§ 3.39 p.m.
The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Bill be now further considered on Report.
415 Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ Clause 6 [General requirements as to licensed services]:
Viscount Hanworth moved Amendment No. 84A:
Page 6, line 27, at end insert ("whether or not it concerns matters at home or affecting countries abroad").
§ The noble Viscount said: My Lords, in moving the amendment I wish at the outset to say three things. First, I apologise to the House for putting down my amendment at the eleventh hour. Secondly, the intention of the amendment is simply to ask the Government to consider what seems to me to be an important issue that may not be covered in the Bill. Thirdly, I do not want my amendment to disturb discussion of other amendments. In fact, I shall be quite happy if no one follows me on the point I am raising.
§ There have been several instances of unfair and unbalanced programmes affecting countries abroad. The latest, appearing a few weeks ago, was about the looting of art treasures from northern Cyprus by international thieves. The programme, particularly at the beginning, was not only factually inaccurate in many respects but was used as a vehicle for grossly political propaganda against the Turkish in northern Cyprus. It caused grave resentment not only to the whole of that community in Cyprus, which was instantly made aware of it, but also among many knowledgeable and interested people, including art historians and archaeologists in this country.
§ Apart from the breach of the type of fairness code which this Bill is considering, there is a danger that an irresponsible programme affecting a country abroad might even lead to a diplomatic incident and sour the relationship with the country concerned, particularly if it unfairly touched on a sensitive issue or affected some delicate negotiations. I beg to move.
My Lords, whatever may be the situation in regard to the programme to which the noble Viscount, Lord Hanworth, referred, I can assure him that the impartiality requirements in this Bill already apply to all matters of political or industrial controversy, or current public policy, whether or not they concern matters at home or abroad. Therefore, in so far as the noble Viscount has tabled an amendment seeking to help the Bill I can assure him that it is unnecessary.
§ Viscount Hanworth
My Lords, I thank the noble Earl for that reply. I can only say that it was not clear to me or some others, that that is the case. Therefore, I am pleased to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Chairman of Committees (Lord Aberdare)
My Lords, in calling Amendment No. 85 I have to advise the House that if it is agreed to I cannot call Amendments No. 86, or Amendments Nos. 89 and 90.
§ 3.45 p.m.
Baroness Birk moved Amendment No. 85:
Page 6, line 43, leave out from beginning to ("and") in line 3 on page 7 and insert
(" (3) It shall be a duty on the Commission to—
§ The noble Baroness said: My Lords, in moving this amendment I must mention that this extensive and complex Broadcasting Bill has been two years in gestation and during its progress through another place it has been greatly improved, largely, I must say, through the willingness of the Minister, Mr. David Mellor, to listen with a flexible ear. Of course, some improvements have been made in this House, too. However, now at the last moment we are faced with one of the most important single items in the Bill which, as we are all aware, deals with impartiality. There cannot be anybody who is not already aware of the word "impartiality" and who is not sick of it or so familiar with it that it will never be forgotten.
§ Since the start of independent television in 1954 the IBA has been placed under a statutory duty to satisfy itself that due impartiality is being observed by the ITV companies. It has therefore issued non-statutory guidelines. However, the Bill as currently drafted places a new statutory requirement on the ITC to draw up a code. The new Channel 3 licensees and not the ITC will now be the broadcasters of programmes —unlike the IBA which the ITC is replacing—and we naturally accept that as it makes very good sense. However, we do not accept the need for the areas which must be covered by the code to be incorporated on the face of the Bill as government Amendments Nos. 86 to 89 propose.
§ This is the first time that this has happened in the history of broadcasting in this country. The danger of writing into statute requirements which should not be statutory can go right beyond the whole area of broadcasting. It is extremely dangerous in a democracy and a free society to put into statute requirements which have no place in legislation and which ought to be left to guidelines and for a code to be drawn up as it has been in the past by the authority itself.
§ There is a further strange aspect. The Government have stressed the light touch that they want the ITC to exercise and the whole philosophy of the Government, not only in this Bill but in all the legislation they have brought forward, has been to stress the need for deregulation and decontrol. But what do we find in this Bill? We find the most draconian set of restrictions one can think of included at the last moment in a Bill of importance and magnitude. Further, no evidence has yet been produced to suggest either that there is any real level of public concern about bias in broadcasting or that the IBA has failed in its duty to uphold the principle of due impartiality.417
§ The justification for the Government's amendment relies on anecdotal evidence about certain programmes or the unscientific and largely discredited research undertaken by the Media Monitoring Unit which has been quoted in past debates in this House. In fact, the research conducted over the years by the IBA reveals that there is very little public disquiet about bias on television. We have not seen demonstrations and we have not received masses of letters regarding individual programmes. Sometimes people rightly object to programmes, but there has been nothing to justify suggesting that there is a great feeling in the country that something should be done about bias.
§ The latest independent research covering 1989 shows that 76 per cent. of the public believe that ITV does not favour any political party, and a similar figure of 78 per cent. is given for Channel 4. Since the research started in 1976 independent television has consistently been regarded as unbiased. Any bias detected by a minority of respondents was seen to be evenly balanced between the two main political parties, with 8 per cent. believing that the channel favoured the Conservatives and 9 per cent. that it favoured Labour. That seems to be a very healthy figure.
§ The figures show that the charge laid against broadcasters that due impartiality is not being observed or enforced cannot be sustained. Broadcasters have voluntarily accepted the principle and application of due impartiality. While they readily admit that mistakes have been made—and they have; it is true that mistakes will always be made in anything we do unless we turn into a completely authoritarian regime—the vast majority of independent television programmes transmitted reflect the provisions of the IBA guidelines.
§ There is no reason to believe that the IBA board and the new members of the ITC which is to follow it, appointed by the present Government, have not implemented and will not implement the provisions of the code on impartiality. For more than 30 years the system has been proved to work and in the handful of cases where bias has been alleged the IBA has fully carried out its statutory obligations.
§ The Bill at present sets out a statutory requirement on the ITC to draw up an impartiality code covering matters of political and industrial controversy and current public policy and to define a series in order to ensure balance. We fully support the principle that broadcasting should be empowered by statute to be impartial. There is no query about that. Throughout the Commons consideration of the Bill no attempt was made by any Member of the House—I refer to the elected House—to amend this principle by placing further restrictions on the code.
The Minister, Mr. David Mellor, said on 30th January in Committee in the other place:
When I was presented with the opportunity to reflect on whether we should make changes to the impartiality requirement, it occurred to me that a government of any stripe are always the last group to be credited with impartiality. I decided that it was better to leave well alone".
I agree wholeheartedly, as I imagine we all would, with those sentiments. As recently as 4th September of this year the same Minister said during an after-dinner speech at the Royal Television Society:
Not only do I not believe that Parliament could provide an adequate definition of due impartiality in a statute, I do not believe it should try".
Yet today we are, unfortunately and alarmingly, faced with government amendments which seek to specify in detail and to particularise the areas of due impartiality which the ITC must cover. Not only have the Government responded to the concerns of a minority of well-organised Peers (one would have thought that they would have been grateful for what the Government have brought up) but there are also a number of other government amendments in the Marshalled List which are aimed at tightening the code in order to provide even more restrictions. One wonders whether Parliament would ever be able to produce a code which would satisfy them.
§ This is a dangerous road to follow because the more that is given so more is wanted. We shall be on a sliding, slippery slope leading to greater restrictions. It is not, and should not be, the business of Parliament or of politicians to interfere in the formulation and interpretation of due impartiality by particularising the areas to be covered by the ITC code. I wonder how many Members of Parliament and Peers, with all their commitments, engagements and work in the House, have the time to watch a sufficient amount of television to be able to adjudicate on the matter at all.
§ The danger of what is being proposed has been recognised by a wide range of people in the professions and all kinds of other occupations. Most national newspapers, including those which are normally the best friends in Fleet Street of the Conservative Party, have also recognised the danger. I could have kept the attention of noble Lords for hours while I read out a number of quotations from The Times, including an article entitled "Inane", and the Financial Times which dealt with the matter under the heading "Time to Grow Up".
At the end of a leader in the Daily Telegraph of 4th October called "Broadcasting Folly" it stated:
The amendments in question here take intervention well beyond what should be acceptable to Conservatives. To many eyes this Government already conveys the impression of one none too bothered about curbs on free expression. That is a bad reputation for a Tory Government to acquire. In this instance it is folly".
I do not have to remind noble Lords that the Daily Telegraph is usually vociferous and strong in its support of the Conservative Party, and why not?
§ Do the Government really want to get themselves into a position where they have antagonised a great many of their own followers or Members? It is not necessary for me to try to support the Tory Party in that way. It seems wrong that in our democracy this situation should arise. We are faced with these amendments and we are convinced, as the broadcasters are, that the Government's amendments are both unworkable and fundamentally flawed. They are also totally unnecessary. Legal advice obtained from a variety of respected sources states that the 419 Government's amendments drafted in this detail are unworkable and could distort news programmes in particular to a point where the due impartiality requirement, apart from the service to the viewer, could often be rendered meaningless.
§ The amendments would place intolerable burdens on broadcasters to effect the particular and restrictive requirements for due impartiality and balance. They would not want to stick their necks out too far because the difficulties will be immense. The result may be that we have bland, anodyne and boring broadcasting which we do not believe is what the Government intend. The Government's amendments have also created concern that the broadcasters will be much more subject to political interference and litigation from Left and Right than is likely by the provisions in the Bill as it stands at the moment.
The shadow ITC has said that the Government's amendments raise serious doubts about the workability of the code of practice. They may lead to vexatious litigation, including the serious risk of prior restraint through injunctions or subsequent judicial reviews. What is more important is that doubts about the practicality of the Government's amendments led the shadow ITC to say:
A code which is not workable will bring the law into disrepute and it is unfair to ask the ITC to administer it".
We believe that the ITC should have the discretion to draw up and interpret the code without any of these restraints added to what is already in the Bill. We have tabled Amendment No. 85 to reassert the status quo contained in the Bill which sets out the ITC's statutory duty to draw up a code giving guidance on the issues contained in Clause 6(1) (c) and to define a series. We believe that the Government's amendments represent an inflexible and mechanistic formula for impartiality which probably was not the Government's intention but which we are being asked to accept today.
§ If the Government's amendments are accepted inevitably they will lead to more uncertainty and ambiguity in what is a highly sensitive and subjective area of broadcasting. Therefore, we must return to the statutory requirement which is contained in the Bill at the moment and which requires the ITC to draw up a code without any qualification or particularisation. Any tinkering with the Government's amendments will not do. That will not reach the principle and the basis of this issue which is putting in the statute book something which has no business to be there. It is recognised that such a provision would be absolutely wrong.
§ I believe that this matter is being taken in your Lordships' House because of the combination of wisdom, common sense and experience held by your Lordships in a number of different fields. If these amendments had arrived here from another place it would have been considered that reliance could be placed on this House to reject them. It is amazing that we should be in the position of being the creators of this very unfortunate, unhappy and bad idea. Therefore, in order that we can set matters right, I 420 commend to the House Amendment No. 85. I fear that the government amendments cannot be improved and therefore they must be abandoned. I beg to move.
§ 4 p.m
My Lords, I thought it might be helpful if I were to intervene at this point, not least because the noble Lord the Chairman of Committees said that if your Lordships were to approve this amendment he would not be able to call Amendment No. 89. In my view that would be a pity. For that reason, if for none other, I hope that your Lordships will not approve the amendment of the noble Baroness, Lady Birk.
It has been thought that it may be for the convenience of the House if we take all the impartiality amendments together and discuss them in one debate. Assuming that that is so, I should point out for the sake of clarity that we shall be referring to Amendments Nos. 85, 86, 87, 88, 89, 90, 92, 144, 172, 173, 228, 229, 230, 231, 233, 234, 235 and 236. I think that is the sum total of the impartiality amendments.
The amendments tabled in my name seek to introduce the topics which the Independent Television Commission should cover in the code of practice it is obliged to draw up under the Bill. It might be helpful to your Lordships if I were to explain first the Government's position and then speak in a little more detail on the individual amendments.
I gave an undertaking in Committee that the Government would introduce an amendment to indicate the sorts of subjects which the ITC would be expected to cover. I thought that this would generally meet with the approval of your Lordships, as this seemed to be the favoured idea. We produced the amendment, and as a result the heavens fell about us — and, I might add, a good slice of hell too!
The press of course has had a field day. Articles have been written, leaders have been written and letters have been written. Even the most reverend Primate the Archbishop of Canterbury has joined in the sport, with other noble Lords such as the noble Lord, Lord Jenkins—who I see is not present today—the noble Lord, Lord Thomson of Monifieth, who is present, the noble Lord, Lord Allen of Abbeydale, and the noble Lord, Lord Deedes. They wrote in The Times in what was, if I may say so, fairly colourful language saying that the Government are introducing a measure,which surpasses the worst excesses of the Nanny State".Everyone is entitled to their view but I venture to suggest that in the cascade of words which has flowed about these amendments in the media some mistaken ideas have emanated as to what these amendments were designed to do and what effect they will have.
The position is this. There has always been an obligation for broadcasters of television and radio to be impartial. It was written into the original Broadcasting Act 1954 and it is in the present 1981 Act. So there is nothing new in that obligation being written in statute.
When this Bill was introduced, we wrote in it the obligation for impartiality. The wording in Clause 6 is 421 virtually the same as that which is in the 1981 Act. In all its stages through Parliament that fact has caused no problem. We also suggested that there should be a code of practice drawn up and administered by the Independent Television Commission. That has been in the Bill since its inception, and that fact has caused no problem during its passage in either House; indeed, it has been welcomed. The Independent Broadcasting Authority already has a code of practice, and to state that the new ITC should have one too is merely to continue what has been done before.
It was suggested in Committee that, if the ITC were to draw up a code, Parliament should see what was going to be put in the code. Some noble Lords suggested that the code, when it was made, should be laid before Parliament for Parliament's approval. We resisted that suggestion for the fundamental reason that parliamentary approval could mean parliamentary rejection. That would mean that it would be Parliament and not the ITC which would be the arbiter as to what was or what was not impartiality. As the noble Baroness and my right honourable friend Mr. Mellor have said, that is not a matter for Parliament to decide; and that is not what we are inviting Parliament to decide. What we said we would do—this seemed to meet with general approval and it is what we have done—is to say in the Bill what should be the subjects which the code must cover. That is all.
There is one significant difference with regard to the future from what happened in the past. In the past, the Independent Broadcasting Authority was both the broadcaster and the regulator. The IBA was responsible for what it transmitted. In the future, these two roles are separated. The licensee will be the broadcaster and the Independent Television Commission will be the regulator. It will be up to the ITC to determine whether or not the broadcaster has infringed the concept of impartiality. Therefore, it is not unreasonable that the licensee should know the sorts of guidelines to which he would be expected to adhere.
The noble Baroness, Lady Birk, said that these are the most draconian set of restrictions ever produced. However, with the greatest respect to her, I must point out that they are not restrictions; they are merely subjects which the code must cover. I see that the noble Lord, Lord Mishcon, is smiling. Of course there is nothing unusual about that; indeed, I am delighted to see him do so. However, the important points are how these subjects are covered, the words which are used to cover them, the severity or the laxity of the words which are used and the way in which they are covered, and how the code is implemented. These matters will be wholly, totally and entirely the prerogative of the Independent Television Commission. It will have nothing to do with the Government and with respect it will have nothing to do with Parliament.
This requirement for impartiality only applies, and has only ever applied, to matters of political or industrial controversy or to matters of current public policy. I really think that the press has gone over the 422 top over this amendment and it has come—and encouraged others to come—to the wrong conclusions.
Some of the more bizarre extremes to which some of the more erudite papers have come, and ones to which they seem to have extended their imagination so far as is possible, suggest that under our proposals beauty would have to be balanced with ugliness or interest with boredom; or that an interview referring to the offensiveness of dogs fouling a footpath would have to be balanced by an advocate of the animals' inalienable right to perform such functions on footpaths. Frankly, those proposals have nothing to do with the amendment on the Marshalled List nor with the code of practice. They are mischievous and misleading and they have not made, if I may so put it, either a very healthy or helpful contribution to what is an important debate.
I shall now begin to deal with the amendments a little more closely. Amendments Nos. 86 to 89 give effect to our undertaking. The new subsection (4A) to Clause 6 sets out several specific areas which the code must cover. Paragraph (a) requires due impartiality to be achieved for each individual issue of political or industrial controversy or of current public policy. That is intended to clear up the possible ambiguity in the existing legislation, which has led some commentators to argue that impartiality could be achieved simply by being impartial as regards the totality of all such matters without ensuring that each particular matter was treated impartially. It also reinforces the point that personal view programmes remain squarely within the scope of the impartiality requirements. There is nothing new in that provision.
The impartiality requirement in the 1981 Act applied to all programmes. The treatment of the Gulf issue, for example, should be treated impartially in its own right. It would be quite unacceptable that a biased programme on the Gulf could somehow be balanced by the transmission of another programme which would be biased from a different point of view but on a totally different subject. That would be quite unacceptable.
Paragraph (b) requires the code to specify what due impartiality does or does not require either generally or in particular circumstances. That gives an enormously free hand to the Independent Television Commission. Paragraph (c) sets out that the code should specify the manner in which impartiality is to be achieved for different programme types. Paragraph (d) requires the code to indicate the time scale within which programmes must be included if impartiality is to be achieved over a series.
Paragraph (e) requires the code to specify the method for defining a series. Paragraph (f) requires the code to indicate the prominence which should be given to different programmes which constitute a series for the purposes of achieving due impartiality. That does not mean that each programme must have equal prominence. Due impartiality does not require all views to be given equal weight. That is not impartiality; it may be balance.
423 Balance is something with which broadcasters certainly ought to be concerned, but impartiality is different. It is essentially a matter of objectivity. Objectivity requires the broadcaster to represent the full range of views on any given topic. It is certainly not satisfied merely by selecting and pitting against each other two equal and opposite views, however extreme. It would be absurd if, any time that a certain view was expressed, some Jack-in-the-box would have to appear to provide an opposing view.
§ Baroness Birk
My Lords, I did not want to interrupt the Minister in the middle of a sentence but I am a little puzzled, and I should be pleased if he could answer me before he moves on. He said a few minutes ago that I was wrong to point out that the provisions were restrictive; that it was for the ITC to interpret them. The restriction lies in the duty imposed in such detail on the ITC by the Government. If that is not so, what is the point of putting the provision in the Bill?
My Lords, the noble Baroness made her speech and I shall do the best to make mine. I shall respond to her intervention because it would be courteous to do so. She asked why it was necessary to have the provision and said that it is a restriction. I can only repeat what I have said. I do not know how I can persuade the noble Baroness to this view. All this is is a series of subjects which have to be covered. It is up to the ITC to decide how to cover them. It can include more subjects. It is up to the ITC to decide the ways in which the subjects should be covered and the severity or otherwise with which they should be covered. That is the reason that lies behind the amendment. I hope that the noble Baroness will eventually come round to seeing that that is not a restriction but merely spells out the matter.
Subsection (4B) indicates that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles. It has been included in order specifically to counter the kind of arguments which were advanced in Committee by the noble Lord, Lord Barnett, to the effect that firmer rules on impartiality might require, for instance, the murderous regime of Pol Pot to be defended by an alternative view.
The wording of the subsection was intended to reflect the comments of the report of the Committee of the noble Lord, Lord Annan, which commanded widespread support, that the concept of "due" impartiality does not, in fact, prevent broadcasters from taking as their starting point certain fundamental values and assumptions. There is no obligation to be neutral, for example, between truth and untruth, justice and injustice, compassion and cruelty, or tolerance and intolerance. On those issues, of course broadcasting cannot, and would not be expected to, remain neutral.
Amendment No. 87 makes provision for the rules to cater for different cases or circumstances. Amendment No. 144 requires the ITC to draw up and publish a code for licensable programme services. Amendments Nos. 172 and 173 are minor technical amendments to the provisions relating to S4C.
424 Amendment No. 230 requires that a national radio service shall be subject to the due impartiality rule rather than the lighter undue prominence test, and Amendment No. 231 makes provision for due impartiality to be achieved in a national radio service over a series of programmes, rather than the service as a whole.
The noble Baroness said that if the amendment were to be accepted it would result in constant litigation. Perhaps I could ask her to address her mind to this: the ITC will draw up the codes. If some licensee were found to be breaking the codes to such a degree that it was considered to be partial, it would be the ITC which would act. It would go to the licensee. Several courses are open to it. First, it could warn the licensee; then it could fine him. In the last resort the ITC could remove the licence. If that were so draconian, as it might be, the licensee might then choose to go for judicial review against the ITC. What would be the subject of the judicial review? It would be the ITC's codes and whether they had been broken to such an extent as to require the licence to be removed. It would not involve Parliament; it would not involve the Government; and I venture to suggest that it would not involve the amendments.
I apologise for the time which I have taken in speaking to these amendments, but they are important. They have proved, regrettably, to be unexpectedly controversial. I think that they have been misinterpreted. My father once said to me "You will be blessed in this life for things which have cost you nothing. And you will be cursed for the things to which you have given your all". I fear that the Government find themselves a little bit in that position at the moment.
The Government are not seeking to define "impartiality". Nor are they asking Parliament to do so. That would be an elephant trap into which I have no intention of inviting your Lordships to fall.
The amendments merely seek to say what subjects ought to be covered in the code. It is up to the ITC to decide how to cover them, and what words should be used to cover them. The ITC will, of course, consult interested parties before drawing up the code.
We recognise that these amendments have caused anxiety, and especially that the ITC has indicated that it is not entirely happy with them as they stand at present. The ITC will have to operate the code and it is clearly important that it should feel that the obligation which Parliament may place on it should be workable.
We have, therefore, been having further discussions with the shadow ITC and I am glad to say that we have now been able to identify three adjustments to Amendment No. 89 which would fully meet the shadow ITC's concerns. The first adjustment relates to paragraph (a). The reference to "individual issues" in that paragraph has unfortunately been taken to mean a more rigorous and restrictive requirement than that which we had intended. We have now agreed with the ITC a revised form of wording which would replace paragraph (a) with the words: 425For due impartiality to be preserved on the part of the person providing a licensed service as respects major matters falling within subsection (1)(c) as well as matters falling within that provision taken as a whole".That would overcome the problem the words "individual issues" have created.
The ITC has also expressed concern about paragraph (f). We now think that paragraph (f), as it stands, is unnecessary since the essential purpose underlying paragraph (f) can be achieved wholly satisfactorily under paragraph (b). We, therefore, propose to delete (f) entirely.
We have also agreed to make one further minor drafting change to the opening words of the amendment. They would now read:The rules specified in the code referred to in subsection (3) shall, in particular, take account of the following matters.If your Lordships were to approve Amendment No. 89 today, I undertake to table amendments on Third Reading along the lines I have described. The shadow ITC has assured us that if those amendments to this amendment were made it would have no difficulty in devising a satisfactory and workable code.
The amendments have not been easy to devise. I recognise that they touch upon a peculiarly sensitive area, and we have introduced them in order to meet concerns which were expressed in Committee.
There have been discussions throughout with those who are likely to be affected by the code and it is difficult, even so, to get things precisely right.
Throughout the passage of the Bill the Government have listened to views both from within Parliament and without. We have tried to accommodate as many as possible to ensure, as far as possible, that the resulting Act will be the best that we can achieve.
I hope that, with changes to Amendment No. 89 which I have indicated that I will introduce on Third Reading, much of the anxiety, which I know has been prevalent among your Lordships and others, will have been met.
§ Lord Mishcon
My Lords, before the noble Earl sits down, in the interests of the House would he kindly consider this proposal? In the course of a most interesting and, as usual, eloquent speech, he announced to the House that radical amendments would be made by him at Third Reading. He left out one of which I happened a minute ago to have a note. It is a very important one: instead of "make provision … for", the words "cater for". That is a fundamental alteration—
§ Lord Mishcon
My Lords, if he did then I missed it, and I apologise to the noble Earl; I did not hear it. Is it not a courtesy to the House—which has not had time to consider what he has announced as amendments that he might bring forward at Third Reading—to withdraw his present amendment and come to the House at Third Reading with an amendment in tidy form which could be properly considered?
My Lords, I had hoped that I had been courteous to the House by explaining as soon as possible the areas which we think might be suitable for amendment. I hope that if your Lordships were to agree to this amendment today we would make the amendments at Third Reading. The noble Lord, Lord Mishcon, frowns with concern. The route that he suggested is certainly an option. It is up to your Lordships to decide.
§ Lord Wyatt of Weeford
My Lords, it is not so much that the House is shocked at the late arrival of these amendments, but that they seem to be surprised that there has always been a requirement in the law for due impartiality on matters of political or industrial controversy or relating to current public policy, as the noble Earl, Lord Ferrers, pointed out.
The IBA and the BBC have always accepted this as a necessary obligation because they have monopolies granted by the state. They recognise their special duty to be impartial, particularly as for about the next 20 years they will have 85 per cent. of the audience. This is quite unlike the freedom of newspapers to say what they wish because they can always be challenged by new or existing ones with all their diverse views.
This point seems to have been entirely confused. People think that the same rules ought to apply to newspapers as apply to broadcasting, which is a totally different matter. That is why the BBC and the IBA rightly drew up their own codes on how impartiality must be observed. Broadly, those codes are admirable.
The Government's amendment merely gives parliamentary backing to the new commission's code which will presumably be much the same in most respects as the old IBA code. So why the howls of rage from powerful voices in broadcasting? They have managed to con great newspapers which have failed to do their research into the subject and which have misunderstood it. Why these howls of rage? Why are there complaints from broadcasters that the Government's amendments are unworkable? If they are unworkable, so were their own house rule codes. But they are not unworkable. Both the BBC's and IBA's codes are reasonable and democratic.
The reason the codes often seem defective is because of the frequent failure of the great monopolistic television companies and the BBC to enforce them. Their managements have been weak and their terror of programme makers who ignore the codes has been remarkable.
I understand the problem. Young, intelligent programme makers and presenters, bursting for self expression, tend to be anti establishment and anti the Government of the day. I was a little like that myself and I probably still am in some respects. However, those on the Labour and Opposition Benches should take great care how they "rubbish" the Government's amendments.
During the period of Labour rule, the same type of lively producer and presenter becomes bored with Labour. They feel the urge to mount attacks on Labour, regarding it as having become the hated 427 establishment. This is not a party political matter at all. It affects all parties. At the moment, the dominant ethos among programme makers appears to be that balanced programmes are Right-wing and are therefore unbalanced and that the norm now is that Left-wing anti establishment programmes are balanced, when of course they are not.
So many instances have been cited that I do not wish to weary your Lordships with another long list. I mentioned some of them in the Committee stage on 11th July. Since then, among other slanted programmes we have had "The Battle of Trafalgar" on Channel 4 in which the police were accused of deliberately starting the anti poll tax riot in Trafalgar Square. There has been no sign of any programme putting, forward an opposite view, although that is required in the IBA's own code.
On 9th September on Channel 4's "Media Show", I had an experience at first hand of bias. I was interviewed for 25 minutes on film and promised that at least eight minutes of it would be used. It was all about the broadcasting amendment. Eventually, one and a half minutes of snippets from what I had said were scattered derisively through the programme which at the beginning had declared itself to be unashamedly partial. The passage in which I explained what the amendment of other noble Lords and myself meant and did not mean was completely left out.
I hare made a formal complaint to the IBA. I have received no answer yet. "Ah", say opponents of the Government's amendments, "we get very few complaints about bias". Opinion polls are produced, and the noble Baroness, Lady Birk, has just produced one. They involve small percentages showing that the public think that broadcasting is impartial. However, the right question for an opinion poll is, "Do you think monopolies in broadcasting granted by the state should be impartial?" The answer would be a resounding, "Yes", with hardly any dissenting views.
One reason why there may be few complaints is that people know that broadcasting is supposed to be impartial. They do not realise it when partial programmes are put out by skilled teams pretending to be impartial when they are not. They trust the authority of broadcasting and the television box more than they do the press to speak the truth. That is why it is an even worse crime deliberately to deceive them by a biased programme.
Another reason for a shortage of complaints is that the people complaining usually get a very dusty answer. Those who have made the offending programme compose the letter of reply, claiming that they were impartial. This is then topped and tailed by someone high up in the organisation, without any examination of the truth of the rebuttal.
Occasionally, it is possible after many months to get an admission of guilt. That happened over the BBC's programme "The Summer of the Bomb", shown in August last year. It said that the cold war was the fault of the West because the atom bomb had been dropped on Japan. Stalin was therefore justified in his occupation of Eastern Europe because he rightly 428 feared that he was about to be attacked by the West. This amazing opinion was said to be backed by most reputable historians. It was only after those who had disagreed had battered away at the BBC for some nine months—including a number of reputable historians who obviously did not agree that the West was responsible for the start of the cold war —that the BBC reluctantly agreed to put on a programme showing that there were differing views. That programme is supposed to be broadcast shortly, but I have not read of a date when it will be shown. I hope that it has not been forgotten and left in some deep recesses of the BBC.
§ 4.30 p.m.
§ Lord Beloff
My Lords, if the noble Lord will give way, I should just like to bring him up to date. The programme was due to be shown soon, but I am now informed that for technical reasons —no doubt the cameras have gone to the party conference—it is unlikely to be shown before February.
§ Lord Wyatt of Weeford
My Lords, I thank the noble Lord very much. That illustrates my point. By some strange upside down logic, the Government's amendment is described as censorship. However, it is the exact opposite. The amendment is designed to make sure that on major matters of political controversy there is an adequate opportunity for an opposite view or views to those expressed in the original programme to be aired. It is those who wish to suppress the dissenting views who are the censors. It is those who are denying the right of reply in some form to a controversial programme—that happens very often—who are the real censors. Supporters of the Government's amendment do not mind how many biased programmes are broadcast—I certainly do not mind—provided an adequate opportunity for reply is allowed. We do not wish to censor any programme. Under this amendment no programme would ever be censored. No programme would have been censored in the past under the terms of the amendment.
We believe in the fullest and widest expression of differing opinions. It is the opponents of the amendment who wish to suppress those opinions. The absurd suggestion has been made that the measure would dramatically alter the nature of broadcasting. However, programmes on individual issues would only be affected if they came under the heading of matters of political or industrial controversy between the political parties. The noble Lord, Lord Thomson of Monifieth, will confirm that because that was the opinion given to him by leading counsel when he was chairman of the IBA.
The Times, of which I am fond as I write for it, foolishly stated—the noble Earl, Lord Ferrers, has referred to this —that if someone stated in a programme that there should be stiffer penalties for those owners whose dogs fouled pavements, there would have to be a counter programme expressing the opposite view. That suggestion is inane because that is not the position. It would only be the case if dogs fouling pavements became a matter of political controversy between the parties. That seems rather improbable. Nor would an interview, say with Mr. 429 Kinnock, have to be followed by an interview with Mrs. Thatcher on the same subject. The interviewer would have achieved, should have achieved and usually does achieve all the balance necessary by asking all the awkward questions which an intelligent opponent, either of Mr. Kinnock or of Mrs. Thatcher, would have asked.
The Government's amendment would change absolutely nothing as regards what can and cannot be broadcast. All the amendment seeks to do is to give parliamentary backing to the Independent Television Commission for the code it is to draw up. It will be the code of the ITC and not that of the Government. As the noble Earl, Lord Ferrers, said, some of the wording of the amendment may need to be slightly redrafted so that the ITC is satisfied that the instructions it receives from Parliament do not cause it unnecessary problems in drawing up its code. However, it is essential for the code to have parliamentary backing to give greater weight in calling to order rebellious, recalcitrant programme makers by somewhat diffident management. In future they would not merely be breaking their own code but also defying Parliament.
The measure will not result in increased litigation, if the local house rules of the BBC and ITV on impartiality are observed. Already the great ITV companies and the BBC are liable to legal action if they breach due impartiality. However, the expense of mounting such actions is so great that it is hard to imagine anyone doing so. Instructions from Parliament are necessary only to give top management a determination, which is so often lacking, to ensure that their own code is observed. This should have a similar effect on the BBC which is somewhat wobbly in its higher reaches.
The howls of rage come only from those who have been persistently biased as they fear it may be more difficult to be biased in future. Those who honour their own codes have nothing whatever to fear. I support the Government's amendments.
§ Lord Boston of Faversham
My Lords, according to the volume of the voices around the House just now, I took it that it might have been the will of the House that I should have intervened before the noble Lord, Lord Wyatt of Weeford, made his speech. However, I felt it appropriate not to persist in seeking to do so. I have, however, placed myself in a difficulty. I was seeking to intervene on the very point which my noble friend Lord Mishcon referred to, which concerns—I hope I may call it this—a subsidiary matter to the major debate we expected to embark upon this afternoon. The noble Earl, Lord Ferrers, courteously and, if I may say so, very properly, replied to that matter. The difficulty I therefore have placed myself in now is that, should the debate which we were expecting develop further, I might, in intervening in this way, need to seek the leave of the House to speak again.
The noble Earl has given an important indication this afternoon of the Government's intentions on their amendment and further proposed amendments to that 430 amendment which the noble Earl indicated he would propose tabling on Third Reading if the amendment were accepted. Not only is his indication an important one; I venture to suggest that it is also a very encouraging one. After further reflection on the implications of the indications he has given—I would mention especially his indication that the IBA, shadow ITC, feels so much encouraged by these proposed alterations as to feel that the Government's proposal will accord with its own feelings on this matter—I would expect to find them wholly acceptable.
However, there is the point that the IBA, shadow ITC, has—my noble friend Lady Birk mentioned this in her excellent speech with which I wholly agreed—taken legal advice. That body has not been alone in the course that it has taken. Others within the industry have similarly taken legal advice. I received yesterday from a fellow chairman of an ITV programme contracting company—I refer to Mr. David Plowright of Granada—a copy of an opinion from a firm of solicitors which will not be altogether unknown to your Lordships; namely, Goodman, Derrick and Company. Therefore, noble Lords will also know the weight that should be attached to that opinion. I shall not go into the details of it.
I urge those of us who have taken legal advice on these matters to invite further comment from our legal advisers on the points which the Minister mentioned this afternoon. In those circumstances it might be appropriate and best for the noble Earl's amendment not to be moved this afternoon so that we can reflect upon it and upon the important and encouraging indications which he has given to us. That would enable us to seek that advice and reflect upon it in time for Third Reading. If the noble Earl felt willing to accede to that request I have little doubt that such a step would be very widely welcomed.
§ Viscount Whitelaw
My Lords, I had hoped to wait until a little later in the debate, but what the noble Lord, Lord Boston, said in response to my noble friend Lord Ferrers' new proposals is very important. I should like to reinforce what the noble Lord, Lord Boston, said and make some comments as to why I think his remarks were so wise.
I quite understand that the noble Lord, Lord Wyatt, thinks that I can be conned. No doubt I can be conned on the racecourse by the Tote but I do not believe that I can be conned about broadcasting. After all, 25 years ago I was locked in the most appalling controversy on the subject of impartiality with the late George Brown on one side and the late Iain Macleod on the other. I was the Opposition Chief Whip. Anyone who wishes to know anything about impartiality, or partiality, ought to have been at the meetings conducted with the late Hugh Carleton Greene, which I attended. I found myself as what might be described as "the pig-in-the-middle" in the matter. However, eventually I won the case for the Opposition, and the BBC, in the shape of Hugh Carleton Greene, agreed. George Brown never forgave him, nor do I believe that the noble Lord, 431 Lord Wilson of Rievaulx, loved him very much for it. However, I believe that he made a fair decision, not least because I won.
I only tell that story for this reason. There are those who feel that there is bias against the Government, but it is not just this Government which has felt that. Every government feels that television is biased against them. They always will because, as the noble Lord, Lord Wyatt, himself admitted, many of the broadcasters like to tilt against the Establishment. They are far more interested in tilting against the Establishment than in tilting against any political party. They have shown that over the years, or they have changed their allegiance dramatically. They tilt at one party when it is in power and tilt at the other when that comes into power. Let no one have any illusions.
When people tell me that I know nothing about impartiality I claim that I have some experience of the matter. It is a great mistake ever to pretend that you know something about anything, and in Parliament it is always wise not to. However, I feel that I know a little about this subject and that is why I intervened at this moment on the question of the code.
I have made no secret of my amazement when I saw the amendments that the Government had put down. I first read about them in a leading article in The Times. I thought that The Times must have been wholly mistaken. However, after I had seen the amendments I thought, if I may say so to the noble Lord, Lord Wyatt, that they were not wholly mistaken. I then found that that view was also held by nearly every other newspaper and many other people besides.
The amendments are not what we had reason to expect, for one simple reason which has now emerged and which I believe, from what my noble friend Lord Ferre said, can be eliminated. When the code was produced, as it now stands in the amendments, the ITC said that it would regard the code as unworkable. That statement was made by the body which the Government themselves appoint, just as they appoint the governors of the BBC, perfectly properly, to run broadcasting. That is its job. It is not the job of governments to run broadcasting. It never has been. Thank goodness it has not! I was Home Secretary for four years. If I had had to run broadcasting during that time and satisfy my colleagues and a great many other people, I would not have lasted even the four years for which I tenuously held the post. It would be an impossible proposition and should never be countenanced. The broadcasting authorities must be responsible for the details of the running of television in this country.
I am bound to say to the noble Lord, Lord Wyatt, that of course mistakes have been made, but mistakes are made in every walk of life in which we are all engaged. Broadcasters make mistakes too. However, on the whole I do not think that our record on balance and impartiality is all that bad. Nor, frankly, do I believe that the public thinks it is bad either. I do not believe that the broadcasting authorities have made too bad a job. They have faced great difficulties.
432 Inevitably there are some producers who want to make their name by tilting against the Establishment; there always will be.
I believe that the answer is that the broadcasting authorities should have a code which they believe they can operate. That is a very important factor which was brought out by my noble friend Lord Ferrers today. I welcome it and am enormously relieved by it. I believe that it restores the proper position. I have made no secret of my position, even though I may have appeared in print when I was not quite sure whether or not I was being reported or of the status of the people who were reporting me. I realised that they probably would report me—I am not so stupid as that.
This change makes all the difference to me. I hope that it will make all the difference to your Lordships. The code will now be the ITC's code. The ITC will have the responsibility for setting it out and will have to stand by it. The ITC will face the flak—quite rightly, because that is what broadcasting authorities are there for—which will not then be directed at the Government. Perhaps I may make a partial point to my noble friends and supporters of the Government: I do not see why the Government should deliberately bring flak upon themselves. I believe that that is exactly what the Government were doing. I should dearly like to persuade the Government not to bring flak on themselves, and if I can achieve that I feel that I shall not have done the Government any harm.
I hope that this proposal can be treated as a sensible way forward by your Lordships. I realise that it is very late in the day. I also realise that it places a great deal of difficulty on those who have been dealing with the Bill throughout. There is no use pretending that things are not as they are, but we can avoid what I believe would have been a very damaging incident in the history of broadcasting in this country. I believe that the Government and the ITC, by coming to an agreement, have given us that opportunity. However it is done procedurally—and that is a matter for the usual channels to decide—I hope that your Lordships will feel that this House can avoid what might have been a very damaging situation. If it does so the House will deserve considerable credit. I only hope that the House will take that opportunity and accept that this is the right way forward at the present time.
§ 4.45 p.m.
§ Lord Thomson of Monifieth
My Lords, the House always listens with the greatest respect and affection to the noble Viscount who has just spoken, not least on matters of broadcasting policy. His wisdom on the relations between government and broadcasters is profound and ought to be noted. I regard the noble Viscount as one of the great founding fathers of one of the most innovative elements in British broadcasting, the controversial Channel 4. I have always commended to other Ministers his description of watching some of the first controversial programmes on that new channel which he founded. He described how he sat in his armchair at home beside the fire —I hope with a modest glass beside him—and started watching the controversial programmes, until he found that he had 433 fallen gently asleep. I believe that a certain detachment between Parliament and broadcasters is the beginning of wisdom.
I am very glad that the noble Viscount raised those issues in the debate. There was some danger of the debate becoming a non-event. The noble Earl, Lord Ferrers, has an engaging approach to the House. He has slaved long and conscientiously over this mammoth Broadcasting Bill, but to have listened to him this afternoon one would have thought that the issues raised by the government amendment were modest and minor ones and that there had been a great to-do about nothing in the press and the media establishment as a whole.
The noble Lord, Lord Wyatt, and I have become a double act in relation to various aspects of the media and I will not bore the House by taking up many of the arguments put by the noble Lord. However, one of his arguments was similar to that used by the noble Earl and I think that the House should meditate upon it. The noble Lord, Lord Wyatt, said that the government amendment changed absolutely nothing; so what is all the fuss about? Why did they introduce the amendment if it changed absolutely nothing? However, the noble Lord, Lord Wyatt, continued in stentorian terms to state that the importance of the amendment was that it gave instructions from Parliament to the broadcasters. That situation changes the relationship between Parliament and the broadcasters.
The noble Lord, Lord Wyatt, is an old hand at journalism. We all read his work with great interest, whatever it does to our blood pressure. However, the noble Lord is curiously naive in believing that there are major matters of public policy and minor matters of public policy and in believing that the behaviour of dogs is a minor matter of public policy to which due impartiality does not apply. When the dog registration issue returns to the House the noble Lord may find that it is a major issue of public policy.
Having welcomed the fact that the noble Viscount, Lord Whitelaw, has put the debate on its proper plain, and having agreed with what he stated, I have serious doubts about the conclusions that he drew from the statement made by that the noble Earl, Lord Ferrers, in producing his amendment. The noble Earl's performance, if I may say so, was a curious one in terms of parliamentary procedure—a matter to which attention has been drawn. He read the speech, which he was entitled to do, and defended the government amendment that was put on the Marshalled List a few days ago and which has caused so much controversy. Then, almost as a postscript, he added that he was amending his amendment in some significant manner and that in due course he would be bringing the amendment back to the House. We should apply our minds to that situation. I welcome the fact that the Government have seen their mistake in tabling the amendment on due impartiality in the way that they did.
As we entered the Chamber the noble Earl did me the courtesy of handing me a note of the changes that 434 had emerged from the discussions between the Government and the ITC. I have had limited opportunity to digest those changes but I do not believe that they go to the heart of the matter. I should have preferred the matter to have been taken in a more coherent order. The major implication of the government amendment is the altering of the relationship between Government and Parliament on the one hand, and broadcasting and regulatory bodies on the other. The matter should have been debated on its merits and we should have arrived at a judgment. If the House had decided in its wisdom that it was right to change the relationship, we would have had an opportunity at Third Reading to do what we will have the chance to do when we finally see the new amendment that is proposed by the noble Earl.
It is not a matter of asking the Government to abandon some deeply held policy conviction. This is not part of their radical deregulating approach to broadcasting, which is the main thrust behind the Broadcasting Bill, that we have been arguing about for many months. As the noble Baroness, Lady Birk, stated so persuasively, we are asking the Government to appreciate the wisdom of returning to the position that they have maintained since the Bill was introduced 11 months ago—the position that Mr. David Mellor, the responsible Minister in another place, commended to another place and carried the agreement of another place without a vote.
As the noble Viscount stated, historically the position taken by every government of all colours has been that they should not get involved in writing detailed rules about how the broadcasting regulatory bodies, whom they appoint, should carry out the very difficult, delicate and complex task of determining how best to achieve due impartiality. Every government until now have agreed to leave such matters to the independent broadcasting bodies that they have appointed. That is a wise doctrine. We on this side of the House urge the House, even in the light of what the noble Earl has stated, to return to that doctrine and to drop the government amendment that is to be further amended after discussions with the ITC. We should address our minds to that major issue. That is the objection in principle both to the government amendment and to the proposals that have been described orally and it is the objection in principle to some of the other amendments, from the noble Lord, Lord Wyatt, and his colleagues. The objection is not removed by the suggestion that the Government have put forward as a result of discussions with the ITC.
I have reason to know that a dialogue between a statutory body appointed by a government and the government of the day on major issues of legislative change is not a wholly even relationship. I do not think that I am giving away any secret when I say that the IBA and the soon to be Independent Television Commission would have preferred to maintain the well-established traditional relationship of the Government remaining at arm's length from the broadcasting authorities. Those bodies have been put 435 in a very difficult position by the Government. It is as a result of that kind of dialogue that the proposals have been put forward for the first time this afternoon.
We in this House—and in British politics generally —are properly proud of the tradition of seeking compromise in matters of controversy. On the face of the matter the kind of compromise described by the noble Earl appeals to that spirit. The noble Viscount, Lord Whitelaw, immediately responded to the offer of a compromise. I ask the House to consider carefully whether at this stage we should welcome with such open arms a compromise on a matter of this character. Compromises are appropriate to circumstances.
In a conference taking place on the south coast there has been a revival of the controversy over capital punishment. I remember the days when I took part in that controversy. Someone stated that the good old spirit of British compromise ought to operate and suggested a compromise whereby we hang only every second murderer. I do not say that this is an exact analogy, but if a government have decided to destroy a well-established relationship for which there are very strong arguments, to go down an entirely new and more dangerous path, it is not the most satisfactory compromise to come a third of the way back along that path and say that that is the place where we ought to rest.
What is the half-way house that is proposed? One particularly unworkable subsection is apparently being dropped, another is being rewritten, and the wording of the preamble is being modified in a welcome way, but they will remain a breach of the previous tradition. They will remain a list of six instructions to the new Independent Television Commission which may still provide fertile grounds for vexatious litigants once the code is drafted.
I agree with what was said by the noble Lord, Lord Boston of Faversham; namely, that everyone concerned with this matter will want to take the best possible legal advice between now and Third Reading to see whether their legal advice at the moment about a torrent of vexatious litigation will be seriously reduced and modified by the proposals. Our judgment about that final compromise will be affected by the advice that we receive.
The noble Lord, Lord Wyatt, is perhaps under a misapprehension that, if you are in a statutory broadcasting authority or otherwise, facing the very proper discipline of judicial review, there is a great deal of difference between the status of guidelines drawn up by the authority and matters written on the face of a statute. I have been through the process on more than one occasion and have found, although I am not a lawyer, that it is no defence to say that Ministers in some debate many years ago said that they had the best possible motives in introducing the legislation and that their idea behind it was such-and-such. What matters is the interpretation that the courts put on it, and there are still serious matters to be resolved here.
I come back to the question very pertinently asked by the noble Baroness, Lady Birk: why on earth have 436 the Government done this at the 11th hour after 11 months of debate? Has there suddenly been some consciousness of some great problem that no one had noticed before? The noble Baroness put the matter in perspective. In independent television—I suppose that it is much the same in the BBC—there are 5,800 hours of news, current affairs and documentary programmes every year. Each of those programmes is watched by several million people; so, in terms of an aggregate audience over a year, there must be hundreds of millions of viewer-hours spent on those programmes. The average rate of complaint is about 250 a year, generally coming from people who have a strong view about things. Does that scale justify making this fundamental breach in something that is very close to the liberties of the media in this country?
Before it finally comes to its decisions on the amendments before it, the House should consider that the issue here is not confined to an agreement between the Government and the new shadow Independent Television Commission. The issue here is something that may have a major effect on the general quality and character of broadcasting in this country for many years ahead and will affect the BBC as much as the ITC.
We are entitled to ask the Government why this afternoon they suddenly produced orally the results of a dialogue that they have had over the last day or two with the IBA/ITC without having consulted the BBC, which is equally affected. Have they consulted the BBC? Has there been talk with the BBC? Is there a view from the BBC about whether the proposals that will be brought forward on Third Reading are intended to persuade the House to avoid taking a view of principle on this change? Have there been consultations with the BBC about these matters, or is the idea that there might be two sets of rules and that the BBC would be entitled to operate one set of guidelines under different instructions from Parliament, or in the absence of instructions from Parliament, while the ITC must operate under those instructions?
The right course in the interests of British broadcasting and, above all, the interests of viewers and listeners—that is what matters—who depend on the quality of British broadcasting, so widely admired around the world over so many years, is the maintenance of the independence and integrity of British broadcasting. This is the kind of matter on which the House can speak with real authority as it is a constitutional matter. The House would be well advised to decide, even at this stage, to go back and preserve the constitutional relationship which has been in the Bill for so long and which the Government never for a moment dreamt of changing until they were panicked a little by a pressure group in odd corners of this House. It would be wise, even before the Third Reading, for the Government to consider whether they should not bring the proposed new amendments to the House as a half-baked compromise and should instead return to that basic tradition. If they do not do so, I suspect that the 437 proceedings in the House this afternoon may in retrospect be seen as a sad day for British broadcasting.
§ 5 p.m.
§ Lord Peyton of Yeovil
My Lords, I had not thought to intervene in the debate on the Bill until now, and I undertake to do so with great brevity.
I agree entirely with what my noble friend Lord Whitelaw said; namely, that bias and impartiality will always be with us. Of course, they usually come from people who have views other than our own. I am doubtful about the proposed means by which they should be eliminated. We must ask ourselves the question: what will the amendments do? Will they serve effectively to eliminate bias without reducing broadcasting to just a mess of cotton wool? My answer is that the amendments will prove absolutely ineffective but will be a considerable nuisance to many people.
I ask your Lordships to ponder for a moment upon the legislation which pours through the Chamber and to reflect upon its quality and effect. How many arguments ensue after its passage? For how much legislation can it be claimed that the benefit was unarguable? The amendments will add nothing to the quality of broadcasting and I hope that they will be rejected.
However, I have a serious question to address to my noble friend, to whose speech I listened, as did your Lordships, with considerable interest. I would not find it possible to assent to including the amendment even temporarily in the Bill. I cannot for the life of me understand why, with all the intelligence and courtesy with which he has handled the Bill, my noble friend does not now accede to the simple request to withdraw his amendment which—I use the language carefully—is plainly silly. Why does he not withdraw the amendment and then put down another for Third Reading? I have some misgivings about what he proposes to do in the future. I have none whatever in saying that I would never agree to the amendment being included in the Bill now.
§ Baroness Blackstone
My Lords, before we go any further with the debate, perhaps the Minister will reply to the request made by my noble friend Lord Boston of Faversham, by the noble Viscount, Lord Whitelaw, and now by the noble Lord, Lord Peyton, that the Government should withdraw the amendment and return at Third Reading with a revised amendment or perhaps with no amendment at all, after further discussions. It would be helpful if the House could be informed of the Government's intentions at this stage rather than our continuing any further.
§ Baroness Cox
My Lords, perhaps I may point out that there is a grouping of amendments and that there are one or two amendments in that grouping with which other noble Lords' names are associated. We should proceed with the debate, if that is agreed by the House, because I had hoped to say a few words in support of my noble friend the Minister and also to 438 speak very briefly to amendments which are in this grouping and with which my name is associated. I shall briefly pursue my line of argument. I wish to speak strongly in support of my noble friend the Minister and to say a few words with regard to the amendments with which my name is associated. I refer to Amendments Nos. 92, 232 and 236.
First, unlike other noble Lords who have spoken, I wish to congratulate my noble friend on the amendments in his name and offer my wholehearted support for his attempts to put the spirit of concerns about due impartiality so comprehensively and so effectively. I appreciate that my noble friend is a listening Minister, and as a listening Minister he has been willing to indicate that he is prepared to amend his amendments. I warmly welcome that. But I hope very much that in so doing he will not weaken the substance of those amendments.
Like many noble Lords, I have been amazed and disappointed by the virulent and very often misleading nature of much of the opposition to the amendments that has appeared in the media. I have studied this great barrage of opposition with great care. I am led to the conclusion, "Methinks they do protest too much". Having read this barrage of opposition and found it totally unconvincing, I believe even more strongly now that my noble friend has right on his side and that his amendments, duly tailored to meet some of the legitimate concerns that he has recognised, could help to curb potential abuses of impartiality which could strike at the heart of free and fair coverage of controversial issues, coverage which is essential for democracy.
I want briefly to challenge three major themes running through the complex array of attacks on my noble friend's proposals. I do so because I have not heard counter-arguments put to them. First, there is the so-called censorship or blindfold effect; secondly, there is the spurious balance effect; and, thirdly, there is the boredom effect. The blindfold effect was exemplified by Roger Graef in an article in the Observer on 7th October. Roger Graef is a founder director of Channel 4. In his article entitled, "A Blindfold over our Screens", he commended series like "World in Action" and argued that their kind of investigative exposure is essential for democracy. He argued that they would become impossible if amendments such as those in the name of my noble friend were to go through.
That is an almighty red herring. The provisions in these amendments would not inhibit the presentation of such programmes. What they would require is that where subjects relate to matters of political or industrial controversy or current public policy there should be opportunities for alternative viewpoints to be presented. What could be more democratic than that? As the noble Lord, Lord Wyatt, has said, that is essentially democratic. It is not censorship; it is the opposite. Indeed, it is a one-sided view which, if not a blindfold, is certainly conducive to a squint.
What I find particularly galling about the article by Graef is his reference to the emerging democracies of Eastern Europe. He has the gall to suggest that we in 439 this country are going in the opposite direction from those countries, with their new-found freedoms. As someone who has had the privilege of involvement with those countries in their new-found freedoms, including the establishment of some of their media networks, I have been impressed by their deep concern for balanced, impartial coverage of contentious issues and their allergy to any form of bias.
That leads me into my second challenge—the challenge of the spurious argument that balance is boring. The noble Baroness, Lady Birk, mentioned that balance is boring. That argument is not convincing. Indeed, I would argue that it is bias which is boring. It is generally much more interesting to hear lively debate and controversy than a one-sided presentation of a complex issue. But if the nature of the programme is such that it is a robust presentation of one side of an issue—as in personal view programmes—then that is not in danger; that can still continue. All that is required is that different views should be given in due course. There is nothing boring about that. May we forget the argument that balance is boring? It does not hold water.
The third kind of criticism with which I take issue is the spurious interpretation of these amendments in the form of a balance to the extent of reductio ad absurdem and now reductio ad nauseam in terms of the arguments. It is suggested that programmes making a case against dogs fouling pavements or criticising the Pol Pot regime should be balanced by programmes giving the opposite view. Those are ludicrous interpretations of my noble friend's amendments. They have been well answered already, not least by my right honourable friend David Mellor in the articles he has had printed in the press. I shall not take up time by going over that familiar ground. All I wish to do is to remind the House of the length to which some people have gone in their attempts to discredit these amendments. I believe that they have lost credibility in so doing. I am less worried about the amendments now than I was before I heard the barrage of criticism to them.
Perhaps I may turn briefly to those amendments with which my name is associated. I refer, first, to Amendments Nos. 92 and 236. They are straightforward and need little explanation. They refer to the personal view programmes which I have already mentioned. They merely require a balanced spread over a series; that is, in cases where one particular partisan viewpoint has been put there should be a presentation of alternative viewpoints in due course. This need in no way lead to boring programmes—personal views can be as lively, as robust and as idiosyncratic as appropriate—but it is surely not unreasonable to expect that a one-sided view should be balanced by counterparts in due course.
I wish to say a few words on Amendment No. 233, which also has my name associated with it. It concerns national independent radio. My noble friends and I suggest that it would be reasonable to require national independent radio channels to be subject, when the Radio Authority draws up its impartiality code, to the 440 same framework concerning due impartiality as the Government are now bringing forward for independent television.
It has been suggested that this is not necessary because only three independent national radio services are currently envisaged, of which two will be music services. But there will not be another broadcasting Bill for many more years, and more stations may appear in that time. This seems to us to be a reasonable measure but nothing of enormous significance in terms of fundamental principles. However, we believe it is important that the principles in Clause 6 which have been generated with so much thought and care for television should also apply explicitly to independent national radio in Clause 89.
I conclude by saying that I look forward to hearing my noble friend's response to the amendments with which my name is associated. I hope he will be able to clarify the situation so that we do not have to move them. My main concern is to offer my strongest possible support to my noble friend's very important and significant amendments. I trust that if he wishes to re-present them he will not in any way destroy their spirit but will try to make their wording more acceptable to Members of the House.
§ Lord Barnett
My Lords, I find this a strange and in many ways a sad debate. There is no disagreement on any side of the House that due impartiality is a serious matter in broadcasting. That certainly applies to governors of the BBC—even the wobbly ones to whom the noble Lord, Lord Wyatt, referred. As I have said on previous occasions, opponents of the Government's amendments, including the BBC, agree with the need for due impartiality to be taken very seriously indeed. The essential disagreement, I must tell the noble Lord, Lord Wyatt, and the Government, is over trying to legislate to cover every set of circumstances. That is the real problem.
I call in aid of that view the noble Earl, Lord Ferrers, who said in Committee on 11th July:It is frantically difficult"—I assume that the word "frantically" was not changed by his private secretary when he was looking at the Hansard report—for primary legislation to set out exactly how impartiality is to be achieved in every set of circumstances. Indeed I would say that it is impossible for it to do so. Then, having written the legislation, one cannot change it and one is hidebound by it".—[Official Report, 11/7/90; cols. 391–92.]That is what the noble Earl said on that occasion. No one can disagree with it. He was absolutely right.
However in trying again to define impartiality, the noble Earl stated that one of the definitions was objectivity. I do not know how many parliamentary draftsmen have crawled over the wording of the proposed amendment to the amendment, but I would guess quite a few. We do not have the word "objectivity" in the draft legislation, but we are now told that what is said in your Lordships' House or even in another place cannot count with regard to legislation. If the noble Earl was not concerned about the meaning of words, of which I quoted one extreme in the last debate and others are quoted in the press, 441 why did it require new Section (4B) in the amendment which provides that absolute neutrality is not required? Why did the noble Earl, or the draftsmen who advised him, decide that that had to be included?
I do not wish to add to the powerful case that has already been made and which has been reinforced with devastating criticism in The Times, the Financial Times and the Daily Telegraph. Some of them use very strong language that I would not have used. Perhaps it is language more suited to the noble Lord, Lord Wyatt.
What has been brought out again today, and must be recognised by all noble Lords, is how difficult it is to define in law a workable definition of due impartiality. The best reply to the Government's amendment was made by the Minister concerned in another place. David Mellor is quoted in an article in the Guardian on Monday. He stated:Due impartiality is not a matter which can be reduced to some simple mathematical formula, nor can its achievement be guaranteed through any mechanistic statutory requirement. Not only do I not believe that Parliament could provide an adequate definition of due impartiality in a statute, I do not believe it should try".That is the Minister speaking. That is why I find this a very sad and strange debate. What on earth are we on about? Most noble Lords, and people outside, thought that the important issue was to have the principle laid down in the Bill, that broadcasters should be bound by that principle in drawing up a code. But what nobody wanted—and I believe that the Government did not want it either until they produced their amendment very recently—was to have that detailed legislation.
Perhaps I may say a brief word on where the complaints have come from—apart from the noble Lord, Lord Wyatt, and a number of others. I concede at once that some members of the public also complain. But that needs to be put into perspective. I put it no higher. Research that has been carried out independently—which I know the noble Lord, Lord Wyatt, does not like—has found that in only 1 per cent. of programmes are there strong complaints, and only 9 per cent. of that 1 per cent. complain of bias or inaccuracy. That is third down the list behind other complaints about boring and repetitive programmes. Those are real complaints. They do not concern bias.
I know from what the noble Lord, Lord Wyatt, has said and written that those people who make the criticisms—the leader writers in serious newspapers —do not understand. No one understands. Only someone who is an expert in impartiality, like the noble Lord, Lord Wyatt, truly understands. To accept that that must be the case is asking a great deal of us.
§ Lord Wyatt of Weeford
My Lords, will the noble Lord explain what is the matter with his own guideline code on impartiality in the BBC? I find it very satisfactory. If such guidelines can be worked out, what is his complaint? The only trouble is that he is not enforcing them.
§ Lord Barnett
My Lords, it is interesting that the noble Lord should mention that because I was about 442 to turn to our guidelines. I hope that they might be of interest. They may be helpful to the ITC when it draws up its codes.
I explained previously the duties that were laid on the governors of the BBC under the Royal Charter in respect of impartiality and how we carry them out. We take those duties very seriously indeed. For the BBC —and I know that the noble Lord, Lord Wyatt, does not disagree—the principle of impartiality is derived from the constitutional documents which set out the duties of the corporation as a body under a royal charter. The charter establishes the board of governors as embodying the duties of the corporation. There is therefore an intimate link between the governors and the editorial standards which the corporation undertakes to maintain. It is the responsibility of the governors to ensure that the standards set for the corporation are adhered to.
The noble Lord will say, as he has said on previous occasions, that we sometimes get it wrong. I concede that of course we do. That is hardly surprising. We broadcast hundreds of thousands of hours every year of radio and television. One would have to be almost as much an angel as the noble Lord, Lord Wyatt, never to get it wrong.
An intervention at Committee stage by my noble friend Lord Annan gave me cause for worry. Speaking in the debate on the clauses relating to the Broadcasting Standards Council my noble friend—who knows that I have enormous regard for him—said that the committee on the future of broadcasting, of which he was the distinguished chairman, had seen the board of the BBC as a Janus figure; it faced both ways. My noble friend said that it had proved difficult since the 1960s to reconcile the board's two sets of duties: governing the corporation and acting in the public interests. I do not believe that the board's task is the uncomfortable one of the reconciliation of opposites which my noble friend suggests. The essence of our job, as I see it, is to represent the public interest in BBC broadcasting. That is our responsibility. The BBC and its governors are publicly accountable for everything that is done, from the construction of transmitters to the broadcasting of talks. It is the board which makes sure that that accountability is implemented across the range of the BBC's activities.
Maintaining impartiality in programme output is perhaps one of the most important aspects of our public accountability in the editorial sphere. In practice, that works in two ways. When a complaint is made we evaluate it, not in the way that the noble Lord described, but with the same impartiality as we expect from the programme makers. That is the retrospective aspect of the governors' accountability in relation to impartiality.
But we have also come to recognise more and more in recent years that the practical implementation of impartiality in the future will be assisted by a careful consideration of what it means in programme terms and by a clear setting out of the BBC's inherited wisdom on the subject in the form of guidelines for 443 programme makers. Over the past two years the board of governors and board of management have done a great deal in that respect.
In November 1988 John Birt, the Deputy Director General, a highly respected figure both inside and outside the industry, chaired a day long seminar on impartiality which was attended by speakers from inside and outside the corporation. With a foreword from the chairman the contributions were published in book form the following January. Producers' guidelines were published in March 1989, and copies supplied to all producers. The noble Lord, Lord Wyatt, nods in agreement. To quote the Director General, their purpose is,to offer an accessible summary of editorial wisdom in areas that can present producers with difficulties".Guidelines for factual programmes followed eight months later and guidelines on interviewing were published in June this year.
All those guidelines have been agreed by both the board of governors and the board of management before publication. It is nice to have the approval of them from the noble Lord, Lord Wyatt. Both boards are therefore equally committed to them, the governors because they set a detailed standard for our accountability to the licence paying public, and the board of management because of the standard they set for programme makers which senior managers are committed to maintain.
I wish to make two further points about the BBC's guidelines. They both concern their practical and flexible nature. First, the guidelines are not set in stone for all time. Changing circumstances, changes in public mood or expectation, may mean that revision or updating is required in the detailed, practical expression of the fundamental principles which they embody. For example, the Broadcasting Standards Council's code is currently being scrutinised to see whether any of the questions that it raises are not covered by our own guidelines. The second kind of flexibility embodied in the guidelines relates to the needs of programmes. The 1988 seminar to which I referred was entitled "Impartiality: Representing Reality". The representation of reality, complex and ever changing as it may be, is a task that cannot be guaranteed by the strict implementation of codes or guidelines. The missing element that makes the picture of reality comprehensible is research, discretion and good judgment on the part of programme makers.
A sketch of the way in which producers and editors contribute to the achievement of impartiality was given some three decades ago by the then Director General, Sir Hugh Greene. He wrote:The BBC's service of news and information must not try to influence its audience in any particular direction, and must mirror with the greatest possible fairness and objectivity all mainstreams of opinion without fear or favour. It must be a forum for discussion and for the clash of opposing views. It must not try to make people's minds up for them"—that is something that we try to do in your Lordships' House from time to time. He continues:The only restriction on its freedom is that it must not have an editorial opinion of its own".444 You cannot reduce this task to a formula which, applied to any issue, results in the proper representation of reality. Remove from that process professionalism exercised in the context of an overall ethos of fairness and objectivity of which guidelines are a practical expression and you will risk presenting a distorted picture of reality which might entertain (for all the wrong reasons) but will certainly fail to inform or educate.
If the Government have agreed that it would be wrong to apply this clause to the BBC I hope, even at this late stage, that it might be accepted for the excellent reasons given by many other noble Lords; that although commercial companies do not have a BBC-type Royal Charter they have the same practical and legal problems that a detailed code imposed by Parliament would create.
I said at the outset that I find this debate sad and unnecessary. We all agree that the code on due impartiality should be in the Bill and that a principle should be laid down. However, we are now being asked to accept an amendment to an amendment which most Members of your Lordships' House have not seen. That cannot be right. I would prefer to see the Government drop the wide-ranging and unworkable amendment—an amendment to an amendment— and not bring it back at all. If they wish to strengthen the principle in relation to a code, that is fine but, for goodness sake, do not enter into this kind of mechanistic detail which can only damage broadcasting.
§ The Earl of Lauderdale
My Lords, before the noble Lord sits down perhaps he will answer a question. Is he aware that on the 9 o'clock news on BBC television last night there was an item about today's debate three-quarters of which gave publicity to a letter in The Times—I will not call it "notorious" in the interests of impartiality—and one-quarter was given over to the noble Lord, Lord Wyatt?
§ 5.30 p.m.
The Lord Bishop of Liverpool
My Lords, I sit on the General Advisory Committee of the BBC. Earlier this year we had a heartening moment about British broadcasting. The noble Baroness, Lady Cox, referred to Eastern Europe and its interest in developing its own broadcasting and television in a new way. It was most heartening to hear that Polish television was looking to the BBC to train and equip its broadcasters for such a new day. Why? It is because in its eyes the BBC is an example of impartiality and in particular of having no government interference.
The noble Earl, Lord Ferrers, has gone to great lengths to point out that it would be the commission which would decide. In other words, the amendment in whatever form would not alter the relationship between the Government and the ITC. However, I am persuaded by the argument put forward by the noble Lord, Lord Thomson of Monifieth, and believe that the argument does alter that relationship. Whether we like it or not, many thoughtful people perceive it to be 445 upon government insistence that requirements should be tightened. Indeed, if they are not being tightened what is the point of the amendment?
I have asked myself whether the case has been made out that from our perspective our television is seriously biased and that fresh measures are needed to call programme makers to heel. The fact that the amendment is being introduced in your Lordships' House and so late in the Bill's passage must suggest that the Government were persuaded to introduce it by the arguments put forward in this House by the noble Lords, Lord Wyatt and Lord Orr-Ewing. I listened to their arguments at each stage. I tried to note whether your Lordships were roused by them to believe, as do they, that serious bias is shown by programme makers and that that must be reined in.
My impression as regards all sides of your Lordships' House is that that is far from the case. I do not believe that I have seen any serious proportion of noble Lords from any side of the House who are enthusiastic about the case being put; namely, that there is a serious bias which needs to be attended to. The way in which the case was put today, on Second Reading and in Committee by the noble Lord, Lord Wyatt, and others illustrated clearly that describing bias depends enormously on the spot on which the person who calls bias or objectivity stands. We have seen the difficulty of who is to decide what is bias except those who are handling the whole issue of broadcasting day in and day out.
I then ask myself whether the broadcasters were right to have been so alarmed by the amendment. I believe that they were. One of the television series that the noble Lord, Lord Orr-Ewing, convicts of bias is the thought-provoking programme on Granada, "World in Action". Because of its thorough research the programme's team frequently spends a large part of a year in researching and producing a single programme. Is someone to decide that there was bias in an individual programme and order a balancing programme of comparable standards to be broadcast within a month? How are scheduling and planning to take place and how are robust rather than bland programmes to be made?
My experience of broadcasting authorities is that impartiality is taken most seriously. I listened with great respect to what was said by the noble Lord, Lord Barnett, today and in Committee. To my certain knowledge in recent days a BBC producer has been taking firm steps to rein in a contributor because it is believed that there was bias. As others have said, it is true that there are occasional errors of judgment but the cause of truth is served by freedom; that is not freedom without responsibility but freedom. The wise government will stay at a distance from adjudicating on impartiality and will be seen to stay at a distance. Indeed, a wise government will welcome honest criticism in public which calls those in power to account. Supporters of a government in office can be jumpy about criticism.
Even absolute rulers gave the court jester a protected position because they saw the importance of 446 those in power being challenged. Broadcasters are like the jester. Noble Lords may not be surprised that in some ways a bishop identifies with both the jester and the broadcasters. When bishops seek to comment on public life we are not unfamiliar with being accused of bias against those in power. We offer criticism, as I hope do the best of broadcasters, not because we are disloyal. All proper criticism is criticism of what we care for. Criticism never reaches the mark if it is a cynical dismissal of "them" as though we do not belong to them.
We bishops sit on the government side of your Lordships' House in our protected position. Rather, I believe we should say that the Government sit on our side as the spiritual side of the House. We offer criticism honestly just because it is our government and not "them", as though we do not belong. Therefore, we have similar experience to that of the broadcasters. Again, I say that a wise government will welcome honest criticism and vigorous investigative journalism and will not try to inhibit it, for it is such freedom that Polish television makers and many others admire in our country.
The noble Viscount, Lord Whitelaw, and the noble Lord, Lord Wyatt, said that it is normal for governments of the day to believe that the media have some bias against them. With all the weight of the government machine behind them, they should be glad that there are channels of robust criticism.
I finish by referring to what the Minister, Mr. Mellor, said in January in another place—that he had decided to leave well alone. I am persuaded by the speech of the noble Lord, Lord Thomson of Monifieth, that even in its limited form the amendment alters and will be seen to alter the relationship between government and the broadcasters. I hope that the amendment will be withdrawn and that Mr. Mellor will return to his first and well-judged position.
§ Lord Hailsham of Saint Marylebone
My Lords, I promise to be very brief. I cannot avoid the impression, especially from the fullness of the notes from which they were delivered, that most of the speeches in this debate had been prepared almost in extenso as they were ultimately delivered.
I came here without the slightest intention of speaking and also in a good deal of doubt as to which way I should vote in the event of a Division. My doubt was based on two factors: first, I do not like last-minute amendments and I do not know that I have been proved wrong about that in what has happened this afternoon; secondly, the ITC, which would have to deal with the proposed government amendments, had declared them to be unworkable. In my opinion a totally new situation has now been created by the speech of my noble friend Lord Ferrers when he spoke at the beginning of this debate, and that of my noble friend Lord Whitelaw.
The fact is that the difficulty with the ITC has, if the proposed modifications of the government amendments are carried through on Third Reading, been removed. What had been declared unworkable has 447 now been declared workable by the persons who would have to work it. I cannot help thinking that the conclusive speech in the course of this debate was made by my noble friend Lord Whitelaw. We should rejoice that that agreement has been arrived at. It is possible, as has been illustrated by most of the speeches, to hold very strong and varying opinions about impartiality and the mechanisms by which it should be enforced. However, now that there has been a measure of agreement there should be some give and take in public life. I propose to support the Government.
§ 5.45 p.m.
My Lords, it may be helpful if I intervene at this stage. In doing so I do not wish to truncate the debate or to prevent any noble Lord who wishes to speak from doing so. However, it may be helpful if I put another thought into the minds of your Lordships.
We brought this amendment here this afternoon because we believed that it was right, because we thought it had the agreement of those who were to operate it and because we thought that that was the desire of your Lordships and others who spoke in Committee and at other times. I did not believe for one moment that this matter was uncontroversial but I did not believe it would be quite as controversial as it has proved to be. We went to a great deal of trouble to try to make sure that the ITC, which, as my noble friend Lord Whitelaw and my noble and learned friend Lord Hailsham said, would have to operate it would be able to operate it as successfully as possible.
As a result of that, the negotiations took place and the ITC said that the proposal could be operated and it was workable if certain amendments were made to the amendment which the Government had tabled. Therefore, I thought that it would be helpful to let your Lordships know of that fact. Otherwise your Lordships would say, "The Government are producing an amendment which everyone says is unworkable". We have now found a route through that impasse and therefore I thought it right to tell your Lordships about that.
I have been castigated for that. The noble Lord, Lord Barnett, said that the Government are suggesting an amendment to an amendment to an amendment. I was merely trying to be helpful in explaining the proposed government amendments. Of course I understand that your Lordships will wish to see those amendments. They would have been tabled for Third Reading, enabling your Lordships to consider and discuss them. However, I see that some noble Lords would find it difficult to vote for an amendment which, however well intentioned it will be, does not conform to exactly what we want at the moment.
In answer to the noble Baroness, Lady Blackstone, I was reluctant to intervene earlier because I felt that I should be preventing other noble Lords from speaking and it is important to have a debate on this matter. I can quite see that the consensus in your Lordships' House is that it would be wrong to move 448 this amendment today on the basis that it will be amended in the future. Therefore, if it meets with your Lordships' approval I am prepared not to move my amendments today but to take them back and to table fresh amendments on Third Reading.
I say that with a great deal of sincerity. The noble Lord, Lord Thomson of Monifieth, said, being perfectly honest, that whatever amendments to amendments are tabled he does not find the amendment acceptable and he does not want it. Other noble Lords will take that view, and I understand that. However, one tries to have as much accord as possible. Where there is a totally different view, obviously that cannot be achieved. As regards this amendment, I sense that it would be the desire of your Lordships that it not be moved today. I shall bring back a revised version on Third Reading.
§ Baroness Birk
My Lords, I am not sure where we are in this debate. I merely want to say that in the circumstances I shall withdraw my amendment. I am very pleased, as we all are on these Benches, that the noble Earl has decided to take back his amendment. We can then look at the matter and make a decision. I cannot give an undertaking to support the amended amendment on Third Reading but at least we can look at that matter and consider the position. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 86 not moved.]
Earl Ferrers had given notice of his intention to move Amendment No. 87:
Page 7, line 5, at end insert:
("and the Commission may make different provision in the code for different cases or circumstances.").
§ The noble Earl said: My Lords, I should like technically to move Amendment No. 87 in order to reply to the remarks made by my noble friend Lady Cox, who quite rightly spoke to other amendments during the course of the debate. Because the noble Baroness, Lady Birk, has withdrawn her amendment I have not had a chance to reply to my noble friend, as I wish to do.
§ I shall reply fairly briefly. Amendments Nos. 90 and 92, tabled by the noble Lord, Lord Wyatt, sought clarification by the insertion of the word "only". I am informed that that would not be necessary. Amendment No. 233, to which my noble friend referred, would apply all the provisions of Clause 6 to the national radio services. In practice, the government amendments achieve that with the exception of the application of the list of points to be covered in the code which applies to ITC licensed services. The Radio Authority will still be obliged to draw up a code, and I have no doubt that it will have in mind the list in Clause 6 to determine what elements of the code should be covered.
§ Having said that, I propose not to move Amendment No. 87.449
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I understand that the noble Earl does not wish to move Amendment No. 87.
My Lords, I wish to move it only in order to reply to the points made by my noble friend Lady Cox at an earlier stage, and to which I was unable to reply because the amendment was withdrawn. Having made that observation, am I now permitted to withdraw the amendment or not move it?
§ The Lord Chancellor
My Lords, that is what I wish to be sure about. The noble Earl does not wish to move the amendment.
§ Lord Jenkins of Putney
My Lords, as the main amendment has not been moved an amendment to it also cannot be moved.
§ The Lord Chancellor
My Lords, I have been informed by the noble Earl, Lord Ferrers, that he does not wish to move Amendment No. 87. I was awaiting developments before saying "Not moved".
§ [Amendments Nos. 87 to 89 not moved.]
§ [Amendments Nos. 91 to 93 not moved.]
Lord Wyatt of Weeford moved Amendment No. 94:
Page 7, line 13, at end insert:
("() The Commission shall require each licensed service to appoint an ombudsman who shall be independent of the makers and presenters of any programme in question and who shall consider and determine, upon the receipt of a complaint, whether any programme or series of programmes was lacking in due impartiality.
A complaint to an ombudsman shall not preclude a right to complain to the Commission.").
§ The noble Lord said: My Lords, in moving Amendment No. 94 it may also be convenient for me to speak to Amendment No. 95. The purpose of Amendment No. 94 is that there should be applied within the licensed services the same system that now exists within major newspaper groups. That is that an ombudsman, who is independent of the editorial staff but nevertheless often has an office in the building, should be appointed to adjudicate on any complaint received from a member of the public. He will then comment adversely on the newspaper if he finds the complaint sustainable, and the newspaper will usually publish his comment. If he rejects the complaint then that is an end of the matter.
§ That practice is fast gaining ground and is working very well. For example, the Sunday Times has the distinguished editor of the Evening Standard, Mr. Charles Wintour, as its ombudsman. On occasion he has pronounced quite fiercely on readers' complaints of unfairness, inaccuracy or of a personal attack on themselves. The same system is used by the Sun newspaper, which is also in the habit of publishing its ombudsman's adverse reports. Mr. Bob Edwards, the distinguished editor of the Sunday Mirror, acts as the ombudsman for Mirror Group Newspapers. He is absolutely without fear or favour when dealing with 450 complaints from readers to the Mirror Group. The newspaper publishes those adverse comments when they are made.
§ If we could have a similar system within the licensed services it could mean that many complaints which come forward may never need to go to the commission, although the right to go direct to the commission is still maintained. The complaints could be dealt with by an ombudsman and save the commission a lot of trouble on the ground floor.
§ It would also mean that if for some reason or another the commission thought that the local ombudsman in a licensed service concern had not dealt properly with the matter, it could say so. It is simply an idea to get matters moving in a more modern way. An independent ombudsman sitting in the building could interrogate the staff, reporters, editors or whatever, but could not be told what to do by those staff or editors. He could make his own judgment having heard the complainant and the editor and staff.
§ That is the purpose of Amendment No. 94. I hope it will commend itself to your Lordships' House. It will not hurt anybody but could improve the machinery of examining complaints, and satisfy the public rather more than is possible through the slow-moving escalators of the ITC.
§ I turn to Amendment No. 95. This is an amendment under which the Secretary of State may, by order, require the BBC to draw up a parallel code in accordance with the provisions of Clause 6. We do not yet know the entire details of the code, but nevertheless they will appear. The idea is that it would help the BBC to be firmer in its resolve to conform with the code produced by the ITC. It would also have above its head the sword of Damocles, which would be a reminder that if it did not conform and was tiresome about it, then the Secretary of State could order it to conform. It is a discretionary power, and the BBC may find running the risk of upsetting the ITC could put it in a humiliating situation. That is the nature of my amendments. I beg to move.
§ Lord Beloff
My Lords, my name is also attached to Amendment No. 94 and I should like to speak briefly to it. There is an additional argument to the ones put forward by the noble Lord, Lord Wyatt of Weeford. The feeling of any complainant in the case of a broadcast, particularly a television broadcast, is much more difficult to meet than in the case of the printed page. If an editor refuses to print a rebuttal he must give some reason other than the fact that he has no space; for instance, that there are technical problems which prevent him from printing it. On the other hand —this arose in earlier exchanges of this debate—when one is dealing with a broadcasting organisation it can always use the difficulties of technique or the need to assemble crews and producers as a reason for not allowing rebuttal.
The right reverend Prelate pointed out how long a television programme takes to produce. The ordinary citizen who knows nothing of these techniques cannot be sure whether the objections on technical grounds 451 are genuine or whether they are a smokescreen for an unwillingness on the part of the broadcaster to make a correction. Therefore, the ombudsman, who presumably would acquaint himself with the technical aspects of a reply that was requested, would give confidence to the ordinary citizen even more than would the ombudsman in newspapers, something which has now become generalised.
§ 6 p.m.
§ Lord Monson
My Lords, in speaking to earlier amendments the noble Baroness, Lady Birk, and the noble Lord, Lord Barnett, drew our attention to the fact that relatively few members of the general public complain about bias in TV programmes. That may be so, but I felt that they drew the wrong conclusions from that.
First, the fact that relatively few people complain is a tribute to the efficacy of the propaganda in question. Crude propaganda does not often work and therefore is not often employed. Clever propaganda is subtle and well disguised. Average members of the public may not realise, therefore, the extent to which they are being brainwashed.
The second reason why people do not complain is that they feel they are beating their heads against a brick wall, that no good will come of it, and that they will be fobbed off with a useless reply. That is why I believe strongly that Amendment No. 94, at any rate, should be supported.
§ Lord Orr-Ewing
My Lords, I too support the amendment, for the same reasons. We have had much discussion about impartiality and I wonder whether the BBC can keep in touch. I know that it conducts opinion polls, and so on, and has these complicated commitments, but there is nothing better than an ombudsman who can sit independently and pronounce on these issues.
I was delighted to hear the noble Lord, Lord Barnett, say that the BBC is thoroughly behind due impartiality because I was somewhat surprised at the unusual meeting we had last night when John Birt, the deputy director-general, said that he was against all impartiality measures and would like to see them cut out entirely from the Bill. I would take that same view in 10 or 20 years' time—I am afraid I shall then be busy pushing up daisies rather than speaking in the House—when there are enough channels. We can then go back to the sort of regulation which the press has now. Incidentally, it has taken a long time for the press to decide to have its own ombudsman. We have had a long period with the Press Council which has never actually had any teeth or been effective. It seems to me that an ombudsman would be a good solution.
We were asked earlier why the Bill and these amendments have been brought forward at all. The answer is that in 1981 an agreement was added to the BBC's charter and licence (I think it was a voluntary agreement) signed by the noble Viscount, Lord Whitelaw, who was then Home Secretary, and Lord Howard who was then chairman of the BBC. They took the whole issue of due impartiality aside. I do not think that it has been hidden—I believe the noble 452 Lord, Lord Barnett, has made this point on previous occasions—but they closely follow it because they are almost bound to accept what emerges from the due impartiality clauses.
Why are we legislating now and why has it not been done in the past? It is because various loopholes have emerged. There was no difficulty in 1981. The series was then invented, with the reasoning that the other side of the story should be given in the same series, at the same time, and so on. However, it was discovered that impartiality was never honoured. If one telephoned to ask when the other side of the story would be given one was told, "That is the end of the series. There will not be another". That certainly happened on one occasion. Various excuses of that sort were given.
The fact that a programme was a personal view was given as an excuse. The chairman of the BBC, who is an old friend, frequently scrawled on the bottom of a complaint that "this was a personal view which you are complaining about". But personal views are not exempt from due impartiality. Another excuse put forward is, "This programme was not produced by us but produced under our contract with outside suppliers in order to help with the 25 per cent. of independent productions". Excuses are always being found to get round the due impartiality aspect.
§ Lord Renton
My Lords, perhaps my noble friend will allow me to intervene. One of the most frequently used excuses is that a programme is drama or fiction.
§ Lord Orr-Ewing
My Lords, I believe that drama and fiction should be excepted, but I do not want to get into that argument.
It is then asked, "Why is this proposal coming forward in your Lordships' House?" I discussed this matter with the Minister, Mr. David Mellor. Incidentally I think he has done a wonderful job in the other place, particularly on the religious side. He said, "Why not? It is not lined up on purely political divisions. You have much better experts in your House than we have in ours". That has been proved tonight, and is proved every time we have a debate on broadcasting. It is a thoroughly suitable subject for your Lordships' House to tackle. There is nothing wrong with that.
I now wish to say a few words regarding the code. Of course I wish well of the code, but codes have a pretty poor track record. It was not all that long ago that the employment code stipulated that six people on a picket should be the norm. That was not the case during the coal miners' dispute and neither was it the case at Wapping. Codes, therefore, are not always effective. It is not that the codes are wrong, either the BBC's or the IBA's—I read them again this morning. They are admirable codes, beautifully done, but not adhered to by the flashier gentlemen who do not abide by rules and enjoy not doing so. Therefore, while codes may have their uses, I sincerely hope that when we change this clause it will not be weakened too much. Pass the responsibility down the line, as every 453 government have wished to do, but do not so weaken the clause that another coach and horses will be driven through it or round it.
I was glad to hear my noble friend Lord Wyatt explain some of the misinformation that has been put out and the way that programmes are rigged. I was asked to go into the programme to which he referred on 9th September. I was not brave enough. I said I was not up to it. I knew who would be on the programme. I asked whether programme controller Liz Forgen would be there and whether the programme was under Michael Grade? I was told "Yes", but I said that I did not think the programme would be absolutely balanced. Of course, when I saw the video of the programme I realised that it was absolutely shameless. It started and finished with a "spitting image" ridiculing the Prime Minister of the day. No other politicians were mentioned. If that is balance, then God help us. That is why it is necessary to be slightly firmer now than in 1981 when the BBC had the agreement added to its licence by the noble Viscount, Lord Whitelaw. I hope that we shall stick in principle to the amendments, which I thoroughly support.
§ Baroness Blackstone
My Lords, I speak against Amendment No. 95, but perhaps I should declare an interest. I am chairman of the General Advisory Council of the BBC. However, whether or not I held that position I would still be saying now that I believe it is wholly inappropriate to introduce this new clause for the BBC.
It is for the BBC's board of governors to ensure that due impartiality is observed in its capacity as trustee of the public interest in the BBC's broadcasting. As my noble friend Lord Barnett has already said, the governors regard impartiality as central to the BBC's editorial policies. I know that the chairman of the BBC has assured the Home Secretary that that is indeed the case. It is one of the governors' duties to ensure that the BBC's commitment to impartiality is both implemented and enforced by the BBC's board of management. Editorial guidelines are agreed between the governors and senior management. They represent the collective wisdom of programme makers in the BBC which has been acquired over a great many years. It is, of course, for the producers and others responsible for making programmes to implement them on a day-to-day basis.
Their operation in detail is continually monitored in the light of experience. Senior staff in the BBC have the task of ensuring that they are adhered to and also the task of taking action when breaches occur. That is surely what we should expect and require of responsible broadcasters. The BBC's editorial guidelines are equivalent to the code which the ITC will have to produce under the Bill. If it is accepted that these guidelines constitute something very similar to such a code, it will be unnecessary as well as inappropriate to add this clause requiring the BBC to draw up a parallel code. Any sensible observer would agree that flexible guidelines and a proper sense of fairness, balance and objectivity are the right way to pursue impartiality.
454 I cannot disagree more with what the noble Lord, Lord Wyatt, said earlier: that management is weak in the BBC and that it is terrified of its programme makers. I do not think that he lives in the real world. What absolute arrant nonsense that is! Who are these diffident people to whom he was referring? Has he actually met them? The suggestion that balanced programmes are considered to be Left-wing by BBC governors and senior managers is an absolute travesty of the truth and the noble Lord, Lord Wyatt, knows that. Has he examined the composition of the BBC's board of governors recently? Is he really claiming that they are a crowd of Left-wingers who would be happy or even willing to see programme-makers going over the top in criticising the Government from a Left-wing perspective?
As the noble Viscount, Lord Whitelaw, said earlier, quite frequently programme-makers do tilt against establishments, but they tilt against establishments, whether Left or Right-wing. I believe that is rather healthy in a democracy. Until now the Government have put a desirable emphasis on the Bill's continuity with previous legislation concerning general editorial prescriptions. The noble Lord, Lord Orr-Ewing, said that the code has a poor track record. I have not seen any evidence of that, apart from one or two examples that he has given, where it can be said that the noble Lord is perhaps a little biased in his interpretation.
As the noble Viscount, Lord Whitelaw, said earlier, we have not done too badly in the past. I believe that is the view of most informed people. In these circumstances why make changes which are not necessary and which try to sweep the BBC into the provisions of the Bill which was never meant to apply to it and should not apply to it? The BBC already has a perfectly adequate code and therefore this amendment is completely redundant.
§ Baroness Elles
My Lords, I wish to support Amendment No. 94. I believe that the noble Baroness, Lady Blackstone, was speaking to Amendment No. 95. I return to Amendment No. 94 concerning the appointment of an ombudsman. This afternoon we have heard from very distinguished Members of your Lordships' House, all of whom have been in important positions in either the BBC, the IBA or other important organisations.
I wish to add a word or two from the point of view of the consumer, the person who actually looks at the television programmes. I confess that I do not often look at television but I hear comments about the programmes as I go round the country and elsewhere. From time to time one hears about considerable bias. I would not call it a problem but a privilege for this country that we have had a Conservative Government for the past 10 years. Therefore it is rather obvious that, in tilting against the Establishment to which my noble friend Lord Whitelaw referred, one tends to get bias against the Government that happens to be formed from the party represented on these Benches.
I advise the party opposite that if it ever gets back into government, it may be saying very much the same kind of thing that many of my noble friends have been saying today and accusing the BBC and other 455 television organisations of bias. As I say, that is partly because we have been in government for a long time rather than in opposition, and we are, naturally, subject to criticism. For that I say thank goodness! The point I am making is not actually a party issue but on the principle of whether or not an ombudsman is appointed.
Reference has been made to the great number of letters that have appeared in the press on this issue. I wish to draw your Lordships' attention to the letter written by the noble Lord, Lord Thomson of Monifieth, which was published on 9th October. He said:Between 76 per cent. and 78 per cent. saw no favouritism towards any party on either ITV or Channel 4".Presumably that means that 22 per cent. or 24 per cent. may have found that there was favouritism or bias. I know that statistics are dangerous things to use. It may be that 20 per cent. said that they did not know or that they were not prepared to give a view. Nevertheless, between 76 per cent. and 78 per cent. only said that they found there was no favouritism. Therefore that means that there are several thousand people in this country, if one considers the figures in that way, who find that there is bias. In those circumstances, surely we should be looking at this problem and how to deal with it. We know that it is difficult to ensure due impartiality and on that I believe we are agreed on all sides of the House. It is difficult to find and implement measures in a reasonable way in a free society.
The noble Lord, Lord Allen of Abbeydale, wrote an admirable letter about the principles of freedom, fairness and independence. It is extremely difficult to be free and independent and also fair. Above all, it is extremely difficult to be seen to be fair. It is for that reason that I support the idea of the appointment of an ombudsman by the shadow or eventual ITC. The ombudsman can be seen in the public eye to be receiving complaints from them on programmes about which they would otherwise receive no answer.
We are all aware of the thousands of people who telephone the BBC or ITV when there is a controversial programme. Of course, the organisations running those programmes are not going to be able to do anything even if they wish to. We have gone through that argument today. Therefore having an ombudsman and an independent person to whom a viewer can complain and have the complaint taken up, would be a great help in allowing the public to understand what is the role of television in our society. It would make the television media more publicly accountable to the British people. That would be a great advantage. Even if Amendment No. 94 is not adopted, I hope very much that the shadow and the eventual ITC will very seriously consider taking measures to appoint ombudsmen who can be seen by the public to be willing to receive complaints. That is one of the great problems why so many people accuse television of bias because they cannot express their objections in any meaningful way.
§ 6.15 p.m.
§ Lord Bonham-Carter
My Lords, I propose to intervene very briefly on this amendment. I propose to speak mainly to Amendment No. 94. I would like to say something about Mr. Birt's position which was somewhat misrepresented by the noble Lord, Lord Orr-Ewing. Mr. Birt has never said that impartiality should not play any part whatsoever in the law or the charter which governs the BBC. On the contrary, he has said:The BBC has a keen commitment to impartiality".He objects to the Government's approach to impartiality shown in the amendment which we discussed earlier this afternoon. There is no question about his commitment to impartiality which he repeated without qualification last night. That should be recorded in this debate.
I wish now to speak briefly to Amendment No. 94 which suggests that an ombudsman should be appointed to the BBC. That is an interesting proposal and it should not be rejected out of hand. However, historically—
§ Lord Wyatt of Weeford
My Lords, I am grateful to the noble Lord for giving way. The amendment does not propose that an ombudsman should be placed in the BBC, but in each licensed service of the ITC, the new commission.
§ Lord Bonham-Carter
My Lords, I recognise the correction made by the noble Lord. Does he suggest that a parallel person should be appointed to the BBC?
§ Lord Bonham-Carter
My Lords, so I was not so far off the mark in my supposition. It is an interesting proposition, if it applies to the BBC, because it would be going back on what existed originally. When I first became associated with the BBC in 1975 it had its own complaints body to which people addressed themselves. That body was replaced on the grounds that the complaints body of the BBC was bound to be biased. The replacement body covered both the BBC and ITV. As a result of the present government's actions we now have a new array of organisations and regulations covering the broadcasting organisations.
We have the Broadcasting Standards Council which is ready to accept complaints; we have the Broadcasting Complaints Commission which is there to accept complaints; there is also the Broadcasting Advertising Standards Council which accepts complaints. With all these bodies it seems probably unnecessary to add yet another which is attached to a body such as the BBC and the ITC.
As broadcasting is now the responsibility of individual companies, it may be argued that they might need to appoint such bodies in the same way as do newspapers. I should have thought that in the case of the BBC and the ITC there are plenty of means of registering complaints and having them dealt with without adding yet another layer to the process. For that reason I hope that the amendment will not be accepted.
§ Lord Auckland
My Lords, I oppose this amendment. I do so not for quite the same reasons as those of the noble Baroness, Lady Blackstone, although I have considerable sympathy with the views she expressed. I have listened to every word of the debate. I can assure your Lordships that I do not propose to revert to Amendment No. 86. I approach the issue from the point of view of practicalities. I have spent a lifetime in the insurance industry for which we have an ombudsman; indeed, the previous ombudsman was a great personal friend of mine. The insurance industry is needed by everyone; we all have to carry insurance. There is a genuine need to have such a person available to deal with complaints.
We do not have to watch and listen to the BBC. We do not have to watch independent television or, indeed, the satellite broadcasts. That does not mean to say that it is not desirable to do so. I question whether we can really get an independent ombudsman. As has been said, there are many mechanisms within the BBC and the IBA to deal with complaints. Of course, impartiality is not always possible; it could be said that it is always in the eyes of the beholder.
Perhaps my noble friend the Minister will elucidate a particular point. I have appeared on television only twice. Unlike many noble Lords, I have no practical experience of the running of television. However, I am a fairly ardent consumer. How can this amendment be made to function? The spirit of the amendment may be desirable; it is the application which I question.
My Lords, I am aware of that fact. However, I believe that my noble friend was merely asking a question about procedure. Unfortunately, as a result of the unrest, I was unable to hear it.
§ Lord Moyne
My Lords, my question was whether it would be possible to vote on Amendment No. 94 which I support, but not on Amendment No. 95 which I am against.
My Lords, the two amendments were grouped together for the convenience of the House. Although discussed at the same time, they will be moved separately. In the circumstances my noble friend can do as he wishes.
§ Lord Jenkins of Putney
My Lords, Amendment No. 94 refers to impartiality which also featured in our previous discussion. I agree with Mr. David Mellor who, incidentally, was my successor as Member of Parliament for Putney and is now my successor as Minister for the Arts. That fact ought to go in the Guinness Book of Records as perhaps should the fact that I happen to agree with him. I do not think that such a situation has often occurred before. It is rather to the point that I agree with him in what I have to say. Although the quotation has already been referred to, I do not think that there has been mention of that part of Mr. Mellor's remarks of 30th January when he said: 458When I was presented with the opportunity to reflect on whether we should make changes to the impartiality requirement, it occurred to me that a government of any stripe are always the last group to be credited with impartiality. I decided to leave well alone. That is what I have done".It seems to me that in those words Mr. Mellor struck exactly the right attitude towards impartiality. I emphasise the words "a government of any stripe". I would be equally opposed to this proposition if it were put forward by the Labour Party. Indeed, I should oppose my own government on that issue, as I have done on many others in the past. We are concerned here to ensure that the Government keep their hands off the media. I have always been absolutely certain that that is the right policy to follow. Anything which leads in the direction of giving the Government a direct or indirect hold over the public means of information is something which we must resist so far as we can under all possible circumstances. That is all I wish to say on that point.
I turn now to the issue of the ombudsman. If anything, I think that those in the media are overcluttered with people looking after them and trying to care for them. They have advisory councils, regional councils; they have the general, the common and the particular law; and they have their governors, their charters and goodness knows what else to watch over them. The addition of an ombudsman on top of all that would be a waste of time and money.
I do not believe that this proposal is as objectionable to the same degree as that contained in the amendment which has since been withdrawn. However, it is quite possibly undesirable because we would have an ombudsman in respect of each licensee. Some licensees are licensed in a small way while others are much larger organisations. Therefore, the question would arise as to whether we have one ombudsman for each licensee or whether the ombudsman, under certain circumstances, would need a staff of sub-ombudsmen who would have to regulate each of the programmes. For example, it would need quite a large body of people to keep an eye on BBC Radio 4.
The noble Lord, Lord Wyatt of Weeford, made clear that he would be quite keen to have an ombudsman in the BBC. Indeed he told us so just now. It is also mentioned in his amendment which reads:The Secretary of State may by order require the BBC to draw up a parallel code in accordance with the provisions of this section".Therefore, this is not an idea to which the noble Lord has agreed; it is one which is in his mind already and which is printed on the Marshalled List. It would seem that the intention is to have a whole body of ombudsmen to supervise such matters. In my view this would be a total waste of time and money. I hope, therefore, that your Lordships will agree with me and that, possibly, the noble Lord, Lord Wyatt, will say that he does not wish to press the amendment to a Division. However, if he should do so, it is my hope that—despite its relative inoffensiveness—because of its cumbersome form and its undesirability, your Lordships will decide to vote against it.
459 I agree with the noble Earl, Lord Ferrers, who said that it is difficult for primary legislation to set out exactly how impartiality is to be achieved in every set of circumstances. In my view, it is impossible for it to do so. A large impossibility is wholly undesirable. Even a little impossibility is, I suggest, to be avoided.
§ 6.30 p.m.
§ Lord Barnett
My Lords, I wish mainly to speak to Amendment No. 95, but I should like first to say a brief word about Amendment No. 94. I agree with the noble Lord, Lord Wyatt of Weeford, in the spirit of what he is trying to achieve. He wishes to ensure that we have the maximum impartiality in programmes both in the ITC and the BBC. As I said previously, I do not dispute that; indeed, it is our primary concern.
I am sorry that the noble Lord, Lord Orr-Ewing, is not in his place. However, the noble Lord, Lord Bonham-Carter, mentioned my next point. There is no way that John Birt, the deputy director general, at the meeting last night indicated that he was not in favour of ensuring that we in the BBC care about due impartiality. I am glad to see the noble Lord, Lord Wyatt, nodding his head in agreement. In fact, I would be most surprised if the deputy director general disagreed with his vice-chairman. Therefore, I naturally assumed that he agreed with what I said previously, although he did not know what I was going to say.
I quoted statistics. I can assure your Lordships that I am only too well aware of the danger of taking too much account of statistics. I have fiddled too many myself not to be aware of the problem. I should not want your Lordships, or the noble Lord, to be under any misunderstanding. The fact that a survey showed that only 1 per cent. of the people were concerned about bias does not mean in any way that we in the BBC would not be concerned about that 1 per cent. I promise the noble Lord, and your Lordships, that we are worried about one complaint, let alone 1 per cent. We take them all seriously.
I am sorry that the noble Lord, Lord Orr-Ewing, is not present, but I must deal with the point that he made about John Birt. I know that the noble Lord is a great personal friend of the chairman of the BBC, Duke Hussey. He said that when he wrote to him about the personal view programmes the impression he gained was that they were not part of the concern about impartiality. That is not the case. We care about all programmes. We take account of that point when considering the personal view programmes.
It would be wrong to try to put the provisions of Amendment No. 94 into legislative form. We look all the time at that issue and other ideas on rights of reply. I know that the ITC when looking after the independent television companies will do the same. It would be wrong to impose the provision on them by way of legislation.
Amendment No. 95 seeks to give the Secretary of State powers by secondary legislation to include the BBC. I hope that your Lordships will agree that an amendment, at the very end of the Session, which overrides the Royal Charter and provides that the Bill 460 should include the BBC regardless of what is in the charter—I am not arguing whether it could do it—is wrong. I do not want to quote directly but the Minister will know that in a previous debate when he was replying to the noble Lord—
§ Lord Wyatt of Weeford
My Lords, perhaps the noble Lord will allow me to intervene. Does not the Broadcasting Standards Council have authority over the BBC, and as at present in the Bill already override the Royal Charter? So what is the matter with this amendment?
§ Lord Barnett
My Lords, I must make it clear to the noble Lord: Parliament is sovereign. It can do what it likes. I am not standing on that argument. What I was saying was that at this stage, at the very end of the Bill, to seek to override the charter would not seem to be a sensible way to behave.
I was going to conclude by referring to what the Minister said in our previous debate. He said that not only would it be wrong to include the BBC at this stage, or at any stage, but that it should not happen for the reason that he gave: that it is covered by the Royal Charter. I hope that the Minister will stand by that and not reverse what he said in Committee.
My Lords, the noble Lord, Lord Barnett, does not have a great deal of confidence in me, but I do not blame him for that. I hope not to disappoint him unduly. I shall deal first with Amendment No. 94, which relates to the ombudsman. It is important to remember that the ITC is the regulator so far as concerns impartiality. We must be careful not to confuse the roles by introducing an ombudsman. The amendment indicates that a complaint to an ombudsman would not preclude the right to complain to the commission. That implies that in some circumstances it would be in order for the ombudsman to investigate the complaint without the ITC taking any action.
It is important that we make it clear that it is the ITC which has the responsibility for regulating impartiality in licensed services. There should be no opportunity for what one might call passing the buck; nor should we create an opportunity to make the responsibility for dealing with complaints of impartiality unclear or even divided. I hope that the noble Lord, Lord Wyatt, will not press that amendment.
Amendment No. 95, as we are aware, relates to the BBC. I agree with the noble Baroness, Lady Blackstone, that we must be careful not to sweep up the BBC into a Bill which deals primarily with independent television. The amendment seeks to deal with a different organisation. It is different in structure. It has different responsibilities and a different constitutional position.
The Bill is fundamentally about independent television and not about the BBC. The BBC is not a licensing body. Its governors perform both a regulatory and a managerial role. It operates, as the noble Lord, Lord Barnett, has reminded us, under a Royal Charter with the consent of Parliament. That means that we should not proceed merely by an 461 extension of the ITC requirements. I accept that the practice of impartiality is important. It is as important for the BBC as it is for commercial broadcasters. The BBC, as a public body, must clearly be responsive to views expressed about the way it handles issues.
Decisions on those matters rest with the BBC governors. I suggest that that should continue. In that respect, I hope that I have not disappointed the noble Lord, Lord Barnett. I have no doubt that the BBC will take into account any provisions on impartiality as regards the independent sector which Parliament may see fit to make. I have no doubt that it will take into account the points that your Lordships have made.
§ Lord Wyatt of Weeford
My Lords, in view of what the Minister has said, I am happy to withdraw the amendment on the understanding that every effort will be made to persuade the BBC to conform and comply with the code of instructions contained in Clause 6 when it is finalised. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 95 not moved.]
§ Clause 9 [Control of advertisements]:
Lord Rea moved Amendment No. 96:
Page 8, line 39, at end insert:
("(1A) In carrying out its duties under subsection (1) above the Commission shall in particular ensure that—
§ The noble Lord said: My Lords, I shall speak also to Amendments Nos. 96 and 97. After the exchange of heavy artillery that we have so far had this afternoon, what is to follow could be likened to a little light machine gun fire. Your Lordships may feel that an amendment which deals with the advertising to children of sweetened foods is a trifle parochial. I hope to show that it is of more concern than is immediately evident. Amendments Nos. 97 and 98 address rather more widespread and important issues than Amendment No. 96.
§ The amendments may not be drafted perfectly. They may not even be in the right position in the Bill. If that is so, I would be happy to withdraw them and correct them for a later stage. The amendments relate to the provisions contained in Clause 9 which aim to control television advertisements. Amendments Nos. 96 and 97 relate to advertisements likely to encourage products which may be harmful to children's dental and general health.
§ Amendment No. 98 is more general in that it applies to the operations of the proposed ITC with respect to the content of any advertisements across the whole gamut—from children's food to retirement pensions. Children are especially vulnerable to television advertising since they watch TV avidly for many hours a week. A recent study showed that four year-olds on average watch television for a staggering 20 hours a week. Some watch for even longer than that. As many noble Lords are aware, advertisements 462 aimed at children are extremely effective and can cause major damage to their parents' bank balances. A determined child is hard to resist. Over half the advertisements aimed at children—I am talking about those that are shown between 4 p.m. and 5.30 p.m. in the afternoon—are for food products.
§ A recent survey conducted by the staff of the Food Magazine showed that four-fifths of the food advertisements encouraged unhealthy diets. The products included an excessive amount of refined sugar or saturated fats and very little fibre. These are major factors leading to dental caries and obesity which is our main nutritional problem. Fat children often become fat adults who are more likely to develop heart disease and a variety of other health problems
§ It is not only children who might benefit from these amendments. Only one-tenth of the food advertisements promoted what could be described as "healthful" foods. I see the noble Lord, Lord Colwyn, taking his seat. He will talk about the harm done to teeth by foods containing simply carbohydrates, mainly sugar.
§ Incidentally, I move the amendment rather than the noble Baroness, Lady Masham, because she has had to stay away for a dental appointment. Two days ago most of one of her teeth fell out. She says that she is sure that sweets during childhood played a part in this.
§ A large sum of money is spent on advertising these foods. Of a total expenditure by the food industry of £600 million, £320 million goes on sweetened foods, which have enormously high sales. Noble Lords will recall that two recent reports from CoMA—the Committee on the Medical Aspects of Food Policy —have advocated a reduction in dietary fats and sugar and an increase in dietary fibre. Of course, there is nothing to stop commercial firms promoting healthy products. I hope that more of them will do so.
§ These amendments simply aim to curb the promotion to a captive and highly impressionable audience of products which are known to be unhealthy. Other countries are well ahead of us here. For example, in Holland all the provisions which are embodied in these three amendments have been in force for about 10 years. Any sweetened food specified in regulations has to display a small toothbrush logo to remind children to clean their teeth after eating such foods and to indicate by implication that this is a food to be avoided if possible.
§ At present, the IBA receives technical advice on health issues from 12 individual specialists from the small medical advisory panel. I believe that this is too small and closed a procedure. Amendment No. 97 proposes a wider and more open procedure. Amendment No. 98 aims to open up the advertising control procedures of the new ITC, in line with current trends towards open government and the European Commission principle of transparency. This could involve, for example, frequent publications on complaints received and decisions reached regarding advertisements, publications that are readily accessible to the public. They could contain a full statement of reasons for decisions. Public consultations could be held on current issues.463
§ In conclusion—and this is necessarily a brief introduction of the amendments—they need backing by detailed regulations. I am aware that the wording of Clause 9 does not prevent the kind of steps I have described. It could be that the Minister in his reply can convince me that he shares my concern for the problems. The commission might follow this line of thinking, if the noble Lord agrees with me, particularly as other countries in the EC are moving that way. Then I shall be able to withdraw the amendments. I beg to move.
§ 6.45 p.m.
§ Lord Swinfen
My Lords, I support the general principles behind Amendment No. 96. That likens advertising on television to the rather dishonest practice of supermarkets putting large quantities of attractive sweets by the checkout. I am a little worried by subsection (b),a manufacturer of sweetened foods".Most foods that are designed for long lasting have some degree of sugar or syrup in them which would have a sweetening effect, so this could rule out many more foods than the noble Lord, Lord Rea, intends. In addition, a large number of firms have a considerable degree of diversification in the products they produce. As I read the amendment, a manufacturer of, say, a car, part of whose business also produced sweetened foods, would be forbidden from advertising his car because he happened to be a manufacturer of sweetened foods. I do not think that that was intended.
§ Lord Colwyn
My Lords, I am glad that the noble Baroness, Lady Masham, is not a patient of mine because I have not been at my practice very much in the past few days owing to the time we have had to spend considering this Bill. As a practising dental surgeon, it would be inconsistent of me not to support these amendments that were to be introduced by the noble Baroness, Lady Masham, and that have now been clearly explained by the noble Lord, Lord Rea.
Anything that can be done to discourage the consumption of refined carbohydrates will be beneficial to general health and also to dental health. The Department of Health's report on dietary sugars and human disease came to the firm conclusion that extrinsic sugars which at present constitute about 15 to 20 per cent. of the average daily food energy supply in the UK are a major cause of dental caries and a factor to be considered for the maintenance of general health. I am also of the opinion that the excessive consumption of refined carbohydrates can have severe detrimental effects on general metabolism and cause a variety of symptoms.
Sticky, sweetened snacks eaten between meals are a particularly important cause of caries. Despite the increased use of fluorides, 93 per cent. of 15 year-olds in this country have substantial tooth decay. Over £1 billion a year is spent on an entirely preventable disease. Heavy advertising for sweetened foods helps create and sustain a pattern of consumption which is both harmful to health and contrary to government policy.
464 The IBA is obliged to appoint and consult a medical advisory panel on all advertisements involving,any matter of health or nutrition".The panel includes a dental member, but if the information I have is correct, he or she has never been consulted on any advertisement for sweetened foods.
During the 1990s, the new commercial channels will include one specifically targeted on children. Without any doubt this will greatly increase food advertising. At the same time, the Bill weakens the advertising control system. The current prior approval requirement will be abolished and the ITC will only investigate specific complaints from viewers. At present the IBA code, which states that advertisements should not encourage sweet eating throughout the day, and particularly not at bedtime, is regularly flouted. The IBA recently permitted an advertisement for fruit gums which featured a child in pyjamas. Smarties advertisements have been criticised for encouraging sweet eating at school. As has already been mentioned, the hidden sugar content of many of the foods that we associate with children's snacks and meals creates a further problem in this area. I support these amendments and I hope that my noble friend the Minister will be able to accept them.
§ Lord Auckland
My Lords, I have rather more sympathy with Amendment No. 97 than I have with Amendment No. 96. I say that in the face of speeches made by the noble Lord, Lord Rea, who is a distinguished general practitioner, and my noble friend Lord Colwyn who is a distinguished dentist. Some of us have experience of children and grandchildren who naturally like sweet foods. Incidentally, there is no real definition in the amendment of the term "sweetened foods". I hope I may dare mention Mars bars which many of us eat, including myself. I presume they come into the category of sweetened foods. I personally would like to see the television authorities pay more attention to the advertising of toothpaste and toothbrushes. However, I think this measure is taking the matter a little too far. One could, of course, always make the point that at say five o'clock or six o'clock in the afternoon children should be concentrating on their homework rather than watching television, even though there are some good children's programmes.
The spirit of the amendment has much to commend it. However, we really need a concrete definition of the term "sweetened foods". I loved syrup sandwiches as a child and I suspect that many other noble Lords also enjoyed them. I am sure they could be designated as sweetened foods. I believe that a previous amendment proposed a ban on the advertising of alcohol before 9 p.m. However, that is a different matter. I would wholly support such a ban because we all know the long-term harm that alcohol and indeed tobacco can cause. While the spirit of the amendment has much to commend it, I believe it is rather too vague in its conception.
§ Lord Thomson of Monifieth
My Lords, I am not sure that I speak for the crowded Benches behind me in my contribution, but I wish to offer a few words of 465 caution to the House on this matter. I have great sympathy with what has been said about the dangers of excessive sweet eating. As a grandfather myself, I am aware of the dangers that advertising may pose for children. Nevertheless we are promoting a Broadcasting Bill in connection with an industry which may be entirely supported by advertising. If one were to place major bans on the advertising of prepared foods of various kinds that are not wholly good for us, I doubt whether the commercial broadcasting industry could conceivably survive. A conscious policy decision is needed here. A noble Lord who has just spoken was quite right to say that the IBA has a code as regards advertising products. That code states that advertisements:shall not encourage persistent sweet eating throughout the day nor the eating of sweet sticky foods at bedtime".If someone believes that some advertisements breach that code, he should complain immediately to the IBA which has a machinery for dealing with these matters. However, any major ban of the kind that is proposed in this measure is a matter for a government decision on general health policy grounds. It is not primarily a broadcasting matter. As a health policy, the Health Education Authority and the Government would need to take a conscious decision on it.
If we were to do what is proposed in the amendment, I believe it would be a step that is without precedent in the history of television advertising. The only legally available product on which a ban is imposed at the moment for health reasons is cigarettes. One must be cautious about this issue. I sympathise with the suggestion made by the noble Lord who has just spoken. We should be encouraging positive education, particularly through the Health Education Authority—that should include television education—about the dangers of excessive sweet eating and indeed excessive eating and drinking of some other products. I am told incidentally that if one were to ban the advertising of sweetened foods before eight o'clock, baked beans, of which I am rather fond, would also be caught by the ban.
My Lords, I am glad that the noble Lord, Lord Rea, explained why the noble Baroness, Lady Masham, was not in her place to move her amendment. She also explained that to me. If she could not attend as a result of a problem caused through eating sweets, I rather fancy that she must have had a predilection for eating sweets in their own right because, youthful though she may be, I believe that commercial television was not available when she was a child. Therefore she must have indulged in eating sweets despite the lack of televised sweet advertisements.
I understand the concerns which have been expressed as regards sweets and children by my noble friend Lord Colwyn, who has great experience in these matters, and by other noble Lords. The noble Lord, Lord Thomson, made an interesting speech on this matter. He made an even more interesting speech earlier this afternoon. However, this evening as regards this amendment he seemed to miss a trick. He 466 said that we should not involve ourselves in this matter because we were dealing with an industry which depended on advertising. I was about to say that a detailed rule involving a partial ban on advertising for sweetened foods is a matter for the Independent Television Commission. It is not something in which Parliament should become involved. A provision which would make it unlawful to advertise a bar of chocolate on television before eight o'clock seems somewhat draconian.
The existing IBA advertising code already prevents advertisements encouraging persistent sweet eating or the eating of sweet, sticky foods at children's bedtime. I have no doubt that there will be similar rules in the ITC code, and it should be for the ITC, following consultation with all interested parties, to decide whether further restrictions on the lines proposed by the noble Lord, Lord Rea, are needed.
I find it difficult to accept the amendments concerning a review of the advertising code. There is already a requirement under Clause 9(1)(a) for the ITC to draw up, and from time to time review, the code on advertising and sponsorship. So, the reviews are already regular. But a particular review may conclude that no revision in a certain area is necessary. It would be inappropriate, therefore, to compel the ITC to revise its code. As regards consultation, Clause 9(2)(c)(iii) already includes,professional organisations qualified to give advice in relation to the advertising of particular products".This should embrace the organisations specified in Amendment No. 97.
I agree with my noble friends Lord Auckland and Lord Swinfen and the noble Lord, Lord Thomson, that the measure would extend to far more products than just sweets. My advice is the same as that offered by the noble Lord, Lord Thomson. The term "sweetened foods" would also include baked beans, and no doubt a whole variety of other items. I do not think the ITC needs any special injunction to facilitate the,transparency of its operations and their openness to public scrutinyin this field. The advertising and sponsorship code, and every revision of it, must be published under the terms of Clause 9(3). Moreover, Clause 9(2) requires wide consultation. Those provisions will provide for the openness which I believe the amendment seeks.
§ Lord Rea
My Lords, I thank all noble Lords who have contributed to this discussion. I cannot say that I am delighted with the reply that the Minister gave. I had hoped he might make one or two remarks to show that he recognised that the points I made were important. I agree that the Bill provides a framework for the regulation of advertising, but there is no indication that things will be any better than they are now. Things may in fact become a lot worse. There will be many more channels and a great many more advertisements before our eyes and before our children's eyes. We must watch this space. However, I can see that at the moment I am not likely to have enough support to carry the amendments. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 97 and 98 not moved.]
§ 7 p.m.
§ Clause 11 [Monitoring by Commission of programmes included in licensed services]:
Earl Ferrers moved Amendment No. 99:
Page 10, line 43, leave out ("make and").
§ The noble Earl said: My Lords, in moving Amendment No. 99 I should like to speak also to Amendments Nos. 100, 241, 242, 299, 300, 304, 305, 327 and 328.
§ The purpose of the clauses is to enable the Independent Television Commission and the Radio Authority to have access to programmes for supervisory purposes and to assist the Broadcasting Complaints Commission and Broadcasting Standards Council in the examination of complaints. The amendments remove the requirement to make recordings. We consider that the requirement to retain them is sufficient. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 100:
Page 10, line 44, leave out ("any matter included by him in any") and insert ("every").
§ On Question, amendment agreed to.
§ Clause 12 [Audience Research]:
Earl Ferrers moved Amendment No. 101:
Page 11, line 10, at end insert ("and").
§ The noble Earl said: In moving Amendment No. 101 I shall speak also to Amendments Nos. 102, 243 and 244. These amendments follow undertakings given in another place that we would circumscribe and clarify the audience research provision in Clause 12(1) (c). The amendments replace other government amendments tabled during the Committee stage but withdrawn after debate. In drafting the new amendments we have taken full account of the points which were made in the debate in Committee.
§ As drafted, subsection (1)(c) places a general duty on the Independent Television Commission to commission research into the types of programmes which the public would like to see included in licensed services. The effect of the amendments on the television side is to restrict that duty to the commissioning of research for the purpose of assisting the Independent Television Commission to perform its statutory functions in connection with Channel 3, 4 and 5 programmes.
§ We consider that that is a sensible restriction since that is the only purpose for which research under subsection (1) could be carried out. The Independent Television Commission will have a power to make positive programme requirements, and it is right that it should be able to commission research to assist it in carrying out that function. There is not the same need for the Independent Television Commission to commission research into what people would like to see on, for example, non-domestic satellite services, where the commission will not be empowered to impose positive programme requirements. Such 468 research would assist the Independent Television Commission only in so far as it might have a bearing on what people wish to see on Channels 3, 4 and 5.
§ In the same way the Radio Authority would not be assisted by research into what people would want to be included in restricted services or additional services which may, for example, only carry data transmissions. The Radio Authority will not impose positive programme requirements on any of its licensees but it will need to take account of public demand when licensing the national and local services in order to ensure that it fulfils its duty in respect of providing for sufficient diversity. Accordingly, the fourth amendment in this group makes clear that it is only for the purpose of licensing national and local radio services that the authority needs to research what programmes the public would like to hear.
§ The third amendment in this group touches on a different matter. I wrote to the noble Lord, Lord Thomson, and the noble Baroness, Lady Birk, during the recess to explain the effect of this subsection and why the Radio Authority considers its deletion to be most important. Under subsection (1)(b) the Radio Authority would be required to carry out research into the effects of its licensees' programmes on the attitudes and behaviour of its listeners. Your Lordships may recall that during Second Reading the noble Lord, Lord Chalfont, pointed out that such a duty sat uneasily upon a light-touch regulatory body.
§ It would be an onerous and expensive task and the authority might well have to take on extra staff and therefore raise licence fees to cope with it. We have to remember that in future there will be several hundred radio stations, many of which will broadcast to quite small audiences. The situation is not comparable to television where services are fewer and audiences are generally national or regional. The Radio Authority will license services covering, for example, individual universities and hospitals. This large number of radio services will broadcast a wide variety of programmes, so a duty to ascertain their effects on listeners would be a major task.
§ The amendments will not remove all obligation from the Radio Authority to carry out research. We believe that there should be provision for radio research but it has to be in keeping with the size of the authority and the resources of the radio stations themselves. The authority will still have to research public opinion about the programmes in all its licensed services under subsection (1)(a). It will also carry out research into the types of programmes which listeners would like to hear on national and local services under the amendment to subsection (1)(c). However, we believe that it would be right to dispense with subsection (1)(b) as the authority wishes. Not only would subsection (1)(b) be a disproportionately burdensome requirement, it would also duplicate, to a large extent, the role of the Broadcasting Standards Council. Your Lordships will know that Clauses 152 and 156 provide for the Broadcasting Standards Council to monitor and research public attitudes in 469 respect of standards of taste and decency. For those two reasons we agree with the Radio Authority that subsection (1)(b) should be deleted.
§ We consider that these amendments fulfil the undertakings which were given both in this House and in another place. They bring the ITC's and Radio Authority's duties in respect of research into line with their general programme responsibilities and resources. I hope that the amendments will have the approval of your Lordships. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 102:
Page 11, line 13, leave out ("(c)") and insert ("for the purpose of assisting them to perform their functions under Chapter II in connection with the programmes to be included in the various services licensed thereunder, for ascertaining").
§ On Question, amendment agreed to.
§ Schedule 3 [The Channel Four Television Corporation: Supplementary Provisions]:
Earl Ferrers Amendment No. 103:
Page 178, line 29, after ("the") insert ("Chartered").
§ The noble Earl said: My Lords, the amendment was spoken to with Amendment No. 5. I beg to move.
§ On Question, amendment agreed to.
§ The Earl of Strathmore and Kinghorne
My Lords, I beg to move that further consideration on Report be now adjourned until ten past eight.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The sitting was suspended from 7.7 to 8.10 p.m.]
§ Clause 27 [Channel 5]:
Baroness Birk moved Amendment No. 104:
Page 27, line 41, at end insert:
(" () The Commission shall do all they can to secure that Channel 5 programmes contain a suitable proportion of matter calculated to appeal to tastes and interests not generally catered for by Channel 3, and generally that Channel 5 is given a distinctive character of its own.").
§ The noble Baroness said: My Lords, the amendment was discussed in Committee and proposes that Channel 5 should have a distinctive personality. We were not very happy with the reply that was given. The Minister felt that its character would come about after people had applied, whereas we were of the opinion that people must have something in mind before it was advertised. At present the Bill provides no remit other than that it must apply some of the positive programme requirements and the quality threshold.
§ I appreciate that there must be a certain amount of flexibility, but the situation is too wide because, as the Minister stated, it would be for the licensee to develop a distinctive remit for the channel in order to compete effectively with Channel 3. He stated that it is wrong to suppose that unless the Bill lays down the precise programming policy for Channel 5 it would not acquire a distinctive identity. We did not want a precise remit but we wanted to make sure that Channel 5 has a distinctive identity; otherwise, we do 470 not know what would differentiate Channel 5 from some of the Channel 3 stations that will have been applied for.
§ I wonder whether the Minister or the Government have had any thoughts on the matter. If the situation is left as wide open as it is, people will not know what they are applying for. I beg to move.
§ Lord Bonham-Carter
My Lords, the purpose of the amendment can be compared with the purpose expressed by the noble Lord, Lord Wyatt of Weeford, when he was talking about his amendment. We have in mind that pressure should be brought to bear on those who run Channel 5 to give it a distinctive character. Whether or not it has a regional character is a matter for them. Some of us thought that Channel 5 should represent the regions and thereby differ from the national characteristic which would be the role of Channel 3.
The purpose of this innocuous little amendment is to remind those who will be in charge of Channel 5 that it has a special and distinct function to perform. We hope that the noble Earl will be able to satisfy us that that is the purpose that the Government have in mind.
My Lords, I can see what the noble Baroness is worried about and I shall do my best to satisfy the noble Lord, Lord Bonham-Carter. They are both concerned that Channel 5 should have a special character of its own.
The amendment takes the essence of Channel 4, which is set out in Clause 24, and imposes it on Channel 5. We never expected that Channel 5 should be a second version of Channel 4 or yet another complementary channel to channel 3. On the contrary, Channel 5 is designed to be a direct competitor of Channel 3. Therefore, for the most part it will cater for the tastes and interests which are catered for by Channel 3.
That does not mean that Channel 5 cannot develop a distinctive character of its own. Channel 5 will almost certainly be a single national channel, possibly using local programmes and hence quite different in structure from the federal regional Channel 3. Channel 5 may be located in the north of England or Scotland and will have far more scope for experimentation in programme schedules than does Channel 3. Indeed, in order for the new channel to compete effectively with Channel 3, it may have to offer a distinctive service. But because Channel 5 will be a new channel, competing against Channels 3 and 4, it should be for the licensee to determine its precise shape and direction rather than for Parliament to do so. I hope that I have been able to satisfy the noble Baroness that the new channel will have a distinctive character of its own and that it will not be a pale reflection of the others.
§ Baroness Birk
My Lords, I should like to thank the Minister for his reply. The matter still remains open. I should have thought that by now the Government or the commission would have had something in mind 471 about the future of Channel 5. We do not know what to expect. I do not think that I can take the matter any further. I beg leave to withdraw the amendment.
§ Amendment, by leave withdrawn.
§ Clause 28 [Application to Channel 5 of provisions relating to Channel 3]:
Earl Ferrers moved Amendment No. 105:
Page 28, line 13, at end insert ("and").
§ The noble Earl said: I should also like to speak to Amendment No. 106. These amendments are consequential upon the deletion of Clause 18(3). I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 106:
Page 28, line 15, leave out from ("(f)") to end of line 16.
§ On Question, amendment agreed to.
Baroness Fisher of Rednal moved Amendment No. 106A:
After Clause 28, insert the following new clause:
("Northern Broadcasting Foundation
—(1) The Secretary of State shall, in consultation with the Commission, allocate such part of total television revenues as he may determine to be appropriate for the purpose of this section for the financial year beginning on 1st April 1992 and each subsequent financial year.
(2) Any amount received by the Commission under subsection (1) shall be carried by them to the credit of a fund established by them under this section, to be known as the Northern Broadcasting Foundation.
(3) The Fund shall be under the management of a committee appointed by the Commission for the purpose of this section, to be known as the Northern Broadcasting Foundation Committee, and shall be applied by the Committee in the making of grants for the following purposes, namely—
(4) When making any grant from the Foundation in pursuance of subsection (3) above the Committee may impose such conditions as they think fit, including conditions requiring the grant to be repaid in specified circumstances.
(5) The Committee shall perform their functions under this section with respect to the making of grants out of the Foundation in such manner as they consider will secure that a wide range of high quality television programmes reflecting the diverse cultures of the North of England, the North of Ireland, and Scotland are broadcast for reception on Channel 5.
(6) The persons appointed to be members of the Committee shall be such as the Commission may determine, but the members are persons who appear to them to represent the diverse cultures of the North of England, the North of Ireland and Scotland and that at least half of the members are women and that there is a proper representation of ethnic minority communities.
(7) The Terms of Appointment for the Commission shall be as outlined in subsections (7), (8) and (9) of section 181 (Gaelic television programmes).").
§ The noble Baroness said: My Lords, I shall be brief in my comments. Regional television has been discussed at great length at previous sittings. The amendment standing in my name is self-explanatory. 472 It is designed to strengthen both television and film production infrastructure in the north of England and Scotland. The aim of strengthening the infrastructure in that part of the world is to ensure the production of high-quality programmes for the new Channel 5.
§ For both cultural and economic reasons the new channel should be based in the north of England. As the Minister said with regard to the previous amendment, placing it in the north of England would help it to develop a distinctive character. Popular and intelligent programmes of all types —drama, comedy, news and current affairs—produced in the north but of interest to the whole country should help to redress the current metropolitan and southern bias of much of British television. Hence, the distinctive character that I mentioned could be developed.
§ There is an obvious reason for singling out northern Britain for the type of special treatment that the amendment recommends. I realise that the wording of the amendment might not meet the approval of the Minister or the Government. I do not intend to press the amendment to a vote, but I hope that the Government see the north of England as an option to be considered. I beg to move.
My Lords, I am grateful to the noble Baroness for saying that she does not intend to press the amendment. I hope that I shall be able to give her the satisfaction that she requires about the matter over which she is concerned.
I understand and share the desire of the noble Baroness that Channel 5 should be located north of Birmingham. We hope that it will be based away from the south east of England. Such a location would be bound to give a non-London perspective and flavour to Channel 5 programming and stimulate programme production in the area in which it is situated. I hope that from that point of view the noble Baroness will be encouraged.
However, I do not think that there is a case for seeking to impose on Channel 5 something which should emerge of its own nature. Regional programmes reflecting the culture and interests of the north of England, Northern Ireland and Scotland are already specifically catered for in the requirements laid on the relevant regional Channel 3 licensees. Channel 3 is intended to be a regionally based system which offers a mix of programmes of regional interest and programmes broadcast nationally in all regions via the network. But Channel 5 is different. It is designed essentially as a single, national channel. As such, it would not be appropriate for it to be required to show programmes relating to certain areas but not to others.
That highlights the flaw in the concept of a northern broadcasting fund. One might ask whether it would be right for northern Britain to have special arrangements for its television programmes when those are to be denied to western, southern and eastern Britain. There is no special language factor except Gaelic which has already been separately catered for in the Gaelic Broadcasting Fund.
473 We see the proposed foundation as a somewhat unnecessary bureaucratic device which would take money away from the licensees and then make them bid to go back again. The best guarantee of a flourishing northern dimension to United Kingdom television is a successful Channel 3 and Channel 5. I hope that I have been able to explain to the noble Baroness why we do not find her amendment acceptable.
§ Baroness Fisher of Rednal
My Lords, I thank the Minister for that full answer. I go so far as he does in saying that the foundation might be considered necessary in 50 years' time. It is important to move the infrastructure from the south of England further north. That point is recognised by the Government who have spent a great deal of money on Liverpool and on the Tyne-Tees region. They clearly recognise that there is a need for the infrastructure to move further north. The media is a good part of that infrastructure to move north because the programmes could perhaps be produced more cheaply than they are now when they are based in the south of England. I thank the Minister for his remarks and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 29 [Initial Channel 5 licensee required to retune equipment susceptible to interference]:
Earl Ferrers moved Amendment No. 107:
Page 29, line 30, at end insert:
("(5A) Where the holder of a Channel 5 licence is required, by virtue of conditions imposed in pursuance of subsection (1), to make any such arrangements as are mentioned in that subsection in relation to any relevant equipment, those conditions shall be taken as requiring him in addition to make arrangements for any television set connected to that equipment to be retuned—
so far as is necessary to enable it to be used in conjunction with the equipment (as retuned or otherwise modified); and subsections (1) (b) and (c) and (2) (b) shall have effect in relation to those arrangements as they have effect in relation to any such arrangements as are mentioned in subsection (1) (a).").
§ The noble Earl said: My Lords, this amendment extends the responsibilities of the Channel 5 licensee in regard to retuning. Where a home video recorder or computer is being retuned in accordance with the provisions of subsections (1) and (2) of Clause 29, the licensee is now also made responsible for retuning any television set which is used in conjunction with such equipment, where that is necessary. I beg to move.
§ On Question, amendment agreed to.
§ Clause 31 [Nomination of bodies to provide news for regional Channel 3 services]:
Earl Ferrers moved Amendment No. 108:
Page 30, line 22, at end insert ("; and any such invitations shall be issued at a time that is, in their opinion, appropriate for securing that at least one such body is so nominated by the time the first notice is published by them under section 15(1).").
§ The noble Earl said: My Lords, this amendment to Clause 31 is designed to ensure that invitations by the ITC to companies to become a nominated news provider for Channel 3 are issued in time for at least one news provider to be nominated before notice of intent to grant Channel 3 licences is published under the provisions of Clause 15. Applicants for those licences would then be aware of the costs of the news service. I beg to move.
§ On Question, amendment agreed to.
§ 8.30 p.m.
Lord Bonham-Carter moved Amendment No. 109:
Page 31, line 42, leave out from ("to") to the end of line 44 and insert ("no more than 51 per cent. of the shares in that body; and
§ The noble Lord said: My Lords, Amendment No. 109 permits Channel 3 services to retain a majority shareholding in the nominated news provider. Noble Lords will remember that in Committee we proposed a rather more radical approach to the problem. This is an attempt to obtain a modus vivendi between the position adopted by the Government and that which we on this side of the House maintain.
§ The Bill states that regional Channel 3 services will in future be entitled to own less than 50 per cent. of ITN as the nominated news provider instead of the current position of 100 per cent. share ownership. The amendment proposes a compromise that the regional Channel 3 companies should collectively be entitled to have a majority interest in ITN, but no more than 51 per cent. In that respect, we have moved a considerable distance towards the Government's position.
ITN has welcomed the Government's aim to ensure that the nominated news provider is able to provide effective competition with the BBC. However, in a paper provided for the House of Lords, Sir David Nicholas, Chairman and Chief Executive of ITN, said:
The ITN Board believes the government's objectives concerning the provision of news on Channel 3 would best be met by allowing the majority of ITN's equity to reside with the Channel 3 licensees".
My colleagues and I on this side of the House are in full agreement with that position.
§ The amendment would allow the Channel 3 companies, if they chose to do so, to own up to 51 per cent. of ITN. This would guarantee its independence —and no doubt its impartiality—by retaining the successful link which has historically been established between ITN and Channel 3 and at the same time encourage efficiency which might become available by involving outside investors. Although there may be tensions—probably healthy, creative tensions—between ITN and Channel 3, the relationship has undoubtedly been extremely beneficial and has secured a quality of news service which everyone would acknowledge.
§ Another briefing dated 4th October expresses concern about the Government's decision to force the owners of ITN to divest. In the light of our debate 475 earlier this week, I find the Government's intention to force the owners of ITN to divest rather extraordinary. We were subjected to a series of moral lectures from the Government Front Bench and from their supporters on the monstrousness of forcing people to divest. The issue which confronts us is whether such divestment is contributing to the developing new world television. I believe that the investment which has been made has contributed to the world of television, and that to destroy it by making them divest at this time would be an enormous mistake.
§ These words are a close approximation of the words of the noble Viscount, Lord Whitelaw, at col. 196 of the Official Report of 9th October. What is the difference between forcing Mr. Rupert Murdoch to divest and forcing the owners of ITN to divest in an investment which has been long established, which has produced unquestionable results on which, I should have thought, on any ordinary commercial basis they deserved to earn their reward? I find it extraordinary that the Government should make such a song and dance about the prospect of forcing an American-Australian company to divest when they are now forcing a British company to divest in this country. I beg to move.
§ Lord Ardwick
My Lords, I am not sure that I can add very much to the excellent case put forward by the noble Lord. In Committee, the noble Earl gave four reasons for the Government's decision that Channel 3 licensees should no longer be the total owners of ITN but should own less than 50 per cent. of the shares. The four reasons he gave were inadequate. He said that the change would encourage ITN to act efficiently. What he meant, I suppose, is that it would be run more cheaply. There are two ways to increase the efficiency of a news organisation. One is to cut out the waste. That is a good way but it is limited. There is not much waste in any good organisation. The other way of cutting costs is a bad way. It is to cut the service itself: to provide the same quantity of news but news of lower quality.
The second reason the noble Earl gave was that a wider share base gives scope for directors with outside experience. I should have thought that a company which is able to draw on the directors of 15 or 16 Channel 3 companies could provide as much experience as is needed in the directors of a news organisation. The noble Earl then saw the advantages of expansion in the introduction of greater risk capital —in other words, ITN should become a profit-seeking company instead of a company covering its essential costs for a first-class service. I see dangers in this. A news company can always take on board a new customer and even provide for some special needs. But the temptation to lose the direction of the company is apparent. The company is providing a kind of electronic newspaper. Its attention must be focused on that. Any earnings are an addition but they must not be deliberately sought.
The other reason the noble Earl gave is that there would be fewer tensions among the directors. I should have thought that the bringing in of outside directors with an eye on the profits was a way of increasing 476 tensions, not of diminishing them. In Committee, we tried to suggest a compromise based on ITN owning 70 per cent. of the shares. That was turned down. Now we are suggesting another, very weak compromise. We suggest that ITN should own 51 per cent. It is not a good compromise—it presents many dangers—but it would enable the company to define its main objective, to keep to it and to resist a diversification which could damage its main aim.
ITN has acquired a golden reputation over the years. That reputation must not be put at risk. It is now in the interests of the nation and not just of Channel 3 that it should stay firm to the traditions it has so well created.
The Earl of Stockton
My Lords, since we last discussed this issue in Committee it has become clear that ITN's financial position is far from sound and is being further compounded by the very government policy which was theoretically designed to put it on a sound financial footing. In the past year ITN has had to ask its shareholders to meet overspends on news coverage in Eastern Europe and now in the Gulf, as well as a very significant overspend on the projected move to its new centre in Gray's Inn Road. None of ITN's many ancillary business activities provides any substantial profits and most are well over budget in terms of their losses.
ITN's shareholders are being asked to cover all of these shortfalls against the background of static advertising revenue. Some of this funding is required so that ITN may continue to provide a service which is genuinely competitive to that of the BBC. Non-broadcasters, who under the existing draft Bill and amendments will control the nominated news providers, will have little incentive to reduce or even postpone profit in order to provide the public with the best news service possible.
The Government's plans with regard to the ownership of the nominated news provider are fervently opposed by the management of ITN and its shareholders, and publicly by the IBA. Where is the constituency that will benefit from this change? I am grateful to the noble Lord, Lord Bonham-Carter, for raising the issue of divestment. Had I been obliged to do it, it might have smacked a little of sour grapes.
§ Lord Boston of Faversham
My Lords, I support the amendment proposed by the noble Lord, Lord Bonham-Carter, and supported by my noble friend Lord Ardwick and the noble Earl, Lord Stockton. I should like to join the noble Lord, Lord Bonham-Carter, in praising ITN for having established such a high reputation over the years as one of the world's leading news services. I would prefer a 70:30 per cent. split, with the present shareholders retaining the majority holding, but I am prepared to go along with the sponsors of the amendment in this proposal.
I fear that I am not able to be as optimistic about the brevity of my remarks as was the noble Lord, Lord Ardwick. I should like to put some additional points to your Lordships. However, I shall be as brief as possible at this hour.
477 As the amendment would allow 51 per cent. of the shares to be held by the ITV Channel 3 licensees and 49 per cent. by outside shareholders, the difference between the supporters of the amendment and the Government is significant but not great. There are strong reasons why it should now be possible for the Government to end this difference and to accept the amendment. I refer to the important statements made by the noble Earl, Lord Ferrers, and to exchanges that took place in our debate on ITN in Committee on 19th July. I refer too to an equally important statement made by the Minister's right honourable friend, the Minister for the Arts, Mr. David Mellor.
The noble Earl, Lord Ferrers, said at col. 1056 of the Official Report on 19th July:The Government are not seeking to exclude Channel 3 licensees from holding the controlling share of the news provider. If Channel 3 were to hold the 49 per cent. share which the Bill would allow, that would almost certainly amount in practice to a controlling interest, in particular as the Bill provides that no other single person or company could have a shareholding that was greater than 20 per cent. In other words, although 51 per cent. of the shareholding is owned by people other than news providers, no one of those other owners could own more than a 20 per cent. shareholding. Therefore the chances are that the 49 per cent. shareholding held by the licensees themselves would create a controlling interest".At that point I intervened to point out that the qualification "almost certainly a controlling interest" did not amount to "certainly controlled". The noble Earl was good enough to say that that was a fair point. There are circumstances in which the broadcasters would not have effective control; for instance, where all non-broadcasters voted together against the broadcasters, perhaps on a matter where they judged the maximising of the profits of ITN Limited more important than the maximising of the quality of Channel 3's news service from ITN, or where there were differences of opinion among those holding the broadcasters' shares.
There was also the statement by the Minister for the Arts, Mr. Mellor, in another place on 9th May 1990. He stated that we know that 49 per cent. is an effective controlling interest in almost every company. Again there is that most important qualification, "almost". That effective controlling interest applies only where the 49 per cent. is held by one company. In ITN's case the 49 per cent. would be held by up to 15 companies —the 15 programme contractors.
The Government appear to be saying that they accept that effective control should apply but without taking that short step to make sure that it does apply. It is that short step that we ask the Government to take now. It is the carefully considered and unanimous view of the 15 regional ITV companies, as well as the ITN management, that it is in the best interests of ITN and its viewers that the ITV Channel 3 licensees should have effective control of their news provider by means of a clear majority shareholding.
I do not wish to repeat all the arguments raised in Committee. Some have been referred to tonight. However, new information has been mentioned by the noble Earl, Lord Stockton. I join him in asking the 478 Minister to take that into account. It has been one of the Government's aims to seek to keep costs down. That is a matter with which I wholly agree. But to leave the programme companies with only a minority holding would not do that. It is plainly in the interests of the present shareholders, who are also ITN's customers, to keep costs under control. They have a direct incentive to do that in the interests of their own shareholders, to whom they have a duty.
However, if the majority shareholders were from outside and were not customers their incentive would be quite the reverse: it would be to maximise the dividend payments. The danger is that that would be at the expense of the quality of the news service provided to viewers and customers. It would also be in the interests of the outside shareholders to charge the customers as much as possible. One can hardly blame them for doing so. That would force costs up.
The noble Earl, Lord Stockton, indicated the new factors which have come to light since July this year. He referred to the very substantial additional costs which ITN has incurred in covering developments in the Gulf. Over the past year or so considerable additional costs have been incurred in covering the welcome developments in East and Central Europe. Those costs were unavoidable if ITN was to cover those historic, momentous world events. It is quite unthinkable that ITN—one of the two principal news services in this country and one of the principal ones in the world—should have refrained from covering those matters. That is something on which I am sure all noble Lords would agree. We would have wished it to cover them, and it did. However, it has to be paid for; but by whom? It has to be paid for by the existing shareholders.
In the future, if existing shareholders were asked to divest themselves of the majority of their shareholding, who would pay for such costs? Under the provisions of the Bill, one could hardly blame the new majority outside shareholders—I refer to those shareholders who are outside the industry —who would not be customers of the news service provided by ITN if they were not prepared to shoulder the costs. Of course they would not be prepared to do so. They would be keen to maximise the dividend payments for which they had invested in the company. Therefore one could hardly blame them if they wished to saddle the other shareholders—the minority shareholders in that situation who are also the customers—with the costs. They are customers who are bound by a monopoly trap.
I should have thought that the Government would see that that would be manifestly unfair. It would also have the effect of maximising costs and therefore defeating one of the prime purposes of the Government: to seek to keep costs down. I am sure that we would all agree with the Government in that aim.
I join with noble Lords and my noble friend in supporting the amendment. It is in accordance with the expressed views of the Government and is a very short further step for them to take. Noble Lords from all parts of your Lordsips' House have brought the 479 new amendment forward. It is a substantial retreat from what would be our ideal situation. It is an attempt to meet the Government's own concerns. I therefore hope that in the light of the new facts which the noble Earl, Lord Stockton, has put before the House tonight the Minister will accept the amendment. If the precise terms are not acceptable to Her Majesty's Government perhaps they will bring forward a similar amendment at Third Reading.
My Lords, the noble Lord, Lord Boston, is very enticing in the way that he puts his case. One would expect that from someone who has the advantage of being a Queen's Counsel.
I accept that the amendment moved by the noble Lord, Lord Bonham-Carter, has taken his position much nearer to that of the Government than was the case at Committee stage. The noble Lord, Lord Boston, said that it was far less than desired but that it was only a small difference. That is true. The difference is small—only 2 per cent. One may say that it is de minimis. However, as he will know, it is not de minimis. There is a significant difference between 49 per cent. and 51 per cent.
The noble Lord, Lord Bonham-Carter, tried to draw a similarity between the divestment of News International and Sky Television and what he described as the divestment of licensees in ITN. The two are totally different. The structures are completely different as are the principles, and all that is being considered. To try to consider them as being the same is like trying to discuss Piccadilly Circus and Tuesday afternoon. The two are not the same, and for obvious reasons. The Bill does not require ITN to divest and makes no reference to ITN at all. It states merely that whatever news provider is chosen should have a Channel 3 shareholding of less than 50 per cent.
If we were to accept the amendment moved by the noble Lord, Lord Bonham-Carter, Channel 3 licensees would collectively have, and continue to have, unfettered control of the nominated news provider. I rehearsed the Government's arguments last time and gave four reasons why we believe the provision to be right. The noble Lord, Lord Ardwick, has referred to them. We believe that wider share ownership would help to bring pressure on the news organisations to act efficiently. We believe that the wider share basis would give scope for directors with outside experience. We believe that the advantage of diversification and expansion would be the introduction of greater scope for risk capital for investment. Finally, we believe that the proposal would ameliorate the tensions to which the noble Lord, Lord Ardwick, referred and which otherwise might exist because of a conflict among Channel 3 licensees. In particular, there have in the past been those in the management of ITN who have felt that the ownership structure of ITN has prevented the company from diversifying in ways which in their opinion would have been to the benefit of ITN but which may have been perceived as undesirable for ITV, perhaps because such action might be seen as assisting ITV's competitors.
There may be some misunderstanding about the need for Channel 3 companies to own their own news 480 service. We naturally want the news service to provide high quality news but this does not mean that the Channel 3 licensees have themselves to own the news service. The ITC will, under our proposals, be required to nominate a news provider which is capable of providing high quality news. In order to retain nomination by the ITC the news provider will have to continue to provide a high quality news service. If it did not, its nomination would be withdrawn.
The Government are not seeking to exclude Channel 3 licensees from holding the controlling share of the news provider. If Channel 3 licensees were to hold the 49 per cent. share which the Bill allows that would almost certainly amount in practice to a controlling interest, particularly since the Bill provides that no other single person or company should have a shareholding of greater than 20 per cent. What we have tried to do is to create a sensible balance between the legitimate interest of Channel 3 companies to have a say in the affairs of the news provider and the desirability of avoiding too narrow and introspective an ownership base. We have no doubt that Channel 3, with a 49 per cent. share, would be given full scope to ensure that news provided for Channel 3 continued to be of high quality.
The noble Lord, Lord Boston, said that the difference between them and us is significant but it is small. I agree that there is a difference. It is simply that whereas with 49 per cent. the chances are almost certainly that the licensees will collectively have a controlling interest in a company, with 51 per cent. they will have an absolute interest. That is a significant difference. The noble Lord, Lord Boston, referred to the overspending of ITN. It might have been better to have had a wider share ownership basis and therefore the possibility of risk capital which might have helped the company in its present crisis.
My noble friend Lord Stockton asked who benefits. If ITN can expand its business and sell its news to more customers the price per customer will fall and that will benefit Channel 3 licensees. The noble Lord, Lord Boston, said that the incentive would be merely to make higher returns for the shareholders. If the company were able to diversify, to bring in more capital and to expand, it may be that it would be able to produce higher returns for its shareholders. However, it would only do so if it were successful. And it would be successful only if it produced better news.
A wider shareholding might look more favourably on the possibilities of the news provider expanding and diversifying its services to other broadcasters. That is the reason behind our views. I know that there is only a small difference between 49 per cent. and 51 per cent. but I hope that the noble Lord will realise that even with 49 per cent. the licensees will almost certainly have a controlling interest.
§ Lord Bonham-Carter
My Lords, that is an exceedingly disappointing reply. The noble Earl appears to be unable to make up his mind between whether he wants the company to be almost in control or in control. In mitigation of his position, he says, "It is almost certain that it will be in control". If he regards that as being good, why not let it be in 481 control? He says that allowing other people to have the prospect of control will encourage ITN to diversify and so expand its services to a large number of other people. ITN has offered its services to a large number of other people. It is one of the main news providers in the world with a reputation which is not surpassed by anyone else. Therefore, the idea that it has not done well, that it has not been enterprising and that it has not offered its services to other people under its present ownership is simply not borne out by the facts.
The Government must make up their mind and come clean about whether, on ideological or practical grounds, they believe that the control should be changed from where it is today. To come to the House and say, "It is almost certain to be just the same but we have made it just a bit uncertain", is a thoroughly bad and confusing policy. The noble Earl also said that in this case divestment is totally different from divestment in the case of News International. He states that as a proposition which we must accept. I must confess that to me divestment seems to be divestment and that the distinction between the two forms of divestment is one that I find difficult to grasp.
We have heard from the noble Earl, Lord Stockton, of the interesting situation that arose this year whereby, in the interests of providing news to its customers, ITN has been involved in a substantial overspend to cover properly for the benefit of the public the momentous events in Eastern Europe and in the Gulf. Surely that is something to be welcomed.
It is almost certain that if the ownership was 51 per cent. in the hands of other people, that would have happened anyway. However, it is not quite certain. We on this side of the House want to be sure that it is quite certain that that sort of service to the public comes first and profit second. For that reason we tabled this amendment and I reluctantly withdraw it due to the hour at which we are sitting.
§ Amendment, by leave, withdrawn.
§ Clause 32 [Conditions requiring holder of Channel 3 or Channel 5 licence to deliver promised service]:
§ 9 p.m.
Earl Ferrers moved Amendment No. 110:
Page 32, line 35, leave out ("(c) and (d)") and insert ("(bb) and (c), or (as the case may be) subsection (3) (bb) to (d),").
§ The noble Earl said: My Lords, this was spoken to with Amendment No. 48. I beg to move.
§ On Question, amendment agreed to.
§ Clause 35 [Party political broadcasts]:
Earl Ferrers moved Amendment No. 111:
Page 35, line 13, leave out ("Any") and insert ("Subject to subsection (1A), any regional").
§ The noble Earl said: My Lords, I shall speak also to Amendment No. 112. These amendments to Clause 35 restrict the requirement for party political broadcasts on Channel 3 to regional Channel 3 licensees and give the ITC the option of not imposing requirements for party political broadcasts on a Channel 5 licensee who may be giving coverage for only certain days of the week or certain times of the 482 day. We see no good reason for insisting on a mandatory requirement for such broadcasts on what may simply be, for example, a breakfast service. I beg to move.
§ Baroness Birk
My Lords, are there party political broadcasts on breakfast television at present? I never watch breakfast television.
My Lords, I also never watch breakfast television, but I understand from those who do that party political broadcasts do not operate on breakfast time television. The point about the amendment is that the Channel 5 licensee might have the option of having only a breakfast time licence. Therefore, it would be quite inappropriate that party political broadcasts should be going out at that time and that there should be an obligation so to do.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 112:
Page 35, line 19, at end insert:
("(1A) Where any determination under section 27(3) is in force, a licence to provide Channel 5 may (but need not) include any such conditions as are mentioned in subsection (1) (a) and (b).").
§ On Question, amendment agreed to.
§ Clause 37 [Promotion of equal opportunities in relation to employment by licence holder]:
Baroness Ewart-Biggs moved Amendment No. 113:
Page 36, line 3, at end insert (", application, promotion, transfer or training").
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 114, 115, 116 and 117. Amendment No. 113 specifies that equal opportunities must be applied in relation to the:
application, promotion, transfer or training
of staff. When the Bill left another place we understood that Mr. David Mellor, the Minister responsible for the Broadcasting Bill, had given an undertaking that specific changes along the lines of this amendment would be made by the Government. However, when the Minister here moved his amendment on equal opportunities, it made only a general reference to employment. For that reason we have tabled these rather more specific requirements on equal opportunities.
§ As regards Amendment No. 114, that requires that equal opportunities shall be applied also between people with disabilities and able-bodied persons. The Bill currently applies equal opportunities between men and women and persons of different racial groups. Again, the right honourable Mr. David Mellor gave an undertaking that the Bill would extend equal opportunities to people with disabilities.
§ In Committee here the Minister made reference to the Department of Employment's review on employment and training for people with disabilities as the main reason that he would not consent to include disabilities. However, we feel very strongly that even if this review is taking place, a requirement being placed on employers in broadcasting to apply equal opportunities to people with disabilities still stands.483
§ Amendment No. 115 requires licence holders to publish what they have done to implement equal opportunities arrangements. As the Bill is presently drafted, there is a requirement only for licence holders to review their equal opportunities arrangements from time to time. While we should have preferred the ITC to have a monitoring role for implementation of equal opportunities, we feel that the least we can expect is that employers should be placed under a duty to publish what they have done to effect the arrangements. We believe that without that obligation, employers may well continue to pay lip service to a requirement to promote equal opportunities without bringing it about.
§ Amendment No. 116 seeks to apply equal opportunities arrangements to all those working on programmes for licence holders. That includes freelancers and self-employed workers as well as the staff of licence holders and independent production companies. We believe that, with the number of freelancers now working in the industry, that is of very great importance. Although the wording of our amendment refers to persons employed or to be employed and that of the existing clause refers to employment, we believe that the underlying intention is to include all categories of workers and not in any narrow or restrictive way to exclude freelancers and self-employed. We hope that the Minister can reassure us that the Government too share that interpretation.
§ Lastly, Amendment No. 117 extends the requirement to promote equal opportunities to the ITC, the Radio Authority and the privatised transmission company. In Committee we proposed an amendment that an equal opportunities obligation should be placed on the ITC in relation to its staff. However, we withdrew that amendment in anticipation of the government amendment on equal opportunities. The amendment was opposed by the Minister on the grounds that other statutory bodies may expect to be subjected to a similar duty, and that it was less important for ITC staff than for influential programme makers to be subject to equal opportunities legislation.
§ We believe that not only statutory broadcasting bodies but all statutory bodies should be placed under a similar duty to promote equal opportunities. It is not true to say that the precedent, once established in broadcasting, will automatically have a knock-on effect on other bodies.
§ These amendments will strengthen the equal opportunities requirements on licence holders. They will be much more in line with what we anticipated coming before your Lordships. My honourable friend Mr. Mark Fisher was given, as he understood it, an undertaking by Mr. David Mellor that the requirements on equal opportunities legislation would be very much in line with the amendments to which I have just spoken.
§ Lord Bonham-Carter
My Lords, I shall not detain your Lordships long in supporting the amendment so admirably moved by the noble Baroness, Lady Ewart-Biggs. I only say this. For 11 years I was concerned with race relations legislation. That 484 involved trying to establish equal opportunities, particularly in employment. One of the problems was that the application of that legislation by different firms fell on the personnel departments, and the standing of personnel departments in different firms varies widely. In some places the personnel officer is on the board and is a person of real significance; in other firms the personnel officer has no standing in the firm at all and is simply a fonctionnaire.
That is the first problem. The second problem is that in all firms personnel officers are deluged with urgent current problems which arrive on their desk every day. There are problems of industrial discipline, of industrial dispute, and hard cases involving individuals. Those cases, which arrive hourly, naturally preoccupy them. The difficulty with equal opportunities legislation is where it stands on the agenda of boards of firms. Unless one can persuade boards of firms to take equal opportunities legislation seriously, to put it high on the agenda, progress will not be made.
It is for that reason that legislation in this area is important. It is for that reason that general legislation plays a crucial part, whether concerning equal opportunities for women, race, colour or for the disabled. The voice of the law is much stronger and more authoritative than the statements of politicians. Therefore when we introduce this kind of legislation, if we can incorporate in it reference to the importance of equal opportunities, as the amendment suggests, we shall be contributing to a crucial national battle to secure the position of minorities in the case of ethnics and the disabled, majorities in the case of women. We will be participating and assisting in the battle to ensure equality of treatment which lies very near the heart of a democratic society.
Baroness Darcy (de Knayth)
My Lords, I can support these amendments warmly, but perhaps extremely briefly, particularly as they relate to people with disabilities. They are especially important because there is no legislation at present to ensure equal opportunities for disabled people. The 3 per cent. requirement is only voluntary. If Clause 37 is felt necessary for women and different racial groups—I appreciate what the noble Lord, Lord Bonham-Carter, said—and they are already covered by equal opportunities legislation, it is vital that it should cover disabled people for whom there is no anti-discriminatory legislation.
The amendments would encourage broadcasters to think positively about training and employing disabled people. It is beginning to happen to a small extent in the area of support staff, but hardly at all as yet on the production side. Training is crucial. Very few courses are accessible to disabled people. The few instances where they have been adapted has been very much due to the commitment of one or two people. The amendment would mean that people would need to rely less on individual and fortuitous dedication because a requirement would be placed on the employer. I hope that the Minister will be able to say something encouraging when he replies.
My Lords, I like to hope that all my remarks are encouraging, and I shall do my best to be encouraging in this regard as well.
The noble Baroness, Lady Ewart-Biggs, referred to the fact that my right honourable friend gave a commitment concerning this matter. What he said was that the provisions would be wide enough to apply to all these aspects of employment to which the noble Baroness referred. Indeed, I think that the clause does that. We have demonstrated our commitment to equal opportunities by introducing Clause 37 and the corresponding provisions for domestic satellite services and national radio. We share very much the sentiments which have been put forward this evening, but I am bound to tell the noble Baroness that we have difficulties over her amendment.
The purpose of the clause is to require licensees to make arrangements to promote equal opportunities in matters of employment. There is nothing between us in that. We certainly expect that the term "matters of employment" will be interpreted in its widest sense and should include areas such as training, promotion and conditions of service. We do not consider, therefore, that it is necessary to spell out the component parts in the way envisaged in the amendment. Indeed, this could be seen as narrowing the scope of the clause and—this is important—by applying it only to those specific areas of employment and not to those which have not been mentioned.
The second amendment tabled by the noble Baroness refers to another matter but, as I explained in Committee, the Department of Employment is at present reviewing the whole area of discrimination against people with disability. In the summer it issued a consultation document, Employment and Training for People with Disabilities, and the consultation period lasts until the end of the year. I am certain that comments would be welcomed from the broadcasting industry. The document discussed the present quota system and considers alternative approaches, both legislative and non-legislative. I am sure that your Lordships agree we should not seek to pre-empt the outcome of that consultation. Furthermore, we do not consider that the Broadcasting Bill is the right vehicle in which to tackle a general issue of this kind.
The noble Baroness, Lady Ewart-Biggs, said that all statutory bodies should be subject to the equal opportunities requirements. That may be so, but I do not consider that it is a matter for the Broadcasting Bill because such measures go far wider than the scope of the Bill.
As regards Amendment No. 115, as I explained in Committee the IBA has indicated that it envisages the equal opportunities condition in the Channel 3 licence will include a requirement on the licensee to publish information on its progress on equal opportunities in its company's annual reports. In view of that undertaking we do not consider it necessary to include a statutory requirement to that effect when the licensee has indicated that it will be done in any event.
We do not find particularly attractive what is, in fact, an exhortation provision on the lines envisaged in 486 Amendment No. 116 relating to independent producers. Such a provision in the Bill would be impossible to enforce. Little would be gained by introducing such a provision. As I explained in Committee, a number of ITV companies are considering seeking a declaration of the sort envisaged from independent producers from whom they commission programmes. I suggest to the House that this non-statutory route is the best approach in this case.
The noble Baroness, Lady Ewart-Biggs, seeks to extend the equal opportunities provision to the ITC, the Radio Authority and the privatised transmission company in Amendment No. 117. Again, I agree with the sentiments behind the amendment but I do not consider that we should place these bodies under such a statutory duty. The ITC, the Radio Authority and the privatised transmission company will be bound by the Race Relations Act and by the Sex Discrimination Act and we all agree that they should continue to operate the good equal opportunities policies currently followed by the IBA. Therefore, I am doubtful whether a statutory duty would be of any value.
As I explained in Committee, this amendment could have unintended implications by possibly casting doubt on the commitment to equal opportunities of other statutory bodies who have no such statutory duty placed upon them. It would be a pity if it had that inverse effect. As I said, the Broadcasting Bill is not the right place in which to insert these obligations and, in view of that explanation, I hope that the noble Baroness will feel content to leave matters as they are, where a great deal of work is already being done.
§ 9.15 p.m.
§ Baroness Ewart-Biggs
My Lords, I am grateful to the Minister for having gone carefully through these amendments and responded to them all. However, I do not think that his hope that we will rest content will be quite fulfilled. What the noble Lord, Lord Bonham-Carter, said was both extremely realistic and true, and it is therefore a pity that the Minister kept repeating that this is not the Bill in which to put these safeguards.
I still feel very strongly—the more so, having heard the noble Baroness, Lady Darcy, speak on Amendment No. 114—that it is a great pity not to include in this Bill the application of equal opportunities to people with disabilities. She has clearly said that they do not have protection elsewhere. The fact that there is a review going on at the moment is not a good argument.
Finally, I have heard so often during the passage of this Bill many speakers stressing that training is all-important to people in the industry. They have also stressed very often that there are many freelance and self-employed workers and that an increasing number of them are being taken on in broadcasting. There is a very serious worry that they will not be trained. At the moment they have to pay for their own training.
487 There are not enough places on the training schemes. If this amendment were added to the Bill it would be a very important addition.
We are very disappointed both from the point of view that we believe Mr. David Mellor had been thinking along the lines of our amendment and that on many occasions he had implied that fact. We are also disappointed from the point of view that we believe that these are very necessary equal opportunity requirements. We are extremely disappointed but, naturally, I shall not divide the House at this time of night. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 114 to 117 not moved.]
§ Clause 38 [Networking arrangements between holders of regional Channel 3 licences]:
Lord Thomson of Monifieth moved Amendment No. 117A:
Page 36, line 16, after second ("services") insert ("whose programmes reflect the social and cultural diversity of the United Kingdom and").
§ The noble Lord said: My Lords, here we come to the question of the networking arrangements in general. This particular point relates to the provision of network programmes from the various regions of the commercial television system. At the moment Clause 38 makes no provision for ensuring that the Channel 3 network reflects the regional nature of the service which is its distinctive nature. In our view it is important that the different regions should be able to address each other and the nation through the network. That has been one of ITV's great strengths since the service began and it should be carried forward into the Channel 3 system.
§ In assessing the value to Channel 3 of the range of programmes commissioned or purchased for the network, a regional flavour and perspective should be among the criteria. In addition to that general factor it is very important that a fair proportion of these regional programmes so commissioned should be made by the regional contractors themselves. The Government should not underestimate the pressures caused by the way that the competitive system is growing in broadcasting and by the pull of the metropolis. I have mentioned this matter a number of times to your Lordships during our proceedings on this Bill and I shall not bore the House by repeating the argument.
§ The pull of the metropolis is a tremendous one. It would be perfectly possible for a regional contractor to be the originator, in a financial sense, of regional programming for the network but to have the programmes made down in the metropolitan area. Positive action is needed. There should be a positive provision in the statute to provide some countervailing forces to the pull of the metropolis in terms of programme making. It is that regional aspect which lies behind this amendment. I beg to move.
The Earl of Stockton
My Lords, this amendment is grouped with Amendment No. 134 which is tabled in my name. Accordingly, I shall speak to both amendments. I spoke to a similarly worded 488 amendment in Committee on behalf of my noble friend Lord Gray of Contin. I only raise the matter again because on that occasion I felt, with respect, that its import was misunderstood by the Minister.
The wording of the amendment has been reworked in an attempt to eliminate the misconception that the ITV companies concerned are seeking quotas for specific regions. That is not the case. The amendment is simply trying to ensure that anyone winning a Channel 3 licence, and with aspirations to provide programmes for the network, will have to make, or get others to make, a suitable proportion of those programmes in the area for which they hold a licence. That is the crux of the issue. It is not enough to say that the federal structure of Channel 3 and the Clause 3 requirement on the ITC to ensure fair and effective competition will see to this regional input by itself.
Unless there is some further undertaking at this stage, I think that we will increasingly see programming which ignores the regions and which, to some extent, panders to the tastes of the network which inevitably has a centralising tendency. For example, there are currently 6,000 people employed in network production outside London: measure this against the tendency for independent producers who supply Channel 4 and the other channels which work from London—the figure is somewhere around 70 per cent.; most of the rest are in Cardiff with a few in Scotland—add to that the BBC production base which is almost entirely London-based for both channels, and one can quickly see why the IBA has established over the years a more geographically diversified production base. What the IBA has achieved is unique. In this context, my noble friend Lady Carnegy of Lour has asked me to express her support for the view which was put to her by Scottish Television.
But now the economic pressures on the bidders for Channel 3 licences will inevitably lead most of them to rationalise network production, meaning a real threat to their staff and continued existence of their studios in the provinces. Faced with this scenario, it seems unlikely that any but the top few producers will be able to justify maintaining network production capacity in the regions. Surely that is not what the Government want.
I find it strange that the same Government who feel so tender about the 800 employees at Sky who have been employed for two years or less can view without compunction the dismissal of 6,000 people who have been based in the regions for the greater part of their working lives.
The amendment is not asking, as the Minister thought in Committee, for a guarantee that every regional production will be successful in its bid to supply the network; it simply asks that a proportion of those programmes supplied to the network are produced in the region which is supplying them. On this ground I urge the Minister to reconsider his position in this respect.
§ Lord Boston of Faversham
My Lords, I should like to express my support for the amendment moved by 489 the noble Lord, Lord Thomson of Monifieth, and that of the noble Earl, Lord Stockton. I know that these amendments also have the support of my noble friends on the Front Bench, Lady Birk and Lady Ewart-Biggs. I endorse the remarks made by the noble Lord and those made by the noble Earl.
I should like to say a few words about the noble Earl's amendment. It is clear from what he said that there are significant employment implications here. I join him in asking the noble Earl to take those implications into account. Many people are employed in most of the ITV regions making programmes for the network. If there were no provision for ensuring that a proportion of network productions is made in the regions, the likelihood is that many of those people will lose their jobs. The Minister may feel that that fact gives added point to his noble friend's amendment. The amendment is also supported by the Independent Television Association and by the IBA shadow ITC.
I also endorse what the noble Earl said about the concern felt for Sky Television's employees. The Minister might accordingly feel the steps embraced in the amendment to safeguard employment in the regions equally deserving of Her Majesty's Government's support. It is in line with the Government's aim of obtaining a wider spread of programme-making throughout the regions, which has been stressed as a prime purpose of major parts of the Bill.
§ 9.30 p.m.
My Lords, networking and the making of programmes is an interesting subject. I understand the anxieties of my noble friend and the noble Lord, Lord Boston, about the employment that emanates therefrom.
The Government's proposals for networking envisage that programmes will be commissioned for the network on the basis of value for money. There will, therefore, no longer be any guaranteed quotas. I understand that some ITV contractors have in the past found it difficult to obtain access to the network because of the quota arrangements which have been a feature of the network system. The new network arrangements should open up access to the network to enable all licensees who choose to do so to offer programmes to the network and expect to have them considered on the basis of value for money. I see no reason why all Channel 3 licensees should not benefit from that arrangement. Obviously, if some benefit because they are able to produce programmes which they could not produce before, presumably ipso facto, others who produced some in the past will not produce so many, because they will be made by others.
On Amendment No. 134, my noble friend Lord Stockton urged that some programmes should be produced in the regions. I hope that they will be. My noble friend says that no quotas are intended under the amendment. I do not see how one could operate the amendment without some form of quota system. The amendment would inevitably mean some form of guarantee or quota for regional companies if one is to 490 ensure that those companies have a stake. That in itself could be at variance with the principle of obtaining programmes which represent the best value for money. Of course, in commissioning programmes the commissioning group would not necessarily have to select the cheapest programme. It could, and no doubt would, take into account the quality of the programme and its artistic merits in determining value for money. Where a programme offered some distinctive regional flavour that would also no doubt be an important element in the overall assessment of value.
I do not believe that one can ensure that a proportion of network programmes is made in the regions unless the selection arrangements for the network give some form of guaranteed priority. I do not see how else one can achieve it. One would have to give some form of guarantee for programming from the regions. That, as I have tried to explain, is effectively a quota. If there is no quota, that does not mean to say that no programmes will be produced in the regions. Our hope is that programmes will be produced. They will be good; they will be competitive; and they will therefore provide value for money.
Perhaps I may turn to Amendment No. 117A in the name of Lord Thomson of Monifieth. It is similar to Amendments Nos. 1 and 47 which your Lordships did not accept. I am bound to say that until the noble Lord spoke I was not too clear what his amendment was intended to achieve. I believe that he was trying to give effect to the principle that is often expressed in the term, "Let nation speak unto nation". I think he is probably trying to ensure that the network programmes do not have an entirely metropolitan flavour. I agree with that. But the network arrangements that we had in mind are designed precisely to ensure that that does not happen. The network arrangements will enable all licensees from all over the United Kingdom to offer programmes to the network and to expect to have them fairly considered.
I believe that this is a step forward from the position which exists now. As I said, there will not be quotas in the future; therefore it will be possible for Scottish, Irish and Welsh licensees together with licensees from all the regions of England to submit their programme proposals to the network. It is the concept of freedom to offer programmes to the network which I suggest to your Lordships is the best guarantee of having a network which reflects the social and cultural diversity of the United Kingdom.
My fear is that if the noble Lord's amendment were to become part of the Bill, we might go straight back to the days of quotas. That is likely to mean that the large companies would take the lion's share of all the commissions, while the smaller companies would gather what is left of the crumbs from the table. Our arrangements which clearly set aside any form of quota are, I hope and think, the best guarantee that the programmes which are produced for the network will indeed reflect the social and cultural diversity of the United Kingdom and will in the long run produce the best forms of programme.
§ Lord Thomson of Monifieth
My Lords, I thank the noble Earl for that explanation and agree with a good deal of the argument that he has put. As regards value for money, one can be optimistic about the possibility of the non-metropolitan regions doing well in terms of making programmes and enabling them to be available to the regions. The truth is that, purely on money grounds, it is generally a good deal cheaper to produce programmes, let us say, in Scotland or the North- East of England than it is in the London area. The difficulty is a non-economic one, that the London area attracts as a magnet those who are involved in television and film production. Unless there is a positive pressure the other way, that process carries on. Even though it is more expensive down in the metropolitan area, it is done there because the people have gathered there; they meet in the same professional meeting places and an old boy network grows up that outweighs the forces of the economic costs.
I fully concede that it is a most difficult problem. To some extent we come up against it in future amendments about the role of the Office of Fair Trading and so on. For what it is worth in this case, it seems to us to be of value for the Government to consider putting on the face of the Bill general provisions that will at least give the ITC some ground to stand on in attempting to deal with these sometimes non-economic forces of metropolitan concentration.
As others have said, it is late at night to press these matters further. I hope that in the light of what has been said the Government may give further thought to the matter between now and the final stages of the Bill in your Lordships' House. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 118:
Page 36, line 17, leave out from ("television") to ("the") in line 18 and insert ("programme services provided in").
§ The noble Earl said: My Lords, in moving Amendment No. 118 I wish to speak also to Amendments Nos. 119, 120, 121, 122, 124, 126, 127, 129, 130, 131, 132, 133, 135, 167, 369, 371 and 372. These amendments achieve two principal purposes. The first is to set out the role of the Director General of Fair Trading in approving network arrangements. The second is to make minor adjustments to the requirement in Clause 38 of the Bill for Channel 3 licensees to engage in appropriate network arrangements. I apologise for the length of the amendments but this is a technical subject.
§ In Committee I introduced what is now Clause 38 of the Bill which requires regional Channel 3 licensees to form appropriate network arrangements. I indicated at that time that we would bring forward further amendments to give to the Director General of Fair Trading a role in approving these arrangements as being consistent with good competition practice.
§ Amendment No. 133 requires the ITC, when it has approved any network arrangements, or imposed 492 arrangements of its own design, to publish the details of those arrangements and to refer those arrangements to the Director General of Fair Trading.
§ The new schedule in Amendment No. 167, sets out the role of the Director General of Fair Trading when such a reference is made. Paragraph 1 of the new schedule requires the director general to publish a notice of the reference, to consider whether the arrangements satisfy a competition test, and to make a report on those arrangements within a period of six months.
§ Paragraph 2 sets out the competition test itself. Paragraph 3 sets out that where the director general does not approve of the networking arrangements, but indicates what amendments need to he made to those arrangements, then the commission must through its licence conditions, require the licensees to make such amendments. Paragraph 4 provides for an appeal procedure to the Monopolies and Mergers Commission.
§ Paragraph 5 requires the MMC to produce a report on the reference. If it concludes that the arrangements do not satisfy the competition test, the report must specify the modifications which the MMC considers would enable them to pass that test.
§ Paragraph 6 requires the commission to ensure, through its licence conditions, that licensees modify the arrangements in accordance with the MMC's report. Paragraph 7 gives the director general the power to review the network arrangements at any time after his initial assessment of the arrangements without having to demonstrate any material or significant changes.
§ Paragraph 8 gives a power to the director general to obtain such documents or information as he may require for the purposes of making any report under the schedule. Paragraph 9 requires the director to assist the MMC in carrying out any investigation on the reference which is made to it.
§ Because this new schedule contains a purpose built competition test for the network arrangements, it is unnecessary for those arrangements to be subject to the Restrictive Trade Practices Act. Accordingly, Amendment No. 371 sets out that the Restrictive Trade Practices Act 1976 shall not apply, and shall be deemed never to have applied, to any relevant network arrangements specified in an order by the Secretary of State.
§ Amendment No. 372 simply provides for the Secretary of State to make an order requiring network arrangements to be modified if any general investigation into broadcasting which is not connected with the provisions in the Bill and which is conducted by the Office of Fair Trading were to reveal that changes in the network arrangements were necessary on competition grounds.
§ Amendment No. 118 to Clause 38 revises the purpose for network arrangements. They are to enable Channel 3 to compete effectively with other television services in the United Kingdom. It is unnecessary to limit the services with which Channel 3 should compete.493
§ Amendment No. 119 requires the commission to send to the Director General of Fair Trading, as soon as possible after the closing date for applications for Channel 3 licences, details of each applicant's proposals for participating in such arrangements.
§ Amendment No. 129 makes it clear that, where the ITC has imposed network arrangements, these arrangements can be superseded by other arrangements proposed by the licensees themselves and approved by the commission. Amendment No. 131 provides for the commission to modify any arrangements which it may have imposed on the licensees. The other amendments in the group are consequential upon those major amendments or are minor technical amendments to the provision.
§ I apologise for the length of that description, but these are technical amendments and I thought it only appropriate to let your Lordships know exactly what they refer to. I beg to move.
§ 9.45 p.m.
§ Lord Thomson of Monifieth
My Lords, the noble Earl has no reason to apologise to the House for the way in which he presented the amendments. They are highly technical and difficult to comprehend, but it is very important that the Government put their position on the record because the networking arrangements are of great significance. They have been a constant problem within the commercial television system over many years.
In mitigation it must be said that independent television has relied on an extremely popular and attractive network system from the point of view of the viewer, which is what matters in the end. When I had responsibility for it there were times when I thought that it was such a perfectly organised system, in the administrative and financial sense, that it seemed to end up at the end of the year without any money changing hands between any single television contractors.
I began to worry that the accountants rather than the programme-makers were the dominant elements in the creative activity of maintaining the network in those days. The subsequent attempts at reforming the network to meet the concerns of a number of television contractors—and I look towards my noble friend Lord Boston of Faversham who may have something to say on the subject—improved matters, but did not solve the problem. I do not deny the difficulties and the need for as good a network system as is practicable.
I should like to ask the noble Earl, because I am not quite sure what stage has been reached, to what degree the arrangements that have now been made carry the agreement of the shadow Independent Television Commission. I know that the commission was extremely concerned about the role of the OFT in the matter. The OFT's role in such matters—a very proper role—is related to economic competition. However, the difficulty with network arrangements in television is that, while there is not a conflict, there are often tensions pulling different ways between the most 494 competitive system in the terms in which the OFT is bound to look at the matter and the system that provides the viewer with the best possibility of a rich variety of programming.
I believe that independent television is entitled to feel that while the OFT has a role to play, that role ought to be subordinate to the decisions of the Independent Television Commission about the overall quality of the network programming that will be provided. I know that the Independent Television Commission felt very strongly that while the OFT's guidance and advice would be very helpful to the ITC the arrangements set out in the Bill should not allow the OFT to have a final veto. As I understand the present situation, all applicants' proposals for participating in networking will have to be sent to the Director General of Fair Trading. In the view of the shadow ITC that is unnecessary since the OFT has no power to block an application, nor should it have such a power.
Those general and important questions have still to be resolved. I apologise to the noble Earl. It is my fault and not his that I was not wholly clear from his explanation as to what degree those differences of opinion between the Government and the shadow Independent Television Commission have been resolved. I should like a greater degree of clarity before we finally pass those arrangements.
§ Lord Boston of Faversham
My Lords, I should like to join my noble friend Lord Thomson of Monifieth in stating that the noble Earl should not apologise for spelling out in some detail the Government's explanation for these matters. Equally, I hope that he will forgive me if I take a little time to mention points that are of concern to the industry.
My noble friend Lord Thomson vigorously pursued the matter of reforming the network and encouraged the ITV programme companies to get together and solve the very considerable problems that had existed over the years. It is thanks very much to his intervention as chairman of the IBA that matters have progressed to the extent that they have.
I was among the noble Lords in Committee who welcomed the Government's decision to introduce provisions on networking. I join in repeating that welcome now, although I would have gone rather further than some of my friends in ITV. I would have preferred the ITC to have been required to impose a networking system if necessary rather than to have been empowered to do so.
I fear that I am less than welcoming about the Government's new amendment in relation to networking especially in regard to the Office of Fair Trading. I should like to say in passing that while I have every possible respect both for the Director-General of the Office of Fair Trading, Sir Gordon Borrie, and for his office and its work, I feel that it is quite wrong that the Government should seek to involve the OFT in these matters to the extent that it has. The OFT plays a role, as the noble Lord, Lord Thomson, has pointed out, but it should not be to the extent that is proposed.
495 When the noble Earl, Lord Ferrers, stated in Committee that further work was to be done and that minds were not closed on these matters, I was somewhat encouraged. However, little did we expect, when the noble Earl said that more work was to be done, that this would involve unleashing at this very late hour upon your Lordships' House and upon a wholly unsuspecting industry the highly complex, vast series of provisions for the involvement of the OFT, inducing the lengthy procedures not only involving the OFT but, in certain circumstances, the Monopolies and Mergers Commission.
The ITC is, after all, the Government's creation. The Government have made it the regulatory body. In the submission of many of us in the industry, it is quite wrong in principle, and unnecessary in practice, to bring in another regulatory body to the extent proposed, and to give it a role in devising the guidance to be issued to applicants for licences. I agree with the view of the IBA that the ITC should be relied upon to issue guidance which is consistent with good practice as defined by the OFT but without the need for a specific veto in the Bill. That point was made with great cogency and persuasiveness by my noble friend Lord Thomson.
I shall understand if the Minister cannot give a categoric reply tonight; but I have asked him to consider withdrawing the amendment to Clause 38(2) under which all applicants' proposals for participating in net working must be sent to the Director General of Fair Trading. As the IBA has stated, it is unnecessary because the OFT has no power to block an application. I join with my noble friend Lord Thomson and go one stage further in asking Her Majesty's Government to consider withdrawing the proposal.
Decisions about whether the proposals of an applicant are satisfactory are solely for the ITC which has been created by Her Majesty's Government partly for that purpose. It is enough for the ITC to have, as it had under the original text of Clause 38, power to approve ITV/Channel 3 networking arrangements and a duty to ensure that they are fair and competitive. There is no need for any statutory referral procedure to the OFT on that matter. Perhaps it should also be pointed out that production arrangements at the BBC, Channel 4 and the satellite channels will not require similar statutory scrutiny by the OFT.
One of the most disturbing aspects of the new procedure is the delay that it will or might cause in the decision-making process of the Independent Television Commission in deciding which applicants will be granted franchises. I understand that the OFT has six months in which to report on whether a network passes the competition test or not. I assume that that will mean—perhaps the Minister will confirm this, if not tonight, which I would understand, then later—that the announcement by the ITC on the allocation of the new franchises will or could be delayed accordingly. There could then be an appeal to the Monopolies and Mergers Commission which has three months to report. That could be extended to six 496 months. Does not that mean that decisions or the pronouncements on them about the allocation of franchises might be delayed in certain circumstances for up to one year? Clearly, that has implications for the readiness of applicants to prepare for the start of the new franchises.
I understand from what the Minister said that the Restrictive Trade Practices Act 1976, with its requirement that agreements in restraint of trade must be referred to the Restrictive Practices Court, will not apply to a network if the Secretary of State makes an order, subject to parliamentary annulment, exempting that network or all networks of a class to which that network belongs. However, it is not clear which classes of network the Secretary of State intends to exempt; nor is it clear which transitional arrangements, if any, before the new ITV/Channel 3 system comes into effect are intended to be protected by the clause. Perhaps the Minister will say what is intended. Again, I understand if that is not possible to do so tonight.
There is just one other matter relating to the new schedule to be inserted after Schedule 3. In the competition test defined in paragraph 2 of the new schedule, the OFT must satisfy itself that the networking arrangements:do not have, and are not intended or likely to have, the effect of restricting, distorting or preventing competition in connection with any business activity in the United Kingdom".I emphasise those final words. I share the IBA's view that that is too broad and might cause complaints to be made to the OFT on a much wider range of matters than is intended by those provisions and by the Government. Surely it would be better to replace those words that I emphasized—any business activity in the United Kingdom"—with the provision of licensed services and services connected with them. If that were to be done, it would tie in with the wording of Clause 2(2).
I must apologise to noble Lords for having gone on at length at this late hour, but these matters concern many of us, certainly those in the industry. I hope that it may be possible for the Minister to meet some of those worries.
§ 10 p.m.
My Lords, as the noble Lord, Lord Thomson, said, this is a complicated and technical matter. It is difficult to explain all the technicalities across the Floor of the House. I shall do the best that I can.
The noble Lord said that networking has always been a difficult problem. It probably goes back to the original days when making programmes and so forth was an expensive business and on the whole only the largest companies could do it. They had to be persuaded because it cost money. They tended to provide the majority of programmes. Now it has become a profitable thing to do and they have, as it were, squatters' rights. They have the largest share of the networking arrangements. We have to try to alter that in a way that is as fair as possible.
497 The noble Lord was concerned about the involvement of the Office of Fair Trading. That is necessary because networking is a restrictive trade practice. Whether the arrangements are arrived at between the companies themselves —obviously the best method—after which they go to the ITC and say that that is how they would like the networking done, or whether the ITC imposes a form of networking because the companies cannot agree, in either event it is necessary, because of the possibility of a restrictive trade practice, to have clearance from the Office of Fair Trading. We will expect the Independent Television Commission and the Office of Fair Trading to work closely together in considering network arrangements and trying to resolve any differences of view amicably. In the last resort the Office of Fair Trading has to be satisfied that the arrangements, whatever they may be, are such as to meet the competition test introduced in the schedule.
The Office of Fair Trading does not have any role in the licence allocations process. That is entirely a matter for the ITC. The noble Lord, Lord Thomson, asked about the position with regard to the ITC. It has expressed concern but it has accepted that it is the Government's wish for the Office of Fair Trading to have a role. It is prepared to accept that.
Despite the long list of amendments, I can reassure the noble Lord, Lord Thomson, that the role of the Office of Fair Trading is limited only to whether the networking arrangements are fair and competitive. Since we are disapplying the Restrictive Trade Practices Act, we have to provide an alternative provision.
The noble Lord, Lord Boston of Faversham, asked a number of important and detailed questions. The Secretary of State will exempt by order from the application of the Restrictive Trade Practices Act those forms of networking which are approved by the Independent Television Commission and the Office of Fair Trading. The noble Lord asked about delays. There should not be any. The ITC can press on with networking arrangements. It does not have to wait for the Office of Fair Trading's report and any adjustments to the networking arrangements can be accommodated through licence conditions later. If networking arrangements are not concluded between licensees, then the Independent Television Commission will impose an arrangement which will already have been cleared and approved by the Office of Fair Trading.
The noble Lord asked a number of other questions of a technical nature. He was kind enough to say that he would not necessarily expect me to answer all of them tonight. With the noble Lord's approval I shall make sure that the important questions that he asked are considered. I shall contact him later with the appropriate and authoritative reply.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendments Nos. 119 to 122:
Page 36, line 26, leave out ("shall") and insert:
Page 36, line 27, after ("16(1))") insert ("shall").
Page 36, line 28, leave out ("them") and insert ("the Commission").
Page 36, line 31, leave out ("(c) and") and insert ("(bb) to").
§ On Question, amendments agreed to.
Lord Thomson of Monifieth moved Amendment No. 123:
Page 36, line 36, leave out from ("2(a)") to the end of line 40 and insert ("and which would ensure fair and effective competition between regional Channel 3 services in the nationwide system of such services.").
§ The noble Lord said: My Lords, in moving the amendment I seek to invoke a response from the noble Earl as to the Government's position. We are concerned that the networking arrangements should ensure fair and effective competition between regional channel services in the nation-wide system of such services. The noble Lord, Lord Boston of Faversham, is a distinguished chairman of a regional television company. He is always careful to declare his interest in this House. Having heard what the noble Lord said, I have to say that the regional television company appears to have had reason to feel a sense of grievance over a number of years as to whether the position between the regional Channel 3 services and the nation-wide system was fair and effective.
§ We propose the amendment in order to underline the importance of the issue. The noble Earl may say that he has broadly dealt with the issue in the answers that he has already given. However, I give him an opportunity to amplify them if he seeks to do so. I beg to move.
My Lords, I would not be so cavalier as to say that I had already answered the noble Lord's points. I shall try to give him clarification of the position.
Amendment No. 123 removes the obligation of the Office of Fair Trading to approve any illustrative networking guidance. However, since the Office of Fair Trading will be required to approve any networking arrangements which are put in place it seems sensible that it should confirm that the illustrative arrangements which the Independent Television Commission may seek to impose if the licensees themselves fail to come forward with a suitable arrangement would in the event receive the approval of the Office of Fair Trading.
Amendments Nos. 125 and 128 are grouped together.
§ Lord Thomson of Monifieth
My Lords, they did not appear to be grouped together and I therefore avoided referring to them.
My Lords, in that case, I too shall avoid referring to them. I have given the explanation 499 with regard to Amendment No. 123. As the Office of Fair Trading has to approve those arrangements it seems correct that it should have the right to do so.
Lout Thomson of Monifieth
My Lords, I thank the noble Earl for that clarification. I apologise because I had failed to register that the amendments were grouped together. They were not grouped together in my brief.
500 In the light of the noble Earl's explanation, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 124:
Page 37, leave out lines 5 and 6.
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 118. I beg to move.
§ On Question, amendment agreed to.501
Lord Thomson of Monifieth moved Amendment No. 125:
age 37, line 11, leave out ("before 1st January 1995").
§ he noble Lord said: My Lords, I shall speak also to Amendment No. 128. At the beginning of our debates on the networking system I should have expressed to the Government the appreciation of Members on this side of the House for what they have done to modify the original text of the Bill as regards networking. There was no provision in the original Bill for networking. It was a highly market-orientated Bill and the Government's view was that any networking should be carried out on the initiative of the new regional commercial contractors who should decide in their own commercial interests how far they wished to enter into networking arrangements. Many noble Lords believed that one of the most important aspects of the debate about the general character of the Bill was that the interests of viewers demanded that positive steps should be taken to ensure networking. Therefore, we welcome the degree to which the Government have met that demand.
§ It is in connection with the general arrangements for the timetable for networking that the two amendments are tabled. The Government propose that contractors should be encouraged to make their own networking arrangements but are unable to agree that the ITC should have the right and the duty to step in and impose a networking system to get the whole show on the road. The Bill states that the arrangements for the network should come to an end in January 1995. While the proposed interim network is better than none, we urge on the Government the fact that there is no reason why the arrangements should have the deadline of January 1995. We hope that the commercial contractors can make network arrangements satisfactory to the ITC. If they have not yet done so they are near to achieving that.
§ These are uncertain times and all kinds of difficulties may lie in the future. As regards this aspect I have a better comprehension of the issues involved than I have of some of the technical matters. I strongly urge the Government to take note of the need to preserve a residual role for the ITC in maintaining the network. As so often in these discussions I speak in the interests of the viewer. That is what concerns me rather than the separate commercial interests, legitimate though they are, of the various regional contractors.
§ Although I am conscious of the time I am bound to say that I found one aspect of being chairman of the IBA quite familiar if not congenial. I came to the IBA and networking from the European Community in Brussels. I found the task of persuading 15 commercial television companies to have sensible networking arrangements in the interests of the viewer different but no less easy than persuading the member states of the European Community to come together. There will be a continuing role for the ITC in the years that lie ahead. I earnestly suggest to the Government that before the Bill takes its final shape and receives Royal Assent they might consider conceding this point. I beg to move.502
§ 10.15 p.m.
§ Lord Boston of Faversham
My Lords, I intervene only to support my noble friend Lord Thomson of Monifieth in warmly commending Her Majesty's Government for including provisions on networking. All that the noble Lord has said is absolutely right and the need for a good networking system is of fundamental importance to the viewer whose interests we all seek to serve. Therefore, I believe, as does my noble friend, that it is important to say that this matter of networking is an example of the improvements which Her Majesty's Government have made to this Bill. The Government have shown their flexibility and their willingness to listen. Thanks are due to the noble Earl, Lord Ferrers, to his right honourable friend Mr. Mellor and, indeed, to the Home Secretary.
My Lords, I am deeply appreciative of the fact that both the noble Lord, Lord Thomson of Monifieth, and the noble Lord, Lord Boston of Faversham, feel that as a Government we have helped them, listened to them, and have brought forward amendments to clarify the position. In so far as the noble Lord, Lord Boston of Faversham, was generous enough to pass on his thanks to me, I can only say that that is another example of the remark which my father made to me to which I referred earlier, that you are blessed with the things that cost you nothing and cursed for the things to which you have given your all. I shall see that the thanks which have been passed on go to the correct quarters, as I am merely, as they say, the front man.
The noble Lord's amendments seek to remove the two year time limit on the ITC's ability to impose networking arrangements. Of course, at the outset the position is that Channel 3 licensees will be given the opportunity of putting forward for approval by the ITC and the Office of Fair Trading their own proposals for networking arrangements. I am glad that the noble Lord, Lord Thomson, says that they are a long way down the road towards achieving that agreement.
If by a certain date no arrangements have been agreed, then the ITC must use its power to impose an arrangement. Once the arrangement is imposed, it cannot be changed unless there is either agreement by the licensees and they come up with a new agreed proposal or, alternatively, the ITC revises the arrangements. Therefore, if neither of those things happens the arrangement originally imposed by the ITC would go on beyond the two year period.
However, I do not believe that that is really the point which the noble Lord had in mind. I believe that he meant that even after the two year period and after the licensees have agreed initially, if they do, to an arrangement, then the ITC should have a role even in, for example, 10 years' time. If at some time the arrangement made by the licensees were to break down and no alternative arrangement could be found, then it would still be for the ITC to find an alternative arrangement. If I am wrong about that, I shall correct myself.
§ Lord Thomson of Monifieth
My Lords, I am indebted to the noble Earl and am reassured by what he said. As he implied, if things go wrong at some time in the future, in order to maintain an effective network service I am anxious to see a reserve power available to the ITC. I agree that it is much better if the companies can make their own arrangements by agreement but I should like to feel sure—and perhaps the noble Earl could tell me this in due course, although not necessarily this evening—that there would be such a reserve right to act by the ITC if things went wrong.
My Lords, perhaps I may, by leave, reply. I may have misled the noble Lord and would therefore prefer to consider what he has said. I shall write to him later.
§ Lord Thomson of Monifieth
My Lords, I am perfectly happy with that. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 126:
Page 37, line 14, leave out ("services") and insert ("licences").
§ The noble Earl said: My Lords, in moving Amendment No. 126 I shall speak also to Amendment No. 127. These were spoken to with Amendment No. 118. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 127:
Page 37, line 17, at end insert ("and each regional Channel 3 licence shall include conditions requiring the licence holder to give effect to any arrangements made by the Commission under this subsection as for the time being in force.").
§ On Question, amendment agreed to.
§ [Amendment No. 128 not moved.]
Earl Ferrers moved Amendments Nos. 129 to 133:
Page 37, line 20, leave out subsection (7) and insert:
Page 37, line 24, leave out ("(a)") insert ("or (7) (b)").
Page 37, line 26, at end insert:
("(8A) Where any arrangements have been made by the Commission under subsection (5), they may (whether before or after the date specified in subsection (6)) make such modification of those arrangements as they consider appropriate; and, if they do so—
Page 37, line 28, after ("(4)") insert (", (7) (b)").
Page 37, line 32, at end insert:
("(9A) Where the Commission have—
(9B) The appropriate requirement referred to in paragraph (ii) of subsection (9A) is—
§ The noble Earl said: My Lords, I beg leave to move Amendments 129 to 133 en bloc. These were all taken with Amendment No. 118.
§ On Question, amendments agreed to.
§ [Amendment No. 134 not moved.]
Earl Ferrers moved Amendment No. 135:
Page 37, leave out lines 34 and 35.
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 118. I beg to move.
§ On Question, amendment agreed to.
§ Clause 41 [Power to revoke Channel 3 or 5 licence]:
Earl Ferrers moved Amendment No. 136:
Page 40, line 25, leave out subsection (8).
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 66. I beg to move.
§ On Question, amendment agreed to.
§ Clause 42 [Domestic and non-domestic satellite services]:
§ [Amendments Nos. 137 and 138 not moved.]
§ Clause 43 [Licensing etc. of domestic satellite services]:
Earl Ferrers moved Amendments Nos. 139 and 140:
Page 42, line 13, leave out ("(3) to (6)") and insert ("(4) to (6); and").
Page 42, line 18, leave out from ("(5) (b)") to end of line 19.
§ The noble Earl said: My Lords, I beg to move Amendments Nos. 139 and 140 en bloc. These were spoken to with Amendment No. 36.
§ On Question, amendments agreed to.
§ Clause 44 [Licensing etc. of non-domestic satellite services]:
Earl Ferrers moved Amendment No. 141:
Page 42, line 43, leave out ("subsections (7) and (8)") and insert ("subsection (7)").
§ On Question, amendment agreed to.
§ Clause 45 [Licensable programme services]:505
Earl Ferrers moved Amendment No. 142:
Page 43, line 46, at end insert:
("(3A) It is hereby also declared that where—
§ The noble Earl said: My Lords, in moving Amendment No. 142 I shall speak also to Amendments Nos. 269 and 295. These are technical amendments intended to make clear that where the spare capacity of a broadcasting signal is used to provide a service falling within the definition of a licensable programme service, it should be licensed as such and not as any other form of television programme service. The amendments to Clause 111 and Schedule 9 clarify the situation for radio and the transitional arrangements for DBS in a similar way.
§ On Question, amendment agreed to.
§ Clause 46 [Licensing etc. of licensable programme services]:
Earl Ferrers moved Amendment No. 143:
Page 44, line 18, leave out ("a period of ten years") and insert ("such period not exceeding ten years as may be specified in the licence").
§ The noble Earl said: My Lords, this is a technical amendment to allow licensable programme service licences to be allocated for periods of less than 10 years. This is because a licensable programme service licence might be granted for a one-off event, say a boxing match, relayed by satellite to a cinema, and it would not be necessary for the licence to last for the 10 year period currently allowed for in Clause 46. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 144 not moved.]
Earl Ferrers moved Amendment No. 145:
Page 45, line 2, leave out ("subsections (7) and (8)") and insert ("subsection (7)").
§ The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 66. I beg to move.
§ On Question, amendment agreed to.
§ Clause 47 [Additional services]:
Earl Ferrers moved Amendment No. 146:
Page 45, line 11, leave out ("telecommunication service which is provided") and insert ("service which consists in the sending of telecommunication signals for transmission").
§ The noble Earl said: My Lords, in moving this amendment I speak also to Amendments Nos. 148, 270 and 271. These are technical drafting amendments intended to clarify what is meant by additional services. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 147 not moved.]
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 146. I beg to move.
§ On Question, amendment agreed to.
§ Clause 48 [Licensing of additional services]:
Earl Ferrers moved Amendment No. 149:
Page 46, line 32, leave out from ("secure") to ("as") in line 37 and insert (", in relation to the combined spare capacity available for the provision of additional services on frequencies on which Channel 3 services and Channel 4 are respectively provided, that a single teletext service is provided on that spare capacity; but any such service shall be provided only on so much of that spare capacity").
§ The noble Earl said: My Lords, in moving this amendment I speak also to Amendments Nos. 152 and 168. These amendments give effect to the undertaking given by my noble friend Lord Sanderson to my noble friend Lord Swinfen that the Government would lay down positive programming requirements for the designated public teletext service. The proposed new schedule sets out in detail what we are proposing. This provides for the allocation of licences and the enforcement mechanisms to ensure a licensee fulfils the promises he has made.
§ Of main interest to your Lordships is, I am sure, the positive requirements that applicants will have to meet to be eligible for the licence. These are, first, that the service includes high quality national and international news items; secondly, that it includes items of regional interest; and, thirdly, that it appeals to a wide variety of tastes and interests. I beg to move.
Baroness Darcy (de Knayth)
My Lords, in the absence of the noble Lord, Lord Swinfen, I welcome these amendments. I believe that the noble Lord is satisfied and I thank the Minister.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 150:
Page 46, line 37, at end insert:
("(2A) In relation to so much of any such service as is provided for reception wholly or mainly in Wales, references in subsection (2) to any such combined spare capacity as is there mentioned shall be construed as references to the spare capacity available for the provision of additional services on frequencies on which S4C is provided; and the Secretary of State shall exercise his powers under section 47(1) (b) and (2) (b) in such manner as he considers appropriate to take account of this subsection.").
§ The noble Earl said: My Lords, in moving this amendment I speak also to Amendments Nos. 171 and 176. These amendments make clear that when the ITC makes available spare capacity on frequencies provided for S4C for additional services it should ensure that these services include a teletext service. The amendments also empower S4C to use part of the spare capacity for subtitling of S4C programmes by means of a teletext service and for other ancillary purposes which are directly related to the contents of S4C programmes. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 151 had been withdrawn from the Marshalled List.]
§ Clause 49 [Applications for additional services licences]:507
Earl Ferrers moved Amendment No. 152:
Page 48, line 34, at end insert:
("(7) The provisions of this section and sections 50 and 52 shall, in relation to the teletext service referred to in section 48(2), have effect subject to the provisions of Schedule (Special provisions relating to public teletext service) to this Act.").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 149. I beg to move.
§ On Question, amendment agreed to.
§ Clause 50 [Procedure to be followed by Commission in connection with consideration of applications for, and awarding of, licences]:
Earl Ferrers moved Amendment No. 153:
Page 49, line 1, leave out from ("that") to ("the") in line 2.
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 54. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 154:
Page 49, line 18, leave out ("and") and insert:
("(aa) in subsection (7) (a), the reference to section 19(1) shall be construed as a reference to section 51(1); and").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 52. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 155:
age 49, line 34, after ("shall") insert (", subject to section 17(14),").
§ The noble Earl said: My Lords, this amendment was spoken to on Amendment No. 11. I beg to move.
§ On Question, amendment agreed to.
§ Clause 51 [Additional payments to be made in respect of additional services licences]:
Earl Ferrers moved Amendment No. 156:
Page 50, leave out lines 1 and 2 and insert:
§ The noble Earl said: My Lords, this amendment was taken with Amendment No. 52. I beg to move.
§ On Question, amendment agreed to.
§ Clause 52 [Duration of licences, and renewal of licences for provision of services on assigned frequencies]:
Earl Ferrers moved Amendments Nos. 157 and 158:
Page 51, line 14, leave out ("but not beyond that date") and insert ("having regard to subsection (9)").
Page 51, line 16, leave out subsection (5).
§ The noble Earl said: My Lords, both these amendments were taken with Amendment No. 70. I beg to move.
§ On Question, amendments agreed to.
§ [Amendment No. 159 had been withdrawn from the Marshalled List.]508
§ 10.30 p.m.
Earl Ferrers moved Amendments Nos. 160 and 161:
Page 51, line 41, leave out from second ("the") to first ("the") in line 43 and insert ("first complete calendar year falling within").
Page 52, line 10, leave out ("a cash bid") and insert ("section 51(1) (a)").
§ The noble Earl said: These amendments were spoken to with Amendment No. 52. I beg to move them en bloc.
§ On Question, amendments agreed to.
Earl Ferrers moved Amendments Nos. 162 to 165:
Page 52, line 14, leave out ("not formally") and insert ("formally renew his licence not later than the relevant date or, if that is not reasonably practicable, as soon after that date as is reasonably practicable; and they shall not so").
Page 52, line 20, at end insert:
Page 52, line 24, at end insert (", and subject to any determination made under subsection (7) (b) above; and
(b) (subject to paragraph (a)) that section shall have effect in relation to the period for which the licence has been renewed as it has effect in relation to the period for which an additional services licence is originally in force.").
Page 52, line 24, at end insert:
("(11) In this section "the relevant date", in relation to an additional services licence, means the date which the Commission determine to be that by which they would need to publish a notice under section 49 if they were to grant, as from the date on which that licence would expire if not renewed, a fresh licence to provide the additional services formerly provided under that licence.").
§ The noble Earl said: My Lords, these amendments were taken with Amendment No. 70. I beg to move them en bloc
§ On Question, amendments agreed to
§ Clause 54 [Enforcement of additional services licences]:
Earl Ferrers moved Amendment No. 166:
Page 53, line 13, leave out ("subsections (7) and (8)") and insert ("subsection (7)").
§ The noble Earl said: My Lords, this amendment was taken with Amendment No. 66. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 167:
Before Schedule 4, insert the following new schedule:
§ Report by Director on reference under s.38
§ 1.—(1) Where any reference is made to the Director General of Fair Trading ("the Director") under section 38(9B) (a), it shall be the duty of the Director—
- (a) to publish a notice of the reference, together with a description of the arrangements to which it relates, in such manner as he considers most suitable for bringing it to the attention of persons who, in his opinion, would be affected by or be likely to have an interest in it;
- (b) to consider whether those arrangements satisfy the competition test in accordance with paragraph 2; and
- (c) to make a report on those arrangements within the period of six months beginning with the date of publication of the notice referred to in paragraph (a).
§ (2) If, while the Director is proceeding with any such reference, he is informed in accordance with section 38(9B) (b) of this Act of any modification to the arrangements in question, he may, if he thinks fit, treat the reference as varied 509 so far as is necessary to take account of the modification; and, if he does so, references to those arrangements in sub-paragraph (1) (b) and (c) shall accordingly be construed as references to those arrangements as modified.
§ (3) The Director's report on any arrangements shall contain his conclusions on the question whether the arrangements satisfy the competition test and may contain such an account of his reasons for those conclusions as is, in his opinion, expedient for facilitating a proper understanding of those conclusions.
§ (4) If those conclusions are to the effect that the arrangements do not satisfy the competition test, the report shall specify the modifications which the Director considers would, if incorporated in the arrangements, result in them satisfying that test.
§ (5) Subsections (6) and (7) of section 184 of this Act shall have effect in relation to any report made by the Director under this paragraph as they have effect in relation to any report made by him under that section.
§ (6) The Director shall send a copy of any report made by him under this paragraph to the Commission and to every holder of a regional Channel 3 licence.
§ The competition test
§ 2.—(1) For the purposes of this Schedule arrangements satisfy the competition test if—
- (a) they do not have, and are not intended or likely to have, the effect of restricting, distorting or preventing competition in connection with any business activity in the United Kingdom; or
- (b) they do have, or are intended or likely to have, such an effect but they would satisfy the criteria set out in paragraph 3 of Article 85 of the E.E.C. Treaty (agreements contributing to improving the production or distribution of goods or to promoting technical or economic progress) if that paragraph were to be construed as relating only to the effects within the United Kingdom of agreements between undertakings.
§ (2) For the purposes of sub-paragraph (1) (b) any arrangements made by the Commission shall be treated as if they constituted an agreement between undertakings within the meaning of Article 85(3).
§ (3) In determining whether any arrangements would satisfy the criteria referred to in that provision, the Director or, as the case may be, the Monopolies and Mergers Commission ("the MMC") shall have regard to any principles laid down by or decision of the European Court or any court attached thereto so far as relevant to the construction of Article 85(3).
§ Duty to modify arrangements in consequence of Director's report
§ 3.—(1) Where the Director's report on any arrangements specifies any modifications in pursuance of paragraph 1(4), then (subject to sub-paragraph (2))—
- (a) if the arrangements were made by the holders of regional Channel 3 licences, the Commission shall notify all the holders of such licences of the period within which the modifications are to be incorporated in the arrangements, being such period as may be determined by the Director after consulting the Commission; and
- (b) if the arrangements were made by the Commission, the Commission shall—
- (i) incorporate those modifications in the arrangements with effect from such date as may be so determined, and
- (ii) notify all the holders of such licences of the arrangements as modified.
§ (2) If a reference relating to the Director's report is made to the MMC under paragraph 4 and they have begun to proceed with it in accordance with that paragraph, the modifications referred to in sub-paragraph (1) above shall not be required to be incorporated in the arrangements by virtue of that sub-paragraph— 510
- (a) if the reference is in respect of the arrangements as a whole, or
- (b) (in any other case) to the extent that the modifications fall to be considered by the MMC on the reference.
§ (3) Each regional Channel 3 licence shall include such conditions as appear to the Commission to be appropriate in consequence of this paragraph.
§ References to MMC
§ 4.—(1) Where the Director's report on any arrangements contains any such conclusions as are mentioned in paragraph 1(4), the Commission or the holder of any regional Channel 3 licence may, within the relevant period, make to the MMC a reference which is so framed as to require the MMC to investigate and report on either or both of the following questions, namely—
- (a) whether the arrangements, or any particular provisions of the arrangements, satisfy the competition test;
- (b) whether the modifications specified in the report, or any particular modification so specified, ought to be incorporated in the arrangements for the purpose of enabling them to satisfy that test.
§ (2) In sub-paragraph (1) "the relevant period" means the period of four weeks beginning with the date of publication of the Director's report.
§ (3) Where a reference is made to the MMC under this paragraph, the MMC shall (subject to sub-paragraphs (4) and (5))—
- (a) publish a notice of the reference in such manner as they consider most suitable for bringing it to the attention of persons who, in the opinion of the MMC, would be affected by or be likely to have an interest in it; and
- (b) make a report on the reference within the period of three months beginning with the date of publication of the notice referred to in paragraph (a).
§ (4) The period referred to in sub-paragraph (3) (b) may be extended by the MMC by a further period of three months if they consider it necessary to do so.
§ (5) The MMC shall not be required to proceed with any reference under this paragraph which appears to them to be frivolous or vexatious; but, where they decide not to proceed with any such reference, they shall publish a notice of their decision in such manner as they consider appropriate.
§ (6) If—
- (a) while the MMC are proceeding with any reference under this paragraph, the Director is informed in accordance with section 38(9B) (b) of this Act of any modification to the arrangements in respect of which the reference has been made, and
- (b) it appears to him that the modification is material to any issue falling to be considered by the MMC on the reference,
§ (7) The following provisions, namely—
- (a) sections 81 (procedure in carrying out investigations) and 85 (attendance of witnesses and production of documents) of the Fair Trading Act 1973,
- (b) Part II of Schedule 3 to that Act (performance of functions of MMC), and
- (c) section 24 of the Competition Act 1980 (modification of provisions about performance of such functions),
- (i) the functions of the MMC in relation to such references were functions under the Fair Trading Act 1973,
- (i) the expression "merger reference" included a reference under this paragraph,
- (iii) in the said section 81, subsections (3) and (4) were omitted, and
- (iv) in the said Schedule 3, paragraphs 11 and 16(2) were omitted.
§ Report by MMC on reference under paragraph 4
§ 5.—(1) The MMC's report on a reference under paragraph 4 shall contain their conclusions on the question or questions comprised in the reference, together with such an account of their reasons for those conclusions as is, in their opinion, expedient for facilitating a proper understanding of those conclusions.
§ (2) If the MMC's conclusions on any such question as is mentioned in paragraph 4(1) (a) are to the effect that the arrangements, or any particular provisions of the arrangements, do not satisfy the competition test, the report shall specify the modifications which the MMC consider would, if incorporated in the arrangements, result in the arrangements or (as the case may be) the provisions in question satisfying that test (and those modifications may to any extent differ from those specified by the Director in pursuance of paragraph 1(4)).
§ (3) If the MMC's conclusions on any such question as is mentioned in paragraph 4(1) (b) are to the effect that any modification so specified by the Director ought to be incorporated for the purpose mentioned in that provision, the MMC shall (unless the report specifies a like modification in pursuance of sub-paragraph (2) above) affirm that modification in the report; but, if their conclusions on any such question are to the effect that any such modification ought not to be so incorporated, the report shall specify such other modification (if any) as appears to them to be appropriate for that purpose.
§ (4) The MMC shall—
- (a) publish any report made by them under this paragraph in such manner as they consider appropriate; and
- (b) send a copy of it to the Director, to the Commission and to every holder of a regional Channel 3 licence.
§ (5) Section 82 of the Fair Trading Act 1973 (general provisions as to reports) shall apply in relation to reports of the MMC on references under paragraph 4 as it applies in relation to reports of the MMC under that Act.
§ Duty to modify arrangements in consequence of MMC's report
§ 6.—(1) Where the MMC's report on any reference under paragraph 4 specifies any modifications or modification in pursuance of paragraph 5(2) or (3), or any modification specified by the Director is affirmed in such a report, then—
- (a) if the arrangements to which the report relates were made by the holders of regional Channel 3 licences, the Commission shall notify all the holders of such licences of the period within which any such modifications or modification are or is to be incorporated in the arrangements, being such period as may be determined by the Director after consulting the Commission; and
- (b) if those arrangements were made by the Commission, the Commission shall—
- (i) incorporate any such modifications or modification in the arrangements with effect from such date as may be so determined, and
- (ii) notify all the holders of such licences of the arrangements as modified.
§ (2) Paragraph 3(3) shall have effect in relation to this paragraph as it has effect in relation to paragraph 3.
§ Power of Director to review decision that arrangements satisfy competition test
- (a) consider afresh whether the arrangements (as for the time being in force) satisfy the competition test; and
- (b) make a further report on those arrangements in accordance with sub-paragraphs (2) to (5) of paragraph 1.
§ (2) If, while any arrangements are under consideration by the Director under this paragraph, he is informed in accordance with section 38(9B) (b) of this Act of any modification of those arrangements, he may, if he thinks fit, decide to vary the matters under consideration so far as is necessary to take account of the modification; and, if he does so, references to those arrangements in sub-paragraph (1) (a) and (b) above shall accordingly be construed as references to those arrangements as modified.
§ (3) The Director shall send a copy of any report made by him under this paragraph to the Commission and to every holder of a regional Channel 3 licence.
§ (4) Paragraphs 2 to 6 shall have effect in relation to any such report as they have effect in relation to a report made by the Director under paragraph 1.
§ Power to obtain information
§ 8.—(1) The Director may serve on any person a notice requiring him, at a time and a place specified in the notice—
- (a) to produce to the Director such documents specified or described in the notice (being documents in the custody or under the control of that person), or
- (b) to furnish him, in a form specified in the notice, with such estimates, returns or other information specified or described in it,
§ (2) A person shall not by virtue of sub-paragraph (1) be compelled—
- (a) to produce any document which he could not be compelled to produce in civil proceedings before the High Court or (in Scotland) the Court of Session, or
- (b) in complying with any requirement for the furnishing of evidence, to give any information which he could not be compelled to give in evidence in such proceedings.
§ (3) In section 85 of the Fair Trading Act 1973, as amended by the Companies Act 1989, subsections (6) to (8) (enforcement of notices requiring production of documents) shall apply in relation to a notice under sub-paragraph (1) above as they apply in relation to a notice under subsection (1) of that section, but as if, in subsection (7) of that section, there were substituted "the Director" for the words from "any one" to "the Commission".
§ (4) In that Act, as so amended, section 93B (false or misleading information) shall apply in relation to the furnishing of information to the Director or the MMC in connection with his or their functions under this Schedule as it applies in relation to the furnishing of information as mentioned in subsection (1) (a) or (b) of that section.
§ Duty of Director to assist MMC
§ 9.—(1) It shall be the duty of the Director, for the purpose of assisting the MMC in carrying out an investigation on a reference made to them under paragraph 4, to give to the MMC—
- (a) any information which is in his possession and which relates to matters falling within the scope of the investigation, and which is either—
- (i) requested by the MMC for that purpose, or
- (ii) information which in his opinion it would be appropriate for that purpose to give to the MMC without any such request, and
- (b) any other assistance which the MMC may require, and which it is within his power to give, in relation to any such matters;
513 and the MMC shall, for the purpose of carrying out any such investigation, take account of any information given to them for that purpose under this sub-paragraph.
§ (2) Sub-paragraph (1) shall not affect the operation of paragraph 4(6).
§ 10. In this Schedule—
- "the Director" means the Director General of Fair Trading; and
- "the MMC" means the Monopolies and Mergers Commission.").
§ The noble Earl said: My Lords, this amendment was taken with Amendment No. 113. I beg to move.
§ On Question, amendment agreed to.
Earl Ferrers moved Amendment No. 168:
Before Schedule 4, insert the following new schedule: