§ 3.20 p.m.
§ Report received.
§ Clause 1 [The Independent Television Commission]:
Baroness Birkmoved Amendment No. 1:
Page 1, line 10, after ("commission") insert (", responsible for structuring Channel 3 on a regional basis as mentioned in section 14(2),").
§ The noble Baroness said: My Lords, before I speak to this amendment standing in my name and that of the noble Lord, Lord Bonham-Carter, I must protest about the way the government amendments have appeared for this stage of the Bill. The noble Earl, Lord Ferrers, was kind enough to write to me near the beginning of the recess saying that he was aware of the problems we had during the Committee stage and that he would do all in his power to ensure that the bulk of the amendments were tabled by 19th September. It is only fair to say that a great many of the amendments were tabled by that date.
§ However, some extremely substantive amendments were not, and those included the extremely important, complicated and complex amendment on impartiality which was only tabled on 1st October. It is extremely difficult to do business in this House and to give adequate and proper attention to legislation if that is the way matters work.
§ Although in answer to the Opposition Chief Whip the Government Chief Whip wrote an extremely pleasant and sympathetic letter, that still does not help us very much because on this side of the House unfortunately we do not have the resources of even a shadow Home Office let alone a proper Home Office. Therefore, I felt that I must protest about the difficulties to which the opposition parties have been put.
§ Lord Thomson of Monifieth
My Lords, before the noble Earl responds, I should like to associate these Benches strongly with the protest made by the noble Baroness, Lady Birk. We now have before us a revised and massive Marshalled List amounting to 389 amendments, and although a number of them are technical there are some extremely important new 155 amendments among them. For example, the impartiality amendment proposes an unprecedented course of action for government policy in relation to the rights of the broadcasting authorities. That proposal was never put in any way to the House of Commons but comes solely here.
It is an abuse of the procedures of Parliament that the Government should produce these amendments, covering issues of great significance, at such a late stage in the day. With the gracious Speech looming ahead of us time is short. The Government owe an explanation to the House and should make some effort to mitigate the problem that they themselves have created.
My Lords, I realise that difficulties have been caused for the noble Baroness, Lady Birk, and indeed the noble Lord, Lord Thomson. I am the first to apologise for any inconvenience caused. Inevitably we have been in some difficulties ourselves. I wrote to the noble Baroness during the Recess saying that we were aiming to do all we could to table amendments of substance by 19th September, that any drafting and minor amendments which could not meet that deadline would be tabled as soon as possible thereafter and that there would always be the possibility that further points would crop up during the summer. In fact, that is what has happened.
The point is that when we commence the Recess at the end of July one feels that from July to October is a long while. However, officials and parliamentary draftsmen must go on holiday, too. Of the 294 government amendments which we have tabled—I emphasise that the time available for drafting them was virtually only from 1st to 19th September —203 were tabled by 19th September and a further 11 relating to needle time appeared on 27th September. Those amendments fulfilled the great majority of undertakings made by the Government in Committee on specific issues.
A further three sets of amendments were tabled on 28th September, 3rd October and 4th October. The majority of those amendments are minor and technical matters which the parliamentary draftsmen deliberately put to one side in order to concentrate on matters of substance.
There are one or two amendments which were tabled late and which are of importance and in some cases controversial. I shall explain why that occurred. The noble Baroness referred to impartiality, as did the noble Lord, Lord Thomson. The amendment was tabled on 28th September and under the Motion agreed yesterday it falls to be debated on the second day of the Report stage, 11 th October. The amendment fulfils an undertaking given in Committee. It is a complicated matter and not only had it to be considered very carefully within my own department and by parliamentary draftsmen but considerable discussion was also undertaken with the IBA and others. That consideration was important to us and resulted in a number of drafting improvements.
The definition of pop music was dealt with and the relevant amendment was also tabled on 28th 156 September. The need for it only became apparent during September. Contrary to the view we had previously taken, some groups argued that pop music was to be considered as embracing only the top 40 chart hit records. The matter is of considerable importance to the Radio Authority and it had to be clarified.
The amendments tabled on 3rd and 4th October deal with three issues of importance. The first relates to the provisions for those with sight and hearing difficulties. I did not want to table those amendments before consulting the noble Baroness, Lady Darcy (de Knayth), as I had undertaken to do. The second issue concerned subscription piracy. It is a difficult issue which deals with amending the Copyright. Design and Patents Act 1988. Extensive consultations were necessary in order to get that right.
The third issue accounts, in numerical terms, for over half the final group of amendments. It refers to networking. I made clear when introducing the main networking clause that further provisions would be needed to deal with the role of the Director General of Fair Trading and the Monopolies and Mergers Commission. It is a complex subject and lengthy consultations, especially with the Office of Fair Trading and the Monopolies and Mergers Commission, had to take place.
I felt that it would be worth while explaining the position in some detail. I apologise for the inconvenience which has been caused to the noble Baroness, the noble Lord and other noble Lords. It is possible, I suppose, that the technical amendments could have been tabled on Third Reading but we did not consider that that would be appropriate. I and my officials will be only too happy to assist noble Lords and brief or advise them on any amendments. I am obviously distressed to have caused your Lordships inconvenience or aggravation and I only hope that your Lordships will acquit me and my officials of being slothful, discourteous or cavalier. We have tried to get these complicated amendments in proper order for consideration. We endeavoured to complete the majority of them on time, and two-thirds of them were done on time. In so far as the remainder were tabled later and caused inconvenience, I apologise.
§ 3.30 p.m.
§ Baroness Birk
My Lords, I accept the noble Earl's apology. I would only add that the impartiality amendment which has caused the most trouble was promised on 11 th July, which gave nearly three months to finalise it. However, I accept that when the Government set out to do the impossible it takes a long time.
I shall now deal with Amendment No. 1. This is a paving amendment for the substantive Amendment, No. 47, relating to the Channel 3 map. The amendment, which is drier to read and speak about than its content, concerns regional identity and diversity of the UK when determining the Channel 3 map.
In the Bill the ITC has been given the responsibility for determining the regional map of Channel 3. The 157 chairman designate of the shadow ITC, George Russell, said in July that the marginal viability of the smaller northern and outlying areas most affected by the loss of Channel 4 revenues in 1993 may cause the ITC-Channel 3 map to be redrawn.
Since then the IBA has conducted research into the economic viability of the five smallest regions. These are Border, Channel, Grampian, Television South West and Ulster. On 6th September Mr. George Russell announced that the shadow ITC would advertise all 16 existing licence areas, including the national breakfast licence and the London weekday and weekend licences. The existing ITV map will be retained in order to sustain the highly regarded regional programmes. That has been confirmed by the IBA's research which will be published shortly.
The announcement made by the chairman designate, Mr. George Russell, is the result of an agreement reached with the ITV companies over the future of networking arrangements. He said that, although the small companies might be at the margin of economic viability,the companies supplying the bulk of network programmes have agreed on the principle that the prices to be paid for the network programmes by the smallest areas from 1993 will be at a level which recognises the earning power of those respective areas".He went on to say:the ITC proposes to set the figure for the first part of the competitive tender for licences at a minimal level for the smallest areas which will also help to provide a realistic financial basis for their continued independence".The problem is that though the regional map of Channel 3 will not now be redrawn before the licence areas are advertised, the ITC will still have the residual power to determine the future shape of the map.
The Government's position as outlined by the noble Viscount, Lord Ullswater, in Committee (Hansard, 11/7/90; col. 425.) was that, while the existing ITV areas should remain, the viability of a particular licence area would determine whether or not it will remain. Furthermore, the noble Lord, Lord Sanderson of Bowden, speaking from the Government Front Bench, said that the IBA had drawn up a model which would allow for two areas to be amalgamated with separate programming where a region is only marginally viable. The Government's view was that economic viability should be the key determinant in the future shape of the map.
Therefore, the amendment is designed to place on the ITC an obligation to give due regard in its decisions when redrawing the map to the regional and cultural identity and diversity of the UK regions. That is a matter about which many Members of your Lordships' House expressed great concern and interest at Committee stage. Amendments Nos. 106 and 133 dealt with in Committee sought to achieve special regard to the interests of the nations of the United Kingdom. That drew some criticism because it was felt by some noble Lords that the English regions were not also included.
158 This amendment embraces all nations and regions of the United Kingdom. It introduces the concept of due regard which the noble Lord, Lord Sanderson, said should be used in relation to cultural differences by applicants for licences. He said:cultural differences have to be respected by the ITC"—[Official Report 18/7/90; col. 992.]We are concerned that in future the ITC may redraw the map and that it would not have to have due regard to the identity of regions in the United Kingdom in statute. This amendment seeks to ensure that this is included in the statute so that any future action taken by this or any future ITC will then have to pay regard to the regions, their diversity and individuality. I beg to move.
§ Lord Bonham-Carter
My Lords, I wish to associate these Benches with this amendment that has been moved by the noble Baroness, Lady Birk, in connection with the regional arrangements made by the ITC. She has set forth the case so clearly that I shall not take up much of your Lordships' time adding to the arguments that she has already deployed. This amendment is one of a number which draw attention to the extraordinary contribution which the regional companies have made to British television. We wish to preserve that at all costs.
This contribution not only reflects the cultural diversity of this country, including the regions of England as well as the nations of Scotland and Wales and Northern Ireland, but it also acts in such a way as to prevent the concentration of all television production being centred on London and the South East. That is a very grave danger and we must do everything we can to avoid it. Therefore this amendment is more important in its consequences and in the spirit that it expresses than might be apparent at first reading.
I wish to emphasise to the noble Earl, Lord Ferrers, when answering the case put by the noble Baroness for this amendment, that he is dealing with a subject which is of great importance to this country as a whole. It is important to the development of its culture and to the possibility of people engaging in the production of television programmes outside London and the South East. I beg to associate myself and my colleagues on these Benches with the amendment moved by the noble Baroness, Lady Birk.
§ Lord Taylor of Gryfe
My Lords, I support the amendment which has just been moved. I speak as a former director of Scottish Television. In the television organisations there is a danger of centralisation and domination of the market by the five major companies. It is vital to the liveliness of television as well as to the stimulation of regional culture that there should be some recognition of the importance of the input from the regional companies. I hope that there will be some provision in the Bill to maintain that balance.
My Lords, we certainly believe that the Independent Television Commission should take into account the kind of factors which are set out in the noble Baroness's Amendment No. 47 in determining the shape of the Channel 3 map. The 159 shadow Independent Television Commission has already demonstrated its sensitivity to these national and regional needs by its decision to retain the existing ITV regions for Channel 3. But there are other factors, such w financial viability, which should also be taken into account. I do not think that it is necessary that all these factors should be listed on the face of the Bill.
Clause 16(2) (e) makes clear that the regional Channel 3 licensees must provide regional programmes of particular interest to the relevant regions. That, in conjunction with the ITC's announcement to retain the existing regions, should ensure that the existing level of ITV regional coverage is maintained on Channel 3.
To the extent that the amendment seeks to confirm that, I suggest that it is unnecessary. To the extent that the amendment may seek to go beyond the present level of regional coverage or force the hand of the ITC in circumstances where its judgment was that maintenance of the current regional map would be at variance with a viable Channel 3 service, we would find that undesirable. The Independent Television Commission has a whole range of duties relating to several types of licensed service. It does not make very much Sense to specify in Clause I just one aspect of its wide-ranging functions.
I hope that I have been able to persuade the noble Baroness that the concern which she has expressed is covered by the Bill as it is.
§ Baroness Birk
My Lords, I thank the noble Earl for that reply and explanation. I do not find it very satisfactory. The amendment is not proposing a large shopping list. It simply has due regard to the cultural identity and diversity of the regions. It aims to put on the face of the Bill what the noble Earl has said is there in any event. However, at the moment it does not cover the eventuality of the ITC in future deciding to redraw, the map. I really must test the feeling of the House.
§ 3.40 p m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 81; Not-Contents, 154.161
|Division No. 1|
|Addington, L.||Ewart-Biggs, B.|
|Airedale, L.||Ezra, L.|
|Ardwick, L.||Feversham, L.|
|Banks, L.||Fisher of Rednal, B.|
|Birk, B.||Fitt, L.|
|Blackstone, B.||Gallacher, L.|
|Blease, L.||Galpern, L.|
|Bonham -Carter, L.||Gladwyn, L.|
|Boston of Faversham, L.||Graham of Edmonton, L.|
|Bruce of Donington, L.||[Teller.]|
|Carmichael of Kelvingrove, L.||Grey, E.|
|Carter, L.||Hampton, L.|
|Cledwyrn. of Penrhos, L.||Hanworth, V.|
|Cocks of Hartcliffe, L.||Hatch of Lusby, L.|
|Dainton, L.||Hayter, L.|
|David, B.||Hollis of Heigham, B.|
|Donaldson of Kingsbridge, L.||Holme of Cheltenham, L.|
|Dormand of Easington, L.||Hooson, L.|
|Ennals, L.||Howie of Troon, L.|
|Hunt, L.||Peston, L.|
|Hunter of Newington, L.||Richard, L.|
|Hylton, L.||Ritchie of Dundee, L.|
|Iddesleigh, E.||Rochester, L.|
|Irvine of Lairg, L.||Ross of Newport, L.|
|Jay, L.||Seear, B.|
|Jenkins of Putney, L.||Shackleton, L.|
|John-Mackie, L.||Simon of Glaisdale, L.|
|Kagan, L.||Soper, L.|
|Kilbracken, L.||Stallard, L.|
|Listowel, E.||Stoddart of Swindon, L.|
|Llewelyn-Davies of Hastoe, B.||Strabolgi, L.|
|Lloyd of Hampstead, L.||Taylor of Gryfe, L.|
|Lloyd of Kilgerran, L.||Thomson of Monifieth, L.|
|Morris of Castle Morris, L.||Tordoff, L.|
|Moyne, L||Walpole, L.|
|Mulley, L.||Whaddon, L.|
|Nicol, B.||White, B.|
|Ogmore, L.||Williams of Elvel, L.|
|Oram, L.||Winchilsea and Nottingham, E.|
|Parry, L.||Winstanley, L.|
|Perry of Walton, L.|
|Aldington, L.||Gainford, L.|
|Allerton, L.||Gisborough, L.|
|Alport, L.||Goold, L.|
|Annan, L.||Grantchester, L.|
|Arran, E.||Gray of Contin, L.|
|Auckland, L.||Gridley, L.|
|Balfour, E.||Hailsham of|
|Belhaven and Stenton, L.||Saint Marylebone, L.|
|Bellwin, L.||Halsbury, E.|
|Beloff, L.||Hardinge of Penshurst, L.|
|Belstead, L.||Harmar-Nicholls, L.|
|Bessborough, E.||Harris of High Cross, L.|
|Blake, L.||Harvington, L.|
|Blatch, B.||Henderson of Brompton, L.|
|Blyth, L.||Henley, L.|
|Boardman, L.||Hives, L.|
|Borthwick, L.||Holderness, L.|
|Boyd-Carpenter, L.||Hood, V.|
|Brabazon of Tara, L.||Ironside, L.|
|Brigstocke, B.||Jenkin of Roding, L.|
|Brightman, L.||Johnston of Rockport, L.|
|Brougham and Vaux, L.||Killcarn, L.|
|Caithness, E.||Kings Norton, L.|
|Caldecote, V.||Kinloss, Ly.|
|Campbell of Alloway, L.||Kinnaird, L.|
|Campbell of Croy, L.||Knollys, V.|
|Carr of Hadley, L.||Lauderdale, E.|
|Cavendish of Furness, L.||London, Bp.|
|Clanwilliam, E.||Long, V.|
|Clifford of Chudleigh, L.||Lothian, M.|
|Colnbrook, L.||Lyell, L.|
|Colwyn, L.||McColl of Dulwich, L.|
|Constantine of Stanmore, L.||Mackay of Clashfern, L.|
|Cottesloe, L.||MacLehose of Beoch, L.|
|Cox, B.||Macleod of Borve, B.|
|Crook, L.||Margadale, L.|
|Cross, V.||Marsh, L.|
|Cullen of Ashbourne, L.||Merrivale, L.|
|Darcy (de Knayth), B.||Mersey, V.|
|Davidson, V. [Teller.]||Milverton, L.|
|De Freyne, L.||Monk Bretton, L.|
|De L'Isle, V.||Morris, L.|
|Denham, L. [Teller.]||Mostyn, L.|
|Eccles, V.||Mountevans, L.|
|Eccles of Moulton, B.||Munster, E.|
|Effingham, E.||Murton of Lindisfarne, L.|
|Ellenborough, L.||Nelson, E.|
|Elles, B.||Nelson of Stafford, L.|
|Elliot of Harwood, B.||Newall, L.|
|Elliott of Morpeth, L.||Newcastle, Bp.|
|Faithfull, B.||Norfolk, D.|
|Fanshawe of Richmond, L.||Norrie, L.|
|Ferrers, E.||Nugent of Guildford, L.|
|Forbes, L.||O'Brien of Lothbury, L.|
|Fraser of Kilmorack, L.||Orkney, E.|
|Orr-Ewing, L.||Stockton, E.|
|Oxfuird, V.||Stodart of Leaston, L.|
|Palmer, L.||Strange, B.|
|Pearson of Rannoch, L.||Strathclyde, L.|
|Platt of Writtle, B.||Strathmore and Kinghorne, E.|
|Polwarth, L.||Strathspey, L.|
|Porritt, L.||Sudeley, L.|
|Pym, L.||Swansea, L.|
|Rawlinson of Ewell, L.||Swinfen, L.|
|Reay, L.||Swinton, E.|
|Renton, L.||Terrington, L.|
|Renwick, L.||Teviot, L.|
|Romney, E.||Thorneycroft, L.|
|St. Albans, Bp.||Trumpington, B.|
|St. Davids, V.||Ullswater, V.|
|St. John of Fawsley, L.||Vaux of Harrowden, L.|
|Selborne, E.||Wade of Chorlton, L.|
|Shannon, E.||Westbury, L.|
|Sharples, B.||Whitelaw, V.|
|Shaughnessy, L.||Wise, L.|
|Skelmersdale, L.||Wyatt of Weeford, L.|
|Slim, V.||Wynford, L.|
|Stanley of Alderley, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 3.48 p.m.
§ Schedule 1 [The Independent Television Commission: Supplementary Provisions]:
Earl Ferrersmoved Amendment No. 2:
Page 160, line 28, leave out (", with the approval of the Secretary of State,").
§ The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 169, 323 and 329. These amendments fulfil an undertaking which I gave during the Committee stage. We accept that there is no need for the ITC or the other statutory bodies established under the Bill to seek approval from the Secretary of State whenever they wish to delegate their functions. These amendments remove that requirement. I beg to move.
§ Lord Thomson of Monifieth
My Lords, these amendments are a response by the Government to a point which I raised in Committee. I am indebted to the Government for carrying this through in respect of the television side of things. I thank them very much.
My Lords, that was a charming intervention by the noble Lord and one which is enormously appreciated.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 3:
Page 162, line 2, after ("of"') insert:
§ The noble Earl said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 4, 211 and 212. These amendments make it clear that the Secretary of State's power to make advances to the Independent Television Commission and the Radio Authority, under paragraph 13 of Schedules 1 and 6, includes capital expenditure. They are necessary in order to enable the ITC and the Radio Authority to fund any capital expenditure borrowing requirements by seeking advances from the Exchequer at Treasury rates. I beg to move.
§ On Question, amendment agreed to162
Earl Ferrersmoved Amendment No. 4:
Page 162, line 2, at end insert (", or
§ The noble Earl said: My Lords, this amendment is consequential upon Amendment No. 3. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 5:
Page 162, line 24, after ("the") insert ("Chartered").
§ The noble Earl said: My Lords, in moving Amendment No. 5, I shall speak also to Amendments Nos. 103, 170, 213, 326 and 367. These amendments are purely drafting amendments. Their purpose is to give the Chartered Association of Certified Accountants it proper title. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 6:
Page 162, line 42, at end insert:
("(1 A) The report shall include a report by the Commission on the extent to which holders of Channel 3 or Channel 5 licences have failed to comply with the conditions included in their licences in pursuance of section 32(l) (a).").
§ The noble Earl said: My Lords, this amendment, which fulfils an undertaking given in Committee, requires the ITC to include in its annual report an account of the extent to which Channel 3 or 5 licensees have failed to comply with their licence conditions under Clause 32(1) (a), which incorporate their programme proposals under Clause 15(3) (b). The ITC will, as a result, publicly hold to account any Channel 3 or 5 licensee which fails to realise its programme promises. I beg to move.
§ Baroness Birk
My Lords, as the noble Earl will remember, in Committee an amendment was proposed from this side that the ITC should report to Parliament with particular reference to the impact of the Bill on the quality, diversity and regional strength of programming. That was to be a positive report, which, frankly, we should have preferred. Nevertheless, we are grateful that this consideration has been taken on hoard, so to speak, even though it will be a negative report on the licence holders if and when they have not fulfilled any of the licence conditions. We are pleased that at least something has been done in relation to a matter about which we are most concerned.
§ On Question, amendment agreed to.
§ Clause 2 [Regulation by Commission of provision of television services]:
Lord Lloyd of Kilgerranmoved Amendment No. 7:
Page 2, line 37, at end insert:
("() Subsection (2) shall also not be construed as affecting any rights arising in relation to Intellectual Property save in conformity or compliance with any relevant order of the Comptroller General of Patents & Trade Marks, the Patent Court, the High Court of Chancery or the Copyright Tribunal or with the written consent of the owners of the relevant Intellectual Property rights.").
The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 8. The object of these amendments is to draw to the attention of the Government the necessity to limit further the proposed scope of the
duties of the commission so as to protect the rights of a wide variety of artistes, authors of literary, dramatic and musical works and their publishers, and also other firms and institutions which record and foster these creative and cultural activities in the arts and publishing. Such rights as I refer to are gathered together under what is perhaps the rather pompous title of "Intellectual Property rights". As your Lordships will be fully aware, these are defined in Amendment No. 8 as,
relating to Patents, Trade Marks, Copyright Design or know how".
Noble Lords will have noted that under Clause 2 of the Bill the commission has wide duties to provide and regulate television programmes and services to ensure inter alia high quality and appeal to a wide variety of tastes and interests. Subsection (2) states that one of the commission's duties is,
to ensure fair and effective competition in the provision of such services".
The clause continues to limit specifically the commission's powers in relation to what is meant by "fair and effective competition". It draws attention to the word "competition" and in subsection (3) it states that,
Subsection (2) (a) (ii) shall not be construed as affecting the discharge by the Director General of Fair Trading, the Secretary of State or the Monopolies and Mergers Commission of any of his or their functions in connection with competition".
It seems highly desirable that a commission set up under the Bill should in no way interfere with the general rights of the Monopolies and Mergers Commission and the rights of the Director General of Fair Trading.
§ However, as I said, the purpose of my amendment is to limit further the duties of the commission to protect intellectual property rights in creative and cultural activities in the arts and by publishers. Many such issues are bound to arise during the course of programme services. I shall not waste your Lordships' time by delineating them in any great detail, but I feel that I should mention that obviously copyright matters arise with authors and publishers and that design matters must also arise in relation to stage sets, effects, costumes and even decorations. These matters are clearly of significance. Of course know-how will naturally arise, as will trade names and trade marks. Many of those rights are of great commercial importance and add a substantial part to the invisible earnings of this economy.
§ I submit that the wide terms of Clause 2 relating to the duties of the commission should not be construed as affecting any of these intellectual property rights except in five circumstances. The first circumstance is that the owners of these rights should by written consent agree to some arrangement.
§ There are then four circumstances in which the conformity of compliance with a relevant order of four courts must be agreed to. There is first the order of the Comptroller General of Patents and Trade Marks, who has a very wide and increasing jurisdiction in such matters. The second order is that 164 from the new Patent Court which the noble and learned Lord the Lord Chancellor recently set up. Your Lordships may recall that in the course of debate on the Copyright, Designs and Patents Act 1988 we had many discussions in this respect. I am happy to say that a friend of mine from the Patent Bar, the honourable Peter Ford, has been made the first judge of this court. The object of this important new court is to try to reduce the cost of litigation in aspects of intellectual property rights. I was most pleased when the noble and learned Lord indicated to me that many of the amendments which I submitted as to regulation in this court have now been accepted.
§ The other orders which of course must be complied with by the commission are those of the Chancery Division of the High Court and the Copyright Tribunal which was set up under the 1988 Act. Those rights, which are of importance from a cultural point of view and arise widely in services which will have to be monitored or controlled by the commission, must be respected. There should not be, as it were, any piracy of those intellectual property rights, as was made clear in many sections of the 1988 Act. It will be proper for the Government to protect those rights in the way that I have submitted. I beg to move.
§ 4 p.m.
My Lords, I understand the concern of the noble Lord, Lord Lloyd of Kilgerran, as to the likely power of the ITC over intellectual property rights and that intellectual property rights should be preserved. I can assure him that the ITC has no power to override or constrain private property rights, including intellectual property rights, under the provisions of Clause 2. No such power is given to either the ITC or the Radio Authority under any part of this Bill. Intellectual property rights can only be circumscribed where there is specific statutory provision to do so, and there is none in the Bill. I hope that that assurance will satisfy the noble Lord.
§ Lord Lloyd of Kilgerran
My Lords, I am grateful to the Minister for that clear and concise statement. I should have thought that as the position is to be maintained by the Government, as he has said, it should be brought clearly into the Bill. I am one of those persons who does not like to see too many words in a Bill. If we can exclude certain matters then it is a good thing to do so if the position is clear from the construction of the Bill.
I ask myself therefore why the Government decided to include a specific clause on competition rights. Dealing with competition rights is of course of great importance. The Minister has told me that it is unnecessary to include subsection (2) in the clause. I do not want to raise any other hares or difficulties. I am grateful to the Minister for giving us on behalf of the Government a clear assurance as to the position, namely; that there is no clause in the Bill which deprives owners of intellectual property rights of those rights. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 8 not moved.]
§ The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 137 and 138.. The purpose of the amendment is to require licence holders to be producers as well as broadcasters of television programmes. We are asking for that requirement because, as noble Lords will be aware, the Bill has devolved responsibility for broadcasting the service from the IBA to licence holders, but has removed the obligation on them to make and supply programmes themselves. Companies would therefore be permitted to bid as publishers rather than as producers of programmes. Programmers would have to commission or buy-in programmes from' Channel 3 or independent producers or, of course, from abroad. Regional commitments written into the Bill would guarantee that some production remained in the regions but clearly not on the same scale as that of the existing in-house ITV production centres spread throughout the UK.
§ One of the main worries about publisher franchises or franchises where a substantial proportion of programmes is commissioned from independent producers is the loss of regionally based programmes.
§ The intention of this amendment, and subsequent amendments which cover satellite services, is not to preserve the status quo of completely integrated production and broadcasting centres, but to require that a licence holder has some capacity to produce programmes rather than to be exclusively a commissioner or publisher. Without that requirement, the substantial infrastructure built up over 30 years of independent television in the regional centres would be progressively undermined. Studio facilities and employment in the regions would steadily disappear as the pull of the London studio and labour market absorbed ITV's programme-making capacity. Moreover, even before the Bill has been enacted ITV companies are gearing themselves up to the possibility of bidding as publishers or of losing the licence and remaining as production or facility companies. HTV has already enforced a programme of at least 100 redundancies this year and intends further to reduce its workforce in advance of its likely bid as a publisher.
§ Investment in the production infrastructure in the regions will not survive intact if Channel 3 licence holders are allowed to operate as publishers. Although it may be more cost-effective to publish than to produce, in the long term the industry needs the large-scale investment in technology, studios and labour to guarantee the quality of production. If that infrastructure is undermined, the British television industry may end up—this would be worrying—like the British film industry: subject wholly to the fluctuations of American investment. It would also cause unemployment and disinvestment in the regional ITV centres of production when, as I said, the London factor takes effect.
§ Other existing and new services should also be under an obligation to produce as well as commission programmes. If the satellite services are not required to make a substantial contribution to production in 166 the United Kingdom, they will rely increasingly on cheap bought-in material from outside the UK. It is most important to reassert that production is the key to the success of British television. It is to preserve that vital asset that I move the amendment. I hope that the Minister will respond favourably to it. I beg to move.
§ Lord Bonham-Carter
My Lords, I support the amendment. The trend of the Bill, and the trend which has arisen as a result of the encouragement given recently to production by independent companies, is to make the television companies move towards a situation in which they are, as the noble Baroness has said, more like publishers and less like programme producers. The amendment relates closely to the earlier amendment to which I spoke. That trend presents a threat to the regions because 75 per cent. of the independent television companies are based in London and the South East. The more the television companies commission the independents the more likely it is that those productions will be made in London and the South East at the expense of the regions. A recent survey in 1989 of independent commissions from 11 regionally based ITV companies and the four regionally based BBC companies showed that 37 per cent. of the commissions went to the South East and 63 per cent. went to regionally based independent companies. So the situation is now that over a third of commissions from regionally based franchises go back to the South East. This trend is increased when we take into account that an overwhelming proportion of commissions by London-based companies are also from London and the South East.
These figures and arguments, in addition to the other arguments that were deployed by the noble Baroness, simply indicate the importance of television companies remaining not wholly but to a substantial extent production companies rather than simply publishers. To make use of the facilities that already exist and to give opportunities for the human facilities in the regions and the nations is of great importance.
It has been argued in some quarters that any requirement for licence-holders to produce as well as to commission programmes will encourage restrictive union practices in in-house arrangements which are inefficient and costly. It must be said that these charges, which are made quite frequently both against the ITV companies and the BBC, are rarely backed up by hard evidence. The Monopolies and Mergers Commission published a report on labour practices in television in 1989 after a fairly rigorous investigation. The report specifically exonerated staff unions in ITV from the allegations of restrictive practices. On 3rd September the Financial Times published a report by accountants comparing the costs of independent companies with those of the BBC showing that the costs of the independent companies were just as high or low as those of the BBC. Therefore, these allegations, which are quite often made to the detriment of the ITV companies and of the BBC, do not seem to me to be well founded in fact.
Finally, as the noble Baroness, Lady Ewart-Biggs, mentioned, it is extremely important that this should 167 apply to the satellite companies. I do not know how many noble Lords read the article by Christopher Dunkley in August, after having watched Sky Television for a whole week. He said that the number of American programmes was substantial. This is a grave danger. There was an article in the paper today about the effects of the deregulation of French television and the tendency, despite a quota arrangement, for certain of the commercial companies to import American programmes because they are much cheaper than home-grown ones. The reason they are cheaper is that so many of them are de facto dumped.
Therefore it is important that there should be an obligation on television companies in this country and on satellite companies broadcasting to this country that they remain producers as well as publishers. It is for these reasons that I support the amendment moved by the noble Baroness, Lady Ewart-Biggs.
§ 4.15 p m.
§ Lord Parry
My Lords, I support the amendment moved by my noble friend and already supported by the noble Lord, Lord Bonham-Carter, on two specific grounds. It is important that it should be understood by the House that those areas that are sometimes grouped under the generic title of "region" have their own characteristics when, like Wales, Scotland and Northern Ireland, they represent clearly defined and separate national characteristics as well. When an area has its own separate language, as Wales does, which it is anxious to preserve, this reinforces the argument I am about to make. However, that argument applies as much to the regions throughout England as to the nations that I have identified and the Province of Northern Ireland.
It is essential that the main contracting companies should retain a proportionate production facility because that implies that they are involved in training in the areas in which they operate. Within Wales we are perfectly satisfied that at present the contracting companies are aware of their obligations to the cultural identity of the nation in which they work. Many of them are protagonists of the language and have worked in order to ensure that the Welsh language is taught and preserved.
Much more important than that, the men who have grown up within these contracting companies have learned their trade within that ambiance. They also accept the obligation that, working from the nation, they also work internationally in interpreting the nation to the world outside and the world outside to the nation. That is an important function, so when I say that we are reasonably happy about the set-up at the moment, it implies that we are reasonably happy with the main contracting company and encouraged by the quality of provision by the independent companies that have grown out of it.
It important for noble Lords to note that within Wales generally speaking the independent contracting companies are experts in television with particular expertise in Welsh matters but they have the opportunity of being trained within an organisation. 168 Television Wales and West gave way to HTV and it has produced a generation of producers who can be free and independent and at the same time keep to the traditions of the area.
If we are to have a shake-up in the television licence, if we are to have unknown people from New Zealand, Australia, America or wherever, gaining major control of the central contracting facility, and if the opportunities for people to work are cut within those areas, then surely we shall find a situation in which not only will the main contracting company go for the cheaper dumped products from overseas, but the independent, locally grown companies will lack the opportunity that they now enjoy of using facilities available to them.
It seems to me that there ought to be no contention on this in the House. I should think that the noble Earl, Lord Ferrers, with the interest that he has shown during the 15 years in which I have listened to him contributing on these matters, could easily accept that this amendment is one which the Government themselves might have thought of and could certainly accept at this time. I urge him to do so.
§ Lord Harmar-Nicholls
My Lords, whether the wording of the amendment would achieve what the movers have explained I do not know. There is a lot in their arguments and I hope that my noble friend will recognise their merit, quite apart from whether or not the wording fits into the general pattern of the Bill. Subsection (5) at the top of page 3 says:In this Part 'television broadcasting service' means … a service consisting in the broadcasting of television programmes".To me it is common sense that it should also consist of the production as well as the broadcasting. It can only do good to have that. By all means let us encourage the independent programme-makers; they are good and they widen the variety and introduce extra skills. However, in doing that—if it does, and I am not certain that that is so—if the Bill will make it more difficult for the established companies to produce their own programmes, that would be bad. So I hope that when my noble friend considers whether or not the words fit into the Bill as he wishes it to stand, he will try to meet the point behind the arguments introduced in support of the amendment.
My Lords, the noble Lord, Lord Parry, is peculiarly persuasive in his arguments. I realise that, together with a number of other noble Lords, he feels quite strongly about this. Perhaps I may explain matters this way. The essential structure of the Bill is to divide the different types of independent television services by reference to their means of delivery.
Terrestrial broadcasting is, therefore, distinguished from transmission by satellite, and both differ from licensable programme services delivered by cable or MVDS systems. All these services, however, will contain television programmes which are produced either by the licensees or others such as independent producers. A reference to production in the individual definitions, as the amendment of the noble Baroness 169 has proposed, would be superfluous and could be misleading in that it points to a common rather than a distinct feature of the different services.
The amendments are perhaps intended to prevent publisher-licensees from holding licences for all licensed services including Channel 4 and non-domestic satellite services such as Sky. We believe that all independent television services, whether delivered by broadcasting, cable or satellite, should have the freedom to decide whether to buy in their programming or to provide it in-house. The amendment to Clause 2 could effectively eliminate Channel 4 as a television broadcasting service because only a small fraction of its output is produced in-house.
The noble Lord, Lord Bonham-Carter, referred to the growth of independent television productions. That need not represent any threat to regional production. Clause 16(2) (e) requires that regional programmes must be shown on Channel 3 and that a proportion of these must be made in the region. I suggest that it is immaterial whether the regional programmes are made by the licensee himself or by an independent producer. I hope that the noble Baroness will appreciate that her amendments, far from being liberating, could be constricting.
§ Baroness Ewart-Biggs
My Lords, I thank the Minister for his explanation. However, it was slightly at variance with the concerns expressed by the noble Lord, Lord Bonham-Carter. He was supported by the noble Lord, Lord Harmar-Nicholls, who appeared to express the same concern as I had. However, we shall read carefully what the Minister has said and hope that it will comfort us. In the meantime I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [General licence conditions]:
Lord Ardwick moved Amendment No. 10:
Page 4, line 8, at end insert:
("() conditions enabling the Commission to supervise and enforce technical standards in connection with the provision of the licensed service;").
§ The noble Lord said: My Lords, this is a simple and short amendment. It obliges the ITC to supervise technical standards in television. The amendment reintroduces the role which the IBA undertook in relation to television and radio. The wording mirrors the obligation placed on the Radio Authority in Clause 82. It does not of course apply in any broader context.
In Committee in the House of Commons the Government indicated that while the transmission functions of the IBA would be privatised with Oftel as the economic regulator, the ITC would continue to be the technical regulator of television services. In response to the same amendment the Minister said:
This is a provision that we shall wish to introduce in due course".
The provision has not yet arrived. This commitment of the Government has still not been met and technical standards cannot be guaranteed without regulation by
the ITC of an enforceable licence condition. It is not sufficient to leave technical standards to the licence holders or the nominated transmission company. This is probably the last opportunity for the Government to fulfil their promise to give the ITC this crucial role. I await the Minister's reply with great interest. I beg to move.
My Lords, this amendment would enable the ITC to impose licence conditions regulating technical standards for television programme services. As my noble friend Lord Sanderson of Bowden explained during the Bill's Committee stage there are, in fact, strong commercial pressures for broadcasters to achieve high technical standards. Viewers in this country are used to high picture quality. Nevertheless, we think it is sensible to give the ITC power to impose conditions about picture quality, coverage and reliability on the licences for the main services—Channels 3, 4 and 5. Clause 65 provides for this. In addition it places an analogous duty on the Welsh Authority in relation to S4C
We do not, however, think that it is necessary to give the ITC similar powers in relation to all other television services. With the BBC, and Channels 3, 4 and 5 acting as a benchmark, there will be strong commercial pressures on other services to maintain technical standards. The picture quality on Sky and most other satellite channels is not regulated at present; it is nevertheless of a good standard. I hope that the noble Lord, Lord Ardwick, will consider, after that explanation, that his amendment is not necessary.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Restrictions on the holding of licences]:
Earl Ferrersmoved Amendment No. 11:
Page 5, line 42, after ("shall") insert ("(subject to subsection (3A))").
§ The noble Earl said: My Lords, in moving Amendment No. 11 I wish to speak also to Amendments Nos. 12, 63, 64, 65, 79, 155, 192, 193, 194, 223, 224, 251, 252, 253, 257 and 274.
§ The Bill makes provision, in circumstances where an applicant for a licence fails to take up the licence, for the ITC or Radio Authority to award that licence to the next most suitable applicant. The amendments simply give the ITC or the Radio Authority an additional option in those circumstances. There may be occasions where it would not be possible to try to award a licence to the next most suitable applicant, and these amendments provide for the ITC to arrange for a fresh competitive tender.
§ The option of holding a fresh tender or of awarding the licence to the next most suitable applicant in the original competitive tender exists in relation to these amendments only up to the point where a licence comes into force. If a licence is revoked thereafter, the ITC would be obliged to hold a fresh competitive tender. I beg to move.
§ On Question, amendment agreed to.171
Earl Ferrersmoved Amendment No. 12:
Page 5, line 43, at end insert:
("(3A) Those provisions shall not so have effect if the Commission decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a licence, or (as the case may be) a further licence, to provide the service in question.").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 11. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 13:
Page 6, line 2, leave out ("given to") and insert ("served on").
§ The noble Earl said: My Lords, in moving Amendment No. 13 I wish to speak also to Amendments Nos. 14 and 225. Clauses 5 and 87 deal with restrictions on the holding of television and radio licences respectively. These amendments make clear that the ITC or Radio Authority cannot serve a notice revoking a licence because of changes in ownership or control of the licensee unless the licensee has first been given a reasonable opportunity to make representations about the reasons for the proposed revocation. I beg to move.
§ On Question, amendment agreed to.
§ 4.30 p.m.
Earl Ferrersmoved Amendment No. 14:
Page 6, line 4, leave out from ("(5)") to ("a") in line 5 and insert ("The Commission shall not serve any such notice on the licence holder unless they have given him").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 13. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 2 (Restrictions on the Holding of Licences):
Earl Ferrersmoved Amendment No. 15:
Page 163, line 25, leave out from ("corporate,") to ("and") in line 31 and insert ("shall be construed in accordance with sub-paragraph (2A)").
§ The noble Earl said: My Lords, it may be for the convenience of the House if in moving this amendment I speak also to Amendments Nos. 16, 19, 30 and 31.
§ The government amendments make clear that a person is to be regarded as controlling a licence, even where he does not have 50 per cent. of the shares or voting power, provided that he is in a position to secure that the affairs of the body are conducted in accordance with his wishes. I believe that the amendment of the noble Baroness, Lady Birk, is aimed at the same point.
§ The third government amendment meets the point made by the noble Baroness during Committee; namely, that control could in certain circumstances be exercised by someone holding less than 20 per cent. of the shares in a licensee. The amendment therefore makes clear that, where a licence holder is limited in the interests that he may have in a second licence, he is not able to hold that licence. That means that the restriction would bite in cases of participation where the participant in a licensee had less than a 20 per cent. 172 interest but was nevertheless in control of that licensee because, for instance, the other shareholdings were very widely spread.
§ I think that that is what the noble Baroness was seeking. I am advised that, for technical reasons, the government amendments give a more complete and more certain effect to that policy intention than those which she has tabled. Had that not been so, I should have been delighted to accept her amendment. However, I understand that, for instance, her amendment catches only paragraph 4 in Part III and not paragraph 5 where the same point applies. On that basis, I hope that she will be content to withdraw her amendment and accept mine. I beg to move.
§ Baroness Birk
My Lords, I well remember moving the amendment about control in Committee. The Minister was good enough to say that he would take it away and come back with something at Report, as he has done. I am a little concerned about the matter. I do not have the Committee debate in front of me, but I pointed out that you could have control of less than 20 per cent. and still have control of the company. The figure could be as low as 3 per cent. in some cases.
This is fairly technical stuff. Does the Government's proposal have the same effect as the amendment that I tabled when we discussed the matter in Committee and the Minister accepted the principle of it? Perhaps he will help me on that point.
§ Lord Thomson of Monifieth
My Lords, before the noble Earl replies, perhaps I may raise an associated point. This is a difficult area with a good deal of ambiguity. I do not profess to understand it fully, but I understand from the shadow ITC that it is concerned that the wording of the government amendment is not yet quite appropriate to the tasks that it will have to undertake and that dialogue is continuing between the noble Earl's department and the ITC. I was asked to raise with the noble Earl whether he might have another look at the matter before a final decision of the House is taken in terms of the text in the Bill. I think that that point coincides with the concerns of the noble Baroness, Lady Birk. It is a difficult area and it is important to get the drafting as correct as possible.
My Lords, it is hardly for me to suggest that my noble friend the Minister has got the matter wrong. I do not think that he has. I am surprised that noble Lords opposite have not graciously accepted the attempt—in my view, the successful attempt—by my noble friend to address the question.
The word "control" is well defined in Part I which covers precisely the point that the noble Baroness, Lady Birk, tries to raise in her amendment. By amending the definition section of Schedule 2, she is trying to define a term—"controlling interest"—which does not appear once in that sense in the whole of the section. Her amendment is therefore not only totally unnecessary but does nothing.
The only time that the phrase "controlling interest" appears in anything like that form is in the plural— 173 "controlling interests"—in the verbal sense in a cross-heading at the top of Part IV of the schedule. The cross-heading reads:Restrictions on Controlling Interests in Both Newspapers and Licensed Services".That is the only time in the whole of Schedule 2 where the term "controlling interests" appears. The noble Baroness and the noble Lord, Lord Thomson of Monifieth, are trying to define the phrase "controlling interest". It seems strange to try to define a noun or a noun-like phrase in a schedule where that phrase does not appear at all.
§ Lord Thomson of Monifieth
My Lords, I must assure the noble Lord who has just spoken that we are not trying to score a point here. We are searching together for the best form of words in an area of some importance to the responsibilities of the future ITC.
§ Baroness Birk
My Lords, before the Minister answers, perhaps I may say, because this is a complicated question, that my worry about the government amendment is that it refers to more than 50 per cent. of shares. That would give you a majority holding anyhow. I understood that the Government were trying to produce an amendment about the point that I made in Committee; namely, that you could have a controlling interest in certain circumstances when you had an interest of less than 20 per cent. The government amendment gives us more than 50 per cent., which would be a controlling interest in any case. I do not think that it is very clear. The concerns of the noble Lord, Lord Thomson, and myself are genuine. Perhaps the Minister will have another look at the matter because he was quite enthusiastic about it in Committee. The government amendment does not seem to meet quite the same point.
My Lords, I shall of course look at the matter again. The noble Baroness said that she wondered whether the government amendment met the point about which she was concerned in Committee. My understanding is that it does. I said that one of the effects of the amendment would be that the restriction would bite in cases of participation where the participant in a licensee had less than a 20 per cent. interest but was nevertheless still in control of that licensee because there might be other shareholdings which were widely dispersed. It is possible, although rare, for a person to have a controlling interest even though he has less than 20 per cent. The amendments were deemed to cover that point.
The noble Lord, Lord Thomson, quite rightly said that he was not trying to score a point. I accept that entirely. If he is concerned that the words are not adequate and proper, I shall look at them again and make sure that the ITC or the IBA is contacted. The amendments were designed to meet the points raised as a matter of concern in Committee. I think that they meet them, but I shall certainly make certain that they do.
§ Lord Thomson of Monifieth
My Lords, I am grateful to the noble Earl for that assurance and am content with it.
§ On Question, amendment agreed to
§ [Amendment No. 16 not moved.]
Earl Ferrersmoved Amendment No. 17:
Page 163, line 44, at end insert (", and "local delivery service" has the meaning given by section 71(1)").
§ The noble Earl said: My Lords, in moving this amendment I should like at the same time to speak to Amendments Nos. 20, 21, 22, 23, 26, 29, 32, 33, 34, 35, 294 and 303. This group consists of a number of minor technical amendments to the ownership provisions of the Bill.
§ Amendment No. 17 is purely technical. Amendments Nos. 20 to 23 come next. Under. Part II of Schedule 2, only local delivery services, licensable programme and sound programme services and non-direct broadcasting by satellite services are exempt from the rule that no non-EC company or individual may control any ITC or Radio Authority licensee. It is anomalous that, while non-DBS satellite services are exempt, non-DBS satellite radio is not, and the amendment to line 39 on page 165 corrects that. The exemption is also extended to additional services since the ownership of those services does not raise the questions about cultural influence which rightly underpin the United Kingdom's traditional reluctance to allow non-EC interests to control broadcasting services using scarce spectrum such as ITV.
§ Amendment No. 26 increases the numerical limit on holding radio stations in line with the fact that this limit now bites on the number of channels rather than the number of licences. Most of the existing stations broadcast under a single contract on at least two frequencies and in some cases four or five different services or channels are provided under a single contract. The rules in Schedule 2 were amended in Committee to provide that it should be the number of channels rather than the number of licences which counted for the purpose of imposing numerical limits.
§ With this change the limit of six in the case of local radio becomes too restrictive. As applied to channels rather than licences it would in fact force divestment in the case of a number of existing local radio companies. We did not increase the number during the Committee stage because we knew that the Radio Authority, in consulting a wide range of radio and other interests about its proposed ownership points scheme, had raised the question of what the new limit in terms of number of channels rather than number of services should be. I understand that a translated limit of 20 was generally favoured. Hence, the numerical change in this amendment. Noble Lords may not be aware that there are already over 130 independent radio channels (as opposed to contracts); that number is set to increase rapidly. In that context a translated limit of 20 is not excessive. It will be further restricted by the points scheme to prevent, for instance, one person from controlling more than two channels the size of, say, Capital Radio or more than six channels the size of, say, Radio Clyde.
§ Amendment No. 29 is purely technical.175
§ Amendments Nos. 32 and 33 are needed primarily to avoid causing unnecessary difficulties for BSB's Datavision service, the plans for which were drawn up before the ownership provisions in the Bill were announced.
§ Amendment No. 34 provides a 20 per cent. cross-ownership limit between domestic satellite radio and non-domestic satellite radio licence holders. This brings the rules for satellite radio in line with those for satellite television.
§ Amendments Nos. 294 to 303 to Schedule 9 which are also included in this group simply put beyond doubt that the limits on cross-participation between Channel 3 licensees and local radio licensees for the same area should also apply during the transitional period to equivalent local or regional services which are serving out existing contracts.
§ I thought it appropriate to give that somewhat complicated explanation to these amendments. I beg to move.
§ 4.45 p.m.
§ Baroness Birk
My Lords, I want to say a few words on Amendments Nos. 20, 21 and 23. This grouping is somewhat difficult in that we are covering more than one subject. My noble friend will speak on Amendment No. 26. It seems that allowing non-EC nationals to own non-domestic satellite radio services without a substantial limit creates concern about whether we will be doing enough to promote European-based services as opposed to services from outside, for instance, from the United States. Like many other countries, the United States imposes ownership restrictions on non-nationals; and, while the EC market should be opened up, there is no obligation to extend that right to non-EC nationals. I should like to hear the Government's view on the promotion of European-based services. Amendment No. 22 is also concerned with this point.
§ My noble friend Lord Ardwick would like to say something on Amendment No. 26, which covers a different point.
§ Lord Ardwick
My Lords, Amendment No. 26 is a major government amendment which lay concealed until, I think, last Friday. It extends the number of local radio licences which can be held by one person from six to as many as 20. That is a level of concentration of ownership in local radio services which is unprecedented. It is not without its dangers. Independent local ownership is already highly concentrated among a handful of entrepreneurs, such as Owen Oyston, owning chains of ILR stations—independent local radio stations.
I am informed that the government amendment would permit one person to own almost the whole of the ILR commercial network. Perhaps the noble Earl will correct me. He spoke about a large number of local stations. Was he including all the community stations and all the BBC local stations in the figure he gave of something like 100? I understand that there are between 20 and 30 independent commercial stations.
176 The Government may argue that the anticipated expansion in the number of local radio services requires a loosening of ownership restrictions. However, the Government's plan, which at one time forecast hundreds of stations coming on to the air in the 1990s, has not so far proved to be accurate in reality. At a Radio Authority conference in mid-September the noble Lord, Lord Chalfont, said that it was likely that only 10 local stations would be advertised next year. According to the Independent, he said:We may well be going much slower than we have done over the past year".Any expansion in the local radio services will not concentrate on the major city centre stations which already exist as independent local radio stations. The expansion will occur in small-scale community and local radio which needs to be sustained by separate licensing arrangements in the Bill.
The effect of the amendment will be to allow 20 small stations scattered throughout the country to be owned by one person. Subordinate legislation to be drafted will limit the number of large local radio stations which can be owned by one person but will still permit a greater concentration of ownership than at present. The amendment shifts the goal posts in radio ownership at a very late stage in the consideration of the Bill from the current limit of six local stations per licence holder.
§ Lord Thomson of Monifieth
My Lords, I should like to associate these Benches with the points made by the noble Baroness and the noble Lord who has just spoken. With regard to non-EC ownership, there is a very important principle involved. I am afraid it is sadly true of the history of independent local radio in this country that native enterprise has not always shown itself to be notably successful. At various stages in the past it was first American ownership and later Australian ownership that provided a good deal of the enterprise for the development of independent local radio.
However, we are drafting a Bill which makes major changes in the framework of commercial radio in this country. It proposes a major expansion of commercial radio at national, local and community level. I know of no other country that allows foreign ownership to be introduced in the way that we seem happy to do in the Bill. It is not only the British position but the European position that is at stake here. The Government should reconsider.
I endorse what the noble Lord, Lord Ardwick, said. For an amendment of this radical character to be put down on 5th October after almost 12 months of debate on the Bill is remarkable, to say the least. I believe that the House welcomes the development of local radio as an important expansion of broadcasting in this country. Most of the major centres of population are already covered by commercial local radio. The expansion will therefore be in smaller communities. It is important that it has a genuinely local character. If one extends the ownership arrangements so that one proprietor can own a large 177 number of local community stations one takes a big risk with the expansion of local radio. I hope that the Government will seriously reconsider these points.
My Lords, at Committee stage I moved an amendment designed to reduce the figure six to four. The noble Earl will readily understand that I shall be reluctant to support an amendment which raises the figure six to 20.
I had understood—I was not contradicted and I hope that the noble Earl will confirm it—that a points system was under discussion between the IBA (as it then was) and the Government. It was to be worked out who could own what and how much. I am not sure what has happened to the points system.
On these Benches we are concerned with local involvement in local investment. If there is to be a viable future for local radio it is essential that it should remain in local hands. There should be substantial local investment. Viability results from local investment and involvement. I fail to see how that criterion can be met while the ownership of companies is concentrated to the extent of perhaps 20 stations in one pair of hands.
On Amendment No. 26, will the noble Earl tell the House the position with regard to the points system? Are the Government proposing the provision as a result of discussion on the points system? Can the noble Earl give the calculations?
My Lords, I believe that many of the concerns of noble Lords understandably arise because we have changed the system. The system was previously based on a single contract which covered more than one frequency. It will now be the number of channels rather than the number of licences which count for this purpose. Six was the limit for a contract which could cover more than one frequency. At Committee stage the system was changed so that the contract related to one frequency. Therefore it was considered that the figure of six was too low.
The shadow Radio Authority discussed the matter fairly widely, and 20 was the figure favoured by it. The provision applies to the channels and not to the services. It will then be further limited by the points scheme.
The noble Baroness, Lady Birk, asked about the position with regard to Europe. As I understand it, there is no restriction on non-European ownership for satellite TV. I therefore believe that it is consistent to do the same for radio. In practice there are few cases where the rule would come into play at present. Other European countries have to allow ownership from other European countries. We are probably not the only country to allow non-European Community ownership. However, it depends what services are being considered.
The noble Lord, Lord Ardwick, was concerned also about the limitations on that figure. We shall lay down in subordinate legislation further limitations on the number of radio licences that can be held by any individual. Twenty would be the absolute maximum but it would not be permissible to hold that number of 178 large stations. The precise number in any particular case would be determined by a points-based system which would be set out in the subordinate legislation. That will involve further restrictions. Provision will be made in the order.
The anxiety of your Lordships understandably emanates from the the fact that the position was changed at Committee stage. It was changed so that the contract involved the number of channels as opposed to the number of licences. It was therefore necessary to alter the figure from six to 20. However, I hope that with the explanation that I have given and the assurance that there will be subordinate legislation which will curtail people from owning a large number of large stations your Lordships will be satisfied. I assure noble Lords that consultation will continue with the shadow Radio Authority.
§ Baroness Phillips
My Lords, perhaps I may ask the Minister a simple question on this complicated Bill. Does that mean that Mr. Murdoch could control 20 channels or 20 programmes? I find it very significant that that is one issue on which we have not been lobbied. That seems to have a slightly sinister emphasis. Mr. Murdoch states:If members of the House of Lords are worth a fraction of their attendance allowance".We do not receive an attendance allowance. That is typical of the inaccuracies that are put out by these papers. We receive an expenses allowance which does not cover our expenses.
I ask this seriously. Does the provision mean that the people about whom we are concerned with regard to monopolies can have such control of channels in both television and radio? There must be a straight answer.
My Lords, the simple answer is that it is up to anyone who wishes to bid for a licence. I had expected Mr. Murdoch's name to arise at some course in discussions today. I had not expected it to arise with regard to radio. As I understand the position, if Mr. Murdoch were so minded to make a bid for a service, his bid would be considered along with all the other bids.
§ Baroness Birk
My Lords, will the Minister consider the matter again? The position is very worrying. It is unsatisfactory. We have been asked to wait for subordinate legislation. However, the principle involved affects the mainstream legislation rather than the subordinate legislation. I do not know how my noble friend Lord Thomson feels. We are not happy with the provision.
§ 5 p.m.
§ Lord Ardwick
My Lords, with the leave of the House, I did not follow the Minister's comments about frequencies and so forth. I understand that if a person can collect the correct number of points he will be able to own 20 small local radio stations spread throughout Britain. The broadcasting will be local only as regards the distance within which the programme is received from the station. There will be 179 nothing local in character. One cannot have radio, local in character, run from the centre by the owner of 20 stations. That is the issue which worries us.
My Lords, perhaps I may have the leave of the House which I do not wish to abuse because I have spoken for longer than I should have done. I shall consider the points that have been made this afternoon. I accept that this is a complicated area and I shall consider what has been said. However, I believe that the noble Lord's concerns will not prove to be justified.
I must inform the noble Baroness that not for the first time I have misled her. Mr. Murdoch will not be able to apply because he is not an EC national. Had he been an EC national he would have been able to do SO.
§ On Question, amendment agreed to
Lord Annanmoved Amendment No. 18:
Page 163, line 44, at end insert:
(" "music publisher" means an individual or a body corporate who (whether alone or in partnership) carries on business as a music publisher or who owns any copyright or has arty financial interest in musical works or uses any tie-in agreement or device to derive any benefit therefrom, or has control over any body corporate which carries on business as a music publisher, and any reference to a music publisher includes a reference to an individual who—
§ The noble Lord said: My Lords, perhaps I may first give the background to this amendment and Amendment No. 24 which stands in my name. The television companies are major commissioners of works from composers. When those works are transmitted the television companies must pay a graduated licence fee to the Performing Rights Society which is an association of composers and music publishers formed to protect their rights. The Performing Rights Society distributes the licence fees collected from all sources to its members. The publisher receives 50 per cent. of moneys earned from a particular work and the publisher is at liberty to rebate that further to his contracted writer. The remaining 50 per cent. is paid directly to the composer.
§ Throughout the years the independent television companies have acquired substantial holdings of music copyrights. They have done so by insisting that composers agree to part with copyright as the price for performing their music in television programmes. Often the music is themes, background music or jingles. The ITV companies have acted in that way because they wish to mitigate the substantial fees that they must pay to the Performing Rights Society in respect of the music broadcast on their networks. They paid some £8 million in 1987. However, whenever they play their own music—that is to say the music for which they have acquired the publishing rights—they claw back via the Performing Rights Society 50 per cent. of the gross royalties arising from such performances. In April 1989 the Performing Rights Society told the Home Office that in some cases up to 70 per cent. of all the music included in 180 programmes produced by ITV production companies is music under the control of the production company's associated music publisher.
The Committee on the Future of Broadcasting stated that allegations that the television companies were abusing the system were bound to be made if a programme company
has interests which impinge on broadcasting".
It further stated:
It is difficult to believe that a commercial concern will not give preference to its subsidiary".
The committee stated that where there is an economic interest the companies will follow it. The figure of 70 per cent. shows how inexorably the companies have done so.
§ Is it right that creative artists—that is the composers —should be forced to sign away their copyright? If they refuse to do so the television companies will not employ them. In fact, the acquisition by the independent television companies of the publishing rights to music performed in their productions is and always has been wrong and should never have been permitted in the first place.
§ Most composers in the marketplace are either contracted to independent publishers on an exclusive basis or do not in any way wish to give up the copyright in their works. The majority of composers who wish to retain copyright cannot obtain commissions from the television companies because of the insistence by the companies that the copyright in the works is assigned to them. When composers are commissioned to write a particular piece for a television company and then a further work for another television company they lose their ability to exploit those works in other ways. The television companies are interested only in the music for the specific purpose of the programme which they commissioned. Other opportunities to exploit the works are lost to the composer. That is why the composers prefer either to be contracted to an independent publisher who is retained fully to exploit the works or they are forced to agree to the conditions which the television companies impose.
§ I submit, first, that there is an inherent conflict of interest arising from the dual role of the television companies as substantial owners of music copyrights and users of music in their own television productions. Secondly, I submit that the ITV companies deny composers who have exclusive publishing agreements with non-ITV companies access to the most lucrative of all markets for composers. In so doing the companies limit competition by owning and controlling music copyrights. Thirdly, I submit that the public interest suffers. The public is denied the widest choice of composers and that is quite contrary to the principles of the White Paper.
§ In my view the independent television companies should not be in the business of owning music copyrights and playing their own music on television. It is similar to a motor manufacturer who insists on fitting his cars with tyres made by his tyre manufacturing subsidiary and would do so regardless 181 of the price or the quality of the tyres. The amendments are required to prohibit applicants for a Channel 3 franchise from clawing back a proportion of the cost of playing music on their television networks by the ownership of the copyright or any other scheme that they may devise.
§ I hope that in reply the noble Earl will not tell the House that this is a matter for the Office of Fair Trading. Since 1977, when the Committee on the Future of Broadcasting reported, the Music Publishers' Association has been in constant correspondence with the Office of Fair Trading about the matter. At first the OFT asked it to provide a list of composers who felt aggrieved. Would they not identify themselves and lodge a formal complaint? Somewhat naturally the MPA replied that it was unwilling to reveal names for fear that the companies would put such people on a black list.
§ By 1985 the MPA had gathered voluminous evidence and statistics about a number of topics itemised by the OFT. I shall not weary the House with them. In 1986 the MPA reported on discussions with the IBA and some of the television companies. The matter dragged on through 1988. Suddenly in June 1990 the OFT asked the MPA to answer nine questions of considerable complexity within a fortnight. The MPA complied and during the passage of this Bill through another place the MPA took up the matter with Mr. Mellor. The Minister referred it back to the OFT and asked why he should interfere when the OFT had not acted. The reason that he was being asked to intervene was precisely because the OFT had not acted.
The Minister then went on to say that the practices of the television companies did not extend to a dominant share of all music used on television. The inference was that the amounts of money involved were simply not worth all this bother. I am bound to say that I do not think much of that argument. It reminds me too much of the nurse in Captain Marryat's Midshipman Easy when she had to explain why she had an illegitimate baby and she answered:
If you please, ma'am, it was a very little one".
However, the MPA was not dissuaded and went on to ask the OFT how much it paid annually acquiring musical copyrights and how much the television companies earned from the ownership of those copyrights. The OFT said that it could not answer yes or no to that question because whether it had or had not approached the television companies was a confidential matter. Perhaps the noble Earl can confirm my suspicions that Sir Humphrey has left the cast of "Yes, Minister" and is now over at the OFT. Clearly he is in excellent form.
§ The MPA has now asked the Minister for the Arts to ask the television companies for that information. I believe that if he does so he will find that the clawback runs into millions of pounds and the acquisition costs into tens of thousands of pounds. I am not at all concerned with glasnost in Whitehall but I am concerned that this injustice should be remedied. I beg to move.182
§ Lord Donaldson of Kingsbridge
My Lords, I must support my noble friend Lord Annan on this matter. I have little to add except the main argument; namely, that we are always against a very powerful person dealing with a very weak one. In this case we have very weak people. Perhaps half a dozen composers and creators are powerful at any time but most of them are beginning or half-way through the creation of music whether it be—I was going to say good or bad but perhaps I should not—highbrow or lowbrow and their position is extremely difficult.
We have been told by the noble Lord that the commercial companies are making a bargain with those weak bargainers that they should give up part of their rights if they are to be employed at all. I do not believe that one need say more than that one supports the noble Lord, Lord Annan.
§ Lord Birkett
My Lords, the noble Lord, Lord Annan, has outlined the problem very clearly and eloquently. I quarrel with it not at all. However, I am in a rather difficult position because grouped with these two amendments is Amendment No. 51 in my name and that of the noble Lord, Lord Colwyn. Although I believe that the noble Lord, Lord Annan, has set out the problem very clearly before your Lordships, his solution is too radical. Effectively his solution means that no television company may have a publishing subsidiary, or, if you like, no publishing company may apply for a licence.
I suspect there may well be cases—and perhaps there have been cases—where a publishing company allied to a television company has effectively promoted the music which it has commissioned not only to its own profit but to the profit of the composer. I am sure that that can happen. Of course, that position should not be used to bully the composer in the way the noble Lord, Lord Annan, has outlined.
It seems to me that Amendment No. 51 provides a simple and entirely effective solution which is undamaging to the Bill, whereas the more radical solution proposed by the noble Lord, Lord Annan, really goes too far. For that reason I believe that the best course to adopt—I am sure the House will correct me if I am wrong—is to move Amendment No. 51 in its proper place on the Marshalled List and not now; otherwise there will be confusion. I hope that I have made myself clear.
§ 5.15 p.m.
My Lords, the noble Lord, Lord Annan, put his case, as he always does, particularly graphically and in a very understandable way. I do not mind telling him that I have considerable sympathy with the point he put forward. Indeed, the noble Lord, Lord Birkett, was concerned that large companies should not bully small composers. That is a fact about which we are all concerned.
I must tell the noble Lord, Lord Annan, that remedies already exist under fair trading and competition legislation. Competition legislation provides a remedy against abuse of a monopoly position which distorts, restricts or eliminates competition. The noble Lord, Lord Annan, said at the Committee stage 183 that the Office of Fair Trading had not acted. It is perfectly true that at that time it had not. It has acted now, and since the Committee stage the Director General of Fair Trading concluded his preliminary looking to see whether the complaints of the music publishing companies, to which the noble Lord, Lord Annan, referred, raised issues which might have justified investigation under competition legislation; in other words, whether they are so bad that further investigation is required. He concluded that they did not.
I know that the noble Lord, Lord Annan, will be disappointed by that, but that is the conclusion at which the director has arrived after investigating the matter. He is independent of the Government and I know that he has given very careful consideration to all the issues raised, including those raised by your Lordships.
Perhaps I may put the problem into context. I understand that seven of the present ITV companies have music publishing subsidiaries, three have a part interest in or a standing arrangement with music publishers, and five have neither a subsidiary nor a standing arrangement. The TVA states that in 1989 ITV companies with their own publishing arms made 350 music commissions of which copyright was assigned in 188 cases. The Performing Rights Society estimates a higher incidence of acquisition of music publishing rights of about 70 per cent. in 1989. Even if that were true, it remains clear that assignment of music publishing rights was not regularly insisted upon.
Nevertheless, I appreciate that there is scope for abuse in the future. The noble Lord, Lord Annan, pleaded with me that I should not say that it is up to the Office of Fair Trading. Therefore, I shall not say that. However, the Bill provides the ITC with the necessary powers to safeguard against abuse in this area. If the noble Lord looks at Clause 2(2) (a) (ii) he will see that there is an obligation upon the commission to ensure fair and effective competition in the provision of licensed services and services connected with them. There is a similar clause in the case of the Radio Authority.
Those clauses require the regulatory bodies to discharge their functions to ensure fair and effective competition in the provision of licensed services and services connected with them. My understanding and advice is that that is sufficient to give the Independent Television Commission power to include licence conditions if it thought them necessary to require licensees not to adopt practices which might abuse their position as commissioners of music compositions.
I am aware that the noble Lord, Lord Birkett, and others feel strongly about that because the matter arose at Committee stage. All I can say is that I have studied the point in detail. I know that the answers I have given will not wholly satisfy them because they wish for something more. I believe that the anxieties about which they understandably make expression are already covered by the Bill and by the powers which the Independent Television Commission will have.
§ Lord Jenkin of Roding
My Lords, perhaps my noble friend could help me a little further on this point. I listened to his argument with great care, but the OFT looked at the matter and concluded that it did not interfere with competition. I ask my noble friend therefore what is to prevent the ITC coming to the same conclusion? The undoubted mischief which exists in the powerful case made by the noble Lord, Lord Annan, and about which my noble friend has expressed some sympathy, remains.
Perhaps the Minister could say something about the amendment to which my noble friend Lord Birkett spoke. When I saw it on the Marshalled List it struck me as being a good way to deal with the matter. There is an undoubted mischief here. People with little economic strength are being overridden in enough cases for it to be a matter of concern. It has not been dealt with by the OFT. As at present advised, I am not convinced that, by applying what are very much the same words in paragraph (ii) of subsection (2), to which my noble friend drew attention, the ITC will not come to exactly the same conclusion. Therefore nothing will be done. Something should be done and I hope that the House will feel it right to press this matter a little further.
§ Lord Colwyn
My Lords, before my noble friend replies, I have the distinct impression that this item may not come up again in its proper place when Amendment No. 51 is considered. I am also aware that the DTI issued a statement on 4th October that there would be no reference of rights in TV programmes and music to the Monopolies and Mergers Commission.
I should like to make the point that the injustices taking place—we have firm evidence that this is so —cannot be justified simply because under competition rules 25 per cent. of the market is not affected. I also fail to see the relevance of the comment of the Director General of Fair Trading that the bargaining power of the ITV companies concerned was constrained by the presence of other potential buyers and collective bodies, such as the Performing Rights Society and the Mechanical-Copyright Protection Society Ltd. That was a point made by my noble friend Lord Birkett.
The abuse remains, and composers are left vulnerable to coercion in the manner described by the noble Lord, Lord Birkett. If the amendment is again to be rejected could the Minister at least provide some comfort to composers by giving a firm indication that the Government wish to see the abuse dealt with by a code of conduct by which composers are rewarded for their creativity; and if both parties agree that copyright should be transferred to the broadcaster, that composers should be paid a fair price for that also?
§ Lord Birkett
My Lords, I hope noble Lords will forgive me for adding one further word. As the comments of the Office of Fair Trading have been mentioned, it is only fair to say that I have seen the statement of the Secretary of State for Trade and Industry quoting the Director General of Fair Trading.
185 Although he refers to competition, as he must, competition is not entirely of the essence here. If it were simply that other publishing companies were bidding to publish the works of television composers and being frustrated by the monopoly position of independent television companies, that would be one thing. But most abuse occurs when no publishing is going to happen at all. The music is basically unpublishable; it has no life outside the television programme; it is not an independent entity.
The problem in that situation is that with nobody wishing to publish the music, the person who nominally does so takes 50 per cent. from the PRS, as the noble Lord, Lord Annan, described, for nothing. Competition therefore is not the only matter afoot. I am not sure that it is even a major one.
The statement of the Director General of Fair Trading refers to other bodies such as the PRS. That in no way constrains the ITV companies. It is merely an automatic collection agency. It is not remotely in competition with anybody, and the reference to such bodies is mistaken.
My Lords, perhaps I may deal first with the point raised by my noble friend Lord Jenkin of Roding. It is a fact that the Director General of Fair Trading considered this matter and concluded that there was no such practice which would require it to be referred to the Monopolies and Mergers Commission. That is the independent judgment which he made: that the practice being carried out was not such as to create a monopoly.
I explained earlier that there are some companies with subsidiaries and some companies without subsidiaries. The noble Lord, Lord Birkett, asked why we could not accept Amendment No. 51, which would require the licensee specifically not to enter into a contract with a composer. I assume that that is on the assumption that the percentage which the licensee would take would always be excessive. If it were excessive, that would be a good argument for agreeing to the noble Lord's amendment. But there are many cases where those percentages are not excessive. In other words, if the subsidiary of the licensee acts in a normal commercial way which is not excessive in the demands that it makes, there is no reason why the licensee should not require the composer to put his business through that subsidiary.
The noble Lord, Lord Birkett, may say that he knows of cases where the licensee will charge much more and that that is unfair. The distinction I draw from the remarks of my noble friend Lord Jenkin is that that is the occasion on which the ITC can perfectly reasonably say that that licensee is behaving in a way that is unfair, and under the powers of Clause 2 the ITC can tell that licensee that he will not receive the licence if he behaves in that way, or it can persuade the licensee to operate in a way that is commercially successful and acceptable.
While I understand the concerns of noble Lords, it is right to say that that does not happen on all occasions and in all cases. It would therefore be wrong 186 to accept an amendment such as that moved by the noble Lord, Lord Birkett, which would make it an offence for a licensee to put the business of one of its composers through the subsidiary. The powers are there for the ITC to use on occasions where it may be thought there is unfair practice.
§ Lord Birkett
My Lords, before the noble Lord sits down perhaps he will forgive me for saying that the amendment does not suggest that a composer's work shall not be published by an ITV company; only that the ITV company shall not use its monopoly position or position of power to insist upon it. It would be quite wrong to suggest that that should never happen. In many cases it will happen very profitably and amicably, but the point of the amendment is that the ITV companies should not insist upon it. I believe the noble Lord may have mistaken that point.
My Lords, once again my noble friend has prayed in aid Clause 2 of the Bill as though the duty placed upon the ITC is that of ensuring fairness. That is not what the Bill says. Its only duty is to ensure fair and effective competition, which is not the same at all.
My noble friend has tried to ensure that a degree of fairness in negotiating these artistic contracts inures. As the noble Lord, Lord Birkett, rightly said, the question of competition is totally irrelevant.
My Lords, I am hesitant to rise again because this is not a Committee stage. I explained the position as best I could to your Lordships. I can only say that in my view the concerns expressed are met under the powers already given to the ITC.
§ 5.30 p.m.
§ Lord Bonham-Carter
My Lords, are we taking these amendments separately or as a group? I am not clear as to the position. Clearly they are different amendments and to take them as a group would be extremely bewildering.
My Lords, it has been agreed that the amendments should be spoken to collectively but, of course, they will be moved separately.
§ Lord Annan
My Lords, I am happy to withdraw my amendment because I feel that the House feels that it is somewhat draconian. I leave the laurels to be placed on the head of the noble Lord, Lord Birkett.
§ Amendment, by leave, withdrawn.
Earl Ferrersmoved Amendment No. 19:
Page 164, line 16, at end insert:
("(2A) For the purposes of this Schedule a person controls a body corporate if—
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendments Nos. 20 to 23:
Page 165, line 39, at end insert:
('`(bb) a licence to provide a non-domestic satellite radio service,").
Page 165, line 40, leave out ("or").
Page 165, line 41, at end insert (", or
Page 165, line 43, at end insert:
("(3) In sub-paragraph (2) (bb) "non-domestic satellite radio service" means a satellite service within the meaning of Part III of this Act which is not provided on any frequency allocated to the United Kingdom for broadcasting by satellite.").
§ The noble Earl said: My Lords, I spoke to these amendments with Amendment No. 17 and I beg to move them en bloc.
§ Or Question, amendments agreed to.
§ [Amendment No. 24 not moved.]
Earl Ferrersmoved Amendment No. 25:
Page 168, line 16, after ("(1)") insert ("Subject to sub-paragraph (3),").
§ The noble Earl said: My Lords, in moving this amendment I speak also to Amendments Nos. 27 and 28. Noble Lords will be aware that the Bill as it stands would permit a person to control two regional Channel 3 licences, but we remain committed to bringing forward secondary legislation to supplement this limit so that a person could not control two large licences or two contiguous ones. We have indicated both to your Lordships and in another place that we think the ITC will need powers to disapply the non-contiguity rule in strictly limited circumstances. The proposal is that the ITC could permit a takeover by a contiguous licensee only where satisfied: that the licence area had become unviable; that no company would be interested in owning the licence either by takeover or through a further competitive tender process; and that the separate regional identity of the two licences would be maintained notwithstanding that they were under the same ownership. As your Lordships will appreciate, these are strong safeguards and the circumstances in which the viability exception would be likely to come into play will in practice arise only rarely, if ever.
§ Amendment No. 27 is needed to put beyond doubt that the contiguity rule may be waived in the limited circumstances where the viability exception is needed. It also puts beyond doubt that the order can give effect to a suitable form of the radio ownership points scheme, about which the Radio Authority have been consulting the industry.188
§ I am not entirely sure what the noble Baroness has in mind in Amendment No. 28, but I can assure her, first, that it is not needed to enable the order to include rules framed by reference to size and contiguity and, secondly, that the Government remain committed to implementing the rules, sometimes known in shorthand as the "penny farthing rules". On that basis I hope the noble Baroness will be content with the amendments that I have proposed. I beg to move.
§ Lord Thomson of Monifieth
My Lords, the House is grateful for the explanation given by the noble Earl. Amendment No. 28, in my name and that of the noble Baroness, Lady Birk, was tabled to make certain beyond peradventure that once the present contracts have been allocated, and if difficulties arise, we should be certain that in the subordinate legislation the necessary arrangements would be made to prevent excessive ownership in terms of scale and to prevent contiguity taking place except in the special circumstances described by the noble Earl.
I am almost reassured by what the noble Earl, Lord Ferrers, said but perhaps the noble Baroness will want to explore this matter further. The background to our anxieties is what has happened since the shadow ITC announced that it proposes to stick to the existing map of regional areas. That was immediately followed, perhaps predictably, by certain strong criticisms and protests from inside the commercial broadcasting establishment. In one case the managing director of Central television, Mr. Leslie Hill, who has long been an advocate of what have become known as super-regions, immediately went on record as saying that in the light of the ITC's proposal the contiguity rules should now go, allowing each ITV company to own up to 25 per cent. of the market. That would reduce the number of core companies to a more realistic five or six.
The pressures towards that end will be considerable. It is no secret that the decision the shadow ITC had to take about the map was, inevitably, nicely balanced as to whether some of the smaller regions were likely to continue to be viable in the increasingly competitive climate that may lie ahead. It is in those circumstances, and the possible situation some years ahead when the new contracts have been allocated, that we need to be certain that if the smaller regions —or, indeed, any of the new contractors—get into difficulties, the subordinate legislation will prevent excessive scale of ownership, with one large company taking over a smaller neighbour, except in the special circumstances postulated by the noble Earl. The potential situation does not need to be absolutely ruled out but there need to be great safeguards. Above all there must be a motive to endeavour to preserve the degree of regional identity which is the distinctive feature of the ITV system and to ensure that it remains a distinctive feature with the Channel 3 system.
For that reason we thought it would be preferable to write a safeguard on the face of the Bill. Therefore, I should like to hear further from the Government and to hear the views of other noble Lords before finally deciding to press the matter.
§ Baroness Birk
My Lords, my concern is very much that of the noble Lord, Lord Thomson of Monifieth. I should like to know further what the Government mean by subordinate legislation within the context of the amendment. I should like to have more specific information.
If the Government are prepared to say that the subordinate legislation will definitely include the restrictions on contiguity, except in the special circumstances mentioned, and the size of the licence areas to be held by one company there is probably no need to press our amendment. However, if the commitment is not given in regard to either primary or secondary legislation the Minister will no doubt agree that it makes a complete nonsense of all the ownership restrictions set out in Schedule 2 and the ITC's decision to retain the map.
Where a small region is perceived to be marginally viable the ITC will be able to merge two licence areas although it would expect separate programming to be retained, which is right. Thus, it becomes even more important for the ownership restrictions to be strengthened in order to prevent the regional structure of Channel 3 from being undermined by the creation of a small number of super-regions. This matter is so important that we need either a satisfactory explanation now or an undertaking that it will be looked into again and that the Minister will return at Third Reading with a new provision.
My Lords, I believe that the concerns of both the noble Lord, Lord Thomson of Monifieth, and the noble Baroness, Lady Birk, are that you should not have contiguous licences being joined up; in other words, one company getting fat on the proceeds of another. That is unlikely to happen. The constraints on doing that are very strict. I have explained that it would only be done in the first instance where the licensed area itself became unviable. In other words, if a licensee found the enterprise unviable and was going out of business, the people in that area, unless something was done, would have no television. When that happens the ITC has to make sure that no other company will be interested in owning the licence either by takeover or by some other further competitive tender process.
If no other companies were interested and if something were not done, the people involved would be without television. It is only in those circumstances that the ITC would agree that a contiguous licensee should take over the other area in order to keep television available to the people within that area. Even if that is done the separate regional identity of the two licences would have to remain even though they were under the same ownership.
Those are very severe constraints. I agree with the noble Lord, Lord Thomson, that it would be wrong and unfortunate if the opportunity were taken for licences of small areas to be swept up into the licences of larger areas. That is only a long stop in order to ensure that if the worst of all scenarios were to occur the people in a certain area would not be left without television. It remains the position that the Government propose to include the contiguity rule in 190 subordinate legislation. That means that an order laid before 1st January 1991 shall be subject to the affirmative resolution procedure of both Houses. Parliament will therefore have a say in the matter.
§ Lord Thomson of Monifieth
My Lords, in the light of the explanation that the noble Earl has given I do not believe that there is anything between the two sides of the House. There is a shared common concern and I am content with the assurances that have been given. I shall not pursue my proposed Amendment No. 28 to amend Amendment No. 27.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 26:
Page 168, line 23, leave out ("six") and insert ("twenty").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 17. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 27:
Page 168, line 38, at end insert (", or (in the case of licences granted by the Commission) by reference to matters determined by them under the order.
(3A) Without prejudice to the generality of sub-paragraph (3) (b), an order made in pursuance of that provision may impose on the holder of a licence to provide any specified category of relevant services limits framed (directly or indirectly) by reference to either or both of the following matters, namely —
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 25. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 28 not moved.]
Earl Ferrersmoved Amendment No. 29:
Page 169, line 14, leave out ("this paragraph") and insert:
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 17. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrersmoved Amendment No. 30:
Page 169, line 15, at end insert:
§ ("Limits on the holding of licences to provide different categories of services
§ 2A. Where any restriction is imposed by or under paragraph 4 or 5 below on the holder of a particular kind of licence in relation to participation in a body corporate which is the holder of another kind of licence, any person who holds one of those kinds of licence shall not also hold the other kind of licence.").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 15. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 31 not moved.]
Earl Ferrersmoved Amendments Nos. 32 to 35:
Page 170, line 1, leave out ("sub-paragraph (3)") and insert ("sub-paragraphs (3) and (3A)").
Page 170, line 23, at end insert:
("(3A) Nothing in sub-paragraph (2) shall impose any restric tion —
Page 170, line 30, at end insert:
("(4A) Where a person is the holder of a licence to provide a satellite radio service which is provided on any frequency allocated to the United Kingdom for broadcasting by satellite ("a domestic licence"), he shall not be a participant with more than a 20 per cent. interest in a body corporate which is the holder of a licence to provide a satellite radio service which is not provided on any such frequency ("a non-domestic licence); and, where a person is the holder of a non-domestic licence, he shall not be a participant with more than a 20 per cent. interest in a body corporate which is the holder of a domestic licence.").
Page 171, line 10, leave out ("(4) and") and insert ("and (4) to").
§ The noble Earl said: My Lords, I spoke to these amendments with Amendment No. 17. 1 beg leave to move them en bloc.
§ On Question, amendments agreed to.
The Earl of Stocktonmoved Amendment No. 36:
Page 173, line 8, leave out ("sub-paragraph (2)") and insert ("sub. paragraphs (2) and (3A)").
§ The noble Earl said: My Lords, I speak to this amendment standing in my name and that of the noble Baroness, Lady Birk, the noble Lord, Lord Thomson of Monifieth, and the noble Baroness, Lady Warnock, who, sadly, cannot be in your Lordships' House today. For the convenience of your Lordships I shall also be speaking to Amendments Nos. 37 to 46 standing in my name and that of the noble Baronesses and the noble Lord. I shall speak also to Amendments Nos. 359 to 361 and to Amendment No. 363, which also stand in my name.
§ Those of your Lordships who took part in the debate on the Bill at Committee stage may well remember that in July the Committee gave quite lengthy consideration to the issue that now comes before the House again—that is to say, the regulation of cross-ownership in the media. The problem that the Committee faced then and the reason for the re-emergence of this issue at Report stage is in finding a just and reasonable way of re-establishing a coherent policy of regulation. It was difficult to find an amendment which kept sight of the basic principle and which was both fair and easy to implement. I now believe that that has been achieved.
§ By this amendment all broadcasters transmitting to viewers in the United Kingdom will come under the 192 same rules on 1st January 1993. As most of your Lordships are no doubt aware, that date is already a crucial moment under the terms of the Bill as it stands. I shall explain why in a few moments. The fundamental point at the moment is that this amendment looks to the future of a very exciting and powerful industry and offers consistency. It offers ease of application and, above all, it is demonstrably fair.
§ The basic principle is this: a healthy democracy is best served by encouraging plurality of ownership of the major organs of communication and information. Sustained by an all-party consensus, it is a principle that has been accepted and enacted by governments of both ruling parties since the original Television Act 1954. In practice successive Acts have laid down that the owner of a national newspaper may not hold a stake greater than 20 per cent. in a commercial television station and vice versa. Indeed, we are witness to its continuing application and relevance in the very Bill before us since the Government have made provision for the ownership restrictions to be extended to cover licence holders in the new Channel 5.
§ The justification for its continuing use is straightforward. It is nowhere put more succinctly than in the Government's own White Paper on broadcasting produced in 1988. This two-fold argument is founded, firstly, on commercial grounds. As the market in broadcast television expands—which it is set to do now at an unprecedented pace—it becomes more important than ever to ensure continuing access to newcomers. Frankly, it is not enough to say, as my noble friend Lord Ferrers said in Committee and in a letter to me, that the proliferation of channels that satellite television will provide is of itself a safeguard against an undesirable concentration of ownership. There is virtually unlimited scope, he told me, for such services to develop under diverse ownership. Naturally, my noble friend is correct, but that is only half the story because at the same time there is an equally unlimited scope for such services to develop under single or limited ownership. To maintain the cross-ownership rules in an expanding television market will therefore make for more not less diversity of new entrants.
§ The second ground for its continuing relevance is not commercial but editorial. It is potentially unhealthy in terms of promoting choice and diversity to allow different media to become dominated by a small number of organisations. Add to that the potential for cross-promotion between newspapers and television companies, an area of really outstanding commercial advantage in a market dominated by advertising aimed at achieving that all-important audience share, and it is easy to understand why the Government have decided to extend the 20 per cent. principle to cover the new Channel 5. Why then is the Bill in such an unnecessary and illogical muddle over what is plainly a simple, workable principle?
§ As the Bill stands, cross-ownership will be regulated in relation to Channel 3, Channel 5 and the domestic satellite supplier, but the 20 per cent. 193 principle is being abandoned for non-domestic satellite services. There is quite simply no justification for so doing. I have made it my business since the Bill first appeared to try to find some just cause for this curious anomaly, to find a coherent argument that both explains it and stands up to close scrutiny. But I have failed to do so. I believe there is none. There is only one market in which competitive enterprises, present and future, will be operating. New ventures have brought and will continue to bring new ideas, new services and more choice to our screens, things which not one of us here does not welcome; but, commercially, everyone is in the same market. They are competing for the attention and patronage of Britain's more than 20 million television homes. Their viability and profitability derive from gaining the necessary share of the finite market.
In this context there can be no room for special causes. Equity demands that all competitors play by the same rules. It is not only inconsistent but—worse —logically indefensible to advocate one set of rules for some of the players and another set of rules for others. We already have a market imbalance because of this inconsistency. We must seize this opportunity to correct it; otherwise the situation will worsen.
I have pointed out already that the co-ownership of newspapers and television channels gives enormous advantage in terms of cross-promotion. Given that the Government want to apply the 20 per cent. principle to the new Channel 5, this channel will operate without the support of a largely related newspaper interest, competing not only with entrenched terrestrial channels but also with non-domestic satellite operators who can, if so structured, use powerful print promotion to maintain and increase their market share. The Italian Government realised the danger of the situation just before their summer recess and responded by introducing measures similar to mine which recognise the injustice of preparing inconsistent legislation for the future of the single market.
This unfairness extends to any entrant to the market who is not blessed with cross-ownership exemption. It runs counter to natural justice and counter to the Government's own belief in free and fair markets. Instead of increasing viewer choice, the unfair advantages bestowed by the exemption threaten to diminish and restrict the number of new ventures. As time goes by, the unfair advantage will become more significant and be even more difficult to remedy. The time to act is now, fairly and rationally.
The advantage of setting January 1993 as the date to implement the regulation is that it allows enough time for any companies or individuals affected to make the necessary adjustments in ownership. This they can do knowing that early 1993 will be the period immediately following the Channel 3 and radio franchise auctions, when inevitably there will be unsuccessful consortia with their finances in place which will be interested to buy a stake elsewhere in the media industry. In practice this means that the 194 amendment cannot be misconstrued as being punitive since profit will be returned, jobs kept and choice maintained.
I commend the amendment to the House. The Government have the power to act in these matters and the public interest requires that they do so.
§ Baroness Birk
My Lords, I put my name to this amendment not because I think it is necessarily a perfect solution but because it seems to be the best opportunity for achieving a consensus. When we debated this issue in Committee I moved the amendment on which we voted. That amendment sought to require proprietors to divest themselves of ownership to bring the figure to 20 per cent. On that occasion I said:These amendments seek to establish the principle of what is happening today and what should be altered in the field of cross-media ownership. I am concerned to establish the principle. I am not concerned immediately to divest a proprietor of holdings. If it were to take 18 months or two years to implement I should be content with that timescale. It is important first to establish the principle and see how the situation works out".—[Official Report, 11/7/90; col. 307.]The noble Earl has come back with an amendment which gives a specific time of two years to divest and which seems in our opinion to be a fair way of dealing with the matter.
It also implements what was set out clearly in paragraph 6.48 of the White Paper. The passage dealing with ownership in the independent sector states:But clear rules will also be needed which impose limits on concentration of ownership and on excessive cross-media ownership, in order to keep the market open for newcomers and to prevent any tendency towards editorial uniformity or domination by a few groups".It is amazing that despite such a clear statement—it is difficult to imagine anything clearer or more unambiguous—the Government left this loophole which relieved from those obligations any channel transmitted from a private or non-United Kingdom satellite operation.
Some 35 per cent. of the national press is owned by one company but Sky will be able to broadcast to the whole nation from the Astra satellite. I do not want to go into that point in any more detail and have another hassle over Mr. Murdoch and Sky. That is not what this is about. This is about achieving, as the noble Earl said, a level playing field so that by January 1993 everyone will have conformed to the same rules. If someone wants to come in sooner he will at least know that if he has more than 20 per cent. he will have to divest by 1993. That is why I believe there is a commendable clarity in the amendment.
I should like to deal with other countries for a moment. In America, if a newspaper publisher or owner buys up television stations in the same city, he has to divest himself of one interest or the other. This summer, Italy passed a new law under which a newspaper proprietor cannot own any television stations. That is now part of Italian legislation. It is strange that we should continue with this anomaly when we have a new Bill which is about to become a 195 statute. It would seem that this is the last chance to try to work out a solution to the problem so that it is really fair to everyone.
From what we have been told, it appears that by January 1993 there will either be other possibilities open to Sky Television or it will be in profit which obviously it very much hopes to be. There are, of course, other people who have tried unsuccessfully to obtain the terrestrial channels. At that time, with a certain amount of money around, they will have the opportunity to buy into the domestic or non-domestic satellite market. What is proposed forms for the time being a workable solution to the problem. I believe that the amendment before the House should be supported.
§ 6 p.m.
§ Viscount Whitelaw
My Lords, one of the advantages of your Lordships' House is that its Members are shrewd people who can see through things quite easily. Hearing my noble friend Lord Stockton move his amendment, one might have thought that it concerned nothing which was happening at the present time in television, that it was all to do with some long-distance position in the future, that it was obviously fair and that that was how it should be.
The noble Baroness, Lady Birk, blew that idea. I do not know whether it fooled many of your Lordships. However, she blew it completely because she immediately began to talk about Sky Television. Of course one knows perfectly well, as with previous arguments, that this is basically a Sky witchhunt. In my view it is not a fair witchhunt. There may well be times in the future when the perfectly proper order-making powers in the Bill can be used by a Secretary of State to deal with the size of newspaper ownership. That is perfectly proper. The power is there, and it was put there specifically for that purpose. However, does it make sense to use it now at a time when Sky Television has invested very considerable sums of money and when it has no certainty as to what its position will be in 1993?
The noble Baroness said that Sky hoped to be in profit by that time. Of course, everyone hopes to have profits; but it may well be that that will not be the case. At present, as my noble friend Lord Stockton said, the plurality of ownership, the diversity and the whole idea or the modern world of satellite providing diverse programmes and diverse ways of working is very good. No one can doubt the fact that Sky has made a major contribution to that end. There is no argument in that respect. The Sky News programme is reckoned to be very good. I have seen it. I shall not trespass upon other fields with which we shall deal later, but I believe that Sky News has a very high reputation. I admire it as do many other people. It will certainly waken up both the BBC and ITN and ensure that they compete with what is a very important news service.
Does it really make sense in these circumstances to use this Bill now to destroy something when the powers are there for the future? Whether one likes what it is doing or whether one likes Mr. Murdoch 196 does not seem to be a matter of issue. The issue is whether this is contributing to the new world of satellite television which is developing. I believe that the investment which has been made does so and that to destroy it at this time would be an enormous mistake. Therefore, I very much hope that Members of your Lordships' House will not follow down the way of the amendment of my noble friend Lord Stockton. I also hope they will not follow the argument so persuasively put both by him and by the noble Baroness, Lady Birk. I see the proposal for what it is. I do not want it that way and I hope that your Lordships will also not want it that way.
My Lords, I agree with every single word said by my noble friend Lord Whitelaw. In my view the amendment is totally unnecessary. The Bill already provides measures to prevent the kind of abuse feared by my noble friend Lord Stockton. The Secretary of State has power under the Bill to prescribe restrictions on the extent to which a newspaper proprietor can participate in satellite services. That power is contained in Schedule 2 Part IV paragraph 2(5) (e). There is also existing legislation in the Fair Trading Act and in the Competition Act which deals with any future adverse concentrate on of media ownership and anti-competitive practices in the media industry.
In addition, there is EC legislation; for example, Articles 85 and 86 of the Treaty of Rome deal with restrictive practices and abuse of a dominant position. All these measures are "effects-based", allowing each situation to be appraised on its merits before regulation is implemented. That is precisely what the Italians did. However, the amendments of the noble Earl, Lord Stockton, represent "form-based" regulation which allows no assessment of the effects of the situation on the public interest. Instead, they automatically impose an arbitrary restriction.
The argument put forward by the noble Baroness, Lady Birk, really puzzles me. In my view, she owes it to the House to make her party's position on the matter clear. Only last week at the Labour Party conference Mr. Roy Hattersley, the Deputy Leader of the Labour Party, made a speech in which he said:Immediately we are elected, we shall ask the Monopolies Commission to examine media ownership in this country to recommend ways in which it can be more widely distributed"—and so on. That power is in fact already contained in the Bill. On the other hand, the noble Baroness, Lady Birk, appears to be supporting my noble friend Lord Stockton in trying to determine now what the remedy should be for a perceived wrong. That seems to me a case of firing first and aiming later. If the Labour Party is confident of winning the next election, it should wait until such time as it does before making a move on such an issue.
§ Lord Beloff
My Lords, I should like to add a few points to the powerful remarks made by my noble friend Lord Whitelaw. I did not intervene on the subject when it was previously debated because, being a flat dweller, I had no opportunity to watch Sky Television. Whatever else may be said, all we are 197 talking about tonight is Sky. However, I was marooned in a French hotel early one morning. As people know, although the French may talk internationally they give practically no foreign news on their television programmes. Nevertheless, one French television channel shows Sky programmes in the morning. Therefore, I could see the international scene and analyse it from different points of view in five or six different capitals in five or six different languages. If such a service was generally available here, I think that it would improve our appalling linguistic performance. However, that point is by the way. The experience made me feel that I should like to intervene in the debate.
There is a grave inconsistency in the remarks made by my noble friend Lord Stockton. I say that because his accent was on the importance of innovation and the great degree of technological development in communications which we have seen and which we may see in the future. If one is to take advantage of a technological leap, it is customary to have to advance or invest a great deal of money; otherwise, many things would remain on the drawing board.
It seems to me that Mr. Murdoch—this great hate figure as seen by the other side of the House—did invest in what at the time was a possible but not a certain way of dealing with satellite broadcasting. A great deal of money has been put into it. I do not understand accounts enough to be certain whether it would be damaged by this divestment process. However, it could be. If that were to be the case, what encouragement do we give to the next person who comes across some important new technological breakthrough? We shall be saying, "Put all your money in. If it works and you start to make a profit, we shall jolly soon see that some of that is taken away from you". What is proposed can either be described as retrospective legislation or as a bill of attainder. In either case, I hope that the House will vote against it.
§ Lord Harris of High Cross
My Lords, I wish to raise a voice from the Cross Benches on the matter. I recall our debates in July in Committee. The noble Earl, Lord Stockton, opened his case, if I may say so, for the prosecution, by saying that these amendments look to the future. Of course that is exactly what they do not do. He promptly followed that by saying that we must return to 1964 when the provisions against cross-media ownership were applied, which was when circumstances were different. Then, as if to anticipate the observation on developments since 1964, he said that proliferation of channels—that is, more competition or choice—may be no protection against concentration, or at any rate that is only part of the story.
The whole issue about Sky is that it is not moving into the domestic market with established viewers; it is hoping to carve a new audience for its distinctive offerings. As the noble Lord, Lord Morris, has said, there is protection against concentration implicit elsewhere in the Bill and in the general powers of the Office of Fair Trading.
198 I still do not fully understand the motives that prompt the amendments, but it seems to me that their purpose or result must be, as the noble Lord, Lord Beloff, has said, to damage the commercial prospects of Sky TV so as to deprive enterprise of its prospective reward. The full requirement would be that by January 1993 the apparently despised News International would have to divest itself of control over satellite broadcasting channels for the best price that it could obtain in a distressed sale. Then, recalling that Sky operates via a Luxembourg satellite, provision is thoughtfully made to pursue it by a form of punishment that would make it a criminal offence to supply the channel with equipment or programmes, or to supply customers with decoders: in effect, to outlaw the unnamed target, who is of course Rupert Murdoch.
All that persecution is then justified on the pretext of frustrating the monopolistic tendencies in the printed and broadcasting media. Substance is lent to that argument by referring to the long-established principle of restriction on cross-media ownership. The long-established principle, going back to 1964, dates to a vanished age when there was one commercial channel only; that is to say, in the strict meaning of the words "a monopoly power" exerted by the suppliers of that programme in those days.
Since then there have been more than a dozen channels. Although I shudder at the thought, I am told that there are now 17 channels with more to come. Who knows how many there will be before the 1990s are over?
As I ventured to suggest in Committee in July, the trouble with the supporters of the amendments is that they take too backward looking and too static a view of a remarkably lively and expanding market. As a general rule, in judging monopoly power the best test is not to count the number of present suppliers (there may indeed be only one); the test is to see whether there are barriers that would prevent new entrants challenging the existing companies. That is the whole purpose of the Bill. To that purpose Sky has made its contribution.
If we truly favour competition, above all in the communications media, we should surely pay tribute to Mr. Murdoch as the entrepreneur who has broken the costly stranglehold of the print unions to enable more newspapers to enter the market. If we fear monopoly now in television we must acknowledge that the Astra satellite, with Sky TV's indispensable backing, has already added 16 new television channels with apparently a further 16 to come.
To my suspicious mind the amendments are founded less on concern to tackle the non-existent monopoly power of News International and more on the hope of holstering a domestic monopoly position for BSB which, incidentally, is also backed by other powerful media interests, including Reed, Pearsons and Granada, with plenty of scope for the cross-promotion of BSB programmes in the way that the noble Earl appeared to deplore in the case of News International.
199 If only the noble Earl would turn his gaze from the past and contemplate the present and future prospects for widening competition in broadcasting, he would not be building up a case against Rupert Murdoch but perhaps building a statue in his honour as a rare entrepreneur who has already done a great deal to enliven and enlarge the media market. I do not propose that other noble Lords should go that far, but I urge them to reject these dismal, destructive and damaging amendments.
§ 6.15 p.m.
§ Lord St. John of Fawsley
My Lords, perhaps I may express my strong support for every word that my noble friend Lord Whitelaw said. The amendments are technical in wording, well intentioned no doubt, but deadly in effect. If passed, they would put an end to what has been one of the major and most constructive, pioneering broadcasting innovations of our time. They would do that by making further investment in Sky TV a practical impossibility. The poison pill of course is sugar-coated by postponing the operation of the amendment for two years until the end of 1992. But who will invest in a high-risk venture in the knowledge that their equity will be diluted and at risk in 24 months' time?
If your Lordships commit the Government to a forced divesting of Sky it may not take effect for two years, but one thing will happen immediately: Sky News, will cease to exist, because of all the programmes that one is most in need of long-term capital investment, and it needs a long period to pay it back. My support for the news programme springs from the simple fact of seeing it for myself. It is impartial; it is comprehensive; it is lively; it is on for 24 hours; and throughout the Gulf crisis we have been able to keep immediately in touch with developments. That is a major and unique contribution to the public good.
The amendment would have other undesirable effects. The proposed sponsored arts channel would disappear; so would the proposal to transmit the best of British drama at the highest level. Those are concrete examples, illustrating how the amendment, far from enhancing competition, would stifle it along with choice, quality and diversity. It would damage Britain's position as a European centre for satellite broadcasting at the very moment we are making a major effort at greater financial union.
The amendment's choice of divesting date is wholly arbitrary. Who can say what will happen in 1992 and what is profitable? Profitable in terms of making a trading profit is one thing; profitable in terms of repaying some of the vast investment that has been put into the enterprise is another. Consumer and investor confidence would be undermined by uncertainty as to whether the guillotine would fall. The amendment is more like a sword of Damocles than a life-giver to a risky and worthy enterprise.
What are the arguments that we have heard put forward for the amendment? In the main, the only argument that we have heard is that it is a long-established principle of cross-media ownership 200 that there should be restriction in that field; but as the noble Lord, Lord Harris of High Cross, pointed out, that principle is hardly venerable; it goes back only about 20 years, and in conditions totally different from those which pertain today.
As the great Lord Salisbury said:The commonest error in politics is to stick to the carcases of dead policies".That is as true of media politics as of any other. Why all this brouhaha then? Of course it was exposed by my noble friend Lord Whitelaw in his delightful but trenchant way. It is the latest example of our great national virtue which is humbug. How will the mind of anyone be enslaved by four channels? One of them is news, admittedly impartially presented; the second is movies; the third is sport and the fourth is light entertainment. Who will be brainwashed by that? The real point on which my noble friend Lord Whitelaw put his finger is that one man is being penalised for one action: making a success where everyone else has failed and is likely to fail.
Finally, the amendment is totally unnecessary. There are powers for the Secretary of State to come to Parliament in the circumstances then prevailing and change the balance of ownership, if it be thought right. The difference between that provision and my noble friend's amendment is that the amendment operates in an arbitrary way in advance, without any heed to the situation which may prevail. The provision in the Bill will operate in the light of facts, experience and circumstance.
We are entering a new era in broadcasting, with unknown scope for market entry. The tide is flowing, whether we like it or not. With this amendment, my noble friend seeks to put a finger in a crumbling dyke. It may be a noble finger, and indeed an illustrious one, as one would expect from one bearing such a family name. However, it is a finger used on this occasion with ill-judged purpose. I hope that the amendment will be withdrawn and, if it is not, that your Lordships will robustly reject it.
§ Lord Thomson of Monifieth
My Lords, I hope that it will help the temper of the debate if I say immediately that I wholly agree with the noble Lord, Lord St. John of Fawsley, in his praise of Sky News channel. I also agree with those who have said that in his activities in the print media Mr. Rupert Murdoch has made a notable contribution to ensuring a much wider diversity of daily newspapers.
However, if we can get away from erecting statues in honour of Mr. Rupert Murdoch, perhaps the House may return to what I had assumed was its duty in dealing with legislation like this. The one point on which I agreed with the noble Lord, Lord Harris, was that we should look to the future. We are passing the most important and major broadcasting Bill that the House has seen, certainly for a long time. It will set the framework for broadcasting for the rest of this decade. I should have thought that the purpose of the House in a proceeding like this was not passionately to take sides for or against a particular individual, but to ensure that the Act of Parliament that would go on the 201 statute book and be there for a long time was equitable and fair between various interests within the United Kingdom.
The reason why my name is on the amendment is simple. I believe that there ought to be the same law for all newspaper proprietors in terms of their ownership of access to the domestic television screens of this country. As I said at the Committee stage, I do not see why there should be one law that in terms of satellite broadcasting affects the noble Viscount, Lord Blakenham—whom I see in his place at the back there —and another law that applies to Mr. Rupert Murdoch. That ought to be a matter of some concern to the House.
It would have been perfectly open to the Government, in promoting a radical broadcasting Bill, to say that the arrangements begun back in 1964 to limit the ownership of newspaper proprietors in commercial television contractors to 20 per cent. were out of date in the new age of satellite broadcasting. They could have brought in new proposals for an entirely different set of rules about cross-media ownership. Those would, however, have been rules that applied equally to everybody. The Government could have done that, but they did not. They are reinserting in the Bill the provisions with regard to the 20 per cent. limit upon ownership that have existed for many years and that have been generally supported as making at least some contribution to averting what is a danger in any democracy—that is, the over-concentration of ownership in the media that influences the climate of opinion.
The Government have deliberately created a situation in which they choose to discriminate in favour of one particular group. I must say that that seems to me to be inequitable. It is the point to which noble Lords ought to address their minds.
Of course I recognise the difficulties in which this puts the Sky enterprise. I may arouse some mocking laughter from the Benches opposite but we have been trying, as conscientiously as we can in the matter—starting from the basis that there ought to be equity of treatment between the various interested groups—to take account of the fact that Mr. Murdoch is engaged in a high risk enterprise. We have tried not to seek to bring him into line with other newspaper proprietors in this country until enough time has passed to enable him to have a profitable investment to deal with, in bringing himself into line. That is the case we seek to advance.
The Bill applies quite a number of broadcasting restrictions to the Sky enterprise. It comes through the cable systems and is under the legal obligation to exercise impartiality in news. It does not do so out of the goodness of Mr. Murdoch's heart, although I am sure he would run a high quality television news service for his own reasons. Many restrictions are laid by the Bill on the operations of Sky. For the life of me, I do not see how the Government can defend the idea that, as regards one of the central limitations that has long lain upon broadcasting policy in this country— 202 that is, the limitation of cross-media ownership—one particular undertaking should be exempt. That is why I have added my name to the amendment.
§ 6.30 p.m.
§ Lord Boyd-Carpenter
My Lords, it is noticeable that the only speeches in support of the amendment have been made by the noble Lords whose names are on it. All other noble Lords who have spoken have been extremely critical of it, following what seemed to me the most effective demolition of the amendment by my noble friend Lord Whitelaw. I see that my noble friend Lord Stockton has listened attentively to the debate. I hope that he will feel that the sensible action now is to withdraw an amendment which quite obviously lacks support. From the point of view of many of us it seems to be wholly wrongly conceived.
There are two aspects to the matter. One which the noble Lord, Lord Thomson of Monifieth, tried, with his usual adroitness, to skate round is that its effect would be to eliminate Sky Television. As has been said, to some extent that is its purpose, which seems to me to condemn the amendment. I have had the pleasure of seeing a little of Sky Television; I wish I had seen more. What I have seen indicates to me that it is a most effectively and expensively contrived development which has involved heavy investment. It would be the greatest loss if it were to be thwarted by legislation. I need only refer to the 24-hour news service, which is a remarkable development and which enables people who are busily engaged in other work, whenever they have a spare moment, to catch up with the news. It is a brilliant and most effective conception. I should be horrified at the idea of Sky being eliminated by legislation.
The other aspect is the general question of principle. It is perfectly true that when, 20 years ago, we had one or two broadcasting media, it was thought right, for reasons which seem to me wholly adequate, to restrict the ownership of those media by people with press ownership because that might well involve too great a concentration of power in too few hands. In the circumstances of that time, that was a sensible idea. However, that has nothing whatever to do with the present situation. It is almost becoming difficult to count the number of television organisations which have come into being, or are coming into being in the next few months. There will be no question of any monopoly or near monopoly of the media. In those circumstances it becomes a sheer waste of time, quite apart from the effective damage it does, to restrain owners of newspapers or others from operating television companies.
I very much hope that my noble friend Lord Stockton, for whom one always has the highest regard, will not persist in pressing an amendment which quite plainly lacks support, which is quite plainly wrong and which would do positive damage to our developing television industry just at this most crucial moment when the Bill is passing into law and a new era in television is coming upon us. We are at a moment of great hope and promise. Let us not spoil it.
§ Lard Blake
My Lords, I wish to point out that my noble friend Lord Stockton is not the only person on these Benches who is in favour of these amendments. I too, am in favour of them. I was not in the least convinced by the arguments of my noble friend Lord Whit on this matter. The issue concerns how one can justify differentiating between Sky Television and all the other television stations. Why should there be restrictions on ownership of the other television stations and none as regards Sky Television? Surely the logic of a great many people who have spoken in this debate against the amendments of my noble friend is to abolish cross-media restrictions altogether. That might make sense in a way. However, the Government have not chosen to do that. It might have been wiser if they had. As they have not done so, a false position has been created. The amendments of my noble friend Lord Stockton are not malicious and, in spite of what the noble Lord, Lord St. John of Fawsley, has said, they are not humbug. They are a perfectly genuine attempt to try to create a fair and open level field which does not discriminate against a large number of television stations in the UK. I shall support the amendment.
§ Lord Boston of Faversham
My Lords, before the noble Lord, Lord Blake, intervened just now I was about to rise to point out that the noble Lord, Lord Boyd-Carpenter, had suggested that the only people to speak in support of these amendments were those in whose names the amendments had been tabled. I wished also to say that the last thing I wanted to do was to disappoint the noble Lord, Lord Boyd-Carpenter. However, the noble Lord, Lord Blake, has already intervened and has done just that. I hope that the noble Lord, Lord Boyd-Carpenter, will not feel that he has been disappointed. Whether or not I shall disappoint him remains to be seen. He and I will have to listen to what I have to say to discover whether or not it is disappointing.
As indicated on Second Reading and in Committee, I declare an interest as chairman of TVS Entertainment plc and of its subsidiary TVS Television Ltd., which holds the independent television franchise for the South and South-East of England. Although I have been involved in various aspects of the debates on this Bill, I have not previously intervened on this aspect. However, I do so now to add a further voice, from the perspective of one involved in the commercial television industry, in support of the amendment of the noble Earl. I remind your Lordships that the noble Earl, Lord Stockton, has pursued this matter persistently and consistently from the very start of your Lordships' debates on this Bill. The noble Earl focused upon this matter as his main point in his Second Reading speech on 5th June. He has pursued the matter in Committee and today.
Whether or not one supports the amendment, a point on which I hope we can all agree is that in a democracy it is desirable to maintain diversity of ownership of the media of communication. That is the fundamental principle here and we should not lose sight of it. In saying that, I am sure it will not have escaped the notice of the noble Viscount, Lord 204 Whitelaw, that I have to disagree with the point which he made in his entertaining speech just now. I do not enjoy disagreeing with the noble Viscount on this because I feel very much in agreement with him on so many matters concerning broadcasting in this country. I should say, with respect, that the noble Viscount has played a considerable part in developing broadcasting in this country, not least as the principal architect—I hope I may put it that way —of the highly successful Channel 4.
I hope that in this debate we shall return to the point made just now by my noble friend Lord Thomson of Monifieth. He spoke of the principle involved in this matter. Many of us genuinely and sincerely feel that we are most concerned about the principle that is involved here. What impressed me particularly about the argument of the noble Earl, Lord Stockton, was that he based it entirely on the principle involved and did not allow himself to be diverted by unfortunate references to particular personalities and companies. That point has also been emphasised by other noble Lords in previous debates on these matters.
The principle is a simple one. As has been said, it has been supported consistently by successive governments of different complexions over the years and indeed for more than three decades since commercial television began in Britain. That principle states that cross-ownership of newspapers and television interests should be strictly controlled to prevent them from being held in too few hands. That is why we have had the rule that national newspaper owners may not own more than 20 per cent. of a commercial television company and vice versa. The present Government have held to that principle and are applying it to ITV or Channel 3, to the new Channel 5 and to domestic satellite channels. That of course covers the British Satellite Broadcasting channels. Only in the case of what are called non-domestic satellite services have the Government abandoned that principle. There is no basis in logic for that decision of the Government. It was argued at one time that the Government could not extend the regulations to those services because they were outside the jurisdiction of our courts. That argument has been shown to have been misconceived.
It was also argued that jobs in Britain would be lost if the rule were applied to those services because, it was alleged, they would move to places abroad. That argument does not hold up either. It was also suggested that, if the 20 per cent. rule was extended to cover those non-domestic satellite services, existing services which were in breach of the rule would have to be sold when they became viable and that those who had set up those services would be penalised—that was the way it was put—because of their success. However, as has been stated, once viability was achieved, the business would be just as attractive and valuable to new bidders as to the existing owners. Therefore the existing owners would not lose out nor would jobs be lost because, with the newspaper 205 interests involved still based in this country, they could not get round the rules by threatening to remove television jobs to other countries elsewhere in Europe.
It has also been argued that new satellite services will be so numerous in the years ahead—this is the new technology argument that has been advanced on various sides—that it will be quite unnecessary to deal with them in the way that terrestrial services have been dealt with and that therefore there should be no restriction of the 20 per cent. kind in relation to them. However, as the Chief Executive of Channel 4, Mr. Michael Grade, pointed out in an excellent article in the Daily Telegraph on 5th June 1990—the very day on which we in this House had our Second Reading debate on the Broadcasting Bill:If there are going to be many more opportunities to provide satellite television channels, then we should be keener than ever to prevent concentration of ownership. The maintenance of cross-ownership rules will make for more, not less, diversity of new entrants".The logic of that is inescapable. What is more, that logic is wholly in line with the present Government's philosophy —greater choice, wider ownership, more freedom. That is why it is so hard—indeed, I venture to suggest, impossible—to understand why the Government have abandoned their philosophy and principle in relation to just one form—one form only —of the communications media. Either there should be no regulation and restriction at all —my noble friend Lord Thomson of Monifieth explored that possibility and it would at least have the logic of consistency to commend it and would in a sense be fair to all—or, if there is a case in the public interest for some regulation and restriction—clearly the Government believe that there is such a case, otherwise they would not continue to apply it to ITV/Channel 3, to Channel 5 and to the BSB channels —then that too should be fair to all and applied to all.
I hope that the Minister will either accept the amendment of his noble friend Lord Stockton tonight or will agree to look at the matter again with a view to bringing forward a government amendment.
§ Lord Annan
My Lords, there is one fundamental question before us tonight; namely, whether things have changed since 1964 on the question of cross-media ownership. I think we have evidence that they have changed. A year ago, the revolutions in East Europe began. They were fuelled by two agents. The first was the Lutheran Church in East Germany and the Catholic Church in Poland and the second was, I think, television. It was impossible any longer for opinion to be controlled in those countries and it seems to me unlikely that opinion can be controlled in this country by any one person who is an owner of newspapers and television.
§ Viscount Eccles
My Lords, perhaps I may add a few words to what the noble Lord, Lord Annan, said. Twenty years ago, I had a striking lesson in the power of international news services. At a UNESCO conference in Helsinki the Russians asked for powers to stop ideas crossing their borders. Their Minister of Culture—a beautiful and able woman, Ekaterina 206 Furtseva—told me the reason why her Government wanted to have those powers. She said, "The day may come when television programmes can be bounced off satellites and when that happens Communism may be completely undermined". I have never forgotten that prophecy.
What really matters now is our stake in the international news services. We have plenty of choice at home, but we want the power in international services to maintain English as the world language and to spread the values of free democracy. That takes a great deal of money, but it also takes something else. It takes the experience to gather news—accurate news, not false news. That is why I do not see why a newspaper which has had that experience should be excluded from owning a television channel now that television is, I suppose, the most powerful and penetrating of all international aggressors. So, to say that we should reduce our capacity to compete with success in the realm of international news is a very old-fashioned and foolish thing to do.
§ 6.45 p.m.
§ Baroness Blackstone
My Lords, the noble Lord, Lord Boyd-Carpenter, was a little premature in his remarks in suggesting that no one who had not put their name to the amendment wished to speak. It was simply that some of us on this side of the House were a little slower to get to our feet.
I am not quite clear about the relevance of the remarks of the noble Viscount, Lord Eccles, to the debate as it seems to me that the issue is about having one set of rules for one lot of newspaper owners and another set of rules for a different lot of newspaper owners. I very much regret that terms like "humbug" and "hate figure" have been used in the debate. They seem to be wholly inappropriate. I should like to agree with what the noble Lord, Lord Thomson of Monifieth, said earlier; namely, that it is no intention of those who support the amendment to eliminate Sky TV. Again, I regret that motives which are certainly not there should be read into the words of those who support the amendment.
The reason for tabling the amendment relates to the very centre and purpose of the Bill. The Bill is about diversity and choice. The group of amendments is also about diversity and choice. It is not about hate figures or individuals. It is because it is about diversity and choice that it is totally consistent with the general tenor of the Bill.
There is, I believe, general agreement that it is dangerous and undesirable to concentrate the control of news and information in a very few hands. It can, at least potentially, give enormous power to a very small number of individuals to manipulate their readers and their audiences. The Government say that they are in favour of competition. Surely it is desirable to have as much diversity as possible in relation to newspaper, radio and television ownership.
At the Committee stage of the Bill the principle of applying the same regulations to non-domestic satellite as to domestic satellite broadcasters was debated at length. I heard no convincing arguments 207 that they should be treated differently as a matter of principle. Perhaps speakers on the Government side —indeed, perhaps the Minister—could tell us today why a difference of principle should be applied to different categories of broadcasters.
However, there were a number of arguments about the practical application of amendments on this matter that were put down at Committee stage—for example, in relation to the difficulties of measuring and policing percentages of audience penetration. There were also arguments about News International having to sell an asset involving massive investment which had not yet had a chance to become profitable —arguments repeated earlier this afternoon by the noble Viscount, Lord Whitelaw. I greatly regret that he has re-invented the arguments about witch-hunts. I hate to disagree with the noble Viscount, but I should like to say that no one who supports the amendments wishes to have a witch-hunt. It is he and others who have made that suggestion who are being disingenuous rather than those backing the amendments.
Today's amendment tries to deal, perhaps not 100 per cent. successfully, with those problems that were discussed at the Committee stage. It is more straightforward and easier to implement than the amendments put forward at that time. It sets a clear time limit by which divestment must take place. At that time Sky, according to its own projections, will be in profit—very much in profit.
The 20 per cent. limit applied after 1st January 1993 means. or ought to mean, that a more diverse pattern of ownership will become possible. Surely that must be desirable, given the considerable concentration of power that already exists with respect to newspaper ownership. As has already been said by a number of noble Lords in this debate, other countries make regulations to prevent cross-media ownership and to encourage the plurality on which democracy is based. We must surely do the same, and do it right across the board. I very much agree with the noble Lord, Lord Blake. We must apply the principle across the board or not apply it at all; otherwise it is totally illogical.
We must apply this principle not just in the interest of fair less between broadcasters but in the long-term interests of the nation. I beg your Lordships' House to accept these amendments.
§ Lord Colwyn
My Lords, it seems to me that the Government are right and correct to draw a distinction between the ownership policies that should apply to ITV and BSB and those which should apply to the new world of broadcasting using international channels. Where there were four channels there are now 17 English language channels and a dozen others available in German, Italian and French. Without a doubt this will increase, giving us, as the English language capital of the world, tremendous opportunities in Europe and further afield. The amendments introduced this afternoon and this evening ask the same old questions: who owns satellite TV and who controls satellite TV?
There is a need for many different owners with drive and imagination to start new channels. So long 208 as it is possible to ensure that nobody controls more than a certain number of the channels available, multiple ownership should be encouraged. As the Sky channels become more successful we can expect to see more and more programmers taking advantage of the distribution system that Mr. Murdoch is promoting. On the other hand, BSB has been given a monopoly of the five British channels for direct satellite broadcasting. No one else can gain access to BSB's system to offer alternative programmes to those who have a BSB receiver. BSB is the gatekeeper of the system and nobody else can pass.
Yet, should BSB wish, it could rent channels on the Astra satellite and compete with Mr. Murdoch using Mr. Murdoch's own dishes. That is because Astra is an open system. Sky and the other Astra programmers have no ability to transmit into BSB's dishes. As Andrew Knight put it in the Daily Telegraph on 9th July this year:The broadcasting spectrum is no longer an acutely scarce resource, too dangerous to put into the hands of over-mighty men".It is no longer the case that ownership of a broadcasting station means influencing the people. Pluralism is the key to multichannel ownership. When there were only two ITV companies with local franchised monopolies it was right that newspaper owners should not own more than 20 per cent. of any of the monopolies. All that has changed. Thanks to W.H. Smith, News International, BSB and others, there is an availability of channels. The problem will be filling them.
The proliferation of channels is breaking down the present monopoly in television. The Sky news channel, which has won widespread praise from all political sectors, has introduced a wider concept of television news in competition with the previous duopoly. A similar situation is taking place in films, light entertainment and sport.
In view of this technological advance, it seems to me that the only restriction on a newspaper owner or any investor in satellite channels should be to a certain number of channels. I hope that newspaper owners will be encouraged to transfer into television their resources in news, information and entertainment. If we force Mr. Murdoch to sell Sky we run a grave risk that Britain will be left on the sidelines as satellite television develops across Europe. BSB, as it constantly reminds us, is a British service. Mr. Murdoch, on the other hand, is developing his London base as a centre to transmit programmes throughout Eastern and Western Europe. Such innovations as Eurosport, which transmits to 20 million homes in Eastern and Western Europe simultaneously in three languages, would be threatened.
In conclusion, none of us can tell the future. I believe that we are at the beginning of a great renaissance of broadcasting which will deliver the competition, quality and choice that I and my friends wish to see. As has been seen in Eastern Europe, the proliferation of satellite television has made the 209 domination of news and opinion by anybody literally and physically impossible. For that reason I ask your Lordships to oppose the amendments.
My Lords, the set of amendments which my noble friend Lord Stockton introduced deal with an extremely important and highly contentious argument which has surfaced at all stages of the Bill. We have heard again today the strong views that have been held on all sides. One side says that what is happening at the moment produces variety. The noble Baroness, Lady Blackstone, says that this amendment would produce variety. It is quite difficult to know how to marry together those two arguments.
It has always been the view of the Government that the 20 per cent. limit on newspaper interests which would apply to satellites using UK broadcasting frequencies would not apply to satellite services which are receivable in the United Kingdom but which are not using broadcasting frequencies that are internationally allocated to the United Kingdom. My noble friend Lord Stockton, the noble Lord, Lord Boston of Faversham, and my noble friend Lord Blake argued that in some way that was inconsistent and illogical. What is sauce for the goose is sauce for the gander and the same rules should apply to both DBS and non-DBS satellite services. I understand that argument but the difficulty is that it simply does not compare like with like.
I want to make it quite clear that the Government's position has nothing to do with the technological differences between different kinds of satellite services. I hope I shall be able to explain it to my noble friend Lord Blake and the noble Lord, Lord Boston, who said that it was difficult to understand the Government's attitude and that it had no logic to it.
The position is that for the foreseeable future the United Kingdom is restricted by international agreement to a maximum of five DBS channels, all of which have been allocated by the IBA to the BSB, thereby giving British Satellite Broadcasting a monopoly. In contrast, non-DBS satellite channels have developed largely outside United Kingdom broadcasting regulations. What is significant here is that in this context there are potentially very many outlets indeed. As my noble friend Lord Colwyn said, there are 16 channels available on the satellite Astra. Astra II is promised. There is talk of eventually 48 or more channels from Astra. There are other satellites too. One estimate is that by 1992 there will be at least 160 transponders which will be capable of carrying satellite TV channels in Europe.
It follows from this that there is potentially an almost open-ended scope for non-DBS satellite channels under diverse ownership. Already significant investors in non-DBS satellite channels which can be received in the United Kingdom include not just News International but also Maxwell Communications, BT (Vision), W.H. Smith, D.C. Thomson, United Cable and a number of ITV companies.
The case for restricting ownership is therefore simply not the same for non-DBS satellite services as 210 it is in the case of the five DBS channels which are under a single owner. In that respect the position of DBS is much closer to the terrestrial channels than is that of non-DBS services. Both the DBS services—that is, British Satellite Broadcasting of course—and the terrestrial channels, which are 3, 4 and 5, are limited by spectrum scarcity whereas non-DBS services are not.
My noble friend Lord Stockton said with total and, in my view, misguided confidence that there is no justification for different rules for DBS and non-DBS satellite services. My noble friend is entitled to his view. I disagree with him. When one switches on a DBS service one hooks onto a monopoly. When one switches on a non-DBS service one hooks onto a variety of different services under different ownership.
My noble friend Lord Stockton said that his amendment is fair. I respectfully disagree with him. In the Government's view it would be quite wrong to jeopardise the increase in viewers' choice which is offered by the Sky channels by suddenly moving the goalposts in such a way as to force News International to choose between its newspaper or its satellite ownership. The owners of Sky have embarked on an enterprise of enormous expense, effort and great risk. It is one upon which they have embarked quite legally and it has created significant numbers of new jobs in England and Scotland as well as providing new television services for many viewers. If my noble friend's amendment were to be accepted, all that would suddenly stop and News International would be made to divest itself of 80 per cent. of that which it has built up painstakingly, legitimately and at great risk. My noble friend Lord Stockton says that that is fair. I should like to say to him that I am very glad he is not a judge.
We see no sufficient argument of principle and every practical disadvantage in enforcing separation between newspapers and non-DBS satellite services after an arbitrary date. I am told, for instance, that if News International were forced to prepare Sky for sale, one of the first things that it would have to do would be to close down Sky News. That is a service which, as my noble friend Lord Whitelaw said, has been widely acclaimed even though it is unlikely to be profitable until the late 1990s. To enforce the closure of a high risk but respected venture is certainly not in the viewers' interest. It would narrow and not increase choice.
The noble Baroness, Lady Birk, said that the amendment is not about Sky and Murdoch. Whatever the long-term philosophies, it is difficult to escape the fact that it is an area where Mr. Murdoch is the main target.
I find it hard to accept the argument that where people have quite legitimately seized entrepreneurial opportunities and invested in them sometimes at a minus return for many years, they should then be told to divest themselves of their work. Who will be the buyers? The worst scenario is that there may be none, in which case the enterprise closes. If my noble friend's 211 amendment were to be accepted, I suggest that the result would certainly be the closure of Sky News and perhaps of all Sky Television.
I do not believe that that can be considered as acceptable, fair or is even called for. It is not a question of personalising the argument or of taking sides between BSB and Sky. Experience shows that it is a great mistake for governments to try to back winners. In the Bill we are trying specifically not to do so. The Government's position simply recognises the genuine differences in development and number of outlets between direct broadcasting satellites and the non-direct broadcasting satellite services.
My noble friend's later amendments latch onto and are part of this provision. They seek to make it a criminal offence for those in the United Kingdom to advertise on or otherwise support foreign satellite services targeted at the United Kingdom simply because newspapers happen to have interests of more than 20 per cent. in those services. I believe that that is a draconian measure. I believe that the logic of my noble friend's argument does not stand up in terms of enterprise, fairness or consumer choice. Its raison d'être relies on the view that there should be the same application of standards for two sources which are totally different. In that respect I believe that it is wholly flawed. I invite your Lordships not to agree to the amendment.
§ 7 p.m.
The Earl of Stockton
My Lords, it is extraordinary that throughout the remainder of the Bill in endless lists and categories the Minister itemises the various categories of broadcaster; and in every one, save on this issue, the non-domestic satellite is on the list. It is unrealistic to say that the playing field is different. The playing field should be level.
My noble friends on this side of the House—including my noble friends Lord Boyd-Carpenter and Lord St. John of Fawsley—have said that if the amend Trent is carried News International may have to close down the news channel. Any businessman decides the future of his business on an understanding of the market in which he operates. He does so on the basis that it is a single, fair and finite market, not one that favours some and inhibits others. If Sky News can operate in a fair market, then it is up to News International to decide whether or not it will continue.
I believe that my noble friend Lord Whitelaw would have done better to examine the realities rather than imputing dishonourable motives to me since I have no connection with any of the satellite broadcasting systems. The noble Lord, Lord Harris, asked me to look further into the future. I fear that his horizon may be limited by the next general election.
It astounds me that the support that my noble friends on this side of the House have given the Government is not extended to removing the cross-media controls from DBS satellite broadcasters, Channel 3 or Channel 5. If there is humbug, that is real humbug. It comes as no surprise to me that my noble friends, who have strong views about the bias 212 that they claim is exhibited by terrestrial broadcasters against the Government, are quite happy to swallow such humbug and in such quantities.
I do not accept the nice attempt by the noble Lord, Lord Boyd-Carpenter, to throw me out of court as having no support in your Lordships' House. I have to ask that. the House make its decision.
§ 7.7 p.m.
§ On Question, Whether the said amendment (No. 36) shall be agreed to?
§ Their Lordships divided: Contents, 74; Not-Contents, 124.213
|Division No. 2|
|Airedale, L.||Jay, L.|
|Alport, L||Jeger, B.|
|Ampthill, L.||Jenkins of Hillhead, L.|
|Ardwick, L,||Jenkins of Putney, L.|
|Aylestone, L.||Kilbracken, L.|
|Birk, B.||Kilmarnock, L.|
|Blackstone, B.||Kirkhill, L.|
|Blake, L.||Liverpool, Bp.|
|Blakenham, V.||Longford, E.|
|Blease, L.||Macaulay of Bragar, L.|
|Bonham-Carter, L.||McIntosh of Haringey, L.|
|Boston of Faversham, L.||Mackie of Benshie, L.|
|Bridges, L.||Morris of Castle Morris, L.|
|Buxton of Alsa, L.||Nicol, B.|
|Carmichael of Kelvingrove, L.||Ogmore, L.|
|Carter, L.||Oram, L.|
|Cledwyn of Penrhos, L.||Parry, L.|
|Cocks of Hartcliffe, L.||Pitt of Hampstead, L.|
|Darcy (de Knayth), B.||Prys-Davies, L.|
|David, B.||Rea, L.|
|Dean of Beswick, L.||Ritchie of Dundee, L.|
|Donoughue, L.||Rochester, L.|
|Dormand of Easington, L.||Ross of Newport, L.|
|Ewart-Biggs, B.||Seear, B.|
|Faithfull, B.||Sharples, B.|
|Foot, L.||Shaughnessy, L,|
|Gallacher, L.||Stockton, E. [Teller.]|
|Galpern, L.||Stoddart of Swindon, L.|
|Gladwyn, L.||Taylor of Blackburn, L.|
|Graham of Edmonton, L.||Thomson of Monifieth, L.|
|Grey, E.||Turner of Camden, B.|
|Hampton, L.||Walpole, L.|
|Hatch of Lusby, L.||White, B.|
|Henderson of Brompton, L.||Wigoder, L.|
|Hollis of Heigham, B.||Winchilsea and Nottingham, E.|
|Hooson, L.||Winstanley, L.|
|Houghton of Sowerby, L.|
|Arran, E.||Campbell of Croy, L.|
|Auckland, L.||Carnegy of Lour, B.|
|Balfour, E.||Cavendish of Furness, L.|
|Beloff, L.||Clanwilliam, E.|
|Belstead, L.||Clifford of Chudleigh, L.|
|Bessborough, E.||Colwyn, L.|
|Blatch, B.||Cox, B.|
|Bledisloe, V.||Craigavon, V.|
|Blyth, L.||Craigmyle, L.|
|Boardman, L.||Crickhowell, L.|
|Borthwick, L.||Davidson, V. [Teller.]|
|Boyd-Carpenter, L.||De L'Isle, V.|
|Brabazon of Tara, L.||Denham, L. [Teller.]|
|Brigstocke, B.||Denman, L.|
|Broadbridge, L.||Dilhorne, V.|
|Brookes, L.||Eccles, V.|
|Brougham and Vaux, L.||Eccles of Moulton, B.|
|Butterworth, L.||Eden of Winton, L.|
|Caithness, E.||Elles, B.|
|Caldecote, V.||Elliot of Harwood, B.|
|Ferrers, E.||Murton of Lindisfarne, L.|
|Gainford, L.||Napier and Ettrick, L.|
|Goold, L.||Newall, L.|
|Greenway, L.||Newcastle, Bp.|
|Hailsham of||Norrie, L.|
|Saint Marylebone, L.||Northbourne, L.|
|Halsbury, E.||Nugent of Guildford, L.|
|Hardinge of Penshurst, L.||Orkney, E.|
|Harmar-Nicholls, L.||Orr-Ewing, L.|
|Harris of High Cross, L.||Oxfuird, V.|
|Harrowby, E.||Park of Monmouth, B.|
|Harvington, L.||Pearson of Rannoch, L.|
|Hastings, L.||Peyton of Yeovil, L.|
|Hemphill, L.||Polwarth, L.|
|Henley, L.||Prior, L.|
|Hesketh, L.||Reay, L.|
|Hives, L.||Rees, L.|
|Hunter of Newington, L.||Renton, L.|
|Hylton-Foster, B.||Renwick, L.|
|Iddesleigh, E.||Romney, E.|
|Ingrow, L.||St. John of Bletso, L.|
|Jenkin of Roding, L.||St. John of Fawsley, L.|
|Johnston of Rockport, L.||Skelmersdale, L.|
|Kinloss, Ly.||Stodart of Leaston, L.|
|Lauderdale, E.||Strange, B.|
|Layton, L.||Strathclyde, L.|
|Lindsey and Abingdon, E.||Strathmore and Kinghorne, E.|
|Lloyd of Hampstead, L.||Sudeley, L.|
|Long, V.||Swinfen, L.|
|Lonsdale, E.||Swinton, E.|
|Lyell, L.||Torrington, V.|
|McColl of Dulwich, L.||Tranmire, L.|
|Mackay of Clashfern, L.||Trumpington, B.|
|Macleod of Borve, B.||Tryon, L.|
|Margadale, L.||Ullswater, V.|
|Merrivale, L.||Vaux of Harrowden, L.|
|Mersey, V.||Wade of Chorlton, L.|
|Milverton, L.||Whitelaw, V.|
|Monk Bretton, L.||Wise, L.|
|Monson, L.||Wyatt of Weeford, L.|
|Morris, L.||Wynford, L.|
|Moyne, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.15 p.m.
§ [Amendments Nos. 37 to 46 not moved.]
§ Clause 14 [Establishment of Channel 3]:
§ [Amendment No. 47 not moved.]
§ Clause 15 [Applications for Channel 3 licences]:
Earl Ferrers moved Amendment No. 48:
Page 13, line 27, at end insert:
("(bb) the applicant's proposals for promoting the understanding and enjoyment by—
§ The noble Earl said: My Lords, in moving Amendment No. 48 I shall speak also to Amendments Nos. 50, 53, 110, 147 and 185. During the Committee stage my noble friend Lord Ullswater undertook to consider how the Bill might be amended to include a provision which would give greater access to television services for those with disabilities of hearing and sight. The Government's Amendment No. 48 gives effect to that undertaking. It requires an applicant for a Channel 3 or Channel 5 licence to indicate in his application the extent to which he would seek to promote greater access to his service for people with 214 disabilities in relation to hearing and sight.
§ Amendment No. 110 enables any such undertakings to be included as licence conditions
§ It may be as well if I speak to the other amendments. I hope that my noble friend Lady Darcy (de Knayth) will forgive me if I make one or two observations about her amendments which she will move later. Her Amendment No. 49 invites the applicant to indicate what provision he will make in relation to sign language. Amendments No. 50 and 53 in the name of the noble Lord, Lord Thomson, require applicants to indicate their proposals for providing audio descriptive services. Amendment No. 185 requires the ITC to conduct research relating to such services.
§ What is at issue here is whether the Bill should refer specifically to the provision of an audio descriptive service for those with sight difficulties and the provision of sign language for those among the severely deaf for whom sign language is the primary or only means of communication. I think that we would all agree that the potential of these two services has been much less tested in the context of television than has the provision of subtitling. That is now a well-developed system with a large and appreciative audience.
§ We cannot know the extent to which audio descriptive or sign language programmes will be taken up until we provide them. But I think that the nature of the technology associated with audio descriptive services, and the implication in terms of screen usage for sign language coupled with our lack of knowledge of the likely demand for these services, inevitably mean that it would not be sensible to contemplate the same kind of statutory provision for them as we have done for subtitling services. I do not, for example, think that it would be sensible to set targets for audio descriptive services or sign language services in the Bill. We could not at this stage impose the kind of target that we have for subtitling, nor could we set any realistic dates by which those targets could be met. There are just too many unknowns.
§ I am unattracted to the idea of giving the ITC a power to impose requirements on licensees during the course of the licence period. It seems unreasonable to expect a licensee to bid for a licence without being aware of the likely requirements which he will face. We have to balance the legitimate expectations of those who suffer from sight or hearing disabilities against the legitimate right of licensees who will have to bid for their licences and for whom requirements of this nature would represent a substantial additional financial commitment, to know precisely what is expected of them.
§ In that connection it is worth bearing in mind that some 4 million people are deaf or hard of hearing but nevertheless they can benefit from subtitling. And yet, only 50,000 are so disadvantaged that sign language alone would meet that need. While that disability must be acutely inconvenient, we must recognise that there are limits to the obligations which can be placed upon television companies. Subtitling can be made available 215 only to those who wish to see it while signing superimposes itself upon the television screen and is obliged to be seen by all.
§ For those reasons we have brought forward the amendment standing in my name. The advantage of that approach is that the licensee would give the undertaking and that undertaking would then be incorporated into the licence conditions under Clause 32. Therefore, it would be for the licensee to determine exactly what he could reasonably offer in that connection.
§ I understand that an audio descriptive service may need the use of up to one VVI line for its transmission. Amendment No. 147 in the name of the noble Lord, Lord Thomson, makes provision for that. I can tell the noble Lord that his amendment is unnecessary because Clause 47(3) (c) already gives the ITC power to reserve spare capacity for services which are ancillary to programmes included in the service. It could certainly use that provision to allocate spare capacity for the purposes of an audio descriptive service. I beg to move.
Bareness Darcy (de Knayth) moved as an amendment to Amendment No. 48, Amendment No. 49:
[As amendments to the above amendment]
Line 4, after ("hearing") insert ("including those who use sign-language").
§ The noble Baroness said: My Lords, I should like to say immediately that the Minister's amendment is very welcome, particularly as no commitment was made in Committee in relation to deaf viewers.
§ Before saying why I feel that we need Amendment No. 49, the purpose of which is to include reference to sign language in the Bill, let me say that I appreciate that: he Minister obviously discussed all the amendments together because his amendment refers to both disabilities. However, it would be helpful if we discuss my amendment on its own, come to a decision on it and then debate the amendment in the name of the noble Lord, Lord Thomson. He and I are totally in agreement about that because the amendments deal with totally different issues.
§ Amendment No. 49 has all-party support and the organisations for deaf people—in particular, Deaf Accord, which includes the British Deaf Association and the Deaf Broadcasting Council—feel that it is essential if the government amendment is to have its desired effect in respect of deaf people who use sign language.
§ I feel that the Minister is right to place the requirement on the applicant. I have little doubt that he intends his amendment to cover sign language. He made that clear at our meeting in September and has said that again today. Why are we so convinced that our amendment is necessary and that we need to write sign language on the face of the Bill? If our amendment is agreed to, it will insert the first and only reference to sign language in the 260-odd pages of the Bill. The whole of Clause 34 refers to subtitling for the 216 deaf which is most welcome. As the Minister has already said, the vast majority of deaf viewers will benefit enormously from the subtitling provision.
§ If no reference to sign language is made in the Bill, there is a very real possibility that applicants will think simply in terms of more subtitling when considering what to do to promote deaf people's understanding and enjoyment of programmes. Completely new applicants may well be unaware of sign language and not think of providing it. Other applicants may take the easy option of forgetting about sign language as competition intensifies. Our amendment does not oblige prospective licence holders to include proposals for sign language in their applications any more than the government amendment does. It ensures only that signing is considered as an option.
§ The Minister said that he was against setting targets. The amendment imposes no minimum requirement and no scheduled timing. Deaf sign users would obviously hope for some access to mainstream news and information programmes. Certainly they do not expect sign language to be added to many different types of programme. It is very important to emphasise that. We are talking about only a few news and information programmes. I have been very struck by how profoundly moderate are the deaf in their aspirations. The majority of broadcasters have always been reluctant to take up the challenge of including sign language and our amendment would require them to think again.
§ Why are they so reluctant? There is the cost argument—and the Minister raised the question of cost. In fact, signing is relatively cheap. According to the 1988 figures by the BBC, one hour's ordinary news costs about £54,000 and to add signing would cost another £200; that is about 0.4 per cent. of the total. That is not very much. The report of the Select Committee on televising the other place found that there were no technical problems but that the difficult area was the aesthetic appeal. I believe that broadcasters have been unduly apprehensive about how hearing viewers would feel. In Committee on 19th July at cols. 1074–5, the noble Lord, Lord Winstanley, gave an eloquent description of how sign could both enhance viewers' appreciation of a programme and increase the interest of others in sign. Since May, Channel 4 has shown five minutes of signed news at 9 a.m. That is the first time that signed news has been shown nationally. There have been no adverse reactions and in fact viewing figures have increased although there is no evidence as to whether that is keenness to find out about the Gulf situation or interest in sign. However, the figures have not diminished in any way. Sweden has a weekly 20-minute news programme with sign and viewing figures are three times the size of the deaf population.
§ Profoundly deaf sign users are fairly isolated from events and from the hearing community. They cannot listen to the radio, many have difficulty reading newspapers or following subtitles and sign is their first language and the language with which they feel at ease. It is a visual language so that television is the perfect medium. Indeed, it is the only suitable 217 medium. The Government have acknowledged that by issuing a video in sign language on the community charge. Access to news and information would mean that sign language users would be less isolated from events and from the hearing community. This amendment would ensure that their needs are at least considered by prospective licence holders. I beg to move.
My Lords, in supporting Amendment No. 49 to which my name is attached, I welcome very warmly Amendment No. 48 moved by the noble Earl and to which Amendment No. 49 is an amendment. I acknowledge, as did the noble Baroness, that the amendment moved by the noble Earl goes a very long way towards satisfying demands or anxieties expressed by noble Lords on all sides of the House when the matter was debated in Committee.
On the question of sign language, I think I can speak from some experience. Among the many television programmes which I presented over a period of 30 years, I presented over 4,000 programmes which were signed for the deaf. That is a fairly significant number. Those were programmes of a special type; namely, information programmes. They contained information about benefits, citizens' rights and information which is absolutely essential to people with hearing impairments.
Of course I know that not all deaf people use sign language but I can testify from my experience that the presence of this lady signing the programme in the corner of the screen was not found to be obtrusive and a nuisance to others. Indeed, many viewers liked it and enjoyed the balletic quality of the movements. I remember once visiting an old lady who welcomed me warmly. She said, "Oh doctor, I love your new programmes that you are doing for people who cannot speak". That shows that what we were trying to do was not always fully understood but the fact remained that it did not destroy the enjoyment of other people from those programmes nor did it in any way interfere with the benefit which could be gained from them. What it did—and this is important—was greatly to increase the awareness of sign language not only among those with hearing impediments but also among their families and other people.
I have no doubt that those signed programmes which went out on a regular basis did a great deal to encourage people who had not previously done so to learn sign language. I am sure that was of immense benefit to the deaf, and also to the families of the deaf. I can say without fear of contradiction that I know from my own knowledge that many people with perfectly full hearing, relatives of people who are deaf, took active steps to learn sign language as a result of seeing sign language regularly on those programmes of mine.
It is true that it may not be essential to include these words in the Bill. But we should like to see something to ensure that this is a matter which is considered and is not merely one which is referred to in some kind of sympathetic way. Amendment No. 48, moved by the 218 noble Earl, is immensely valuable. We welcome it and I do not wish him to think that we do not. But the addition of these words might also be immensely helpful. I support the amendment to the amendment.
§ 7.30 p.m.
§ Lord Clifford of Chudleigh
My Lords, the noble Baroness and others have spoken admirably when proposing this amendment. All those with hearing or visual impairment must be grateful for the thought that they have given to this issue.
Noble Lords may have heard of Her Majesty's Government's intention to reduce the grant paid to the Royal National Institute for the Blind for talking books or, to be a little more precise, books in braille. I assure your Lordships that this point does relate to the amendment. Since 1979 the grant for the braille books has varied from £179,000 to £355,000 but it was frozen at £250,000 in 1984.
Six financial years have passed with the grant figure frozen at that level, so the £250,000 has been devalued by £100,000. To rub salt into the wound the grant was reduced to £200,000 for this financial year. This grant for the Royal National Institute for the Blind is abysmally small when one considers that it is helping to meet the £3.5 million spent annually by the Royal National Institute for the Blind in producing talking books or books in braille.
Very few of us—only two—saw a presentation made nearby in the Jubilee Room this morning by the Royal National Institute for the Blind. What we saw and what the noble Baroness has already mentioned, are surely worth investing in for the benefit of those with less hearing and sight than ourselves. One demonstration was of audio description, which is already practised in the United States. The federal budget allows 2 million dollars per annum, which is matched by the television programmes on a one-for-one basis. There. are also the electronic daily newspapers, in speech or braille, produced in Sweden, as we have heard already. Both require a television channel. Both therefore require some legislation by Government to ensure that the television companies provide that channel.
I am a patron of SENSE (South West) which is the National Deaf-Blind and Rubella Association. It is an organisation which cares for, teaches and trains those duo-sensory afflicted adults, the deaf-blind. Many practise manual speech using their hands and fingers as a form of communication. They would justifiably raise two fingers to those of us who will not pay attention to their plight; not as a Churchillian gesture of defiance, nor as a sign of contempt and abuse—certainly not in this noble House—but to illustrate and underline the importance of fingers. These two fingers are vowels, "I" and "E"; id est, or "that is to say" in manual speech. Without braille, using their fingers, they will not know what people say.
I beg the House to support the amendments which urge Her Majesty's Government to ensure frequency or channel allocation specifically catering for the sensory disabled in our society, and to be socially 219 sensitive and responsible in providing a realistic budget and updated grant aid for those with audio or visual disabilities.
§ Lord Swinfen
My Lords, while genuinely support-ing the amendment moved by the Minister, I should also 1ike to support the amendment to that amendment moved by the noble Baroness, Lady Darcy (de Knayth). We are not asking that sign language should be used to any great extent, just that the prospective licensees should consider the use of sign language.
On radio and television there are already a number of programmes devoted to languages of immigrants into this country; not very many, but a few. It is not known to any great extent that British sign language is the fourth British language used in the United Kingdom. English, Welsh and Scots Gaelic are the first three. We should allow those who use that fourth language as their first and only language to have some benefit from television.
One of the difficulties for those who learn British sign language as their first and only language is that it is not easily translatable into English and English into sign. Subtitles do not fill the bill as far as they are concerned. A number of those with hearing difficulties also have sight difficulties. I often find subtitles of programmes on television, particularly those in a foreign language, extremely difficult to read. The subtitling is normally in a single colour and frequently there is little or no contrast at all. It is then a waste of time. Signing in a corner of the screen has extremely good contrast and can be easily read. It does not have to be very large and is not intrusive.
It is of interest and possibly even of relevance to this debate to note that there is being published this year for the first time a dictionary of British sign language. That shows that there is a demand for it and that that demand is growing.
This afternoon I checked with the Conservative Party at its conference. I understand that signing is taking place there, probably only for a handful of people. The same took place at the conferences of the Liberals and the Labour Party. If politicians think it is worth while to provide sign interpretation for a mere handful of people attending those conferences, is it not worth while considering, on just a few programmes on television—and we are only asking for it to be considered—providing it for 50,000 potential viewers? It does not cost a great deal, as the noble Baroness Lady Darcy (de Knayth), said. It costs only about £200 an hour to add it to a film. I believe the cost of an advertisement running for 15 or 30 seconds is about £30,000. The cost is ridiculously cheap compared to that.
The Government, as we have been told, considered it worthwhile producing a video in sign. It must have resulted in the collection of a suitable amount of community charge, otherwise it would not have been worth producing. Again, sign would be extremely useful for current affairs, news programmes and documentaries. I can see absolutely no reason whatever for the amendment to the government 220 amendment not being accepted. It may be said that it is not essential, but it would make the television people think of using sign.
§ Lady Kinloss
My Lords, I support my noble friend Lady Darcy (de Knayth) in Amendment No. 49. I understand that many viewers find no inconvenience in having sign language on their screens. All the different people I have asked say they do not mind and that it does not interfere with viewing.
I also support Amendment No. 50 and my noble friend Lord Clifford of Chudleigh who has spoken of the audio-description presentation we had this morning. We saw one example from America on the screen. It is very much needed, though not for all types of programme. The dialogue-based programmes are already easy to follow but audio-description is needed principally for drama, films and serials.
Figures produced by the Royal National Institute for the Blind show that 51 per cent. of visually handicapped people cannot go out on their own; thus, information and entertainment are particularly important in their own homes. The overwhelming majority of blind people—about 90 per cent—in fact have some useful vision. Audio-description helps to make sense of what they can see. Many of those people already watch television but it can be a frustrating experience so I hope that the Government will be able to accept the amendments.
§ Baroness David
My Lords, this has been an extremely interesting short debate. It has been informative and I have learned much from it. In fact, I am rather ashamed about that because my name is on the amendment, but I have learned a lot.
The importance of sign language has been strongly highlighted by the noble Lord, Lord Winstanley, and again by the noble Lord, Lord Swinfen. I believe that if we have sign language on the screen it is also important for other people. It makes the viewers perhaps think a little about people with disabilities. There is a further important point. Many people who are severely deaf, perhaps from birth, find learning to read difficult and therefore following subtitles is not easy for them. As has been said, signs can be unobtrusive and people have not objected.
We are not asking for a financial commitment, as suggested by the Minister when he first spoke. We are only asking that people applying for licences should think about sign language. Although there are not many people involved—50,000—they are an important 50,000 and it can make a considerable difference to their lives. We should at least go this far by including the proposed words in the Bill so that the producers of programmes will have to consider sign language and be positive about it. I support the noble Baroness and, together with others, express my gratitude for the Government's amendment.
§ 7.45 p.m.
My Lords, I realise that your Lordships feel strongly about this matter, and I understand why. I am grateful to the noble Baroness, and others, for welcoming the move that we have made in our amendment.
221 Frankly, our view is that when a licensee applies for a licence he is bound to have drawn to his attention by the Independent Television Commission the requirements in the amendments which we have tabled; that is, that they are obliged to say what they are going to do to make services available to those who are deaf. In my view it is inconceivable that, if an applicant is asked what he intends to do to enable the deaf to understand the programmes, he will not consider sign language.
The noble Baroness wants to put such a requirement in the Bill because, she says, that will make applicants think about what they should do. It will give people a prod—almost lobbying them to remember sign language. One should ask whether it is right to use an Act of Parliament as a lobby or a prod when in fact applicants are obliged to say what they will do for such disabled people. It is literally inconceivable that an applicant for a licence, asked to outline what he will do, will not consider sign language.
I am glad that the noble Baroness did not seek to put a duty upon the ITC to incorporate sign language. My noble friend Lord Swinfen pointed out that it had been done at the Conservative Party and Labour Party conferences. That may be so, although I have not seen it. However, it was done without a statutory obligation to do so; it was done because it was thought to be right. I believe that licensees will take into account what is being done and the mood, and that they will be bound to say what they will do for the deaf, and that must include sign language.
My reservation is simply that I do not believe it necessarily right to push the matter in the Bill because that is using a statute for what one might call lobbying. I hope that the noble Baroness will understand and will accept that the obligation is there for applicants to outline their intentions.
§ Lord Henderson of Brompton
My Lords, will the noble Earl think again about the use of the word "lobbying". I cannot see that there is any lobbying at all. If the noble Earl objects to accepting the words proposed by the noble Baroness will he perhaps consider writing a letter or putting in so many words outside the Bill, that signing should be considered by applicants? That assurance would greatly help those of us who feel strongly that the wording should be incorporated in the Bill but who appreciate the force of his arguments.
None of us has the noble Earl's confidence—I certainly have not—that applicants will be bound to say what they are doing about signing. I do not think that will necessarily be so. However, if the noble Earl will be good enough to say that he will write a letter, or somehow make the consideration of signing an obligation when applying, that would be of considerable assistance.
My Lords, of course I will reconsider the word "lobbying". It was a colloquialism which I used in an endeavour to suggest that the amendment was being used to draw attention to something that in 222 any case would be taken into account. I shall certainly see what I can do to meet the request made by the noble Lord, Lord Henderson. I shall write to him and outline what is expected should be done. I hope that that assurance will satisfy both the noble Lord and the noble Baroness.
I am wholly at one with the desire of noble Lords but my sole reservation concerns putting something on the face of the Bill when an obligation is already there.
Baroness Darcy (de Knayth)
My Lords, I thank all who have taken part in this debate and for the universal support I have received. I shall not single out any speaker in particular because I am sure that we all want to move swiftly to supper.
I am disappointed with the noble Earl's reply. I was rather shocked by his use of the word "lobbying". I am glad that he is reconsidering it. To me it is a question of redressing the balance. The noble Earl said that when people apply for a licence they will be obliged to say what will be provided. He said that it is literally inconceivable that they will not think of sign.
In trying to explain this amendment I thought I made it clear that I find it totally conceivable that people will not think of sign. I talk about redressing the balance. The whole of Clause 34 deals with subtitling for the deaf. We are very grateful that 50 per cent. of programmes will have to be subtitled within five years of the new franchises. That is wonderful for the vast majority of deaf people who will benefit. However, there is not one mention of the words "sign languages" in the Bill. As the noble Baroness, Lady David, said, 50,000 is a small number of people, but they are important people. For 50,000 viewers their first or main language is sign. As the noble Lord, Lord Swinfen, said, it is a British language and it is the fourth British language.
A small number of people are involved. I am increasingly convinced by this reluctance to write the words into the Bill. However, unless we encourage the franchise holders to be positive, this group of people may perhaps never be fully able to understand television. I ask the noble Earl to go a little further than his remarks to my noble friend, Lord Henderson. Will he agree to instruct the ITC to write in its illustrative guidelines that sign language must be one of its considerations? If he cannot answer that question for me I shall have to test the opinion of the House. A letter will not be enough.
My Lords, I quite see the problem that the noble Baroness has described. I was reluctant to rise to my feet because I was cogitating the request which she made to me as to whether it would be suitable to instruct the ITC.
My Lords, it would be difficult for me to instruct the ITC because I do not think it would be appropriate for a Minister to instruct such a commission. However, I am prepared to invite it to 223 consider this matter. I shall invite it to include that provision into the codes. If that meets the noble Baroness's position I should be grateful.
Bareness Darcy (de Knayth)
My Lords, I am grateful for the noble Earl's reply. I am in something of a quandary. I think that there is enough doubt. There has been so much evidence of broadcasters being reluctant to provide sign. I know that the situation is getting a little better. I must test the opinion of the House.
§ 7.53 p.m.
§ The Deputy Speaker (Lord Alport)
My Lords, the Question is that Amendment No. 49 be agreed to. As many as are of that opinion will say "Content"; to the Contrary "Not-content". I think the "Not-Contents" have it. Clear the Bar.
Tellers for the "Contents" have not been appointed pursuant to Standing Order No. 51. A Division therefore, cannot take place, and I declare that the "Not-Contents" have it.
§ Amendment negatived.
Lord Thomson of Monifieth moved as an amendment to Amendment No. 48, Amendment No. 50:
Line 5, after ("partially-sighted") insert ("with particular reference to descriptive services").
§ The noble Lord said: My Lords, I beg to move this amendment standing in my name and that of my colleagues. I begin, as others have done, by thanking the Government warmly for tabling the amendment that the noble Earl has moved in response to our debate at Committee stage. I would like the noble Earl to recognise that we are grateful. The purpose of this amendment is simply to strengthen the noble Earl's amendment and to put in a specific reference to what are now known as descriptive services.
Like other noble Lords who have spoken, I had the privilege the other day of seeing the descriptive services' operation in action. It was a poignant experience for me because it involved donning a pair of special glasses which put one in the position of being a person who is 75 per cent. blind. I then watched a television programme through those glasses with the help of the descriptive services. I am bound to say that it made a dramatic difference to the comprehension, enjoyment and understanding of that programme.
As a result of the discussions about the descriptive services at the Committee stage of this Bill, an immense impetus was given to various organisations to progress the technology of audio-description. It is now certainly the view of the Royal National Institute for the Blind that audio-description is now technically feasible in this country. I therefore move the amendment with the specific purpose of seeking to encourage this hopeful but relatively new development.
§ I should like to speak also to Amendment No. 147. Its purpose is to require the ITC to have regard to the need for information services for blind and partially 224 sighted people to be provided before deciding how much spare capacity in the television signal is available for sale by auction. Under Chapter 5 of the Bill the ITC is required to auction off spare capacity in the television signal. The Royal National Institute for the Blind believes that this kind of provision is essential. If it was left to join the auction and enter the highest bid it would be a formidable obstacle to offering this kind of help.
That is the background to the amendments. It was not quite clear to me from what the noble Earl said in his introductory words whether he felt that my second amendment was not necessary because the ITC already has the powers. I would however press the importance, as the noble Baroness has done in another context, of encouraging the ITC in this case to take steps to ensure that the needs of the blind and the poorly sighted are dealt with fairly and properly before the commercial disposal of the various other channels takes place. I beg to move.
§ 8 p.m.
§ Baroness Ewart-Biggs
My Lords, I support the amendment to which my name is attached. I am very happy to see the government amendment. I would have been even happier to see a more specific requirement. It is important to use new ideas for the benefit of the people who need them most. There must be encouragement to push innovative developments; otherwise they are often ignored. It is important that the amendment should specify what we should like to see to assist the blind. The noble Lord, Lord Thomson, has described how these descriptive services operate and how effective they are.
A great deal of research has gone on in America where the development has been found very useful. It included in the all-important world of television people who either cannot see at all or who have very poor eyesight. So many things are barred from them. This development will help older people who cannot get out. They will be able to follow what is happening on television without frustration. It is worth pointing out that not all programmes require audio description. It would be needed principally for feature films, television movies, comedy, drama and serials. That represented only 34 per cent. of ITV's programme transmission in 1989. I hope that the Minister will regard the amendment in a favourable light.
My Lords, I hope that the noble Earl will make a sympathetic reply to the amendment moved by my noble friend Lord Thomson. However, my hopes are not buoyed by the realisation that at the moment the Government allow a registered blind person a rebate of £1.50 on a television licence otherwise costing £71. That does not seem to indicate an immense amount of sympathy on the part of the Government for the blind. Can the noble Earl comment on that point when he replies?
My Lords, perhaps I may deal first with the last of the questions asked by the noble Lord, 225 Lord Thomson. He said that he was not quite certain about the position. I shall try to put him clearly in the picture with regard to Amendment No. 147 which comes later. An audio-descriptive service may need the use of up to one VBI line for its transmission. The noble Lord's amendment is not necessary because Clause 47(3)(c) gives the Independent Television Commission power to reserve that kind of capacity for services which are ancillary to programmes included in the service. It could certainly use that provision to allocate spare capacity for the purposes of an audio-descriptive service. But it could not do it for downloading for the Guardian.
A blind person would presumably need only a black and white television licence which is consider-ably less expensive than the colour licence. That is the answer to the question asked by the noble Lord, Lord Winstanley.
I understand the concerns lying behind the amendment. I am wholly with noble Lords in wanting to see help given to the blind or deaf. It is difficult to include a provision about audio-descriptive services on the face of the Bill because this is a new technology. It has not been wholly perfected. It is mostly operative in another country. I do not believe that we have many such services here. Therefore it is difficult to include such a provision on the face of the Bill. However, I shall get in touch with the IBA and ask whether it can specifically draw attention in its guidance to sign language and to audio-descriptive services. If we can do that I hope that we shall satisfy the concerns of the noble Lord, Lord Thomson, and the noble Baroness, Lady Darcy (de Knayth). I shall get in touch with the IBA and let both the noble Lord and the noble Baroness know the outcome. I hope that that meets the noble Lord's concerns.
§ Lord Thomson of Monifieth
My Lords, I did not mention the digital newspaper to which the noble Earl referred. Can he explain why that would be outside the scope of the Bill if the ITC decided to allocate frequencies to it? It would be a tremendous boon for blind people. I was very impressed by what I saw of it.
My Lords, this is a technical matter concerning spare space on lines already allocated which can be used at times of the night. I do not profess to be an engineer. One has almost to be an engineer to understand these wretched things. That is why they could not come under the Bill. I shall certainly give the noble Lord a more detailed and accurate assessment.
§ Lord Thomson of Monifieth
My Lords, I thank the noble Earl for that answer. In the light of the major assurances about getting in touch with the new shadow ITC and inviting it to make applicants aware of both the sign language provisions and the new technological developments that might help the blind, I beg leave to withdraw the amendment.
§ Amendment to Amendment No. 48, by leave, withdrawn.
§ On Question, Amendment No. 48 agreed to.226
§ The Earl of Strathmore and Kinghorne
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that the Report stage does not begin again before 9.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.