grind other than that I take an interest in copyright. I believe that things should be done properly and that things that are wrong should be set right. I also support the amendment because, though not a lawyer, I take a fairly commonsensical view of the matter.

I start from the position that intellectual property is property. I then start from the common sense position that taking someone's intellectual property is taking something that does not belong to you; it is akin to stealing. I understand from my own legal advisers that "stealing" is the wrong word and that one is supposed to use the word "theft" or something similar. Nevertheless, if we spoke to the general public and they were aware of the specific case referred to by the noble Lord, Lord Willis, they would simply say that some person's property had been stolen and that that ought not to be the case.

The noble Lord gave several examples. I can certainly say, having taken what I regard as the best available legal advice, that he is undoubtedly right that those programmes are not protected by the law as it stands. Indeed, the range of programmes not protected is very large and therefore the range of loss of ownership, so to speak, that people think they have is significant. This is not a trivial matter in any sense.

I repeat, as an economist, that I clearly see copyright protection as having an economic role. This goes back a long way in the history of the economics of this subject. The essence of copyright in the protection we give is that it is an incentive to innovate. The innovator receives a proper return that he would not have if there were not copyright protection. That is another example of that sort of thing. Although it is about fairness and equitable treatment, as my noble friend Lord Willis pointed out, it is actually more than that. It is about the way our whole economic system works.

I also emphasise, as an economist, that my noble friend's point about monopoly is entirely right. The granting of a right to a protection format is not granting a monopoly in any meaningful sense. Indeed, it is granting a right to compete effectively. The whole class of activities, as my noble friend said—whether they are shows to do with antiques or with the discovery of talent—is an open class. If his amendment is accepted you cannot choose the format chosen by that person as your method of competing. Therefore, as an economist, it seems to me that the case put forward by my noble friend and others is correct.

On the general principle, I come to what I regard as an argument which is so overwhelming that I find it difficult to see how the Government can reject it. Until the Hughie Green case the right that we are talking about was thought to exist. There appeared to be no question about that. The point about the Hughie Green case is that it was so amazing. One could hardly believe the decision arrived at. The right that was thought to exist was the right we are now seeking to establish in law. It is that which makes the Government's position as they have explained it to me so difficult to understand. Like my noble friend Lord Willis, I have been in touch with the Government with a view to persuading them to take the lead, rather than accept our amendments, and get it right themselves. Indeed, to make the point parenthetically, it is an unhappy state of affairs when Back-Bench Peers have to deal with a matter which, as my noble friend Lord Willis said, is the Government's responsibility.

The right was thought to exist and that makes the Government's position rather bizarre. Let us assume that the Privy Council had ruled the other way, as one assumed they would have done. Would the Government then have amended the law so that it corresponded to the Privy Council's decision? Since the Government are saying that the Privy Council's decision is the right one it would seem to me that, if the Privy Council had ruled the way we expected, the Government would have been obliged to amend the law.

No one believes for one moment that the Government would have done anything like that. That is the reason why I press the Government most strongly to respond positively to these amendments. I add in terms of background that my own thinking has been strongly influenced by the articles by Lane and Bridge which are in the July and September issues of the Entertainment Law Review. I hope to succeed in persuading the Minister to think further on this whole matter and in that respect I strongly recommend him to look at those two parts of a definitive article because he will be as persuaded as I was by their contents.

There are one or two detailed points which I should like to make. I do so briefly because I do not want to delay our proceedings longer than necessary. I wrote to Ministers and one of the reasons they rejected the arguments put forward by the noble Lord, Lord Willis, is that anyone validly coming into this field could somehow be harassed because of the format protection; in other words, to take the Hughie Green case, if he clearly had a right of format they are arguing that someone else introducing a talent discovery programme would be threatened because he had format protection.

If that view were taken, it would argue that almost the whole of the copyright law should cease to exist. The argument would be that almost any protection that one has could be the basis for harassment. If that is one of the Government's arguments, it does not stand up. A second argument that the Government put to me and which my legal advisers find even more strange is that we are trying to invent a novel form of intellectual property rights here. I do not speak as an expert on the law, though I know that the noble Lord, Lord Sanderson, is. I am strongly advised that there is no substantial novelty introduced here. The amendment tabled by my noble friend Lord Willis and the noble Lord, Lord Colwyn, is very much within the spirit of copyright law.

To my horror, I notice that I have several more pages of detailed comment before me. I have to take the decision not to read them out to the Committee. However, there is one more comment I wish to make before concluding. The Government have written to me to say that our law will apply only to our country. I, as a non-lawyer, am aware of that. My noble friend Lord Willis has made the point that what we say in this country in this area will give a lead to others and they would like us to take that lead.

My experience of this Chamber is that, on the whole, the amendments that I support, the Government do not immediately accept. They do not say that they are entirely persuaded by my arguments. I do not assume that I am absolutely convinced of the correctness of what I say or that the noble Lord will necessarily accept the amendment. I say to him directly that the least I hope to get from him is that we are not to be subjected to a "We reject this outright" response. This is a very important matter. There are only two possible answers which the Committee could find acceptable.

The answer that we would most like to hear is that the Government will accept the amendment. If we cannot have that, I should like the Government to say that they are sufficiently open-minded to take the matter away during the summer. It can be considered further and dealt with at Report stage so that the matter can be put right. In total, this is a very serious issue. It is not one that can be brushed to one side. Though time is of the essence here, it is up to the Government to give a positive response.

Lord Lloyd of Kilgerran

In rising to speak at this stage in the debate, I feel something of a wet blanket, having regard to the very powerful presentation made by the distinguished writer, the noble Lord, Lord Willis, and because of the distinguished presentation given by the noble Lord, Lord Peston, who is a famous professor. There were also the remarks made by the noble Lord who, I am sorry to say, I put in his place, as he said, on copyright matters. I did not intend to do that. My technique is never to put a person in his place, but to try to persuade people that what I present is right.

I am torn in two ways. There is a good principle that if one can clarify the law one should do so. However, I wonder whether in this case clarification of the law, as asked for, and not merely copyright law, is essential. I have had to deal with many cases of games and formats, so called, when practising at the Bar. Until the Hughie Green case came along there had not been a challenge to the fact that, using the law of the United Kingdom, formats and similar matters could be protected. That applies not merely to the law of copyright.

When I advise on these difficult questions I always raise points on trade marks, confidentiality, designs and copyright, which are all parameters that usually appear in a normal format. Now we come to the Hughie Green case. He won in New Zealand in the first court, but he was reversed in the Court of Appeal in New Zealand. The Judicial Committee of the Privy Council upheld the decision of the Court of Appeal in that country. The Privy Council upheld the decision on one main matter only. The noble and learned Lord, Lord Bridge, said that the Privy Council could not decide otherwise than the Court of Appeal in New Zealand because no evidence was put forward by Hughie Green in the first court upon which it could do so. Therefore the Hughie Green case was decided not on questions of the law of copyright but on the question of what evidence was put forward by Hughie Green in the court of first instance.

Lord Peston

The noble Lord is doing his best but I have to correct him. He is simply mistaken. I have been advised that the case was decided in precisely the correct way and not in the way the noble Lord described. I am sorry to have to correct the noble Lord because, like him, I am not one to correct people. However, this matter is so important that we must get everything we say here right.

Lord Lloyd of Kilgerran

I am grateful for the opportunity of allowing the noble Lord to correct me on an interesting legal matter. I fully realise that lawyers often differ in their views. I have read with great care the decision in the Hughie Green case. The Judicial Committee of the Privy Council came to its decision on the basis that no adequate evidence was put forward to justify the case of Hughie Green. But, as I was going to say before I gave way to the noble Lord, in the course of that judgment it made obiter certain observations in relation to copyright law and aspects of copyright law. If there had been a case in any of our courts in which the Hughie Green case was cited, I would be able to differentiate the facts of the case from that case. The Hughie Green case was decided on the basis that there was no adequate evidence and the statements of the noble and learned Lord, Lord Bridge, on the copyright law were obiter in relation to that matter. That is a highly technical point and I do not want to press it.

The noble Lord, Lord Peston, referred to the article of Lane and Bridge. I have been supplied with a draft of that article. It refers, coincidentally I suppose, to one or two of the cases in which I was involved and where we were successful in avoiding any trouble. We invoked the broad law of the United Kingdom, not only copyright law.

If it is the desire of the Government to clarify the law of copyright in these circumstances, it is for them to do so. But so many difficult matters in the laws of this country can be clarified only by recourse to the courts. This is one of them. If, however, the Government take the view that it is important from the point of view of the United Kingdom economy that the position should be clarified, so be it. But in clarification of rights in formats, the Government should have in mind not only the law of copyright but the other law in relation to intellectual property which is usually invoked in certain circumstances but which was not invoked in the case of Hughie Green.

5.45 p.m.

Lord Sanderson of Bowden

This is a most difficult case. As the noble Lord, Lord Lloyd of Kilgerran, said, the new clauses would introduce a whole new kind of intellectual property into the law of the United Kingdom. It is no light matter from either side of the argument. As far as I am aware, it is the first time that such a right has been introduced into legislation anywhere in the world. It is therefore something that we should approach with great caution. In the Government's view the case for its introduction has not yet been made out. I hasten to add that this debate takes the matter one stage further.

The right is proposed in order to correct what are perceived to be deficiencies in the protection afforded by the existing law of copyright. The alleged deficiencies came to light, as the noble Lord, Lord Willis said, in the "Opportunity Knocks" case where the programme in question had been broadcast in New Zealand without the authority of its originator, Mr. Hughie Green. On appeal to the Privy Council it was held that the separate feature used to link the performances of the competitors in this talent show did not, in terms of copyright law, have sufficient cohesion to amount to a dramatic work. The separate question of whether any copyright protection is available for such features on the basis of a written script was not decided because no such script was put in evidence to the Privy Council. In that connection, the part of the argument put forward by the noble Lord, Lord Lloyd of Kilgerran, is correct.

The Government accept that this has caused the originators of games some anxiety. Consequently, after hearing representations on the matter my colleague the Minister for Industry and Enterprise, who is responsible for intellectual property matters, has taken the advice of counsel on what protection is currently available for such features and on the feasibility of providing a new form of protection for them. That takes in the point made by the noble Lord, Lord Peston. I must tell the Committee that the advice which my colleague the Minister received is that a change in the law is not justified at this time.

Under existing United Kingdom legislation, there are various relevant forms of protection. At the early stage of developing and marketing a new programme, the law of confidence will protect the ideas in question. Once a programme has been broadcast and has acquired a sufficient reputation, the law of passing off will provide some protection. Further individual features of the programme may well be protected in their own right. For example, a specially written signature tune will have copyright protection as a musical work and any original set design and art work will be protected under design or copyright law. Finally, counsel has confirmed that copyright protection may well be available for programmes which are well-defined and have a substantial preordained script.

In the Government's view, the sum total of protection available is substantial, and, in looking at any proposals to go beyond it, we must bear in mind that intellectual property rights confer monpolies. It is vital that the subject matter of the right be defined with some precision—I emphasise precision—so that the public may know what it may or may not do. Moreover, the law of copyright has always been limited to the protection of the particular expression of an idea or concept and has never protected the concept itself. I have to say that the right proposed in this amendment is defined in such a way that there would be considerable legal uncertainty as to what is being protected, and there would be every danger that ideas and concepts would be monopolised to the detriment of the development of future programming.

On the subject of legal uncertainty, it seems that under the proposed definition of a format virtually any programme that is not completely scripted would have its format protected. Virtually all such programmes have features which in combination are original and which could be repeated in future programmes. But how is the public to know what combination of features is protected and how many of those features have to be taken before the new right is infringed?

The noble Lord, Lord Willis, mentioned some examples of programmes which he considers deserving of protection. Let me counter with an example of my own. What would be the protected format of "The Antiques Roadshow" under his proposals? As I read the new clauses, the format could simply be the combination of two features; namely, that members of the public bring their antiques to be valued by an expert and that this is done at a local venue. It would be an infringement of that format to copy a substantial part of it. What freedom does this leave the producers of future programmes about antiques? As I am not a lawyer, I find these questions almost impossible to answer, and I very much suspect that at the end of the day the law would have succeeded in monopolising a very basic idea.

I do not think that the deficiencies I have identified can be rectified by drafting changes. I believe that we are addressing a fundamental problem. However, I think we are all agreed in that respect. I agree with the noble Lord, Lord Peston, that this is not a political matter. The deficiencies are too fundamental for that and raise considerations of general intellectual property protection which cannot be addressed in the Bill; nor is it helpful to legislate for an alleged problem in the United Kingdom when there has been no consideration of the position abroad. I accept that other countries are waiting for this country's law to take a lead. The concern at the moment appears to centre on foreign jurisdiction and it would be wrong to ignore that point.

Having said that, and in response to the noble Lord, Lord Peston, I was waiting to hear what the noble Lord, Lord Willis, and other noble Lords would say. I have in mind the experts on intellectual property whom we have here and those who see the problem as a major one which we must address.

I shall not close the door at this stage. I wish to take away and study what the noble Lord, Lord Willis, and others have said. I realise, as the noble Lord, Lord Lloyd of Kilgerran, has said that clarification is difficult in such a complicated case. I should not like the noble Lord, Lord Willis, to go away with the idea that the Government are not sympathetic towards trying to find an answer to this fundamental problem. The problem needs addressing but the question is whether it can be addressed in the Bill. We shall try again, but I cannot give any commitment that we shall have an answer by Report stage.

Lord Peston

The Minister's answer was helpful. May I take it to mean—we do not want to delay matters now because I feel that I could rebut some of the points that he has made and we may be able to solve some of the problems—that the Government are willing to talk to us about these matters before Report stage? Do I understand him to be at least as encouraging as that, without of course there being any commitment from the Government?

Lord Sanderson of Bowden

Yes.

Lord Lloyd of Hampstead

If the Minister reaches the conclusion that this matter is an unsuitable one on which to seek to amend the Bill, will he give some consideration to referring the question to the Law Commission, who could consider it at leisure and involve itself in all the complexities which have been revealed during the debate?

Lord Lloyd of Kilgerran

I support the proposal made by the noble Lord, Lord Lloyd of Hampstead, to refer this difficult matter to the Law Commission. The Hughie Green case has been referred to directly and forcefully. I sympathise with Hughie Green over the heavy costs that he has had to suffer through legal proceedings.

Lord Sanderson of Bowden

We all have sympathy for that case, which has obviously been upsetting. We shall consider the suggestion made by the noble Lord, Lord Lloyd of Hampstead. I give the assurance that the noble Lords, Lord Peston and Lord Willis, can make representations at any time on this matter, although I am afraid that I can go no further than that at this stage.

Lord Willis

I thank all noble Lords who have taken part in what has been an interesting debate. I also thank the Minister for the few crumbs of comfort that he has scattered in my direction over the Floor of the Chamber. We shall consult him as soon as possible.

I have one or two points to make. I was a little surprised that the Minister mentioned the "Antiques Road Show". He must have seen the correspondence that we have had with the DTI in which we listed at least 10 variations of the show that could be put on without infringing any copyright in it to prove that what we are suggesting is not a monopoly but copyright protection.

I need to correct some points in what the noble Lord, Lord Lloyd of Kilgerran, said for the sake of the truth. When Mr Green's case was presented in court every facet of the format was examined. It was asked, "Did you use a clapometer?"—that was Mr. Green's invention—"Did you use his popular phrases like, 'It's now make up your mind time'?". The court went through the whole thing. Usually the broadcaster said, "Yes, I did use it". The judge said, "You mean you stole it?", to which he replied, "Yes, I stole it". You cannot have any more blatant admission of theft.

Lord Lloyd of Kilgerran

The noble Lord is saying that the Judicial Committee of the Privy Council was wrong to say that there was inadequate evidence upon which to support the case.

Lord Willis

Far be it from me to criticise such an august body, but it has been known to be wrong in the past, so this is not exactly the first time.

Lord Lloyd of Kilgerran

; It has been wrong in one or two of the cases which I lost.

Lord Willis

I shall not prolong the discussion further. Once again, I thank the Minister. We shall be in touch. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 319 not moved.]

Schedule 15 [Information about programmes: copyright]:

Lord Sanderson of Bowden

I beg to move Amendments Nos. 319ZA, 319A, 319AA and 319AB en bloc. Those amendments were spoken to with Amendment No. 317AB.

The Deputy Chairman of Committees (Lord Strabolgi)

I do not think we can do that, much as we might like to, because the amendment of the noble Earl, Lord Stockton, comes in between.

Lord Sanderson of Bowden moved Amendment No. 319ZA:

Page 208, line 46, after ("in") insert ("works containing").

On Question, amendment agreed to.

[Amendment No. 319A not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 319AA and 319AB:

Page 208, line 49, leave out from ("licensing") to end of line 50 and insert ("any act restricted by the copyright done on or after the day on which this paragraph comes into force."). Page 209, line 2, leave out from ("1989") to end of line 14 and insert ("then, in relation to any act restricted by the copyright so assigned—

1. (a) sub-paragraph (2) does not have effect, and
2. (b) references below in this Schedule to the person providing the programme service are to the assignee.").

On Question, amendments agreed to.

[Amendment No. 319B not moved.]

Lord Sanderson of Bowden moved Amendment Nos. 319BA:

Page 209, line 18, after ("in") insert ("works containing").

The noble Lord said: This amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

[Amendment No. 319C not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 319ZC to 319ZE:

Page 209, line 23, after second ("licence") insert ("of such duration, and").

Page 209, line 24, after ("act") insert ("are such, as"). Page 209, line 29, after ("in") insert ("works containing").

On Question, amendments agreed to.

[Amendments Nos. 319CA to 319D not moved.]

Lord Sanderson of Bowden moved Amendment No. 319DA:

Page 211, line 8, at end insert:

("(3) References in this Schedule to works include future works, and references to the copyright in works include future copyright.").

On Question, amendment agreed to.

Schedule 15, as amended, agreed to.

Clause 165 [Orders proscribing unacceptable foreign satellite services]:

6 p.m.

The Earl of Stockton moved Amendment No. 319E:

Page 129, line 27, at end insert: ("((3A)) Without prejudice to the generality of subsection (1), the Secretary of State may make an order under this section if he considers, in relation to any relevant foreign satellite service, that the requirements of paragraphs 2 and 3 of Part IV of Schedule 2 would not be complied with by or in relation to a person holding a licence in relation to which those requirements apply if such service were such a service as is mentioned in paragraph 2(1) (c) of that part.").

The noble Earl said: Once again, we return to the question of cross-media ownership. I am surprised not to see the noble Lord, Lord Wyatt of Weeford, in his place, but I am happy to see the noble Lord, Lord Grade, in the Committee this afternoon. He has sat patiently and cigarless for some time.

I shall speak to Amendments Nos. 319E to 319H standing in my name. I realise that the amendments rely on my earlier tabled amendments to Schedule 2 which were not carried. However, my purpose this afternoon in tabling these amendments was to strengthen the Secretary of State's powers described in Schedule 2(4) to proscribe restrictions on the extent of cross-media ownership by any person or company.

As the Bill is currently drafted, if the Government—any government—were to decide to extend ownership provisions to cover a non-domestic satellite operator, such a company might seek to evade such powers by moving its uplink to outside of the United Kingdom. The principle behind these amendments was to provide the Government with an enforcement mechanism. If such a move out of the United Kingdom's jurisdiction took place, it would have the effect, first, of allowing a non-DBS operator to continue to broadcast in clear contravention of the order and the Bill as it stands, thus making the Secretary of State's powers an empty vessel and, secondly, it would ensure that, when forced to move the uplink, the non-DBS operator would simply remove the associated jobs outside the United Kingdom. That cannot be in the interests of the industry or of our economy generally.

I hope the Government will accept the principle that an enforcement mechanism in line with their own declared policy is desirable. It is not my intention to provide a criminal sanction against advertisers on non-DBS services but rather against the proprietors of all non-DBS satellite services whose interests the Secretary of State deems to be too extensive.

This is not another attempt to knock Sky, News International or that distinguished American entrepreneur, Mr. Rupert Murdoch. I wish to draw an analogy with the position of the railway barons of the United States in the last century. They too were great entrepreneurs and merchant adventurers. They took immense gambles to build the railways across the United States, but there came a moment when their power became too great and the United States Congress was forced to act to limit that power. We are dealing here not with commercial and economic power alone but also with political power and influence. I remain convinced that Parliament, like Congress, will have to act eventually.

I apologise for detaining the Committee by speaking to amendments that cannot really be moved. However, I am convinced that these principles are of great importance for the future. I shall return on Report with a revised wording which will provide the Secretary of State now with these powers for the future. I am happy to discuss such proposals with my noble friend between now and October. I beg to move.

Lord Grade

The Minister well knows my views on cross-mediaship. However, I shall mention them to the Committee. It seems to me wrong that someone who has the courage and money to do something and becomes successful should be told that he must dispose of 80 per cent. of his venture. Is that a way to reward courage and vision? The broadcasting business is about vision, courage and seeking out financial support. To aim this provision at one person only—we all know who that person is—is wrong. I have known Rupert Murdoch for many years. However, I would not care if we were talking about someone who happened to be called John Smith if he had the same vision and enterprise. I believe that the suggestions made by the noble Earl should not be accepted. I hope the Committee will forgive my inexperience in making these kinds of speeches.

Lord St. John of Fawsley

I must start by declaring an interest in that I have been entertained to luncheon by both Sky television and BSB. The luncheon with BSB was the better one. Perhaps BSB has more money. However, the conversation was more striking at the luncheon given by Sky Television. I should point out that my judgment has not been affected by that hospitality. I wish to congratulate the noble Lord, Lord Grade, on such a powerful and effective speech from the Cross-Benches. That speech was even more effective than the speech made by the noble Lord, Lord Wyatt, during the previous debate on this subject.

I should also like to congratulate my noble friend Lord Stockton, but not on his drafting. I have studied and restudied the amendment. I shall not weary the Committee by reading it out, but it becomes more incomprehensible on rereading rather than less. As its status is somewhat vestigial and evanescent according to its author and it does not exist in movable form, perhaps one can leave the drafting point to one side. However, if my noble friend ever retires from publishing I believe that a great career could open for him in the ranks of parliamentary counsel.

My noble friend was quite open about the fact that the amendment is the latest instalment in the debate about cross-ownership in the media. I do not want to rehearse all the arguments again, but the issue of cross-ownership lies behind the amendment. There are certain general principles which it would be helpful for the Committee to bear in mind as we consider the merits of the amendment. First, the Committee is not embroiled in a battle between two rival commercial interests. It would be quite wrong for the Committee to take up any such role. If other people feel very strongly about the issues it is all the more important for this Chamber to remain above that battle and to champion the general welfare of broadcasting in this country.

My second general point is that in the field of satellite television as many channels as possible should be allowed to exist: let a hundred flowers bloom. Direct broadcasting satellite services are limited by frequency. At the moment BSB has all five available channels. That in itself is an argument for giving a fair wind to non-domestic satellite broadcasting, which has 16 channels at the moment, four of which belong to News International. As one looks at those figures one sees that the sentiments expressed by some speakers in the debate about a monopoly being exercised by News International are exaggerated. We are on the eve of many more channels, possibly 48 coming from Astra and perhaps eventually 160 or more. We are in a world of open-ended competition. That is good because it places limits on monopolies.

Lord Blease

Perhaps I may interrupt the noble Lord. Will he indicate to which amendment he is speaking? It appears to me that he is giving a Second Reading speech.

Lord St. John of Fawsley

With great respect to the noble Lord, I am speaking to Amendment No. 319E and dealing with the general principles that lie behind it. It makes no sense unless it is intended to export the restrictions which some people advocate should be imposed here on non-domestic satellite broadcasting. My argument on the general principle underlying the amendment is, I submit, totally relevant.

Lord Tordoff

There is no doubt about the general relevance of what the noble Lord is saying, but like the noble Lord, Lord Blease, I believe that the general principles are discussed at Second Reading. At this stage we should be addressing our minds to the precise matters pertaining to the amendment.

Lord St. John of Fawsley

I always speak about general principles because that is the way my mind works, but I am very content to pass on to further detail if noble Lords wish.

Let us take the question of independent television. Independent television franchisees have the ability to address some 99 per cent. of the population automatically and immediately because they have access to the very scarce terrestrial broadcasting channels. BSB has the right to use all five of the high powered direct broadcasting by satellite channels belonging to the United Kingdom under international agreements.

These channels undoubtedly offer certain valuable advantages. For example, cable systems must carry BSB's channels whether or not they wish to do so. BSB channels are protected from interference by other satellites, and BSB currently enjoys the right to create communal aerial systems without inhibition, allowing it easily to extend its services to flat dwellers, for example.

The Sky channels which would be affected by the present amendment are rather different. They occupy four channels on the Astra satellite. They enjoy none of the advantages enjoyed by BSB. It is the purpose of this amendment to restrict their limited advantages further.

I return to the point of unlimited channels that lie ahead. More than anything else this distinguishes the position of Sky from the position of BSB and Channel 3. Sky television is in fact, if it is allowed to do so by this Chamber, opening up a satellite distribution system that is open to all. Any number of programmers either here or abroad can ride in on these coat-tails to gain access to this system. I think that we are seeing the building of a new information highway to British homes, if I may put it that way. But while Sky television is not preventing anyone else from using that highway, there are those, like my noble friend, who seem to be intent on trying to restrict it.

Here is a highway that is being opened up to others and all in fact will benefit. I therefore should like to associate myself with the tribute paid in this respect by the noble Lord, Lord Grade, to Mr. Murdoch who in this field has undoubtedly made a unique contribution of value towards its development.

Some would wish that the whole question of satellite television would go away. It will not. It is here to stay. It has achieved very high quality. Anyone who has seen it, as I have, knows exactly what high quality is to be found in the news programmes, the sports programmes and elsewhere. The role of government is to create a fair framework in which competition can flourish.

These amendments moved by my noble friend are unfair in that they seek to tilt the balance against Sky television. They discriminate against Sky in its relation to operation in other countries and they hamper the emergence of an open system of television broadcasting. That is why I think that these amendments should be resisted.

The Earl of Stockton

Before the noble Lord sits down I should like to remind the Committee that I pointed out at the beginning of my remarks that I did not propose to move the amendments because they had in fact constructively fallen on a previous vote in this Chamber.

The Deputy Chairman of Committees

I do not like to disagree with the noble Earl but I understood him to have moved the amendment. I put the Question to the Committee. The Committee cannot discuss amendments that have not been moved and I have put the Question to the Committee. We are discussing the Motion before noble Lords that Amendment No. 319E be agreed to. The noble Earl spoke to the three subsequent amendments and that has given rise to a general discussion. There is one amendment before the Committee at the moment.

The Earl of Stockton

I beg leave to withdraw that amendment.

Earl Ferrers

I had a contribution to make, but I shall not do so now.

Amendment, by leave, withdrawn.

[Amendments Nos. 319F and 319G not moved.]

Clause 165 agreed to.

Clause 166 agreed to.

[Amendment No. 319H not moved.]

Clause 167 agreed to.

6.15 p.m.

Earl Ferrers moved Amendment No. 319J: After Clause 167, insert the following new clause:

("Certain apparatus to be deemed to be apparatus for wireless telegraphy.

.—(1) Any apparatus which—

1. (a) is connected to the telecommunication system by means of which a relevant cable service is provided, and
2. (b) is so connected for the purpose of enabling any person to receive any programmes included in that service by means of the reception and immediate re-transmission of programmes included in a television broadcasting service,

shall be deemed for the purposes of the 1949 Act to be apparatus for wireless telegraphy. (2) Any such apparatus shall, in addition, be deemed for the purposes of—

1. (a) section 1(7) of the 1949 Act (as amended by Part I of Schedule 16 to this Act), and
2. (b) any regulations made by the Secretary of State for the purposes of that provision under section 2 of that Act,

to be television receiving apparatus. (3) In this section "relevant cable service" means a service provided by any person to the extent that it consists in the use of a telecommunication system (whether run by him or by any other person) for the purpose of the delivery, otherwise than by wireless telegraphy, of programmes included in one or more television broadcasting services, where such programmes are so delivered—

1. (a) for simultaneous reception at two or more places in the United Kingdom, or
1727
2. (b) for reception at any place in the United Kingdom for the purpose of being presented there either to members of the public or to any group of persons.

(4) In this section— "the 1949 Act" means the Wireless Telegraphy Act 1949; "connected" has the same meaning as in the Telecommunications Act 1984; "television broadcasting service" means a television broadcasting service within the meaning of Part I of this Act, whether provided by the holder of a licence under that Part or by the BBC or the Welsh Authority.").

The noble Earl said: Perhaps we can get ourselves back onto the track again. This clause is needed as a consequence of the repeal in Schedule 18 to this Bill of the whole of the Cable and Broadcasting Act 1984. Its purpose is to perpetuate the effect of Section 31 of that Act. That section ensures that people who receive their television programmes via cable, rather than via an aerial, still need a television licence. I beg to move.

On Question, amendment agreed to.

Schedule 16 agreed to.

Clause 168 [Certain events not to be shown on pay-per-view terms]:

[Amendment No. 320 not moved.]

Clause 168 agreed to.

Lord Colwyn moved Amendment No. 320A: After Clause 168, insert the following new clause:

("News coverage of exclusive events

.—(1) Where a person ("the exclusive-right-holder") has the exclusive right to televise a sporting or other event, then, unless otherwise licensed or authorised, other qualifying persons shall by virtue of this section have the right to include limited television coverage of that event in news programmes broadcast or provided by them, subject to compliance with the following conditions—

1. (a) coverage of the event must occur only once in any one news bulletin and must only include material that has already been broadcast by the exclusive-right-holder;
2. (b) the total coverage of the event in any one news bulletin must not exceed 2 minutes and must in no circumstances include the whole of any self-contained item;
3. (c) coverage of any part of the event must not be included in any news bulletin broadcast more than 24 hours after the end of the first broadcasting of the event by the exclusive-right-holder;
4. (d) every news bulletin which includes coverage of the event must include a visual acknowledgement of the rights of the exclusive-right-holder;

(2) The provisions of this section—

1. (a) are in addition to, and do not affect, the provisions of section 30 of the Copyright Designs and Patents Act 1988 (Fair Dealing);
2. (b) are without prejudice to any direction given by the Commission in consequence of a notice given to the Secretary of State under section 10(3).

(3) Where an event extends beyond a single day, so much of it as takes place on any one day shall for the purposes of this section be treated as a separate event. (4) In this section— "coverage" of an event or part of an event means material (whether in the form of images or sounds or both) directly reporting that event or part; "news bulletin" means a scheduled news bulletin; and for the purposes of this section a person is a "qualifying person" if, but only if, at least three quarters of every news programme broadcast or provided by him consists of material obtained otherwise than by virtue of this section.").

The noble Lord said: I am hesitant to become involved with another long amendment. I promise not to keep the Committee for any great length of time. The amendment concerns news access. It is a subject that I dealt with at Second Reading and follows Amendments Nos. 316LLA and 320. Currently the broadcasting of events that constitute news by persons who do not have exclusive rights is left to be decided by agreement between the parties. Such agreements are by nature one-sided as the holder of the exclusive rights is under no obligation to grant what is in fact an indulgence.

I am informed that whether or not the applicant obtains permission would depend on the whim of the holder of the exclusive rights at the time of the application. A balance needs to be struck between the contractual rights of the holder of the exclusive rights and the need to provide news of these events to the public generally. That should not be left to a private agreement but should be established in the Bill. It is only by such means that the rights of the exclusive holder can be protected. At the same time the public's right to information through news broadcasts can he established.

The copyright legislation of 1988 establishes the principle that television news bulletins can use excerpts from video tape, film or television transmissions for the purpose of reporting news and current affairs. No one can prevent that happening and no credit to the originator is required. But it is subject to fair dealing.

The amendment is intended to clarify the position and avoid ambiguity by providing a checklist that all can follow. It enables the reporting of events with the use of other television stations' bulletins and lays down clear rules: that the clip should not exceed two minutes maximum; it should visually credit the originator; it can be used only within 24 hours of the event; and it cannot consist of the entire event—for example, a 100-yard sprint race.

The purpose is quite specific. It is to allow television news organisations properly to reflect everything that is going on in the world. I am aware that my noble friend Lord Stockton is in agreement with me on the amendment but wishes to restrict the news access to sports news. I agree with him that the problems with regard to news access are more frequent with sporting events. For example, ITN and TV-am were recently denied coverage of the Test series and the FA Cup Final and semi-finals, since the BBC, together with BSB, had exclusive rights to Football Association matches and Test matches in the West Indies.

I am sure that the recognition of news access should go wider than sports coverage. The amendment recognises the fact that there needs to be a safeguard against the unlikely possibility of an unscrupulous operator using this as a charter to put together bulletins from a variety of sources. There is a further limit on news access—that a bulletin using material from the news access basis should have at least 75 per cent. of news from other sources provided in the normal way; that is, from its own crews or paid for by agencies such as WTN, Visnews, ITN, the BBC, and so forth. That will make sure that the bulletins are genuinely gathered and presented and not cobbled together from a mish-mash of agency and terrestrial news sources. At the same time, it will mean that the bulk of news items will still have to be paid for and therefore that news providers will not suffer.

Since tabling my original amendment I have been in contact with ITN. It strongly believes that exclusives should be rigorously protected. It is concerned that my amendment might give broadcasters the right to pirate exclusive material that was the result of journalist enterprise. I am of the opinion that getting exclusives on air first is the key spur to competition and that it should not be altered with news access. I do not believe that it is in the public interest to keep pictures entirely exclusive once a story has been aired.

What will be changed is that other organisations will be able to reflect a story if it is of sufficient importance. I cannot think of a single example of a news story which should be kept exclusive to one television news outlet after it has had its first airing. It is sensible that if an exclusive is so important it is in the public interest that it should be repeated as widely as possible. I do not believe that news access will undermine competition between television stations. Naturally, television stations wish to put their own stamp, their own face, on material because that gives news bulletins authority and attracts viewers. News access will simply ensure that all television stations can fully reflect all events and news. I beg to move.

[Amendment No. 321A, as an amendment to Amendment No. 320A, not moved.]

Lord Peston

We on these Benches support the amendment. While we agree that sections of the media are different, we believe that those who show the news on television should have the same kind of approach as is used in newspapers. Just as it is reasonable to show the winning Cup Final goal in a newspaper, it is equally reasonable to be able to show it on television. This is an important issue.

When I saw the noble Lord's amendment I took legal advice. My legal advisers told me that it appeared that the fair dealing provisions in Section 30 of the Copyright, Designs and Patents Act covered the situation. It may well be that it does. I have taken further advice. The noble Lord's amendment usefully clarifies the matter and avoids ambiguity. It is better to do that rather than to rely solely on the fair dealing provisions. That might lead to litigation while the basic idea behind the amendment is simple.

I do not believe that any major issue of piracy or bad behaviour is involved. What is required is straightforward and is almost certainly guaranteed by the fair dealing provisions. I strongly support the amendment. I understand that it was drafted by a draftsman of the very highest quality—I stress the words "very highest quality"—and it stands up as a properly drafted amendment.

Lord Bonham-Carter

We on these Benches wholeheartedly support the amendment moved by the noble Lord, Lord Colwyn, who spoke with great clarity.

Earl Ferrers

I am bound to tell my noble friend that the amendment causes the Government a number of difficulties. Broadcasting legislation has never provided a statutory right for one broadcaster to include in its news bulletins clips of events covered and paid for by other broadcasters. To introduce a statutory requirement now would not fit easily in a broadly deregulatory Bill. There has over the years been a series of voluntary reciprocal agreements between broadcasters in relation to news access. Such arrangements sometimes take the form of one broadcaster allowing another to have its own news cameras at an event. Alternatively, broadcasters may make film coverage available to others. These arrangements have worked well on the whole for many years.

The advent of satellite television has introduced some turbulence into this pattern of arrangements. This is unsurprising. It is bound to take time to reach agreements among all the new broadcasters; and as the value of sporting rights has gone up, the granting of news access becomes a more valuable privilege. But there is a will in many, if not all quarters, to re-establish voluntary arrangements. We understand that Sky has contacted all other broadcasters suggesting a meeting to discuss ways of further developing voluntary agreements. We wish this initiative well. As most broadcasters have dual interests as broadcasters of both sports and news, it must have some hope of success.

I appreciate that my noble friend would like a provision written into the Bill. He has argued that Parliament should take this opportunity to put the matter beyond doubt. He has also urged that there should be more specific legislation than Section 30 of the 1988 Act for news broadcasters to rely on. I have to say that the Government are not persuaded by these arguments. Any provision of this kind has to balance the interests of the broadcaster who has acquired rights to an event and the broadcaster who wishes to include clips of that event in his news bulletins. I think that my noble friend's new clause amply demonstrates why Parliament should be wary of trying to legislate in this area. It would, for instance, allow a news broadcaster to include in its bulletins coverage of every men's athletics race of 800 metres or less at the next Olympic Games, provided only that it missed out a few seconds. It would have to pay nothing for those clips, while the sports broadcaster will have paid a considerable sum for the rights. I think that, on reflection, my noble friend will agree that this would be unfair.

I doubt whether this problem with his new clause could be easily cured. There is a basic difficulty. The value of a clip will depend greatly upon the event concerned. A 30-second clip of a marathon is one thing; a similar clip of a 400 metre race quite another. That is why the imprecision of Section 30 is a virtue rather than a vice: it allows different cases to be treated differently. There are many circumstances in which it is sensible for Acts of Parliament to use general language rather than over-specific formulations. This is one of them.

I recognise and understand the concern that there should continue to be adequate coverage of sporting and other events in news bulletins. But in the Government's view voluntary agreements are the best solution, relying where appropriate on Section 30. A specific statutory provision strikes us as an unattractive option for the reasons I have given. I hope that in the light of those reasons my noble friend will feel content to withdraw his amendment.

Lord Colwyn

That is obviously a disappointing reply in view of the care and trouble that we took with the amendment. I know that it is strongly held by many television companies. At the moment there is meant to be voluntary agreement among television companies on coverage of news and news access. However, I gather that these voluntary agreements do not always work. This amendment might stimulate discussion and sort the matter out. However, at this stage I have no intention of pressing it. I should like to read what my noble friend the Minister said and take further advice with a view possibly to coming back at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 321 had been withdrawn from the Marshalled List.]

6.30 p.m.

Clause 169 [Financing of programmes in Gaelic out of Gaelic Television Fund]:

Lord Sanderson of Bowden moved Amendment No. 321B:

Page 132, line 26, leave out ("shall, for the financial year beginning with 1st April 1992 and") and insert:

1. ("(a) may, for the financial year beginning with 1st April 1991, and
2. (b) shall, for").

The noble Lord said: While moving Amendment No. 321B I shall speak also to Amendments Nos. 322A, 323A, 324A-24C, 325A, 325B, 326C, 326D, 327A, 328A, 332A, 332B, 333A, 336A, 336B, 338ZA-338ZE and 343ZB.

Since we introduced the provision on Gaelic broadcasting into the Bill, we have had time to reflect and consult further about the details of our proposals. As a result we have decided to introduce these amendments, many of which are purely technical. They do not alter the purpose and essence of the scheme, but they clarify it in a number of ways. I will concentrate on the most important of these changes.

First, they give effect to the Government's undertaking during the Committee stage in another place that specific provision would be made on the face of the Bill to make clear that the Gaelic Television Committee could make grants for training purposes. Clearly that is an important part of the whole scheme.

Secondly, we have given the GTC an additional function; that is, the power to finance the undertaking of research into the types of Gaelic programmes the Gaelic speaking community would like to see broadcast. This is similar to provisions which exist elsewhere in the Bill under Clause 12(1)(c) which gives the ITC the power to make arrangements for audience research, to discover the type of programmes the public would like to see included in licensed services. We think that this will be a useful addition to the GTC's powers.

Thirdly, we have agreed—as is only right and proper—that the committee should have a Gaelic title: Comataidh Telebishein Gaidhlig.

That brings me to the status of the committee itself. Although the committee will be appointed by the ITC and will operate under its general oversight, it will not actually be a part of it. It will exist as an independent statutory body, responsible for running its own affairs. The provisions in the new schedule give effect to the committee's independent status. We regarded it as important that the purely regulatory functions of the ITC should not be blurred in any way by a grant-making function. The establishment of the GTC as a separate statutory entity should ensure that this does not happen. I beg to move.

Lord Prys-Davies

I certainly welcome Clause 169 and regret that I did not welcome it when we discussed an earlier amendment last week. However, I have two questions for the Minister, merely for information. One relates to Amendment No. 325A and the other to Amendment No. 326D.

As I understand it, the Gaelic audience in Scotland is small, perhaps of the order of 60,000 to 80,000. That points to the need for co-operation between the BBC and the Gaelic Television Committee. Can the Minister say whether the Gaelic Television Committee will be able to pay any part of its funds to the BBC for production of Gaelic language programmes? That matter arises out of Amendment No. 325A.

Relating to Amendment No. 326D, will the membership of the committee under Clause 169(3) include at least one person who can speak the Gaelic language?

Lord Sanderson of Bowden

The second question is very important. I have just béen discussing that issue with the noble Lord, Lord Macaulay of Bragar, who has a similar view to the noble Lord, Lord Prys-Davies. Nothing is written down in that regard, but it would be surprising, in a committee of that sort, if Gaelic speakers were not included. I note what the noble Lord said.

Regarding co-operation with the BBC, the BBC said that it does not wish to take any money from the fund.

Baroness Birk

Perhaps I may ask a brief question of the Minister. There is no mention of the BBC in any of the amendments. Can the Minister say whether the BBC is able to draw upon the Gaelic Television Fund in Scotland?

Lord Sanderson of Bowden

I understand that it is not but, as I have just said, the BBC said that it does not wish to draw on the fund even if it could.

Lord Prys-Davies

The BBC may not wish to draw on the fund. Ought not the committee to have the power to spend part of its funds in support of Gaelic language programmes produced by the BBC?

Lord Sanderson of Bowden

That is a separate issue. We are not dealing with the BBC. We are dealing with the independent television companies who will operate in Scotland. Far be it from me at this stage to say which those companies shall be, but it is perfectly clear that Grampian and Scottish Television are the two companies which wish to take part.

The BBC could draw from the fund, should it wish to—in answer to the point made by the noble Baroness, Lady Birk. However, my understanding is that it does not wish to.

On Question, amendment agreed to.

Lord Blease moved Amendment No. 322:

Page 132, line 32, after ("Fund") insert ("for Scotland and Northern Ireland").

The noble Lord said: It would be helpful if, in moving this amendment, I spoke also to the other 16 amendments in my name. We have had a small Scotch and now we will have a small Irish, and I do not believe in watering down Irish! I do not propose to do a disservice to the people who have presented me with the Irish case but if I detailed it tonight we would be here for some time. Therefore, I intend to speak briefly now and consider the possibility of returning to the matter on Report.

The substance of the amendments concerns the Gaelic culture and the growing interest in Northern Ireland in the Irish language. Northern Ireland is an integral part of the United Kingdom and there is particular concern about the absence in the Bill of any mention of Irish language broadcasting facilities in the Province. In the context of this Bill, which deals with major United Kingdom legislative measures for broadcasting, why do we have this blatant silence, this void, about the Irish language and Irish broadcasting? I realise that there are commercial and social problems but nothing will be gained by shoving them under the carpet. How is this void to be interpreted by the citizens and organisations who have sought earnestly to follow the leadership of the Secretary of State for Northern Ireland, Mr. Peter Brooke, and his many public statements all encouraging people to promote togetherness and goodwill?

That is the Irish case that I present this evening. I reserve the right to return to the matter on Report. I beg to move.

Lord Prys-Davies

I very much support the amendment moved by my noble friend Lord Blease. The amendments to which he spoke are fully consistent with Clause 169. They are also consistent with the positive policy which the Government have adopted towards the Irish language in Northern Ireland during the past two or three years.

There is authority for the amendment in the review of the Anglo-Irish Agreement, published in May of last year. The review states: The two Governments recognise also the importance of the Irish language … and undertake to support efforts to enhance awareness and appreciation of this particular strand of the cultural heritage". Clearly one means of achieving that end would be to accept the principle of the amendments moved by my noble friend.

Baroness Ewart-Biggs

I add a few words in briefly supporting the amendments put forward by my noble friend Lord Blease and supported by my noble friend Lord Prys-Davies. They have made a strong case for incorporating these amendments into the Bill. As my noble friend Lord Prys-Davies said, these provisions are consistent with those made for Wales and Scotland. They are also consistent with the policies of the Northern Ireland Office, the Northern Ireland Arts Council and, indeed, of the Irish Government, RTE and Ulster Television. All have supported and moved forward the whole notion of including a proportion of Irish language programmes to be broadcast in Northern Ireland.

There is considerable evidence that there will be a great deal of support for these provisions. A survey carried out by Ulster Television in the mid-1980s revealed a potential audience of 70,000 for Irish language programmes, which is a not inconsiderable number of people. A survey carried out for BBC Northern Ireland in the late 1980s revealed a potential audience of 80,000 for Irish language programmes, including 2 per cent. of the Protestant population. That represents over 5 per cent. of a population of 1.5 million, which is a higher proportion of the population than that which speaks Scots Gaelic.

I shall be very interested to hear what the noble Lord has to say in response to these amendments. Though they are consistent and logical, the Minister may well say that there are other considerations besides consistency and logic which play a part in the life of the Province. I hope that the Minister will regard the amendments for their own value and agree that it would be fair to include them. I look forward to hearing what he has to say.

Lord Bonham-Carter

We on these Benches welcome the provisions for Gaelic in Scotland. We see no reason why similar provisions should not be offered in accordance with the amendment moved by the noble Lord, Lord Blease.

Lord Sanderson of Bowden

These amendments, taken together, seek to provide government funding for Irish language broadcasting in Northern Ireland by means of the proposed Gaelic television fund which is intended to supplement Gaelic broadcasting in Scotland. They also provide that Channel 3 licences in Northern Ireland should be under a requirement to provide a wide range of programmes in the Irish language. As my right honourable friend the Minister of State said in another place when this subject was debated there, while we do not think that this issue is necessarily closed for all time, we do not consider that a case for government support for Irish language broadcasting has been made out. I wish to elaborate on that.

This certainly does not mean that the Government do not wish to support and encourage the appreciation and awareness of the Irish language and culture. The Government have demonstrated their support for this in a number of ways, including the contribution of £50,000 towards the Ultach Trust, an independent body which seeks to promote the Irish language and culture throughout Northern Ireland, and a commitment to provide up to £250,000 towards a £1 million trust fund which the Ultach Trust plan to raise. Nor does it rule out the possibility of government support for individual broadcasting initiatives. The NIO will be discussing with the Ultach Trust its recent consultation paper on the provision of Irish language television programmes with interested parties and taking their views into account when considering how best to develop Irish language broadcasting services in Northern Ireland.

However, the state of Gaelic broadcasting in Scotland is quite different from that which exists in Northern Ireland. Government funding for Scottish Gaelic broadcasting will provide 200 hours of Gaelic programming per year in addition to the 100 hours already provided by the BBC, STVB and Grampian. The fact that 100 hours is already being provided is concrete evidence of the demand which exists for Gaelic television in Scotland and the willingness to meet it. I understand that Irish language broadcasting in Northern Ireland at present amounts to three hours per week on BBC radio, together with some schools' programming. While there may be plans afoot to expand this, the present level would not in the Government's view justify the kind of government support which has been suggested at this stage.

There is one additional point about Amendments Nos. 334 to 338. I think we would all agree that it would be highly desirable for Northern Ireland to continue to have a Channel 3 licensee dedicated to serving the Province, and the Province alone. I am sure that the noble Lord, Lord Blease, agrees with that. Against that background we must be careful not to impose obligations which would be so onerous as to put the viability of the licence in doubt. I think that the noble Lord will take that matter into account.

We believe that the Irish language is a very important part of Northern Ireland's heritage. It is government policy in Northern Ireland to recognise and respect the cultural identities and traditions of both sides of the community. I can sum up the position by saying that, while the Government's mind is not closed to this initiative, we feel that it is at a different stage in its development from that which has prompted us to provide a Gaelic fund for Scotland. Having considered what I have said, I hope the noble Lord will realise that the NIO will work with those in Northern Ireland to help the situation but not in the way that is being recommended for Scotland.

6.45 p.m.

Lord Blease

I thank the Minister for a thoughtful, helpful and indeed sensitive approach to an old problem. I should have been happier had something been done in the Bill to give legislative thrust to the argument. I still hope that the door is open for further progress, perhaps through encouragement and support for the Irish trust. I may come back to the matter at a later stage. I should like to thank my noble friends for their support in this connection. It will be well received in Northern Ireland. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sanderson of Bowden moved Amendment No. 322A:

Page 132, line 32, at end insert ("(and any such amount shall accordingly not be regarded as forming part of the revenues of the Commission).").

On Question, amendment agreed to.

[Amendment No. 323 not moved.]

The Chairman of Committees (Lord Aberdare)

If Amendment No. 323A is agreed to, I cannot call Amendment No. 324.

Lord Sanderson of Bowden moved Amendment No. 323A:

Page 132, line 33, leave out from ("a") to ("be") in line 35 and insert ("body established for the purposes of this section, which shall be called Comataidh Telebishein Gaidhlig (the Gaelic Television Committee) and shall consist of—

1. (a) a chairman appointed by the Commission; and
2. (b) such number of other members appointed by the Commission, not being less than 4 nor more than 8, as they may from time to time determine.

(3A) The Fund may").

On Question, amendment agreed to.

[Amendment No. 324 not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 324A to 324C:

Page 132, line 36, after ("Committee") insert: ("(aa)"). Page 132, line 38, leave out ("for broadcasting") and insert ("primarily with a view to the broadcasting of such programmes"). Page 132, line 39, leave out ("and") and insert: ("( ) financing the training of persons employed or to be employed in connection with the making of such programmes; and").

On Question, amendments agreed to.

[Amendment No. 325 not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 325A and 325B:

Page 132, line 41, at end insert "; and (bb) in financing the undertaking of research into the types of television programmes in Gaelic that members of the Gaelic-speaking community would like to be broadcast."). Page 132, line 43, leave out ("(3)") and insert ("(3A)").

On Question, amendments agreed to.

[Amendment No. 326 not moved.]

The Chairman of Committees

If Amendment No. 326D is agreed to, I cannot call Amendment No. 327.

Lord Sanderson of Bowden moved Amendments Nos. 326C and 326D:

Page 133, line 5, leave out ("or requiring"). Page 133, line 7, leave out from ("(6)") to ("that") in line 9 and insert ("The Commission shall so exercise their power under subsection (3) to appoint the members of the Committee as to secure").

On Question, amendments agreed to.

[Amendment No. 327 not moved.]

Lord Sanderson of Bowden moved Amendment No. 327A:

Page 133, line 11, at end insert ("; and Schedule (The Gaelic Television Committee: supplementary provisions) to this Act shall have effect with respect to the Committee.").

On Question, amendment agreed to.

[Amendment No. 328 not moved.]

The Chairman of Committees

If Amendment No. 328A is agreed to, I cannot call Amendments Nos. 329 to 332.

Lord Sanderson of Bowden moved Amendment No. 328A:

Page 133, line 12, leave out subsections (7) to (9).

On Question, amendment agreed to.

[Amendments Nos. 329 to 332 not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 332A and 332B:

Page 133, line 31, leave out ("and section 170") and insert (", section 170 and Schedule (The Gaelic Television Committee: supplementary provisions)"). Page 133, line 32, at end insert: (" "the Committee" means the body established under subsection (3) above;").

On Question, amendments agreed to.

[Amendment No. 333 not moved.]

Clause 169, as amended, agreed to.

Clause 170 [Broadcasting of programmes in Gaelic on Channel 3 in Scotland]:

The Chairman of Committees

If Amendment No. 333A is agreed to, I cannot call Amendment No. 334.

Lord Sanderson of Bowden moved Amendment No. 333A:

Page 133, line 36, leave out from ("(1)") to ("as") in line 38 and insert ("Section 16 shall have effect in relation to any service to which this section applies").

On Question, amendment agreed to.

[Amendments Nos. 334 to 336 not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 336A and 336B:

Page 133, line 43, after ("which") insert: ("(i) "). Page 133, line 44, after ("and") insert: ("(ii) a suitable proportion").

On Question, amendments agreed to.

[Amendment Nos. 337 and 338 not moved.]

Lord Sanderson of Bowden moved Amendment Nos. 338ZA to 338ZE:

Page 134, line 2, after ("been") insert ("wholly or partly"). Page 134, line 3, leave out ("169(3)") and insert ("169(3A)"). Page 134, line 5, leave out from ("which") to ("for") in line 8 and insert ("are, by virtue of section (Conditions requiring holder of Channel 3 or 5 licence to deliver promised service) (1), to be included in a licence to provide a service to which this section applies accordingly include conditions imposed"). Page 134, line 9, leave out ("that subsection") and insert ("subsection (1) above"). Page 134, line 10, at end insert: ("(3A) This section applies—

1. (a) to any regional Channel 3 service that is to be provided for an area the whole of which is in Scotland; and
2. (b) if the Commission determine that it shall so apply, to any regional Channel 3 service that is to be provided for an area the greater part of which is in Scotland.").

On Question, amendments agreed to.

Clause 170, as amended, agreed to.

Earl Ferrers moved Amendment No. 338A: After Clause 170, insert the following new clause:

("Contributions towards maintenance of national television archive

.—(1) The Commission shall, for the financial year which includes the commencement of this section and each subsequent financial year, determine an aggregate amount which they consider it would be appropriate for the holders of Channel 3 and Channel 5 licences to contribute, in accordance with this section, towards the expenses incurred by the nominated body in connection with the maintenance by it of a national television archive.

(2) In this section "the nominated body" means such body as may for the time being be nominated by the Commission for the purposes of this section, being a body which—

1. (a) is for the time being a designated body for the purposes of section 75 of the Copyright, Designs and Patents Act 1988 (recordings for archival purposes), and
2. (b) appears to the Commission to be in a position to maintain a national television archive.

(3) A Channel 3 or Channel 5 licence shall include conditions requiring the licence holder to pay to the Commission, in respect of each of the financial years mentioned in subsection (1), such amount as they may notify to him for the purposes of this section, being such proportion of the aggregate amount determined for that year under that subsection as they consider appropriate.

(4) Any amount received by the Commission by virtue of subsection (3) shall be transmitted by them to the nominated body.

(5) In this section— the Commission" means the Independent Television Commission; and Channel 3 licence" and "Channel 5 licence" have the same meaning as in Part I of this Act.").

The noble Earl said: In moving Amendment No. 338A I shall speak also to Amendment Nos. 338B, 338C, 338D and 338E.

This new clause introduces a statutory provision enabling the ITC to require Channel 3 and Channel 5 licensees to contribute towards the cost of a body nominated by the ITC for the purposes of maintaining a national television archive. In order not to conflict with any copyright regulations, it is essential that such a body should be a designated body for the purposes of Section 75 of the Copyright, Designs and Patents Act 1988. It is intended that the total required funding by Channel 3 and 5 licensees should not exceed, in real terms, the current voluntary contribution which is made by ITV for the present archive arrangements.

We would expect Channel 4 with its public service obligations to continue to contribute to the national television archive on the present voluntary basis. There would of course be nothing to stop the body nominated for archiving from recording programmes from other licensed services, and it may be that voluntary funding arrangements could be negotiated with such services. Moreover, there would not be anything to prevent Channel 3 and Channel 5 licensees from funding the archive body to an extent greater than that statutorily required of them. We envisage that the BBC will continue to be responsible for the archiving of its own material. I beg to move.

Lord Lloyd of Hampstead moved, as an amendment to Amendment No. 338A, Amendment No. 338B: Line 5, after ("Channel 3") insert (",Channel 4").

The noble Lord said: In moving Amendment No. 338B, I shall speak also to Amendments Nos. 338C, 338D and 338E which are also tabled in my name. I should like to begin by saying that I entirely sympathise with and support the amendment moved by the noble Earl in favour of extending archiving provision on a statutory basis to Channel 3 and Channel 5. In my view, it is common knowledge that this development has come about largely at the instance of the British Film Institute which maintains the National Film Archive. Not unnaturally, I feel great sympathy towards this development as I am a former chairman of the British Film Institute.

However, the fact is that the Government have decided to exclude from the provision Channel 4, on the one hand, and domestic satellite services, on the other. The object of my amendment is to include those two elements in the general provision. It is generally recognised that the National Film Archive has performed a tremendous service in helping to preserve part of our national heritage. In recent years it has done its best to extend the concept to television. It has been moderately successful—that is, as successful as has been possible within limited resources—in achieving that aim. There is no questioning the fact that Channel 4 has been a major contributor to the archive in this respect. However, that has been carried out on a voluntary basis.

The British Film Institute apprehends that, in the more competitive atmosphere that is being created by the Bill, a time may come when this will weaken the force of the present voluntary schemes. It feels, rightly, that not just in the interests of consistency but in view of the practical implications of putting the archive on a more universal basis, there is everything to be said for bringing Channel 4 within the statutory scheme. There seems to be no valid objection to doing that in view of the reasonably well-founded apprehension that such schemes might cease to operate effectively in the future.

As regards the domestic satellite service, the thinking is that there is no reason why it should not be treated in the same way as the other domestic channels. The contribution it will have to make will be fairly small, and it is a little difficult to believe that it could substantially affect its finances. Therefore there seems to be a valid case for extending the provision not just to Channel 4 but to the domestic satellite service. In those circumstances, I urge the Government to reconsider the matter and to give serious thought to the need to put the archive on a comprehensive statutory basis. It would undoubtedly serve the future of our national heritage in the area of television programmes.

It would not be appropriate for me at this stage to move the amendment as it comes after the amendment moved by the Minister. For the moment, I confine myself to presenting the argument.

The Chairman of Committees

Perhaps the noble Lord will move the amendment as other people may wish to speak to it.

Lord Lloyd of Hampstead

If that is the convenient course, I beg to move Amendment No. 338B.

Baroness Birk

I support the setting up of a commission to contribute to the maintenance of a national television archive, and I support what the noble Lord, Lord Lloyd of Hampstead, has said. I was a governor of the BFI for a number of years. I am well aware of the amazing work that it has done nationally and internationally. It is a major cultural force nationally and internationally. It is important that its role should not be limited or stunted by an inability to develop a comprehensive archive.

Amendment No. 338A mentions "the nominated body". I imagine that that refers to the BFI. I also support the amendment moved by the noble Lord, Lord Lloyd of Hampstead, and agree that Channel 4 and DSB, as well as Channels 3 and 5, should be included in the organisations that should contribute to the archive. It has also been suggested that the BBC should be encouraged to participate on a similar basis. I am equally aware that the Bill deals only with commercial television, but the archive cuts across both areas of television. I am also aware that the BBC has its own archive, but the BFI archive is on a much larger scale and is historically more important. The BBC should perhaps be asked to contribute to it. When he replies, perhaps the Minister will tell me whether the BBC has been asked to do so, whether it will do so and whether it is understood or arranged that the BFI should be the nominated body mentioned in the amendment.

7 p.m.

Lord Colwyn

Perhaps I may briefly from this side of the Committee support the amendments in the name of the noble Lord, Lord Lloyd of Hampstead. In view of the lateness of the hour, I shall not give the little speech that I had planned, except to say it is important that the amendment is expanded to cover Channels 3, 4 and 5 and domestic satellite services. The Government have already recognised the need for the BFI to operate a national television archive to provide for the proper preservation and availability as a matter of public record of our most important medium of communication. The agreement will appear in this legislation as well as in the copyright Act of 1988. The amendment ensures that the BFI is given the proper scope to provide such a vital service.

Lord Thomson of Monifieth

We on these Benches welcome the new clause and strongly support the amendments to it. I do not understand why Channel 4 is not included in the new clause. Its contribution to the character of British television since it was founded is exactly of the nature that would provide some excellent archive material.

Earl Ferrers

The noble Lord, Lord Lloyd of Hampstead, said that the National Film Archive has performed a tremendous service. He is absolutely right. The noble Baroness, Lady Birk, asked what the phrase "nominated body" means. That is a convenient phraseology in order not specifically to mention a body, but it will almost certainly be the National Television Archive which is maintained by the British Film Institute.

The amendments of the noble Lord, Lord Lloyd of Hampstead, seek to impose archiving requirements on Channel 4 and domestic satellite services. There are a number of statutory obligations which the Bill will place on Channel 3 and other commercial licensees where we have not sought to place similar obligations on Channel 4, simply because we consider that those obligations are all part and parcel of that public service remit. If we were to specify in legislation one particular aspect of Channel 4's public service remit, it might be interpreted that we regard other aspects that we had not specified as of less importance. Channel 4 has indicated that it will continue to support the archive on a voluntary basis as part of its public service remit which, I believe, meets the point raised by the noble Lord, Lord Thomson.

It would not be right to place an archiving requirement on domestic satellite services. ITC licensees which use non-domestic satellite frequencies will be subject only to consumer protection rules. It would therefore be rather unfair to impose an archiving requirement on licensees using domestic satellite frequencies, but not on those using non-domestic satellite frequencies. The Bill places the requirement on those broadcasters—in other words, Channels 3 and 5—which are likely to have the dominant market share in the 1990s. That seems completely right.

The noble Baroness, Lady Birk, asked about the BBC. The BBC archives its own material and there is therefore no need for the British Film Institute archive to cover the BBC as well.

Baroness Birk

It is rather different. The BFI archive covers a wider field. It is both national and international. It is like some museums. It is the film museum of archives.

Earl Ferrers

I dare say that it is, but, as the BBC archives its own material, it is hard to expect it to archive someone else's material as well.

Lord Lloyd of Hampstead

I find the noble Earl's reply a little disappointing. I did not find the arguments that he pressed against my amendments were particularly powerful. As I pointed out, although it is true that voluntary arrangements exist at the moment, and I am sure Channel 4 sincerely wishes to continue with those arrangements, that body will be subject to great competitive pressure as this new phase of broadcasting develops. There is a considerable danger that it may come up against some reluctance to pursue its present course.

The only argument that has been used against BSB, which I do not think is a very strong one, is the suggestion that its opponent, Sky Television, which is on non-domestic satellite, will be disadvantaged. I cannot conceive that that disadvantage will be of any substantial character. It certainly does not seem a reason why BSB should not be brought into the same category as other domestic services. However, at this moment it would obviously be inappropriate for me to press my amendments further. I shall give thought to the observations of the noble Earl when I have a chance to read them in Hansard. If I am urged to do so from certain quarters, I may seek to return to this matter at a later stage. However, for the moment, I beg leave to withdraw the amendment.

Amendment No. 338B, as an amendment to Amendment No. 338A, by leave, withdrawn.

[Amendments Nos. 338C to 338E not moved.]

On Question, Amendment No. 338A agreed to.

Clause 171 [Duty of BBC to include independent productions in their television services]:

Lord Bonham-Carter moved Amendment No. 339:

Page 134, line 31, leave out ("The Director General of Fair Trading ("the Director")") and insert ("The Chairman of the Board of Governors of the BBC".).

The noble Lord said: Amendment No. 339 raises the question of the independent programme quota which is imposed on the BBC and the ITC companies. I shall be as brief as I can. A timetable has been agreed and accepted by the BBC on this matter. The timetable is on course. The BBC will move in accordance with that timetable to a position where it broadcasts 25 per cent. of its programmes from the independent sector. I do not know why anyone should doubt that that is happening and will happen. But for reasons which are not explained—I hope they will be explained—it appears that the Government feel that the BBC will not carry out its obligations in this regard.

However, there is no evidence that the BBC is in the habit of not fulfilling its obligations. In the light of these suspicions, the Government have brought in the Office of Fair Trading to ensure that the BBC is carrying out the 25 per cent. quota obligation. In so doing, the Government indicate that they have no confidence whatsoever in the governors of the BBC whom they appointed. That lack of confidence in the governors of the BBC is emphasised by the fact that the ITC will be exempt from this stipulation.

The argument for making the ITC exempt from a stipulation which the BBC is obliged to follow is that the ITC is a regulatory body, while the BBC is a regulatory body and a broadcaster. However, to take that argument seriously, the same could be said of all the BBC's regulatory functions. This means that the Government do not believe that the BBC should be trusted to undertake any of its regulatory functions.

We had this discussion last night in connection with the Broadcasting Standards Council. It appears that wherever possible the lighter touch of that body has taken the form of a heavy hand. It seems to me that the lighter touch means double banking. The board of governors is not only asked to undertake certain duties, but another body is then asked to oversee the board of governors in its carrying out of those duties. That is not only bureaucratic nonsense; it is administrative nonsense. It undercuts the position of the governors of the BBC, which would appear to be deliberate.

I simply cannot understand what lies behind the Government's policy towards the governors of the BBC in this respect. The amendment simply substitutes the chairman of the BBC for the Director-General of Fair Trading. I beg to move.

Lord Ardwick

I am afraid that I share the doubts and suspicions of the noble Lord, Lord Bonham-Carter. Clause 171 looks to me like a small gesture of no confidence in the board of governors of the BBC. Is it also an augury, a covert attempt to amend the charter of the BBC, which has still a few years to go?

Broadcasters are given a duty to commission a prescribed percentage of independent productions. In the case of independent television the supervision of the way in which that obligation is carried out is left to the regulatory body, the ITC. The regulators of the BBC are the governors. They have other roles—protecting the interests of the viewers, the listeners and the public generally as well as those of the BBC. Suddenly the Government have decided that not the governors but the Director-General of Fair Trading shall report: to the Secretary of State on the extent to which the BBC have, in his opinion, performed their duty". That is a remarkable public statement by the Government that they do not trust the BBC to allocate 25 per cent. of programmes to independent productions.

Why are the Government so suspicious that they are willing to blow a hole in the charter that Parliament has approved? Is it, one wonders, a prefiguration of what they intend to do when the charter is due for renewal in 1996? So far as I am aware the Home Office has made no accusation in its regular meetings with the BBC about agreed targets for independent productions that the BBC has been shown to be off-target. Of course there have been a few rows and a few hiatuses, but one must recognise that for the BBC, which is very much a programme-producing institution, to turn over 25 per cent. of its programmes to independent productions is a major task. However, that task is under way and surely the BBC can be trusted to carry out its statutory duty, as it always has, without going to an outside body to act as copper's nark.

Lord Morris

This series of amendments should be resisted vigorously. As the Committee is aware, Clause 171 is pro-competition and anti-monopoly. It is intended to guard against undue influence, and places a duty on the BBC to broadcast a percentage of qualifying independent productions. The role of reporting on the performance of that duty falls firmly within the remit of the Director-General of Fair Trading. The problem with the amendment is that the appointment of the chairman of the board of governors to perform that role will be seen, not surprisingly, by the public in general as the BBC acting as judge and jury in its own cause. It is quite wrong to suggest that that should be the case.

I do not know why the spokesmen for the opposition parties seem to take the provision as a personal slight on the governors of the BBC. I do not believe that that is the right attitude. I believe that it is right and proper that that responsibility should be placed squarely in the lap of the Director-General of Fair Trading because that is in line with the issue that Clause 171 addresses.

7.15 p.m.

Earl Ferrers

The noble Lord, Lord Bonham-Carter, said that it is inferred that Her Majesty's Government have no confidence in the chairman of the governors of the BBC. The noble Lord must resist a constant temptation to be mischievous and misleading. He knows perfectly well that the provisions in the Bill do nothing of the sort. Of course the Home Office and the Government have total confidence in the chairman of the governors of the BBC.

The noble Lord, Lord Ardwick, said that there had been no accusations by the Home Office that the BBC was off target. Of course not. Perhaps I can give the Committee the philosophy involved. We decided when the 25 per cent. independent production requirement became statutory that the broadcasters' performance in meeting it should be monitored externally. In the independent television area the licensees have to fulfil that obligation and the ITC monitor it. In the BBC's case it has to comply with the same regulations but then has to monitor itself. Therefore we thought it only proper that there should be an outside body to monitor it too.

But the main task that the governors perform is to ensure that the programming obligations under the charter are conscientiously carried out. The independent production initiative goes quite beyond the BBC's normal programming responsibilities. It relates to the source of programming and is concerned to ensure fair competition between the two sectors of the programme production industry, one of which is in direct competition with the BBC itself. The independent producers' interests in respect of the target of 25 per cent. and the terms of trade need to be watched to ensure fairness and genuine competition. I cannot believe that anyone would think that that is wrong.

That requires oversight by a body which is external to the BBC. The Office of Fair Trading is the obvious body as it has the necessary expertise to tackle competition and fair trading issues. It is already monitoring progress under the present voluntary initiative. Monitoring by a disinterested external body is necessary to be able to refute allegations, however unjustified they may be or ever may become, that the BBC may be failing to comply with the letter and spirit of the initiative.

It seems only fair that if one is going to apply one set of monitoring to the independent television side, one should provide also for an independent set of monitoring for the BBC side.

Lord Bonham-Carter

It seems to me that the noble Earl is saying that the Government regard the public service obligations of the BBC's governors as in some sense needing a further kind of oversight than that which they have had in the past. The governors of the BBC have always been responsible for ensuring that the BBC acted in the public interest. There was no question of anybody other than the Home Secretary and Parliament ensuring that they performed that function.

On two occasions—yesterday and today—the Government under this Bill have asked for outside bodies (one created and one in existence) to monitor the degree to which the BBC carries out its obligations. I find it very difficult to consider that as other than a vote of lack of confidence in the regulatory activities of the BBC.

It is much too late and this is not the time to press this amendment to a vote, but I must tell the noble Earl that it is a rather more serious matter than he appears to consider it. It does not seem, either to the BBC or to the Front Benches of the Opposition parties, that this is a satisfactory arrangement. We shall certainly come back to it. I beg leave to withdraw the amendment.

Lord Elton

Before the noble Lord sits down, if he is thinking of coming back to this issue at the next stage, I hope that he will take a purview of all the other regulatory bodies with regard to which the Director General of Fair Trading has a similar role to play. Then perhaps he will not feel it such an extraordinary thing to do.

Lord Ardwick

I still feel that this is an important constitutional point, which obviously we shall have to discuss later. With reference to the noble Lord being of a suspicious nature, my suspicions were aroused. I had no discussion with him about what I was going to say but I had reached a similar set of conclusions on the evidence of the Bill.

Amendment, by leave, withdrawn.

[Amendments Nos. 340 and 341 not moved]

Clause 171 agreed to.

Clause 172 [Information to be furnished by BBC for purposes of reports under section 171]:

Earl Ferrers moved Amendment No. 341ZA:

Page 136, line 23, at end insert (", or for the purposes of a report of any such proceedings").

The noble Earl said: This is a drafting amendment to make it clear that the exceptions to the prohibition disclosure in subsection (3) in respect of certain proceedings shall also extend to any reports of such proceedings. I beg to move.

On Question, amendment agreed to.

Clause 172, as amended, agreed to.

Clause 173 [Power to give broadcasting bodies etc. directions relating to international obligations]:

Earl Ferrers moved Amendment No. 341ZB:

Page 136, line 39, after ("may") insert ("by order").

The noble Earl said: I speak also to Amendment No. 341ZC. The amendment fulfils a commitment which was made in another place by my honourable friend the Minister for State, the honourable Member for Bradford South, that orders made under Clause 173 would be subject to the negative resolution procedure. Clause 173 deals with the giving of directions by the Secretary of State to enable the Government to meet the UK's international obligations. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 341ZC:

Page 137, line 2, at end insert: ("(3) An order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Clause 173, as amended, agreed to.

Earl Ferrers moved Amendment No. 341ZCA: After Clause 173, insert the following new clause:

("Modification of certain references in Telecommunications Act licences

.—(1) This section applies to licences which have been granted under section 7 of the Telecommunications Act 1984 (licensing of telecommunication systems) before the transfer date and continue in force on or after that date.

(2) In any licence to which this section applies, any reference (however expressed) to a cable programme service sent under a licence granted under section 4 of the Cable Act shall be construed, as from the transfer date, as a reference to a licensable service within the meaning of Part I of that Act (other than an exempt service), whether sent—

1. (a) under a diffusion licence which is continued in force by, or granted under, Part II of Schedule 10 to this Act, or
2. (b) under a local delivery licence granted under this Act, or otherwise.

(3) Where any licence to which this section applies ("the telecommunications licence") authorises the Secretary of State to revoke that licence in the event of the revocation of a licence granted under section 4 of the Cable Act in respect of the licensed systems ("the cable licence"), he may similarly revoke the telecommunications licence in the event of the revocation of any licence granted in respect of the licensed systems, in succession to the cable licence, under or in pursuance of any of paragraphs 2 to 3A in Part II of Schedule 10 to this Act.

(4) Where any licence to which this section applies ("the telecommunications licence") provides for that licence to remain in force so long as there remains in force in respect of the licensed systems a licence granted under section 4 of the Cable Act ("the cable licence"), then if a local delivery licence is granted in respect of the licensed system, in succession to the cable licence, in pursuance of paragraph 5 in Part II of Schedule 10 to this Act, the telecommunications licence shall (subject to the terms contained in it) remain in force so long as that local delivery licence remains in force.

(5) In this section— the Cable Act" means the Cable and Broadcasting Act 1984; diffusion licence" means a licence to provide a prescribed diffusion service or other diffusion service within the meaning of Part I of the Cable Act; exempt service" means a service falling within any description of services exempted from licensing under Part I of the Cable Act by virtue of an order in force under section 3 of that Act immediately before the transfer date; the licensed systems", in relation to a licence to which this section applies, means the telecommunication systems the running of which is authorised by the licence; local delivery licence" has the same meaning as in Part II of this Act; the transfer date" means the day appointed under section 120(1); and any reference to a licence granted under section 4 of the Cable Act includes, in relation to a licence to which this section applies ("the relevant licence"), a reference to a licence granted under section 58 of the Telecommunications Act 1984 (whether described in the relevant licence in those terms or in any other way).").

The noble Earl said: The new clause is an important but largely technical measure intended to preserve the intent of licences granted under the Telecommunications Act which make reference to the Cable and Broadcasting Act or concepts from it. I hope that it will be for the convenience of the Committee if I do not explain it in great detail. I beg to move.

Baroness Birk

I do not wish the Minister to explain the amendment now. But I wish to know whether it is one of the new amendments that were in the latest bunch.

Earl Ferrers

There have been several bunches of amendments. I should not like to guarantee exactly which bunch it was in. However, I expect that it probably was.

Baroness Birk

In that case, presumably we shall have further explanation on that together with others during the progress of the Bill.

Earl Ferrers

I am delighted to give the details to the noble Baroness now if she would like them. I was hoping that I might have been meeting with the wishes of the Committee.

Severn Telecommunications Act licences, including in particular BT's main licence and those granted to Mercury and the cellular radio operators, specifically prohibit the licensee from carrying cable entertainment services (so called "licensable cable programme services") on its network. This prohibition remains an important element in the Government's telecommunications policy although in line with a promise in the Broadcasting White Paper it will be examined as part of the Government's forthcoming review of the telecommunications duopoly policy.

In order not to prejudice the results of that review and to ensure that the restriction is not lifted as a consequence of the passage of this Bill, subsection (2) of this clause ensures that the status quo is maintained.

Subsections (3) and (4) relate to certain cable systems which will exchange existing Cable and Broadcasting Act licences for new follow-on licences granted under the transitional provisions in Schedule 10 to the Bill. All such systems require, and will continue to require, a parallel licence under the Telecommunications Act. Some of these Telecommunications Act licences, however, contain provisions under which either they can be revoked if the parallel Cable and Broadcasting Act licence is revoked or they remain in force only for as long as the Cable and Broadcasting Act licence remains in force. Subsections (3) and (4) ensure that these parallel provisions apply in exactly the same way in respect of the new follow-on licences. I hope that the noble Baroness now understands what the amendment is about.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 341ZCB: After Clause 173, insert the following new clause:

("Application of provisions of Fair Trading Act 1973 to broadcasting and telecommunication services

.—(1) In section 137(3) of the Fair Trading Act 1973 (definition of "supply of services"), there shall be inserted after paragraph (e) "and (f) includes the making of arrangements, by means of such an agreement as is mentioned in section (Sharing of telecommunication apparatus by operators of telecommunication systems) (2) of the Broadcasting Act 1990, for the sharing of the use of any telecommunication apparatus (within the meaning of Schedule 2 to the Telecommunications Act 1984).

(2) It is hereby declared for the avoidance of doubt that the provision of a broadcasting service is not a service falling within paragraph 7 of Schedule 5 to the Fair Trading Act 1973 (restriction on making references under section 14, 50 or 51 of the Act in connection with telecommunication services) by reason of the fact that the broadcasting service is provided by means of the running of any such system as is mentioned in that paragraph.

(3) In subsection (2) "broadcasting service" means—

1. (a) a programme service; or
2. (b) a local delivery service (within the meaning of Part II of this Act).

(4) In Part I of Schedule 7 to the Fair Trading Act 1973, paragraphs 8 and 9 (provision of programmes for transmission by Independent Broadcasting Authority, or of licensed cable programme services, wholly excluded from references under section 50 or 51 of the Act) shall cease to have effect.").

The noble Earl said: Subsection (1) of the new clause moved as Amendment No. 341ZCB extends the provisions of the Fair Trading Act 1973 (and thereby also the provisions of the Competition Act 1980) to the arrangements for the sharing of telecommunication apparatus referred to in the new clause proposed as Amendment No. 341ZCD. It would thus be possible under the competition legislation for a reference to be made to the Monopolies and Mergers Commission if it were believed that operators were acting in a monopolistic or anti-competitive way by unreasonably refusing to enter into sharing arrangements or by charging an unfair rental.

Schedules 5 and 7 to the Fair Trading Act list a number of classes of goods and services the provision of which is excluded from parts of the statutory competition legislation established in that Act. In particular, the Director General of Fair Trading does not have the power to refer a monopoly in the provision of such goods or services to the Monopolies and Mergers Commission. Such a power is, in these cases, reserved to the Secretary of State.

It is the Government's intention, as far as possible, to bring the provision of all goods and services under a common competition regime and thus in particular to reduce the number of exclusions in the Fair Trading Act. At present the provision by IBA programme contractors of programmes for transmission is specificially excluded from monopoly reference by the director, as is the provision of cable programme services licensed under the Cable and Broadcasting Act. The Government consider that there is no good reason why such an exclusion should continue nor why it should apply to the provision of the equivalent programme services and local delivery services under the provisions of the Bill.

Subsections (2) and (3) ensure this latter point by making clear that the provision of such services is not the same as running a telecommunications system which is, and will remain, excluded from the director general's monopoly reference powers. Subsection (4) removes the current exclusion of the provision of programmes by IBA contractors for broadcasting and of the provision of licensed cable programme services. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 341ZCC: After Clause 173, insert the following new clause:

("Revocation of class licence to run broadcast relay systems

. The licence entitled "Class Licence to run Broadcast Relay Systems", which was granted by the Secretary of State on 25th November 1986 under section 7 of the Telecommunications Act 1984 (power to license telecommunication systems), is hereby revoked.").

The noble Earl said: The purpose behind this clause is to revoke a class licence granted under the Telecommunications Act which is intended to authorise the running of any cable relay systems. Those are systems which carry only broadcasts from the BBC or the IBA, including BSB. It was discovered recently that the licence was defective and did not provide the intended authorisation. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 341ZCD: After Clause 173, insert the following new clause:

("Sharing of telecommunication apparatus by operators of telecommunication systems

—(l) Where—

1. (a) the telecommunications code contained in Schedule 2 to the 1984 Act expressly or impliedly imposes any limitation on the use to which any telecommunication apparatus installed by a person ("the operator") may be put, and
2. (b) the operator is a party to a relevant agreement,

that limitation shall not have effect so as to preclude the doing of anything which is done in relation to that apparatus in pursuance of that agreement; and anything which is so done shall be disregarded in determining, for the purposes of the telecommunications code as it applies in relation to the operator, the purposes for which that apparatus is used.

(2) In this section "relevant agreement", in relation to any telecommunication apparatus, means an agreement in writing—

1. (a) to which the parties are either—
1. (i) two or more persons to whom this section applies, or
1750
2. (ii) one or more persons to whom this section applies and one or more telecommunications operators who are not such persons; and
2. (b) which relates to the sharing by those persons of the use of that apparatus.

(3) Subsection (1) shall not be construed, in relation to a person who is authorised by a relevant agreement to share the use of any apparatus installed by another party to the agreement, as affecting any requirement on him (whether imposed by any statutory provision or otherwise) to obtain any consent or permission in connection with the installation by him of any apparatus, or the doing by him of any other thing, in pursuance of the agreement.

(4) This section applies to—

1. (a) the holder of a licence to provide a local delivery service within the meaning of Part II of this Act;
2. (b) the holder of any licence to provide a prescribed diffusion service granted under, or continued in force by, Schedule 10 to this Act;
3. (c) a telecommunications operator in his capacity as a person providing the means of delivery for the service provided under his licence by a person falling within paragraph (a) or (b) above; and
4. (d) the company nominated for the purposes of section 120(1).

(5) In this section— the 1984 Act" means the Telecommunications Act 1984; statutory provision" means any provision of an enactment or of an instrument having effect under an enactment; telecommunication apparatus" has the same meaning as in Schedule 2 to the 1984 Act; telecommunications operator" means a person who runs a telecommunication system the running of which is, or is not required to be, licensed under Part II of the 1984 Act.").

The noble Earl said: It has come to light recently that some operators are uncertain whether ducts and other apparatus which were installed using the powers of Schedule 2 to the Telecommunications Act 1984 could legally be shared with other operators. In principle, the Government support such sharing, which would have potential environmental benefits with less digging up of the streets. I am sure that it will meet with the approval of the Committee. I beg to move.

Lord Morris

I thank my noble friend for the amendment, which I support wholeheartedly. I shall not explain why. It will have an enormous impact on the development of the telecommunications structure in this country. I warmly welcome the new clause.

On Question, amendment agreed to.

Clauses 174 to 176 agreed to.

Clause 177 [Notices]:

Earl Ferrers moved Amendment No. 341ZD:

Page 138, line 22, leave out ("on").

The noble Earl said: This is a drafting amendment. It removes the word "on", which is not necessary. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 341A and 341B:

Page 138, line 43, after ("section") insert ("(Restriction on changes in control over Channel 3 licence holder),"). Page 138, line 45, after ("section") insert ("(Restriction on changes in control over holder of national licence),").

The noble Earl said: The amendments were spoken to with Amendment No. 163A. I beg to move.

On Question, amendments agreed to.

Clause 177, as amended, agreed to.

Clause 178 agreed to.

Clause 179 [Programme services]:

7.30 p.m.

Earl Ferrers moved Amendment No. 341C:

Page 139, line 11, leave out (", and any Act amended by this Act,").

The noble Earl said: I beg to move Amendment No. 341C and speak to Amendments Nos. 343ZA, 343ZC, 343ZE, 343ZF, 343ZG, 343B, 343C, 344A to 344E, 344EA and 344F to 344L. I hardly dare say so, particularly to the noble Baroness, Lady Birk, but this is almost drafting. I beg to move.

Lord Rippon of Hexham

I do not know whether it is appropriate to speak now to Amendment No. 343ZA. This is not just a simple drafting amendment. It is a matter of some importance. As I have on many occasions severely criticised the Government for their excessive use of Henry VIII clauses, I wish warmly to welcome this amendment. I thank my noble friend the Minister for having deleted these most objectionable subsections.

I hope that this may be regarded as a useful precedent for the future and that the Government will no longer introduce Henry VIII clauses into Bills except in the restricted circumstances under the conditions recommended by the Donoughmore Committee's report.

Earl Ferrers

I am grateful for that bouquet which was slightly unexpected. I hardly dare say this to my noble friend because he is a lawyer, but it is almost drafting. We removed the Henry VIII clauses and replaced them with more specific requirements which met with his approval. I am grateful for what he said.

On Question, amendment agreed to.

Clause 179, as amended, agreed to.

Clause 180 [General interpretation]:

Earl Ferrers moved Amendment No. 342:

Page 139, line 37, at end insert: (" "body", without more, means a body of persons whether incorporated or not, and includes a partnership;").

The noble Earl said: I beg to move Amendment No. 342 and speak to Amendment No. 343. These two minor amendments are needed to add the definition of the words "body" and "control" to the general interpretation in Clause 180. I commend the amendment to the Committee.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 343:

Page 139, line 40, at end insert: (" "control", in relation to a body, has the meaning given by paragraph 1(1) in that Part of that Schedule;").

On Question, amendment agreed to.

Clause 180, as amended, agreed to.

Clause 181 [Consequential and transitional provisions]:

Earl Ferrers moved Amendment No. 343ZA:

Page 141, leave out lines 1 to 12.

The noble Earl said: I spoke to this amendment with Amendment No. 341C. I beg to move.

On Question, amendment agreed to.

Clause 181, as amended, agreed to.

Earl Ferrers moved Amendment No. 343ZB: Before Schedule 17, insert the following new schedule:

("THE GAELIC TELEVISION COMMITTEE: SUPPLEMENTARY PROVISIONS

Status and capacity

1.—(1) The Committee shall be a body corporate. (2) The Committee shall not be treated for the purposes of the enactments and rules of law relating to the privileges of the Crown as a body exercising functions on behalf of the Crown. (3) It shall be within the capacity of the Committee as a statutory corporation to do such things and enter into such transactions as are incidental or conducive to the discharge of their functions under section 169 of this Act.

Tenure of office and remuneration

2.—(1) Subject to sub-paragraph (2), each member of the Committee shall hold and vacate office in accordance with the terms of his appointment. (2) Any member of the Committee may at any time resign his office by notice in writing to the Commission. (3) The Commission may pay to each member such remuneration and allowances as they may determine.

Disqualification of members of Committee for House of Commons

3. In Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified) there shall be inserted at the appropriate place— Comataidh Telebishein Gaidhlig".

Proceedings

4.—(1) Subject to paragraph 5, the quorum of the Committee and the arrangements relating to their meetings shall be such as the Committee may determine. (2) The arrangements may, with the approval of the Commission, provide for the discharge, under the general direction of the Committee, of any of the Committee's functions by a committee or by one or more of the members or employees of the Committee.

5.—(1) A member who is in any way directly or indirectly interested in any matter that is brought up for consideration at a meeting of the Committee shall disclose the nature of his interest to the meeting; and, where such a disclosure is made—

1. (a) the disclosure shall be recorded in the minutes of the meeting, and
2. (b) (subject to sub-paragraph (2)) the member shall not take any part in any deliberation or decision of the Committee, or of any of their committees, with respect to that matter.

(2) Sub-paragraph (1) (b) shall not apply in relation to any meeting of the Committee at which all of the other members present resolve that the member's interest should be disregarded for the purposes of that provision. (3) For the purposes of sub-paragraph (1), a general notification given at a meeting of the Committee by a member to the effect that he is a member of a specified company or firm and is to be regarded as interested in any matter involving that company or firm shall be regarded as a sufficient disclosure of his interest in relation to any such matter. (4) A member need not attend in person at a meeting of the Committee in order to make a disclosure which he is required to make under this paragraph if he takes reasonable steps to secure that the disclosure is made by a notice which is taken into consideration and read at the meeting. (5) In this paragraph references to a meeting of the Committee include references to a meeting of any of their committees.

6. The validity of any proceedings of the Committee shall not be affected by any vacancy among the members or by any defect in the appointment of a member or by any failure to comply with the requirements of paragraph 5.

Employees of the Committee

7.—(1) The Committee may appoint such employees as they may determine with the consent of the Commission as to numbers and terms of employment. (2) If the Committee determine to do so in the case of any of their employees, the Committee shall pay to or in respect of those employees such pensions, allowances or gratuities, or provide and maintain for them such pension schemes (whether contributory or not), as the Committee may determine. (3) The Employers' Liability (Compulsory Insurance) Act 1969 shall not require insurance to be effected by the Committee.

Financial provision

8. There shall be defrayed out of the Gaelic Television Fund—

1. (a) any expenses incurred by the Commission—
1. (i) by virtue of paragraph 2,
2. (ii) in paying the salaries of any employees of the Commission whose services have been furnished to the Committee by the Commission, or
3. (iii) in connection with providing the Committee with office accommodation or other facilities;
2. (b) any expenses incurred by the Committee by virtue of paragraph 7; and
3. (c) with the approval of the Commission, any other expenses incurred by the Committee.

Authentication of Committee's seal

9. The application of the seal of the Committee shall be authenticated by the signature of the chairman or of some other person authorised for the purpose.

Presumption of authenticity of documents issued by the Committee

10. Any document purporting to be an instrument issued by the Committee and to be duly executed under the seal of the Committee or to be signed on behalf of the Committee shall be received in evidence and shall be deemed to be such an instrument unless the contrary is shown.

Accounts and audit

11.—(1) The Committee shall keep proper accounts and proper records in relation to the accounts, and shall prepare in respect of each financial year a statement of accounts in such form as the Commission may direct. (2) The accounts of the Committee shall be audited by auditors to be appointed by the Committee with the approval of the Commission. (3) A person shall not be qualified to be appointed as an auditor in pursuance of sub-paragraph (2) unless he is a member of one or more of the following bodies—

• the Institute of Chartered Accountants in England and Wales;
• the Institute of Chartered Accountants of Scotland;
• the Association of Certified Accountants;
• the Institute of Chartered Accountants in Ireland;

any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 389(1) (a) of the Companies Act 1985 by the Secretary of State, but a Scottish firm may be so appointed if each of the partners in the firm is qualified to be so appointed. (4) The Committee shall at all reasonable times upon demand made by the Commission or by any persons authorised by them in that behalf—

1. (a) afford to them full liberty to examine the accounts of the Committee; and
2. (b) furnish them with all forecasts, estimates, information and documents which they may require with respect to the financial transactions and commitments of the Committee.

Annual reports

12.—(1) As soon as possible after the end of each financial year, the Committee shall prepare a general report of their proceedings during that year and transmit it to the Commission. (2) The report shall have attached to it the statement of accounts for the year and a copy of any report made by the auditors on that statement. (3) The Commission shall send a copy of each annual report received by them in accordance with this paragraph to the Secretary of State who shall lay copies of it before each House of Parliament.").

The noble Earl said: I spoke to this amendment with Amendment No. 321B. I beg to move.

On Question, amendment agreed to.

Schedule 17 [Minor and Consequential Amendments]:

Earl Ferrers moved Amendment No. 343ZC:

Page 213, line 15, at end insert:

("Parliamentary Papers Act 1840 (c. 9)

. Section 3 (protection in respect of proceedings for printing extracts from or abstracts of parliamentary papers) shall have effect as if the reference to printing included a reference to including in a programme service.

Law of Libel Amendment Act 1888 (c. 64)

. Section 3 (contemporary reports of proceedings before courts exercising judicial authority) shall apply in relation to reports or matters included in a programme service, and in relation to any inclusion in such a service of any such report or matter, as it applies in relation to reports and matters published in a newspaper and to publication in a newspaper.

Children and Young Persons Act 1933 (c. 12)

.—(1) In section 28 (powers of entry)—

1. (a) in subsection (2) (a), omit "a cable programme studio" and for "broadcast in a cable programme" substitute "programme service"; and
2. (b) for subsection (4) substitute—

"(4) In this section— broadcasting studio" includes a studio used in connection with the provision of a programme service; programme service" has the same meaning as in the Broadcasting Act 1990.

(2) Sections 39 and 49 (restriction on newspaper reports of court proceedings involving children and young persons) shall, with the necessary modifications, apply in relation to reports or matters included in a programme service, and in relation to including any such reports or matters in such a service, as they apply in relation to reports or matters published in newspapers and to publishing any matter in a newspaper.

Children and Young Persons (Scotland) Act 1937 (c. 37)

.—(1) In section 36 (power to enter studios)—

1. (a) in subsection (2) (a), omit "a cable programme studio" and for "broadcast in a cable programme" substitute "programme service"; and
2. (b) for subsection (4) substitute—

"(4) In this section— "broadcasting studio" includes a studio used in connection with the provision of a programme service; "programme service" has the same meaning as in the Broadcasting Act 1990". (2) Section 46 (restriction on newspaper reports of court proceedings involving children and young persons) shall, with the necessary modifications, apply in relation to reports or matters included in a programme service, and in relation to including any such reports or matters in such a service, as it applies in relation to reports or matters published in newspapers and to publishing any matter in a newspaper.

Public Bodies (Admission to Meetings) Act 1960 (c. 67)

. In section 1(7) (admission of public to meetings of local authorities and other bodies), for the words from "or for" to "licensed" substitute "or for programme services (within the meaning of the Broadcasting Act 1990) other than sound or television broadcasting services".

Children and Young Persons Act 1963 (c. 37)

. In section 37(2) (restriction on persons under 16 taking part in certain performances), for paragraph (d) substitute— "(d) any performance included in a programme service (within the meaning of the Broadcasting Act 1990);".

Licensing Act 1964 (c. 26)

. In section 182(1) (relaxation, with respect to licensed premises, of law relating to music and dancing licences), for the words from "or by the" to "licensed" substitute "or of programmes included in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service".

Private Places of Entertainment (Licensing) Act 1967 (c. 19)

. In section 2(3) (certain private places of entertainment to require licences), for the words from "or of being" onwards substitute "or of being included in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service.".

Wireless Telegraphy Act 1967 (c. 72)

. In section 6(1) (interpretation of Part I of the Act), for the definition of "television programme" substitute— ""television programme" means a programme included in any television broadcasting or other television programme service (within the meaning of Part I of the Broadcasting Act 1990);".

London Cab Act 1968 (c. 7)

. In section 4(5) (restrictions on advertising in connection with private hire-cars), in the definition of "advertisement", for "or by inclusion in a cable programme service" substitute "or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service".

Trade Descriptions Act 1968 (c. 29)

. In section 39(2) (interpretation), for "or in a programme included in a cable programme service" substitute "or in any programme included in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service".

Social Work (Scotland) Act 1968 (c. 49)

. In section 58(1) (prohibition of publication of proceedings in a children's hearing), for the words "broadcast or a programme included in cable programme service"—

1. (a) in the first place where they occur, substitute "programme included in a programme service (within the meaning of the Broadcasting Act 1990)"; and
1756
2. (b) in the second place where they occur, substitute "programme included in such a programme service".

Theatres Act 1968 (c. 54)

. In section 7(2) (b) (exceptions for performance given in certain circumstances), for sub-paragraph (iii) substitute— "(iii) the performance to be included in a programme service (within the meaning of the Broadcasting Act 1990);"

Gaming Act 1968 (c.65)

. In section 42(8) (definition of "advertisement" for the purposes of restrictions on advertisements relating to gaming), for "or by inclusion in a cable programme service" substitute "or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service".

Children and Young Persons Act (Northern Ireland) 1968 (c.34 (N.I.))

.—(1) In section 40(2) (restriction on persons under 16 taking part in certain performances), for paragraph (d) substitute— (d) any performance included in a programme service (within the meaning of the Broadcasting Act 1990);".

(2) In section 45 (powers of entry)—

1. (a) in subsection (2) (a), omit "a cable programme studio" and for "broadcast in a cable programme" substitute "programme service"; and
2. (b) for subsection (5) substitute—

"(5) In this section— broadcasting studio" includes a studio used in connection with the provision of a programme service; programme service" has the same meaning as in the Broadcasting Act 1990.

(3) In section 59 (power to prohibit publication of certain matter in newspapers and broadcasts)—

1. (a) in subsection (1)—
1. (i) in paragraph (a), for "in any newspaper or in any broadcast" substitute "which is published in any newspaper or included in any programme service (within the meaning of the Broadcasting Act 1990)"; and
2. (ii) in paragraph (b), for "in any television broadcast" substitute "included in any such service"; and
2. (b) in subsection (2), after "publishes" insert "or includes in a programme service".

(4) In section 68 (restrictions on newspaper and broadcast reports of proceedings in juvenile courts)—

1. (a) in subsection (1)—
1. (i) in paragraph (a), for the words from "in any newspaper" to "court" substitute "of any proceedings in a juvenile court which is published in any newspaper or included in any programme service (within the meaning of the Broadcasting Act 1990)"; and
2. (ii) in paragraph (b), for "in any television broadcast" substitute "included in any such service"; and
2. (b) in subsection (3), after "publishes" insert "or includes in a programme service".

Local Government Act 1972 (c. 70)

. In section 100K (interpretation and application of Part VA of the Act), in paragraph (b) of the definition of "newspaper", for sub-paragraph (ii) substitute— "(ii) for inclusion in programmes to be included in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service;".

Local Government Act (Northern Ireland) 1972 (c. 9 (N.I.))

. In section 148(1) (interpretation), in the definition of "newspaper", for the words from "or for" onwards substitute "or for programmes to be included in a programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service;".

Employment Agencies Act 1973 (c. 35)

. In section 13(4) (interpretation), for paragraphs (c) and (d) substitute "or (c) to providing a programme service (within the meaning of the Broadcasting Act 1990).".

Northern Ireland Constitution Act 1973 (c. 36)

. In Schedule 3 (minimum reserved matters), in paragraph 14, for the words from ", (including" onwards substitute "and the provision of programme services (within the meaning of the Broadcasting Act 1990).".").

The noble Earl said: This amendment was spoken to with Amendment No. 341C. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 343ZD:

Page 213, leave out lines 20 to 23.

The noble Earl said: This was spoken to with Amendment No. 341ZCB. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 343ZE to 343ZG:

Page 213, line 23, at end insert:

("Criminal Procedure (Scotland) Act 1975 (c. 21)

. In subsection (2) of sections 169 and 374 (restrictions on report of proceedings involving person under 16), for the words from "broadcasts" to "service" substitute "programmes included in a programme service (within the meaning of the Broadcasting Act 1990)".

Industry Act 1975 (c. 68)

. In section 9 (the National Enterprise Board and the media)— (a) in subsection (1), for paragraphs (b) and (c) substitute— (b) shall become the holder of a relevant licence."; (b) in subsection (3), for paragraphs (ii) and (iii) substitute— (ii) activities connected with the provision of a service under a relevant licence.";

(c) in subsection (9)—

1. (i) for "a programme contractor, they shall consult the Independent Broadcasting Authority" substitute "the holder of a relevant licence, they shall consult the appropriate authority"; and
2. (ii) for "that Authority" substitute "the appropriate authority";

(d) omit subsection (9A); (e) in subsection (10), for "programme contractor" substitute "holder of a relevant licence"; and (f) for subsection (11) substitute—

"(11) In this section— appropriate authority" means—

1. (a) in relation to a licence granted under Part I of the Broadcasting Act 1990, the Independent Television Commission; and
2. (b) in relation to a licence granted under Part III of that Act, the Radio Authority;

relevant licence" means a licence granted by the Independent Television Commission or the Radio Authority under Part I or (as the case may be) Part III of that Act.

Scottish Development Agency Act 1975 (c. 69)

. In section 17 (the Scottish Development Agency and the media), for "Cable and Broadcasting Act 1984" substitute "Broadcasting Act 1990".

Welsh Development Agency Act 1975 (c. 70)

. In section 19 (the Welsh Development Agency and the media)— (a) in subsection (1), for paragraphs (b) and (c) substitute— (b) shall become the holder of a relevant licence."; (b) in subsection (3), for paragraphs (ii) and (iii) substitute— (ii) activities connected with the provision of a service under a relevant licence.";

(c) in subsection (9)—

1. (i) for "a programme contractor, they shall consult the Independent Broadcasting Authority" substitute "the holder of a relevant licence, they shall consult the appropriate authority"; and
2. (ii) for "that Authority" substitute "the appropriate authority";

(d) omit subsection (9A); (e) in subsection (10), for "programme contractor" substitute "holder of a relevant licence"; and (f) for subsection (11) substitute—

"(11) In this section— appropriate authority" means—

1. (a) in relation to a licence granted under Part I of the Broadcasting Act 1990, the Independent Television Commission; and
2. (b) in relation to a licence granted under Part III of that Act, the Radio Authority;

"relevant licence" means a licence granted by the Independent Television Commission or the Radio Authority under Part I or (as the case may be) Part III of that Act."."). Page 213, line 26, at end insert:

("Sexual Offences (Amendment) Act 1976 (c. 82)

.—(1) In section 4 (anonymity of complainants in rape etc. cases)— (a) in subsection (1), for "broadcast or included in a cable programme", in each place where those words occur, substitute "included in a relevant programme for reception" and for "broadcasting or inclusion in a cable programme" substitute "inclusion in a relevant programme"; (b) in subsection (5), for "broadcast or included in a cable programme" substitute "or included in a relevant programme" and for paragraphs (c) and (d) substitute "and (c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,"; (c) in subsection (5A), for "or broadcast of any matter or the inclusion of any matter in a cable programme," substitute "of any matter or the inclusion of any matter in a relevant programme," and for ", broadcast or cable programme" substitute "or programme"; (d) in subsection (6), omit the definitions of "a broadcast" and "cable programme" and after the definition of "complainant" insert— "relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990);"; and (e) in subsection (7), for "broadcast or inclusion in a cable programme" substitute "or upon matter included in a relevant programme".

(2) In section 5(5) (supplementary provisions), for "broadcast or cable programme in question was or substitute "or programme in question was of, or (as the case may be) included,".

(3) In section 7(6) (extent to Northern Ireland), for "broadcast or inclusion in a cable programme" substitute "such an inclusion of matter in a relevant programme".

Sexual Offences (Northern Ireland) Order 1978 (S.I.1978/ 460 (N.1.5))

.—(1) In Article 6 (anonymity of complainants in rape offence cases)—

(a) in paragraph (1), for "broadcast or included in a cable programme" substitute "included in a relevant programme";

(b) in paragraph (5), for "broadcast or included in a cable programme" substitute "or included in a relevant programme" and for sub-paragraphs (c) and (d) substitute "and

(c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor to a newspaper,";

(c) in paragraph (6), omit the definitions of "a broadcast" and "cable programme" and after the definition of "complainant" insert— "relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990);"; and

(d) in paragraph (7), for "broadcasting or inclusion in a cable programme" substitute "or inclusion in a relevant programme" and for "broadcast or inclusion in a cable programme" substitute "or upon matter included in a relevant programme".

(2) In Article 7(3) (supplementary provisions), for "broadcast or cable programme in question was of" substitute "or programme in question was of, or (as the case may be) included,".

(3) In Article 8(1) (anonymity of defendants in rape offence cases), for "broadcast or included in a cable programme" substitute "included in a relevant programme (as defined in Article 6(6))".").

Page 213, line 30, at end insert:

("Magistrates' Courts Act 1980 (c. 43)

. In section 8 (restrictions on reports of committal proceedings)—

1. (a) in subsection (1), for "broadcast or include in a cable programme" substitute "include in a relevant programme for reception";
2. (b) in subsections (2B), (4), (5) and (8), for "broadcast or included in a cable programme", in each place where those words occur, substitute "or included in a relvant programme";
3. (c) in subsection (3), for "broadcast or include in a cable programme", in each place where those words occur, substitute "or include in a relevant programme";
4. (d) in subsection (5), for paragraphs (c) and (d) substitute—
• "(c) in the case of the inclusion of a report in a relevant programme, any body corporate which provides the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,";
1760
• (e) in subsection (10), omit the definitions of "broadcast" and "cable programme" and after the definition of "publish" insert—
• "relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990)."

Indecent Displays (Control) Act 1981 (c. 42)

. In section 1(4) (provisions relating to indecent displays disapplied in relation to broadcasting etc.), for paragraph (a) substitute— "(a) included by any person in a television broadcasting service or other television programme service (within the meaning of Part I of the Broadcasting Act 1990);".

Contempt of Court Act 1981 (c. 49)

.—(1) In section 2 (limitation of scope of strict liability)—

1. (a) in subsection (1), for "broadcast cable programme" substitute "programme included in a programme service"; and
2. (b) after subsection (4) insert—

"(5) In this section "programme service" has the same meaning as in the Broadcasting Act 1990."

(2) In section 19 (interpretation), omit the definition of "cable programme".

Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (S.I. 1981/839 (N.I.20))

. In Article 11(4) (interpretation), for sub-paragraphs (c) and (d) substitute "or (c) to providing a programme service (within the meaning of the Broadcasting Act 1990).".

Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.26))

. In Article 44 (reports of preliminary proceedings)— (a) in paragraphs (1) and (2), for "or published", in each place where those words occur, substitute ", published or included in a relevant programme"; and (b) after paragraph (5) insert— "(6) In this Article "relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990)."

Insurance Companies Act 1982 (c. 50)

. In section 72(6) (meaning of "advertisement" for the purposes of insurance advertisements), for "or by inclusion in a cable programme service" substitute "or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service".").

The noble Earl said: I beg to move Amendments Nos. 343ZE to 343ZG en bloc. I spoke to these with Amendment No. 341C.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 343A:

Page 214, line 22, after ("to") insert ("the generality of').

The noble Earl said: This is a minor drafting amendment, improving the Representation of the People Act 1983. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 343B and 343C:

Page 214, line 26, at end insert:

("National Audit Act 1983 (c. 44)

. In Part II of Schedule 4 (nationalised industries and other public authorities liable to examination by Comptroller and Auditor General), for the entries relating to the Independent Broadcasting Authority and the Welsh Fourth Channel Authority substitute— "Sianel Pedwar Cymru."

Value Added Tax Act 1983 (c. 55)

In section 20 (refund of value added tax in certain cases)—

1. (a) in subsection (3), for paragraph (j) substitute—
2. "(j) a nominated news provider, as defined by section 29(3) of the Broadcasting Act 1990;"; and
3. (b) after subsection (4) insert—
• "(4A) No tax shall be refunded under this section to a nominated news provider which in the opinion of the Commissioners is attributable to activities other than the provision of news programmes for broadcasting by holders of regional Channel 3 licences (within the meaning of Part I of the Broadcasting Act 1990).".").

Page 214, line 43, at end insert:

("(2) In section 7 (power to license telecommunication systems)—

1. (a) in subsection (10A), for "Cable Authority" substitute "Independent Television Commission"; and
2. (b) in subsection (10B), for "licensable cable programme service" substitute "local delivery service (within the meaning of Part II of the Broadcasting Act 1990)".

(3) In section 42(2) (fraudulent use of telecommunication system), for "to which section 53 of the Cable and Broadcasting Act 1984 applies)" substitute "such as is mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988)".

Video Recordings Act 1984 (c. 39)

. In section 3(8) (exempted supplies), for paragraphs (a) and (b) substitute "a programme service (within the meaning of the Broadcasting Act 1990)".

Cinemas Act 1985 (c. 13)

. In section 21(1) (interpretation), in the definition of "film exhibition", for paragraphs (a) and (b) substitute "programmes included in a programme service (within the meaning of the Broadcasting Act 1990);".

Bankruptcy (Scotland) Act 1985 (c. 66)

. In subsection (5) of section 70 (supplies by utilities), for the words from "services", where it second occurs, onwards substitute "local delivery services within the meaning of Part II of the Broadcasting Act 1990".

Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (S.I. 1985/1204 (N.I.11))

. In Article 130(8) (definition of "advertisement" for the purposes of restrictions on advertisements relating to gaming), after "television," insert "or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service,".

Insolvency Act 1986 (c. 45)

. In sections 233(5) (d) and 372(5) (c) (supplies of gas, water, electricity and telecommunication services), for the words "services consisting" onwards, in each place where they occur, substitute "local delivery services within the meaning of Part II of the Broadcasting Act 1990."

Building Societies Act 1986 (c. 53)

. In section 50(10) (powers to control advertising), in the definition of "advertisement", for the words from "whether" to "and references" substitute "whether—

1. (a) documentary,
2. (b) by way of sound broadcasting or television or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service, or
1762
3. (c) by any pictorial means not falling within paragraph (a) or (b) above;

and references".

Financial Services Act 1986 (c. 60)

.—(1) In section 207 (interpretation)—

1. (a) in subsection (2), after "television" insert "or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service"; and
2. (b) for subsection (4) substitute—

"(4) Neither the holder of a licence granted under Part I or III of the Broadcasting Act 1990 nor Sianel Pedwar Cymru shall he regarded as contravening any provision of this Act by reason of including in the licensed service or (as the case may be) broadcasting on S4C (within the meaning of Part I of that Act) an advertisement in accordance with the provisions of that Act."

(2) In paragraph 25A in Part III of Schedule 1 (advice given in sound, television or cable programmes excluded from activities constituting investment business)—

1. (a) in sub-paragraph (1), for the words from "or teletext" onwards substitute "included in a programme service."; and
2. (b) in sub-paragraph (2), in the definition of "programme", for "television or sound broadcasting service or a cable programme service" substitute "programme service", and for the definition of "teletext transmission" substitute—

"programme service" has the same meaning as in the Broadcasting Act 1990."

Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I.3))

. In Article 2(2) (interpretation), in the definition of "newspaper", for the words from "cable programme" onwards substitute "programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service;".

Criminal Justice Act 1987 (c. 38)

. In section 11 (restrictions on reporting applications for dismissal and preparatory hearings)—

1. (a) in subsection (1), for "broadcast or include in a cable programme" substitute "include in a relevant programme for reception";
2. (b) in subsections (4), (8) and (12), for ", broadcast or included in a cable programme" substitute "or included in a relevant programme";
3. (c) in subsections (5) and (7), for ", broadcast or include in a cable programme" substitute "or include in a relevant programme";
4. (d) in subsection (10), for "broadcast or included in a cable programme" substitute "included in a relevant programme" and for ", broadcast or inclusion in a cable programme" substitute "or inclusion in a relevant programme";
5. (e) in subsection (12), for paragraphs (c) and (d) substitute—

"(c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,"; and (f) in subsection (15), omit the definitions of "broadcast" and "cable programme" and after the definition of "publish" insert— ""relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990)."

. In section 24 (defences to offence of giving misleading price indication)—

1. (a) in subsection (2), for the words from ", film" to "service," substitute "or film or in a programme included in a programme service (within the meaning of the Broadcasting Act 1990),"; and
2. (b) in subsection (6), omit the definition of "cable programme service".

Consumer Protection (Northern Ireland) Order 1987 (S.I.1987/2049 (N.I.20))

. In Article 17 (defences to offence of giving misleading price indication)—

1. (a) in paragraph (2), for "film or radio or television broadcast or in a programme included in a cable programme service," substitute "or film or in a programme included in a programme service (within the meaning of the Broadcasting Act 1990),"; and
2. (b) in paragraph (6), omit the definition of "cable programme service" "

The noble Earl said: I beg to move Amendments Nos. 343B and 343C en bloc. I spoke to these amendments when moving Amendment No. 341C.

On Question, amendments agreed to.

Viscount Brentford moved Amendment No. 344: Page 214, line 49, after ("included") insert ("for the purposes of supervision and control of broadcasts and cable programmes").

The noble Viscount said: This amendment deals with the linking up of the present Bill before the Committee and the Copyright, Designs and Patents Act 1988. I shall do my utmost to persuade my noble friend that this too is almost a drafting point, which I hope he will feel able to accept.

I am a solicitor and my firm has had a number of dealings on behalf of clients who supply copyright material to broadcasters both for television and for radio. It is with their interests in mind that I speak to the amendment. The amendment is purely technical and not a matter of policy.

Section 69 of the Copyright, Designs and Patents Act 1988 permits the Independent Broadcasting Authority to make and use recordings for the purpose of its maintenance and supervision of programmes and advertisements on ITV without risking any infringement of copyrights. I must point out to the Committee that it is purely for that limited purpose.

When this Bill was first printed in December 1989 the text repeated the exemptions incorporating the specific words relating to the use of recordings for the purposes of maintenance and supervision. The current wording set out in paragraph 6 refers to this purpose in the opening two words—lines 45 and 46 on page 214—but does not carry the wording through into sub-paragraphs (2) and (3) which are being transferred into the 1988 Act.

While I have no reason to doubt that the present wording is intended to grant exemption only as regards recordings made for the purposes of supervision and control, I do not believe that the Bill as drafted fulfils that purpose. The wording used, and which will appear as an amendment to the 1988 Act, gives unrestricted exemption to the IBA, My amendment is intended to limit the section back to what I believe the Government intended and to what was originally stated in earlier drafts of the Bill.

I am sure that it is right that the exemption should apply and he seen to apply, only to those recordings made for the purposes of supervision and control of broadcasts, both on television and on radio. That is all that my amendment seeks to do. I beg to move.

Earl Ferrers

I find my noble friend enormously persuasive and shall be happy to accept the amendment. However, I must inform him that I shall have to table another amendment on Report to delete the words "and control". That would have no substantive effect. It would simply bring the wording into line with that in Clause 11 of the Bill which is more suited to the proposed regulatory regime.

Viscount Brentford

I am grateful to my noble friend for agreeing to insert a new provision. I shall certainly look at it when his amendment comes forward. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Ferrers moved Amendment No. 344A:

Page 215, line 13, at end insert: ("(2) In paragraph 17 of Schedule 2 (rights in performances: recordings for purposes of supervision and control of broadcasts etc.), for sub-paragraphs (2) to (4) substitute—

"(2) The rights conferred by Part II are not infringed by anything done in pursuance of—

1. (a) a condition which, in accordance with any provision of the Broadcasting Act 1990, is included in a licence granted under Part I or III of that Act; or
2. (b) a direction given under section 102(2) of that Act (power of Radio Authority to require production of recordings etc.).

(3) The rights conferred by Part II are not infringed by—

1. (a) the use by the Independent Television Commission or the Radio Authority, in connection with the performance of any of their functions under the Broadcasting Act 1990, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act; or
2. (b) the use by the Broadcasting Complaints Commission or the Broadcasting Standards Council, in connection with any complaint made to them under that Act, of any recording or transcript which is provided to them in accordance with section 133(4) or (as the case may be) section 143(3) of that Act."

Control of Misleading Advertisements Regulations 1988 (S.I.1988/915)

.—(1) In regulation 2(1) (interpretation)—

1. (a) omit the definitions of "broadcast advertisement", "Cable Authority", "IBA" and "licensable service";
2. (b) before the definition of "court" insert—
3. ""the Commission" means the Independent Television Commission";
4. (c) for the definition of "licensed service" insert—

""licensed service" means—

1. (a) in relation to a complaint made to the Commission, a service in respect of which the Commission have granted a licence under Part I or II of the Broadcasting Act 1990; and
1765
2. (b) in relation to a complaint made to the Radio Authority, a service in respect of which the Radio Authority have granted a licence under Part III of that Act;

and "licensed local delivery service" means a service in respect of which the Commission have granted a licence under Part II of that Act;"; and

(c) after the definition of "publication" insert— "relevant body" means the Commission or the Radio Authority; on S4C" has the same meaning as in Part I of the Broadcasting Act 1990; the Welsh Authority" has the same meaning as in that Act;".

(2) In regulation 4(2) (exceptions to complaints to be considered by Director General of Fair Trading), for "the IBA or the Cable Authority" substitute "the Commission, the Radio Authority or the Welsh Authority".

(3) For regulations 8 to 11 substitute— Complaints to the Commission and the Radio Authority

8.—(1) Subject to paragraph (2) below, it shall be the duty of a relevant body to consider any complaint made to it that any advertisement included or proposed to be included in a licensed service is misleading, unless the complaint appears to the body to be frivolous or vexatious.

(2) The Commission shall not consider any complaint about an advertisement included or proposed to be included in a licensed local delivery service by the reception and immediate re-transmission of broadcasts made by the British Broadcasting Corporation.

(3) A relevant body shall give reasons for its decisions.

(4) In exercising the powers conferred on it by these Regulations a relevant body shall have regard to all the interests involved and in particular the public interest.

Control by the Commission and the Radio Authority of misleading advertisements

9.—(1) If, having considered a complaint about an advertisement pursuant to regulation 8(1) above, it considers that the advertisement is misleading, a relevant body may, if it thinks it appropriate to do so, exercise in relation to the advertisement the power conferred on it—

1. (a) where the relevant body is the Commission, by section 9(6) of the Broadcasting Act 1990 (power of Commission to give directions about advertisements), Or
2. (b) where the relevant body is the Radio Authority, by section 88(6) of that Act (power of Radio Authority to give directions about advertisements).

(2) A relevant body may require any person appearing to it to be responsible for an advertisement which the body believes may be misleading to furnish it with evidence as to the accuracy of any factual claim made in the advertisement. In deciding whether or not to make such a requirement the body shall have regard to the legitimate interests of any person who would be the subject of or affected by the requirement.

(3) If such evidence is not furnished to it following a requirement made by it under paragraph (2) above or if it considers such evidence inadequate, a relevant body may consider the factual claim inaccurate.

Complaints to the Welsh Authority

10.—(1) Subject to paragraph (2) below, it shall be the duty of the Welsh Authority to consider any complaint made to them that any advertisement broadcast or proposed to be broadcast on S4C is misleading, unless the complaint appears to the Authority to be frivolous or vexatious.

(2) The Welsh Authority shall not consider any complaint about an advertisement broadcast or proposed to be broadcast on S4C by the reception and immediate re-transmission of broadcasts made by the British Broadcasting Corporation.

(3) The Welsh Authority shall give reasons for their decisions.

(4) In exercising the powers conferred on them by these Regulations the Welsh Authority shall have regard to all the interests involved and in particular the public interest.

Control by the Welsh Authority of misleading advertisements

11.—(1) If, having considered a complaint about an advertisement pursuant to regulation 10(1) above, they consider that the advertisement is misleading, the Welsh Authority may, if they think it appropriate to do so, refuse to broadcast the advertisement.

(2) The Welsh Authority may require any person appearing to them to be responsible for an advertisement which the Authority believes may be misleading to furnish them with evidence as to the accuracy of any factual claim made in the advertisement. In deciding whether or not to make such a requirement the Authority shall have regard to the legitimate interests of any person who would be the subject of or affected by the requirement.

(3) If such evidence is not furnished to them following a requirement made by them under paragraph (2) above or if they consider such evidence inadequate, the Welsh Authority may consider the factual claim inaccurate."

Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 (S.I.1988/1846 (N.I.16))

. In Article 10 (restrictions on reporting applications for dismissal and preparatory hearings)—

1. (a) in paragraph (1), for "broadcast or include in a cable programme" substitute "include in a relevant programme for reception";
2. (b) in paragraphs (5), (9) and (13), for ", broadcast or included in a cable programme" substitute "or included in a relevant programme";
3. (c) in paragraphs (6) and (8), for ", broadcast or include in a cable programme" substitute "or include in a relevant programme";
4. (d) in paragraph (12), for "broadcast or included in a cable programme" substitute "included in a relevant programme" and for ", broadcast or inclusion in a cable programme" substitute "or inclusion in a relevant programme";
5. (e) in paragraph (13), for sub-paragraphs (c) and (d) substitute—
6. "(c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,"; and
7. (f) in paragraph (16), omit the definitions of "broadcast" and "cable programme" and after the definition of "publish" insert—

""relevant programme" means a programme included in a programme service (within the meaning of the Broadcasting Act 1990)."

Children Act 1989 (c. 41)

. In section 97(5) (privacy for children involved in certain proceedings), for paragraph (a) of the definition of "publish" substitute— "(a) include in a programme service (within the meaning of the Broadcasting Act 1990);".

Insolvency (Northern Ireland) Order 1989 (S.I.1989/2405 (N.I.19))

. In Articles 197(3) and 343(4) (supplies of water, electricity and telecommunication services), for the words from "services consisting" onwards, in each place where they occur, substitute "local delivery services within the meaning of Part II of the Broadcasting Act 1990.".").

The noble Earl said: This amendment was spoken to with Amendment No. 341C. I beg to move.

On Question, amendment agreed to.

Schedule 17, as amended, agreed to.

Schedule 18 [Repeals]:

Earl Ferrers moved Amendments Nos. 344B to 344J:

Page 216, line 3, at end insert:

("1933 c. 12.	Children and Young Persons Act 1933.	In section 28(2) (a), the words "a cable programme studio".
1937 c. 37.	Children and Young persons (Scotland) Act 1937.	In section 36(2) (a), the words "a cable programme studio".")

Page 216, line 19, at end insert:

("1968 c. 34 (N.I.).

Children and Young Persons Act (Northern Ireland) 1968.

In section 45(2) (a), the words "a cable programme studio".")

Page 216, line 21, at end insert:

("1975 c. 24.	House of Commons Disqualification Act 1975.	In Schedule 1, in Part II, the entries relating to the Cable Authority, the Independent Broadcasting Authority and the Welsh Fourth Channel Authority.
1975 c. 25.	Northern Ireland Assembly Disqualification Act 1975.	In Schedule 1, in Part II, the entries relating to the Cable Authority and the Independent Broadcasting Authority.
1975 c. 68.	Industry Act 1975.	Section 9(9A).
1975 c. 70.	Welsh Development Agency Act 1975.	Section 19(9A).
1976 c. 82.	Sexual Offences (Amendment) Act 1976.	In section 4(6), the definitions of "a broadcast" and "cable programme".
S.I. 1978/460 (N.I.5).	Sexual Offences (Northern Ireland) Order 1978.	In Article 6(6), the definitions of "a broadcast" and "cable programme".
1980 c. 43.	Magistrates' Courts Act 1980.	In section 8(10), the definitions of "broadcast" and "cable programme".
1980 c. 65	Local Government, Planning and Land Act 1980.	In Schedule 16, paragraph 16.
1981 c. 49	Contempt of Court Act 1981.	In section 19, the definition of "cable programme".")

Page 216, line 22, at end insert:

("1982 c. 39.

Finance Act 1982.

Section 144(3).")

Page 216, line 33, column 3, at end insert:

		("In Schedule 4, paragraph 81.
		In Schedule 5, paragraphs 8(1) and (3) and 30.)"

Page 216, line 35, at end insert:

("1985 c. 9.	Companies Consolidation (Consequential Provisions) Act 1985.	In Schedule 2, the entries relating to the Broadcasting Act 1981.
1986 c. 41.	Finance Act 1986.	Section 111. Schedule 22.")

Page 216, line 47, column 3, at end insert:

("In Schedule 2, paragraphs 5 and 6.")

Page 216, line 47, at end insert:

("1987 c. 10.	Broadcasting Act 1987.	The whole Act.
1987 c. 38.	Criminal Justice Act 1987.	In section 11(15), the definitions of "broadcast" and "cable programme".
1987 c. 43.	Consumer Protection Act 1987.	In section 24(6), the definition of "cable programme service".")

Page 217, line 14, at end insert:

("S.I.1987/2049 (N.I.20).	Consumer Protection (Northern Ireland) Order 1987.	In Article 17(6), the definition of "cable programme service".
1988 c. 40.	Education Reform Act 1988.	In Schedule 12, paragraph 49.
1988 c. 48.	Copyright, Designs and Patents Act 1988.	In section 73, subsection (2) (a) and the word "or" immediately following it, and subsection (3) (a) and the word "or" immediately following it. Section 134(4).
		In Schedule 2, paragraph 19(2) (a) and the word "or" immediately following it.
		In Schedule 7, paragraphs 29 and 30.
S.I. 1988/915.	Control of Misleading Advertisements Regulations 1988.	In regulation 2(1), the definitions of "broadcast advertisement", "Cable Authority", "IBA" and "licensable service".
S.I. 1988/1846 (N.I.16).	Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.	In Article 10(16), the definitions of "broadcast" and "cable programme".
1989 c. 26.	Finance Act 1989.	Section 181. Schedule 16.")

On Question, amendments agreed to.

Schedule 18, as amended, agreed to.

Clause 182 [Short title, commencement and extent]:

Earl Ferrers moved Amendment No. 344K:

Page 141, line 17, leave out ("subsection (4),") and insert ("subsections (4) and (4A),").

The noble Earl said: This amendment was spoken to with Amendment No. 317AB. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 344L:

Page 141, line 23, at end insert: ("(4A) The amendments and repeals in Schedules 17 and 18 have the same extent as the enactments to which they refer.").

On Question, amendment agreed to.

Clause 182, as amended, agreed to.

In the Title:

Earl Ferrers moved Amendment No. 344M:

Line 7, after ("services") insert ("and to make provision with respect to the supply and use of information about programmes").

The noble Earl said: This amendment was spoken to with Amendment No. 317AB. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 344N:

Line 14, at end insert ("to revoke a class licence granted under the Telecommunications Act 1984 to run broadcast relay systems;").

The noble Earl said: This amendment was spoken to with Amendment No. 341ZCC. However, I should like to say that it is a particular reminder for me. Years ago, before combine harvesters were produced and harvesting was done with a binder, when you were collecting up the sheaves and you came to the last one there was an expression in Norfolk: "That is the one we have been looking for". I fancy that we have been looking for this amendment for some time.

As it is the final amendment at Committee stage I thank Members of the Committee warmly for the way in which they have helped the Government over this Bill. I realise that in many ways it is controversial. The noble Baroness, Lady Birk, has been absolutely stoic during the whole of the Committee stage on what is a very complicated Bill. She has been ably supported by her noble friend Lady Ewart-Biggs.

The noble Lord, Lord Thomson of Monifieth, has been, if I may say so, astonishingly agreeable in his remarks, even when he did not like certain aspects of the Bill. He was never vindictive, unpleasant or difficult, and I greatly appreciate that. The noble Lord, Lord Bonham-Carter, was, well, different. He has a style all his own, and very agreeable it is too. I am most grateful to him for the way in which he has helped. I also thank my noble friends Lord Sanderson and Lord Ullswater, and all other noble Lords who have participated.

Perhaps I may be permitted to say, as Members of the Committee go away to pick up their buckets and spades for a few months, that I hope they will forget the Bill and not remember it in too much detail when they return. I hope they have a very contented Recess. I also thank all those people who have helped us through this Bill behind the scenes. I refer to the doorkeepers, the Hansard writers and those who look after us. They have been wonderful. I beg to move.

Baroness Birk

On behalf of myself—and perhaps on behalf of all the gentlemen here!—I thank the Minister for his kind words. We reciprocate. As Bills go, it has been a happy Bill. The only area in which I found the Minister lacking was his great reluctance to accept any amendments that we put forward. Certainly he needs a good holiday as for a long time he had to deal with this Bill in tandem with the Hong Kong legislation and there must have been considerable pressures on him, despite the fact that he has more help than we do on these Benches. We appreciate his courtesy throughout the Bill.

Lord Thomson of Monifieth

I thank the noble Earl, Lord Ferrers, for his generous words. I join with the noble Baroness, Lady Birk, in thanking him for the very good natured and good humoured way in which he has conducted the proceedings. It is 25 years since I last took part in the Committee stage of a Bill in another place. It has been a fascinating introduction to the procedures of this Chamber.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.