HL Deb 22 October 1990 vol 522 cc1142-227

3.1 p.m.

Read a third time.

Clause 3 [Licences under Part I]:

Earl Ferrers moved Amendment No. 1: Page 3, line 46, leave out ("throughout the remainder or) and invert ("which would have effect during").

The noble Earl said: My Lords, this is a minor drafting amendment. Where a licence is transferred, the commission must give consent and can do so only if it is satisfied that the licensee would be in a position to comply with all the conditions included in the licence which would have effect during the period for which it is to be enforced. I beg to move.

On Question, amendment agreed to.

Clause 6 [General requirements as to licensed services]:

Earl Ferrers moved Amendment No. 2: Page 7, line 3, leave out from beginning to second ("in") in line 6 and insert ("as to the rules to be observed").

The noble Earl said: My Lords, I beg to move Amendment No. 2 and speak to Amendments Nos. 3, 4, 5, 28, 34 and 35.

Your Lordships will recall that on Report I introduced amendments which became known as the impartiality amendments. Some of your Lordships found difficulty with them, as did the shadow Independent Television Commission. We had discussions with the commission before the Report stage and I indicated that if noble Lords were minded to approve the amendments which were tabled in my name at Report, I would introduce amendments to those amendments at Third Reading. They would result in the new insertion into the Bill being one with which both the Government and the Independent Television Commission were content. I told your Lordships what those alterations would be.

Your Lordships understandably felt that this would be an untidy way of proceeding, so I withdrew the amendments with the undertaking that I would bring forward the revised amendments afresh at Third Reading. These are the amendments. They are essentially the same as those which I introduced on Report, but amended as I indicated that they would be.

I said that there would be three changes of substance. Your Lordships may therefore be surprised to find that the main Amendment No. 4 looks to have been more substantially altered. The reason is that the other changes were required in order to make the amendment grammatically correct. They make no alteration in substance at all. Perhaps I may remind your Lordships, therefore, of what we seek to do.

There is and always has been an obligation written in the statute for broadcasters to be impartial. It is written in this Bill. There is already a code of practice issued by the Independent Broadcasting Authority saying how that obligation for impartiality should be carried out. The requirement for a code of practice is now written into this Bill. At Committee stage, we thought it appropriate that, as we were putting an obligation on the Independent Television Commission to draw up a code of practice for impartiality, we should indicate the sorts of subjects to be covered. So we have produced these amendments.

This is what the amendments seek to do. Paragraph (a) of new subsection (4A) relates to due impartiality being achieved for each major matter of political or industrial controversy, or of current public policy. The wording of the amendment is not designed to imply that there are some minor matters of political or industrial controversy or of current public policy where it would be acceptable for programmes to be completely biased. The purpose of the wording, which is different from the wording on Report, is to make it clear that we do not expect impartiality to be achieved over every nuance of a matter of political or industrial controversy. As I said on Report, we would expect that treatment of the Gulf issue, for example, should be handled in an impartial way. But that does not mean that every statement or sentiment expressed about the Gulf should receive some kind of equal and opposite rejoinder.

It will, of course, be for the Independent Television Commission to determine what might be regarded as a major matter of political and industrial controversy or current public policy and we would expect it to set out some guidelines in its code. This is nothing new. The Independent Broadcasting Authority has to make these kinds of judgments now in fulfilling the obligation to achieve due impartiality. It must already give effect to the spirit of the provision.

I know that many lawyers have been working overtime giving opinions on the drafting. I am aware that there are a number of legal opinions which suggest that these amendments will make litigation more likely. I find it hard to understand why that should be thought to be the case. The Independent Television Commission is required to draw up a code having regard to these matters. Provided that it does so reasonably, I cannot see that any judge will say that it has acted wrongly. Similarly, provided the Independent Television Commission enforces its code reasonably, I cannot believe that there is anything to fear from judicial review.

Paragraph (b) of subsection (4A) requires the code to take account of the need to define what is meant by a series of programmes. Paragraph (a) of subsection (4B) requires the code to indicate what due impartiality requires in particular circumstances. Paragraph (b) of subsection (4B) sets out that the code should indicate the manner in which impartiality is to be achieved for different programme types. Paragraph (c) of subsection (4B) requires the code to indicate the timescale within which programmes must be included if impartiality is to be achieved over a series. Paragraph (d) of subsection (4B) requires the code to indicate the means by which the audience is informed that impartiality will be achieved over a series rather than in a single programme. Subsection (4B) indicates that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles.

Amendment No. 87 also makes provision for the rules to cater for different cases or circumstances. We also propose to require the Independent Television Commission to draw up and publish a code for licensable programme services. These services are subject to the lighter undue prominence test rather than the due impartiality requirement.

Further minor technical amendments will be proposed to the provisions relating to S4C. They will not change the substance of the provision for S4C, which requires the Welsh authority to apply the Independent Television Commission code on impartiality to programmes broadcast on S4C. In short the amendments list—but not exclusively—the subjects which the Independent Television Commission should cover in its code. But how the subjects are covered, what wording is used, the strength or leniency of the coverage and the severity of the enforcement are matters wholly and exclusively the prerogative and the responsibility of the Independent Television Commission. Government cannot interefere. Parliament cannot interfere.

Many of your Lordships were, I know, concerned on Report that the shadow Independent Television Commission had said that it considered the words then proposed unworkable. We were concerned too. I am glad to tell your Lordships that the Independent Television Commission considers that the words I now propose are fully acceptable. It is the commission who will have to implement and enforce the code, and it is content with the words in the amendments. It is content that it can draw up and enforce a code which would be based upon them.

I am glad that my noble friend Lord Whitelaw is also content with these amendments. Unfortunately, he is unable to be in your Lordships' House today. Your Lordships will recall that he expressed reservations on Report. However, he has told me personally that the reservations which he expressed on Report do not apply to these amendments because the ITC is content with them and finds them workable. I hope that your Lordships will see fit to approve the amendments. I know that they are controversial in so far as the very term "impartiality" is controversial in terms of broadcasting and Bills.

Parliament is not being invited to draw up the code. Nor is it going to be entitled to approve it or to disapprove of it when it is drawn up. It is entirely the ITC's responsibility. We have merely proposed a list of items which shall he covered by the code. I read how one influential gentleman in the broadcasting world said the other day that he did not like the amendment. He said, "It is so important to get the wording right". I agree with that. I think that we have got the wording right, and so does the ITC.

I am afraid that some people who say, "We must get the wording right" really mean to say, "whatever words you produce we shall not like them". If there are those of your Lordships who are that way inclined, I am bound to say that it is difficult to find a meeting of minds. To hold the view that the Bill should not state what the code of practice should include is an entirely respectable view to take. But I hope that those of your Lordships who do not take such an intransigent view—even if it is a respectable one—will agree that the Government have done with this subject what they have been at pains to do throughout the passage of the Bill in both Houses. We have listened to opinions, both inside and outside Parliament. We have adjusted our proposals. We have produced proposals with which the ITC is content. We have produced proposals in these amendments which are workable. It is on that basis that I commend the amendments to your Lordships. I beg to move.

3.15 p.m.

Baroness Birk

My Lords, the Minister explained the amendments today in a persuasive manner. I am sure he is glad to come to the end of this difficult, rocky road. This is the third bite that we have had at this difficult and important subject. We should remember today that the Bill passed through the Commons without any change in this area at all. The Minister in charge of the Broadcasting Bill in the Commons made it clear in speeches both inside and outside the House that he thought it was quite wrong for Parliament or government to interfere in laying down detailed codes of practice on impartiality for broadcasting authorities. He made a much better case against what the Government are trying to do today than many of those of us who are speaking against the measure now.

We on this side of the House have always supported the statutory obligation on broadcasters to maintain due impartiality throughout independent television. Therefore we support the new statutory requirement in the Bill as originally published, that the ITC should be obliged to draw up a code on impartiality. That is a shift in statutory responsibility from the position adopted in broadcasting legislation since 1954. It can be justified by the change in the status of the ITC. That body will be a regulating authority, but will no longer be a broadcasting authority. That differentiates it from the present IBA. This shift can be justified by the change in status of the ITC, but the government amendments cannot be justified as they would alter even further the fragile balance between government control and the editorial independence of broadcasters.

This matter came about because a small group of noble Lords tabled some amendments in Committee which did not meet with the satisfaction of the Chamber. If they had been voted on, the amendments would have been defeated by a considerable majority. Unfortunately the Government took fright at that point. They should have allowed the amendments to be voted on. The Government had enough support from all round the Chamber to defeat the amendments. However, instead of that, the Government promised that they would return at a later stage with a different measure. That is where the problem started. The Government set themselves an impossible task. They tried to do the impossible. They tried unnecessarily to turn the most undesirable provision into something positive. The result is before us today.

I suspect that Ministers in the Home Office are themselves not happy about this measure. I more than suspect that many of their advisers wish that it had not been embarked upon. I am sure they wish that it had not ended in this way. The Minister has returned with a measure which is the best that he can do in the restricted circumstances in which he has had to work. He has tried to produce something which is acceptable. However, I am afraid it is not acceptable. I hope that other noble Lords will take the same view.

The amendments stem from prejudice against broadcasters whose natural instinct and democratic function is to be critical of the establishment and many of those in public life. I admit that that has always been the case. That is the way the noble Lords who tabled the original amendments expressed it. Criticism by broadcasters is a sign of a healthy democracy. When a Labour government are in power, the broadcasters have a go at that government, but they equally criticise a Conservative government. Each government, no matter what their political leanings may be, are critical of broadcasters. They often want to try to muzzle them. However, when a different government come into office, the whole thing goes into reverse.

These government amendments wreck the principle that government should remain at arm's length from the editorial decisions of broadcasters. The precedent of existing broadcasting legislation directly charges the IBA and the BBC's Board of Governors with the responsibility for regulating all aspects of editorial policy including the due impartiality requirement. Both those bodies are publicly accountable to Parliament. Members of their boards are appointed by the government of the day. Therefore if any bricks are to be thrown, they could be thrown at those who appoint the members to the boards. But, there again, that is in the lap of the—I was going to say the gods, but it is in the lap of the Prime Minister.

The maintenance of this balance is vital not only to freedom of expression in our democracy but also to sustain the independence and quality of our broadcasting system which, if not always fully appreciated by the British public, is held in high esteem by all other nations of the world. There must be many broadcasters in other countries who are wondering what on earth we are trying to do and why we appear today to be trying to wreck something which they consider to be precious. They consider the policy of arm's length broadcasting to be precious and worth preserving.

The Government say they fully accept the principle that Parliament should not attempt to define due impartiality in statute and that Parliament should be the arbiter of, what was or what was not impartiality"—[Official Report, 11.10.90; co1.421.] The noble Earl, Lord Ferrers, used those words on Report. However, we are presented today with government amendments which attempt to set out in detail on the face of the Bill what impartiality should mean in practice and what actions should be taken by broadcasters to ensure that due impartiality is maintained. I repeat that the noble Earl put his case over persuasively. Nevertheless the Government's measure specifies areas of attention that the code should cover. That should not appear on the face of the Bill.

That attempt to particularise the areas which the ITC code should follow leads inevitably to parliamentary definition and interpretation of the due impartiality requirements. That is where many of us in this House—and I hope that it will turn out to be the majority—part company with the Government. We believe that it should remain a duty of the ITC without the unnecessary constraints imposed by the amendment. The ITC should be bound by statute to draw up a code, as it is in the Bill as it stands. However, any attempt to specify in detail the provisions of the code undermines its regulatory authority and represents a departure from the principle that the Government should remain at a distance.

It is unfortunate for the Government and the Bill that they have not decided to leave well alone. In seeking to define the areas to be laid down in the code, the noble Earl, Lord Ferrers, said at Report on 11th October (at col. 423 of Hansard) that impartiality is "essentially a matter of objectivity".

I argue that by its very nature the formulation and interpretation of impartiality is and has to be a highly subjective matter which is best left to the discretion of the ITC and the day-to-day experience of broadcasters. If broadcasters are given free rein, these matters will balance each other out. As a magistrate I have always believed that there is a great advantage in having magistrates' courts composed of three magistrates. It enables us to cancel out each other's prejudices. We all have prejudices, and it should also be acknowledged that we are all subjective; but if we are able to balance our subjective views against those of other people, we can achieve, as nearly as possible, an objective opinion.

This is not a matter on which politicians or governments should pontificate. We believe that the existing provisions of the Bill provide the necessary safeguards to ensure that broadcasters comply with the due impartiality requirement. If the amendment is rejected today that is the end of the matter and we are back with what is in the Bill at present.

Since declaring its serious doubts about the workability of the government amendment in July and in early October, the shadow ITC now appears to believe that it can live with the new provisions. I believe that its enthusiasm for the amendment is not quite as expressed by the Minister. The expression I heard was, "We think we can live with it", which is not the same as being extremely happy about it.

In its briefing paper dated 5th October the IBA said: We prefer to see the matters covered by the Government's amendments left to the ITC's judgment in drawing up the code". The IBA still would prefer to maintain only the statutory requirement for due impartiality, backed up by a new statutory code which is worked out by the ITC itself.

However, we must be realistic. Most Members of your Lordships' House are realists. The IBA's judgment must to some extent be coloured by the unequal relationship which must exist between a government-appointed regulator and the government of the day. That is the position for most quangos. Even if it is done in the most discreet way, there is a certain amount of arm twisting or the people feel that they are under some obligation to bend backwards in order to accept what they feel the Government want.

The broadcasters, who will have to put the details of the code into practice, are still extremely concerned about both the principle and the practical effect of the revised amendments. Richard Dunn, chairman of the ITV Association, believes that the best solution would be to leave the Bill unamended. John Birt, the Deputy Director-General of the BBC, said that the amendment should still be abandoned. It should be remembered that if the amendment goes through for ITV, the BBC's turn will come in the future. Michael Grade, the Chief Executive of Channel 4, has said that the impartiality amendments were wrong in principle and should be dropped.

We should feel much happier about the amendments if it were not just the shadow ITC which was saying that the code might be workable. All of the broadcasters who were consulted when the first amendment reached this House and who saw Mr. Mellor, the Minister for broadcasting, told him how they felt. As I understand it, they have not been consulted since the second draft was drawn up. There has not been much time for any of us to consider it since it was not published until Thursday or Friday.

The broadcasters feel extremely strongly about the matter. Although the Minister said that he could not understand why that should be so, they are very clear about the matter. They have all taken legal advice at a very high level. With the exception of the advice given to the IBA, the advice has been broadly the same, although it was independently sought and given. John Finnis, Professor of Law at Oxford, acting for the ITV Association says: There can be no doubt that the phrase 'take account of' has an unsatisfactory elusiveness. It could be interpreted by a court as requiring that the ITC's rules conform to some judicially conceived standard about what matters are and are not major, and/or about what is or is not a due standard of impartiality". He goes on to say that the phrase 'major matters' in Clause 4A(a) is elusive in meaning and pregnant with ambiguity … Any such uncertainty creates the live possibility of legal challenge to the ITC's eventual code". The opinion concludes: It is one thing to 'trust the ITC' to draw up a code on impartiality in the relevant matters when the whole approach and content of the code is left to their good judgment. It is quite another to be asked to trust the ITC to draw up a workable and satisfactory code when they are required to do so under the threat of litigation based on inherently ambiguous concepts inappropriately given full and direct statutory force". Anthony Scrivener, QC, Chairman of the Bar Council, who is the counsel acting for Channel 4, believes that the rewording of "individual issues" to "major matters" will still give rise to serious problems of definition. He says that: The plain answer is that the new wording does not make any improvement at all. The words 'major matters' are not going to bring clarity". Goodman Derrick and Co. has said that the amendment is "virtually legally unworkable". The noble Lord, Lord Goodman, who is here today, described it as "a lawyers' picnic" and will no doubt have something to say on the matter later. Christopher Beaumont, the counsel acting for ITN, also said: It would be most undesirable in my view if either initially when the code is first drafted or at a later stage after a court decision, the Commission were put in a difficult position of laying down criteria for news editors. It would be an appalling burden on broadcasting companies … to have to consider such rules in relation to every item. In my view that would be an unwarranted interference in the independence and judgment of news editors and their companies". He went on to make the following damning statement: It is one thing for the Government to require that a code shall be made. It is quite another for it to lay down just what the code shall contain". I apologise to noble Lords for going into some detail, but this is a matter of great importance and this is the last chance that this House will have to discuss it.

The IBA, referred to by the Minister, has not taken counsel's opinion but relied upon legal advice from its own very reputable solicitors, Allen and Overy. That advice appears to run counter to the broad spectrum of leading counsels' opinions given to the broadcasters. It does not express any clear legal opinion on which the IBA can support its view that the redrafted government amendment is the basis of a workable code. It seems that the view is that it may be possible that it will work. I have seen the letter and it is not extremely clear to me what it is saying. One has to weigh that against the overwhelming weight of the other legal advice.

We strongly support the principle that government and Parliament should not interfere at all in the detailed formulation and interpretation of editorial policy in broadcasting. Any attempt, however much modified, to specify the areas which the impartiality code should "take account of" or "indicate as the Commission consider appropriate" will lead to greater government interference and more misunderstanding in the courts.

Once something starts going to the courts—and all the advice appears to indicate that it will—the lawyers themselves will want to go to appeal and one could end up with the unfortunate situation in which the judges become the regulators of our broadcasting system, not the broadcasters or even the Government. Is that what we want? I do not think it is. The ITC must be trusted to carry out its statutory responsibility to draw up a code unfettered by all that.

The principle on which we stand—that the Government should remain at arm's length from matters of editorial policy—can only be preserved by rejecting the Government's amendments outright. That is the only way that these amendments should be dealt with, even the new rather polished-up version at which we are looking today. We have to go back to the way described in the Bill at the present time and stick to it. These amendments are highly dangerous both to our society and to broadcasting. I do not think it is our job to create a great deal of work for a great many lawyers. That in fact is one of the things that this Bill will do. I say that as the wife of a solicitor. On this side of the House we intend to vote against these amendments. We hope that noble Lords on all sides of the House will also do so.

3.30 p m.

Lord Goodman

My Lords, the noble Baroness, Lady Birk, has made every point that needs to be made in opposition to this Bill. The Bill is something of a mystery to me. The Government have pursued it with an iron determination and must have some motivation that has not been expressed in this House.

It is perfectly clear that it is a serious interference with liberty of speech. Why the Government wish to pursue this legislation with such determination is to me an absolute mystery. As has been said, in broad terms the requirement of impartiality has been in the broadcasting legislation since 1954. Why it cannot be left in that situation also defeats me.

The noble Earl who is conducting the debate has, if I may say so, a most ingratiating manner. He sought to convey to us and almost persuaded me that this Bill had no vice of any kind. The vice is its uncertainty. It will operate against the creative people who are making programmes. It will be suspended over their heads like a sword of Damocles, and undoubtedly referred to constantly by the management, who are more timid than the programme makers. They will be at a serious disadvantage and many a programme will be abandoned or seriously changed because of this provision.

I recollect some of the difficulties connected with a code that arose some years ago when most of your Lordships were children. I think it formed part of the trade disputes Act. There was an attempt to introduce a code to regulate the behaviour of journalists. The first effort to produce a code was a brave one. The noble and learned Lord, Lord Pearce, who is one of the distinguished lawyers of that generation, was asked to preside over a committee which was composed of the various elements concerned with newspapers.

The editorial element, proprietary element and printing element all gathered together at the office of the Newspaper Publishers Association. After a year's argument not a smell of a code was to be found. If one referred to the Act it stated that in default of a code emerging from that hybrid group, it would be the duty of the Ministry of Labour to produce such a code within a year.

I do not know how many years have since passed. I have not traced a smell of a code and nor has anyone else. It is clear that those people were undertaking an impossible task. I believe that something approaching that task is to be found in these provisions. I wonder why the Government are not prepared to leave these matters to the controlling bodies of the television companies or the BBC who, as has rightly been said, will be threatened with the same code within a few minutes.

I speak with some authority about the BBC. I believe that at the moment it has a chairman of singular power. Certainly he will not be persuaded to allow any programme to appear that he regards as contrary to impartiality. So far as the commercial companies are concerned, it is to be remembered that each of them gained a licence. They gained a licence by establishing to the broadcasting authorities that they were a group of people who could be relied upon to act responsibly. What has happened to disenfranchise them in this way since they were granted their licences? It defeats me totally.

I do not believe that this code can be anything but damaging. In saying that I am perfectly convinced that the noble Earl is totally sincere when he says that it cannot do any damage. But one does not have to think very long to understand how important it is that people who are in a creative medium should not be threatened with something that is indefinite and ambiguous. Therefore I hope very much that the House will see its way not to accept this particular provision and to send the Broadcasting Bill in its existing state out to the world without any further reference to impartiality. As I said, that provision has been there as a bold requirement since 1954 and up to now no one has thought it necessary to amplify it.

I should like to make one further point. If there is a simple, bold statement of something, one does not add to its force by elaborating it. This code will produce an elaboration of something that is already simple and can he interpreted by any reasonable man.

There have always been long arguments about what is and what is not impartial. However I do not believe that now and subsequently the people in charge of our vast broadcasting apparatus are people who cannot be trusted to make such decisions for themselves. I urge all noble Lords to reflect on what I have said. If your Lordships are in agreement with it, join me in voting against the Bill. If your Lordships are not in agreement, join the noble Earl in voting for it. However noble Lords should think very hard before doing so.

Lord Wyatt of Weeford

My Lords, we have already been round this course a number of times before and I have not heard anything new. Nor, I believe, have your Lordships. As the noble Lord, Lord Goodman, pointed out, there has always been a requirement in the legislation for due impartiality. That is why the IBA drew up a code explaining how that should be carried out; the BBC has a code in a similar vein. Otherwise they would not have done that.

We are now told that if the Bill spells out the kind of items that ought to be covered, in some mysterious way it will make the code of the ITC unworkable. If that were so, it is unworkable now. For example, the IBA code about the qualifications regarding the way in which a series is to be balanced states quite clearly: This presupposes that the presentation, over a series of different points of view is planned in advance, and that the intention to achieve impartiality in this way is made clear so that the viewer of one programme is not misled into thinking that he has seen the whole story". That is the gravamen of the amendment. Why is it there? It is there because many people employed by the ITV and BBC television companies are totally unaware of their own code. I have heard of indignation being voiced only recently at a meeting of programme makers denouncing the amendment. One said, "I have just heard something terrible. Have you heard? The BBC has a code stating how one has to obey due impartiality. That is monstrous. We have never done it before; we do not intend to do it in the future". The programme makers had not even read their own code.

I hope that at least one thing will happen if this House and another place pass the amendment—everyone who makes a programme will be made to read the code on due impartiality provided by his own organisation. That apparently does not happen. He might be asked to sign a copy to say that he has read it. Such people would not then be so startled to find after many years of making programmes that they have always been governed by due impartiality in Acts of Parliament. The poor dears will not think, "My goodness, this will kill my creative instinct".

The supporters of the amendment do not want any programme censored. I must reiterate that again. No programme will be prevented from being made in the future. All that we ask is that when people put out a slanted, biased programme they should allow some form of reply to show that there are other views from that which has been broadcast. It is not the amendment that seeks censorship; it is those who oppose the amendment. They want to be able to suppress any opposite view from that which is put out on a controversial matter. That has happened again and again. If it had not occurred so often under the IBA or the BBC no one would have suggested that the provisions of this amendment should appear in the Bill.

I should certainly not have done so. I have done much broadcasting and televising. When we began, although everyone knew our political views, we were scrupulous in maintaining impartiality. We had very few complaints—I never heard of any. Noble Lords may laugh but it is quite possible to be impartial if one wishes. I do not always wish to be impartial when I write a column in the newspaper. However, I do not have a protective monopoly given me by the state and I have no duty for due impartiality. But when I act as a broadcaster, as I still do, I observe the rules about due impartiality. It is perfectly easy to do so if one wishes.

We are told that the amendment will lead to a terrifying amount of litigation. Why on earth should it? At the moment anybody is entitled to bring an action against either the television company concerned or the BBC if he feels that it has not observed the legal requirements for due impartiality. Nothing in that respect has changed. The reason why a person does not bring such action as a rule is that the process is so expensive. We have had cited the names of dozens of lawyers who want to have a picnic time for lawyers. It is no wonder that people do not readily go to law against one of these giant corporations.

In fact the amendment will produce less litigation —if that were possible, because there has been none so far—because it lists the items which the code will cover. Someone wishing to bring litigation against the IBA or the BBC which concerns a point not covered by the code will have no cause for action according to the Bill. Much potentially vexatious litigation will vanish because it will not come under the heading of the items categorised in the code.

I believe that it is absurd to suggest that there will be more litigation and less free television. Of course there will not. The position will be just the same. The only difference will be that the people who run the ITC and the BBC—I have remarked before that they are not the most forceful people in ensuring that their own rules are carried out—will at least be able to say, "These rules now have parliamentary backing. They are no different in substance from what you should have been doing all the time and if you do not wish to obey them you had better not make television programmes; or if you make them you must allow the opposite view to be put". I hope that noble Lords will agree with the Government and support the amendment.

3.45 p.m.

Lord Boston of Faversham

My Lords, as at Second Reading, in Committee and on Report, I declare an interest as chairman of TVS Entertainment plc and of its subsidiary TVS Television Limited, which holds the independent television franchise for the South and South East of England.

I had hoped that it might have been possible to deal with these matters fairly shortly today. However, despite the excellent speech of my noble friend Lady Birk, who explored some of the legal points involved, and the very persuasive speech of the noble Lord, Lord Goodman, who further explored some of the legal problems, I feel that your Lordships would not wish to pass over this matter without thoroughly debating what some of us consider to be the very considerable programme difficulties which would be faced if the amendment were passed. I refer also to the considerable legal difficulties which would arise. Some have been touched upon but by no means all. I believe that it is necessary to explore those issues before we leave the matter today.

We all start with the same aim: to preserve due impartiality and accuracy in our programmes on television. That is the Government's aim. It is the aim of those who are opposed to the various amendments put down on impartiality. It is also the aim of those noble Lords who tabled earlier amendments seeking more detailed legislative provision for impartiality. I have not found at all attractive the graceless, somewhat unseemly and rather personal criticisms levelled in some quarters at those noble Lords who have promoted those earlier amendments. I accept their good intentions and good faith.

Although involved in other aspects of the Bill, I had not intervened until last Thursday week on the issue of impartiality partly because I work in the television industry and because I would have found it a little awkward to speak against an amendment sponsored by the noble Lord, Lord Orr-Ewing. Had the rules of the House been otherwise I could have referred to him as my noble friend. We have known each other for many years. We have worked for an organisation for which we retain feelings of affection—the BBC.

Perhaps I could cite this example as an illustration of relationships which help the work of this House. The noble Lord, Lord Orr-Ewing, chaired several meetings in the Palace addressed by leading broadcasters during the Bill's passage. He heard that I was unable to attend a meeting for Members on this side of your Lordships' House and immediately invited me to a parallel private meeting for Members on the Government Benches. That might be a tiny incident but it is such acts which facilitate the workings of this House. People outside do not tend to hear about them; it is time that they did. There are times when those acts of friendship matter more than scoring a point to win an argument. I now feel a little easier in my mind in speaking against the amendment because it is not in the name of the noble Lord, Lord Orr-Ewing. I suppose that both of us can say that we have been served well by the Government.

I am in no doubt that those working in broadcasting are among the most concerned people to maintain the highest standards in broadcasting. That means accuracy and impartiality. Indeed, their professional reputations depend upon it as do those of their companies. They would soon suffer if that were not so As the shadow ITC re-emphasised this month, it is also the case that the requirements for due impartiality have, with rare exceptions, been honoured fully throughout the 35 years of independent television. There have been transgressions but they have been rare. When they have occurred action has been taken. If the view of the shadow ITC is sought in respect of one matter relating to the amendment it is right that its view should be sought in relation to all matters. No doubt it would be unrealistic to expect no transgressions in the future. Equally, there is no reason to think that they will be other than rare. Therefore, the present system has worked well.

As has the shadow ITC, one can accept wholeheartedly the provisions in Clause 6 of the Bill requiring due accuracy in news programmes and due impartiality: on the part of persons providing a service as respects matters of political or industrial controversy or relating to current public policy. There is also the proposal for the ITC code on due impartiality to give clear and unequivocal guidance to licence holders and their programme makers.

Although it is excellent that the Government have confirmed that the code will be an ITC code, the detailed provisions in the Government's amendments still go much further than the Government originally indicated, as my noble friend Lady Birk pointed out. They are likely to have effects which perhaps the Government have still not fully appreciated. Indeed, there is no sign that they have taken into account the legal arguments and opinions which have been advanced. This morning I understood from Mr. Michael Grade, Chief Executive of Channel Four, that all the opinions running to a total of 20 pages have been sent to the Home Office for consideration. Therefore, no secret has been made of the advice given to the programme companies. The provisions are likely to have effects which the Government still have not fully appreciated and which still less they intended. With those provisions it is unlikely that the code will be workable.

The Government's new amendment is marginally better than the last, especially in dropping the provision on the prominence to be given to material intended to ensure due impartiality in a series of programmes. But in some ways it is actually worse. As I said on Second Reading, I have not always been at one with all of my ITV friends and on this occasion I now part company with the IBA and the shadow ITC. I am most sad about that. However, as the sponsoring body for outlets for free speech in this country, I am sure that it will not only forgive me for expressing my view but will expect me to do so.

As a practitioner in the industry, and one who some years ago had editorial experience of news and current affairs programmes, I am among those who are most worried about the amendment's requirements on "major matters". That term is open to a variety of interpretations, as was indicated by the noble Lord, Lord Goodman. They could have serious effects on programmes. It may be helpful briefly to give several examples of the way in which programmes are likely to be affected by the provision. If there is a news item on a particular day involving, say, the Prime Minister or the Leader of the Opposition in another place that must be balanced by comments from the other party on the same matter. It is true that that sometimes happens in any event and perhaps the best example is the Budget. The views of the Chancellor of the Exchequer and his counterparts are invariably covered although there are, of course, in addition the special Budget broadcasts—

Lord Wyatt of Weeford

My Lords, there never has been a provision such as the noble Lord has described. The matter has always been covered by the interviewer asking the intelligent questions that an opponent might have asked. Just because one has Mrs. Thatcher being asked questions on the news one does not also have to have Mr. Kinnock being asked questions. It is the interviewer's job to create balance.

Lord Boston of Faversham

My Lords, the noble Lord, Lord Wyatt of Weeford, is entitled to his view. I am basing my views on those of three leading counsel and another authoritative lawyer who has already spoken to your Lordships this afternoon. The very fact that there are differences of view underlines the fact of the problem here.

I shall give a more topical example. When the announcement was made about our entry into the ERM it would have been unthinkable to run an item with the Chancellor of the Exchequer and not to have comments from spokesmen of the other parties. But it would also be unthinkable to have to have such coverage every time a spokesman appears. It is likely that if a spokesman appears the matter ipso facto must be major. Again, an interview with the Prime Minister on the economy could not be balanced by one with the Leader of the Opposition on defence. That would contravene the major matters rule. Perhaps I may take another topical example. It would be almost impossible to cover properly the party conferences, for how could one balance a major matter when the parties tend to debate different matters and give different priorities to what might be major matters?

It is also possible that the requirement of balance on major matters could become a villains' charter. The ITV programme directors point out that the consumer programmes deal regularly with public policy matters. They are widely acclaimed for exposing malpractice. The proposed provision could kill those programmes and these days I do not believe that any viewer would regard consumer matters as being other than major. The ITV programme directors also point out that even Jonathan Porritt's "green" series would need to be balanced by a non-green series. All parties in your Lordships' House now recognise that green matters are major.

Before giving a final example of programme effects I shall turn to the legal advice that I have received. I shall refer to four opinions. The first has already been quoted by my noble friend Lady Birk. It came to me from the director of the Independent Television Association, Mr. David Shaw, and is by Professor John Finnis, leading counsel. My noble friend Lady Birk quoted passages from his opinion and therefore my speech can be truncated to that extent. Professor Finnis also stated: Legal advice given to interested parties is not unanimous on the question whether 'major matters' is an improvement on 'individual issues'. In my opinion it is, but the opposite view is strongly held, and this fact alone is sufficient to indicate that each of these phrases is, in its own way, elusive in meaning and pregnant with ambiguity. Any such uncertainty creates the live possibility of legal challenge to the ITC's eventual code, and such a challenge might be joined to challenges to particular programmes". After exploring further difficulties Professor Finnis states: The only sure cure would be to get rid of (4A) (a) or indeed to drop (4A) and (4B) altogether". The second opinion came to me from Channel Four and it is by Mr. Anthony Scrivener who is another eminent Silk. He refers first to the replacement of the words "make provision" by "take account of". He states: This should be considered to be an improvement but it is not a matter of great significance. He explains why it is "only an insignificant alteration". He says that the vice in the original wording remains. Mr. Scrivener welcomes the deletion of the prominence provision to which I have already referred: subsection (4A) (f). He goes on to say that of greater significance is the failure to address the main point which underlies subsection (4A) (a). After referring to the scope for harassment, litigation and interlocutory injunctions he says that the question is whether the new wording—"major matters" replacing "individual issues"—makes any difference. He states: The plain answer is that the new wording does not make any improvement at all. The words 'major matters' are not going to bring clarity. There is no definition of what is meant by the term. There will be endless debate as to what the words mean and of even greater significance: whether they apply to a particular programme or even part of a programme. The words involve making a judgmental decision in a context where there is and can be no guidance as to how the words should be defined. It is obvious that what one person may consider to be a 'major matter' would be considered by another to be a matter of little importance". He goes on: Since only the courts can make the final decision on the matter the result will be that the courts will decide whether a particular matter in a programme is 'major' or not! Since the words are not capable of consistent application the courts will take on the rôle of regulating the media. Further since the perception of what is a 'major matter' may well differ as between individual judges as it involves making a judgment without guidance, any lawyer acting in such a case will advise an appeal". That is the point on appeals to which my noble friend Lady Birk referred.

I must quote this final passage from his opinion. He says: I do not believe that the courts are the appropriate body to be exercising control over the media in this way nor do I believe that the courts would wish to take on this thankless task but they will have no option. The scope for interrupting planned programmes is not altered in any way by this proposal. The only persons who should be expressing any pleasure at the new proposal should be the legal profession as the scope for endless litigation is preserved by this new wording". The third opinion has been referred to; therefore, I give it only a passing mention. That is the opinion of Mr. Christopher Beaumont who is again leading counsel advising ITN.

The final opinion was sent to me by Mr. David Plowright, chairman of Granada Television. It comes from a firm of solicitors familiar to your Lordships whose principal partner we have heard this afternoon. At the head of the firm's writing paper is the name of the noble Lord, Lord Goodman. I quote briefly from that opinion. The second sentence—I hope the noble Lord will forgive me drawing upon the opinion: he did not quote it himself—states: The amendment proposed is virtually legally unworkable". The arguments in the opinion are very close to those which I have quoted. It also notes that the Government's amendment implies gradations of impartiality. It states: the aim is to impose what is described as due impartiality with regard to major matters … and that as 'due' apparently means proper or requisite, some partiality is apparently to be tolerated … How any judgment is to be made on where the line is drawn on due impartiality or individual major matters would seem virtually impossible to divine". On a practical point it states: to be on the safe side a television producer will be advised to prepare strictly scripted pre-filmed programmes and/or to avoid controversial items wherever possible". The opinion concludes: Quite apart from the legal difficulties (including applications for injunctions before transmission; applications to the Divisional Court; and post transmission complaints and litigation) the practical difficulties are insuperable". As a lawyer I am all too conscious that we cannot always be accused of giving such clear, unambiguous, unequivocal, unqualified and unreserved guidance.

I turn to my final example. There is at least one other way in which the term "major matters" creates greater difficulties than "individual issues". It is that "matters" can cover not only policies but also events.

The Prime Minister frequently receives coverage on the basis of the news value of the story involved. The Prime Minister is often the creator of the story and, indeed the reason for it. Not infrequently the Prime Minister heads the news bulletins of the day. The Leader of the Opposition in another place is sometimes in that position also but less so than the Prime Minister, and that is quite right because of their relative positions. The news value is assessed by editors acting independently and exercising their professional judgment. In my view it is inevitable that the Prime Minister will tend to feature more in general —of course, different rules apply at election time—than any other leader simply because of the position as the head of the government of our nation.

In referring to the Prime Minister and the Leader of the Opposition, your Lordships will note that I did not use the words "she" and "her" or "he" and "him" because, although I have great respect and admiration for both the present incumbents of those offices, I am talking about the offices themselves in this context. The principle is what applies here.

If in their independent professional editorial judgment my editors concluded that an activity or statement of the Prime Minister was of news value, perhaps made the news on that occasion, and merited lead story treatment, as editors frequently do, I should find it intolerable if on every such occasion that item had to be followed by coverage of the Leader of the Opposition and vice versa. And yet, that is exactly what must happen if these provisions apply.

Perhaps I may be personal for a few moments. My right honourable friend in another place knows of the regard I have for him. However, I do not see any reason why I should he forced to require my editors to give coverage to the Leader of the Opposition just because, on one view of the situation, it looks right to do so I do not just want it to look right; I want it to he right.

What does one do in those circumstances? Of course we should seek to comply with the law. As a lawyer, how could I do otherwise? However, my problem is that I shall not know what is the law with which I am seeking to comply. Your Lordships may say that that is not a unique situation, that we do not know what is the law, otherwise why do we have lawyers and courts to help us to interpret it. It is one thing to find ourselves with an unclear law, it is quite another to go in with our eyes open and create a law which we know before we create it will be unclear, will be open to interminable attempts at interpretation and will be uncertain. We do not want to have to resort to lawyers and courts.

I hope that we shall not have to reject this amendment. I hope that we shall not have to trudge through the Division Lobbies. I hope that even now the Government will see that although we believe they acted in good faith without appreciating all the consequences they will gracefully withdraw their amendment in the charming way we know the noble Earl, Lord Ferrers, is capable of.

Lord Peyton of Yeovil

My Lords, perhaps I may begin by saying that I am unencumbered by the same depth of broadcasting knowledge as those of your Lordships who have taken part in the debate. Therefore, I shall have no difficulty in keeping my remarks very brief. The amendment moved by my noble friend leaves me in a state of puzzlement. First, I accept that it is an improvement. In that I am guided and influenced by the opinion of the chairman of the present IBA. I am comforted by the inflexion, as my noble friend said, that neither government nor Parliament can interfere with it.

I accept also that there is a problem and that partiality creeps in, and more than creeps in. That is not always to be excused simply on the basis that it is anti-establishment. However, I am worried what the amendment will do to benefit anybody. What will it provide which is not already provided for in the Bill? That question has not yet been answered to my satisfaction. Indeed, my noble friend Lord Ferrers, in the course of his eloquent and persuasive remarks, was honest enough to say—almost in these words—that the provision is not new. If it is not new, I ask why we need it.

I undertake not to detain your Lordships for long. But I must ask what the effect of the amendment will be, and who it will benefit. I find it difficult to give a positive answer to either of those questions. That being the case, I find it difficult to support the motion that an amendment of this kind, in which even its sponsors place so little confidence, should be placed on the statute book, even though it would find in that place plenty with which it could be fairly compared.

4.15 p.m.

Lord Annan

My Lords, I wonder whether I may intervene briefly. Some noble Lords, with great sincerity, believe that broadcasting as it stands is entirely impartial. But the noble Viscount, Lord Whitelaw, was entirely right when he said that although there is an injunction to be impartial, television is usually biased simply because many broadcasters like to tilt against the establishment, and every government, whether Labour or Conservative, find themselves up against that tilt.

Those words struck home to me because that is exactly what we found when, 13 years ago, the Committee on the Future of Broadcasting looked at the problem. Two distinguished broadcasters in current affairs on television told us that there ran through the output a strain that was anti-establishment, anti-institution, anti-free enterprise and anti-American. We thought that that was somewhat nearer the mark than Professor Stuart Hall and the Communist Party. They said that the output was the result of a conspiracy between the broadcasters, the politicians and the police.

Our committee found that then, as today, there was concern that broadcasters were not taking due impartiality seriously enough. But that did not deter us from saying that there must be programmes that took a biased and a personal point of view. Without such programmes, television would not fulfil its role of stimulating public discussion. We not only praised investigative journalism. We went further. We noted that there were programmes which seemed to indicate, This is what occurs, surely it is wrong, must be condemned and needs to be changed". Often such programmes went on to say that those in top positions responsible for such matters, "ought to be identified as dunderheads standing in the way of a more progressive and efficient system". We said that we would deplore any attempt to stifle such programmes. But at the same time we received much evidence of bias against management in industrial disputes and hostility to industry. We heard of inexpert research assistants, indeed of research assistants being told by a producer of the line that the programme would take and being ordered to produce material to illustrate that line. We said it was important that not only different kinds of programmes but different views should be expressed. That was why due impartiality was so important. We concluded in that report that, While a programme might be biased towards the Palestinian cause and be committed to a particular political viewpoint, it should indicate that Middle Eastern affairs are complex and cannot be depicted in black and white. At some later date, not immediately but not all that distant, we would expect the Authority concerned to see that another [public affairs] programme, not necessarily in the same format, but looking at the matter from a very different angle, would be presented". When that report was published I never heard a single protest from the broadcasters. Indeed, Lord Swann (the then chairman of the BBC governors) told me that he thought so well of that chapter that he circulated it to the top brass in the BBC. During the 1980s I intervened in various debates in this House on broadcasting. I gave examples of why I thought all was not totally well. In the end the governors of the BBC recognised that that was so. They sacked the director general. No doubt there are still some complaints, but it is my impression that the present director general and Mr. John Birt have produced a marked change in the BBC's approach to controversial matters. I wonder why the IBA does not appear to be so concerned.

The right reverend Prelate the Bishop of Liverpool said that the noble Lord, Lord Orr-Ewing, referred to bias in "World in Action". "World in Action" is a fine series and unquestionably should continue. But the right reverend Prelate did not deny that the programme was biased. Where in the ITV output is there any balancing series? If "World in Action" is to be exempt from due impartiality, then surely some other programme looking at current affairs from a different angle should be commissioned. If Channel 4 makes "Death on the Rock", another programme which explores Britain's attempt to contain the IRA, a programme showing the problem through the eyes of the RUC and the Army, should be made.

I am all for a celebrated playwright like Mr. Harold Pinter being invited to give his personal view on television. If he chooses, as he did, to denounce American policy in Nicaragua, that is his right. It may be that the public's appetite for Nicaraguan affairs is somewhat limited, and therefore Channel 4 may have been right not to commission a programme to explain how the size of the Nicaraguan army rose from 5,000 in 1982 to 119,000 in 1988, and why the quid pro quo for arms from Cuba and the Soviet Union was the erection of four Sigint bases for the KGB.

As I say, there is no need to produce another programme on Nicaragua. But if there is not to be such a programme, was there any attempt within "Personal View" to invite another writer—shall we say Sir Kingsley Amis—to appear in the interests of due impartiality? Channel 4 is consistently partial. The noble Baroness, Lady Blackstone, was very dismissive of the noble Lord, Lord Wyatt, and his supporters at Report stage, but I wonder if she might invite Ms. Liz Forman of Channel 4 to be given some tutorials in her college by Professor Roger Scruton. Ms. Forman might lighten her ignorance about conservatism, and perhaps the good professor might learn something from her.

The question is not whether the BBC and IBA codes on impartiality are adequate. Of course they are. The question is not even whether they are applied. The question is whether the inevitable tilt to which the noble Viscount, Lord Whitelaw, referred has gone too far. The Government, in this amendment, are saying, "Please watch the tilt. Remember the injunction on due impartiality. We have no intention of interfering. The authorities and the authorities alone are the arbiters. But there is some disquiet". That is the message.

What the effect will be, I cannot say. It takes a lawyer as distinguished and as charming as the noble Lord, Lord Boston, to make one's flesh creep, but I am perhaps more cynical than the noble Lord. I expect matters will go on just as they did before; but it may be that the breaches of due impartiality will be a little less flagrant and a little less numerous. The broadcasters should take heed. A government which becomes exasperated now has a new remedy at hand. It could widen the remit of the Broadcasting Standards Council to include news and current affairs.

The noble Earl said that the Government have no intention whatever of doing that. I am very glad to hear that. I would be very sorry indeed to hear the reverse. I hope that this evening the noble Earl will reiterate his statement. I hope therefore that the ITC will follow the example of the BBC and consider this problem anew.

Lord Winstanley

My Lords, I intervene very briefly in this discussion because I had an experience in this area some years ago from which important lessons can be learnt. In the difficult situation in which we are now placed I feel I have a duty to inform your Lordships of that experience.

It is my considered opinion that it is quite impossible to frame a statute defining due impartiality in such a way as to satisfy everybody or in such a way as to meet all possible eventualities or difficulties. I am not altogether happy with these amendments, though I accept that they have been very carefully worded. Personally, I should have preferred them to have no words!

I was much struck by what the noble Earl said in his speech on Report, to which he has referred, in which he told us that after discussions with the shadow commission he found that his original amendment was not satisfactory. He went on to say that he would devise much better amendments as a result of further discussions with the shadow commission. That seemed to me to be an acknowledgment by the noble Earl that it would have been better to have left the whole business to the shadow commission rather than seek to put it in the Bill. That remains my opinion.

Of course we have an obligation to have due impartiality enshrined in the Bill, and it has always been in previous legislation, as has been said. However, as regards independent television, the position has developed and evolved over a period of years. Originally there were certain difficulties. In the early days of Granada, when it was first on the air in the late 1950s, I was about to present a programme about clean air, the medical benefits of clean air and about smokeless zones. Noble Lords will remember that Manchester pioneered smokeless zones; it led the world and became the first city to be entirely covered by smoke-free zone provisions. It needed to be!

I proposed to present a programme on the subject and was about to do so when I was approached by the ITA's northern officer (as he then was) and told that I could not do the programme unless I could find and drag along a reluctant representative of a backward local authority which did not believe in smoke-free zones. That was a ludicrous situation.

I accept that with time things changed and that the rules of due impartiality were differently applied—largely, I believe, as a result of the work of the noble Lord, Lord Hill of Luton, who later became chairman, and who required balance not in individual programmes but overall. That seemed to me to be a great improvement. However, if we once put back words of the kind proposed we will have to evolve a system all over again. I honestly believe that the path down which the noble Earl is seeking to lead us could lead us back to the kind of situation which I have just described. I am sure that none of us wants that.

I believe that it is people who should be controlling the situation—yes, people with responsibility who are appointed by the Government and who can handle matters their own way. They can do so while watching the continuing development of matters rather than by having a whole set of words which we try to devise now to cover situations that have not yet occurred and which we cannot envisage. I hope that we will leave the Bill as it was, in the form in which Mr. Mellor, the Minister responsible, found it wholly satisfactory. We would be wise to do that, and I hope that we do so.

Lord Orr-Ewing

My Lords, I believe that this is the twelfth day on which we have discussed this Bill and therefore I shall endeavour to be briefer than some noble Lords opposite who have spoken. I am grateful for the nice remarks made about me by the noble Lord. Those of us who worked for the BBC—it was our Alma Mater—will always have a certain affection for it. Because I sometimes criticise the BBC, it does not mean that I have lost my affection or respect for it, merely that I believe the BBC occasionally goes astray. In my Second Reading speech I gave examples of where I thought there was immoderate bias—four from the BBC and four from the ITA as I was seeking to get a balance between the two.

My noble friend who spoke earlier—he has now left the Chamber—was very well answered by the noble Lord, Lord Annan, who appropriately explained the position. My noble friend was not able to be with us during the previous 11 days and had not heard all the arguments. I assume that most noble Lords present have heard them all and I shall just pick out one or two aspects.

First, there is the accusation that the amendments will give rise to massive vexatious litigation. That viewpoint is strongly held by Michael Grade, the head of Channel 4, who is quoted as saying that he could be in court every five minutes. Who is to pay for this? The only case I can recall is a libel suit brought against the BBC and related to a Panorama programme on Maggie's militant tendency. The case was brought on behalf of two of my honourable friends in the other place, Mr. Hamilton and Mr. Howarth. Duke Hussey rightly brought the whole matter to an end, saying that the nonsense must stop and a settlement reached. I believe that each of my honourable friends received £20,000 but their legal fees took the total to over half a million pounds. It took a long time to reach that settlement. Therefore, I repeat my question: where is the money to come from to settle such litigations? Who is in the enviable position of having the limitless resources necessary to bring these numerous cases?

Cases have been quoted from all sorts of lawyers —many perhaps working for the Campaign for Quality Television and others for the programme companies. The noble Baroness referred to that aspect. However, I remind the House that the Government also have some very good lawyers. Every government have good lawyers. Those lawyers have been carefully consulted and they have come to the conclusion that the Bill is perfectly justiciable.

If legal action is contemplated it must be as a last resort. The ITC is now armed with all sorts of ways of penalising transgressors. Obviously they will be verbally penalised in the first case and by fining for subsequent transgressions. I notice that in New Zealand one company that continued to disobey the impartiality laws was told that for one week it would not be permitted to carry advertisements in its programmes. That idea seems to have some merit. It did not lead to blank screens because the money had been spent on the programmes, but no money was forthcoming from the advertisers. I recommend that method of dealing with the problem.

I should like to make one further point on which I have some concern. Noble Lords who have attended all our debates on the previous 11 days will remember that we have been puzzled by the "individual issues" phraseology and have wondered whether it was satisfactory. The Government have now changed the wording to "major matters". I am also in some difficulty here. What is a "major matter"? We want to avoid having every tiny passing reference to a controversial issue dealt with separately. That is thoroughly undesirable. There is a danger that broadcasters may now have another loophole. We have tried to close six existing loopholes and that is why we now have the Bill and its amendments. Broadcasters may claim that certain matters are not sufficiently major to warrant balance or impartiality. That is a danger.

However, I took some soundings of the Home Office and it came up with a very good point: the fact that a substantial proportion of a programme is devoted to a politically contentious issue should automatically suggest that the issue concerned is sufficiently major to warrant impartial treatment. I am not altogether happy about this, but that gives me some conviction. I see that it is going to be difficult, and I hope that when my noble friend replies he will try to make rather more distinct or quotable judgments on what are likely to be major and minor matters.

My noble friends and I have worked very hard on this Bill, as has everyone in the House. Personally, I had considerable faith in the codes which the BBC and the IBA used. The BBC's was slightly more thorough, but I read them all, and they were very good. As my noble friend Lord Wyatt said, the trouble was that people just disregarded them. They said, "I know it is written in the code, but see what happens. I am going to make this broadcast", and they did. So I think we are strengthening the hands of the management and the governors by writing into the Bill rather stricter codes and facts, and laying it upon the ITC to cover certain issues. We had contentious discussions on that recently. I believe we are making life easier for the managers to carry out due impartiality. That is why I earnestly hope that after much discussion, much alteration and thousands of amendments, this House will pass the amendment in its present form.

4.30 p.m.

Lord Coleraine

My Lords, as someone who is not a former producer, manager or lawyer in the media, perhaps I may say why I think that the passing of the amendment will not add one jot or tittle to the amount of impartiality on television.

Contrary to what my noble friend Lord Orr-Ewing said, it does not seem to me that the points made by my noble friend Lord Peyton have been answered. In particular, my noble friend asked what this amendment would achieve that is not in the Bill already. I do not think one can do better than look to the words of the Bill which provide that due impartiality is to be preserved and that the commission is to draw up a code as to the rules to be observed with regard to due impartiality, and make sure that the provisions of the code are complied with.

Once one starts to embroider the concept of due impartiality it is weakened. One gets to the position which we have seen repeatedly whereby impartiality is only looked at in one way; that is, as the amendment seems to suggest, that to be impartial you have to make sure that one grossly biased viewpoint is balanced by another equally biased viewpoint.

Due impartiality goes beyond that. It includes aspects of judgment and objectivity and regard to the truth that are not even hinted at in the matters to be taken into account contained in the amendment. In the circumstances I believe that the other place had it right; I shall not support the Government on this matter.

Viscount Eccles

My Lords, I support the amendment for a different reason; that is, because the power of television has been increasing, is increasing and is going to increase so enormously that it must play a different and greater part in the life not only of this country but of the whole world. Governments will have to address themselves to the limits to which a giant adolescent of this kind can be allowed to go.

I do not know what impartiality is. I have lived my life in politics. Impartiality does not mean anything in politics. It would be a recipe for the status quo, for breaking no new ground, and for doing nothing. On the other hand, my noble friend Lord Orr-Ewing is a very diligent observer, and he has noted that broadcasters have often been biased. As the noble Baroness, Lady Birk. said, the bias has really not been against the Tory party but against any government who happen to be in power. That is natural enough. Journalists and broadcasters are acutely aware of how much cleverer they are than the average Member of another place or even than most of your Lordships. One must face the fact that life is unfair to them. Slow-witted politicians collect the power and honours while they, with their egregious brains, have very little of either. I do not mind about that kind of resentment. It is part of human nature which you cannot control by legislation. But if it goes too far the excesses should cause us to do something.

Against that background this amendment is not perfect. It could not be perfect because its object is due impartiality, and that is an illusion. It seems that the main difference between the other side and this side is whether Parliament should take a hand in trying to secure that this enormously powerful medium does not get out of hand, and that there are no satellite terrorists, which there very easily might be.

The amendment does something which has not been done before. It recognises the responsibility of Parliament. Ought we to leave it only to the commission because the commission has had responsibility for it in the past? I do not think so. The scale of the power of doing good and doing harm by television is growing at such a rate that Parliament must pay some attention to it.

Therefore I shall back the amendment although I do not think it is perfect. In fact, when I back it I am reminded of what I was told when I was very young: "Always keep hold of nurse for fear of finding something worse". I am going to keep hold of my noble friend Lord Ferrers and his amendment since it would be so easy to find something worse.

Lord Thomson of Monifieth

My Lords, the noble Viscount is absolutely right to say that television is a very powerful medium, but when he goes on from that to say that the issue before your Lordships' House today is how Parliament should regulate the content of television programmes I think he is mistaken in putting it in that way.

The question that arises for the House today concerns the way in which Government and Parliament play their role in relation to the regulation of the great broadcasting organisations of this country. I very much agree with the wise words of the noble Lord, Lord Coleraine, on the dangers of Parliament seeking to define impartiality and establish the regulations for imposing impartiality on programme makers. The noble Lord was absolutely right to underline the difficulties.

Therefore, I hope that even at this late stage, and in the light of what has been an extremely interesting debate your Lordships may yet find it right to reject the Government's latest proposals on the admittedly difficult issue of due impartiality.

I reiterate, as others have done, that there is no issue between us in any quarter of the House about the importance of the ITC and the BBC doing "all that they can", to use the words of the Bill, to secure due impartiality in matters of public controversy. However, those qualifying words are worth pondering for a moment. The words "all that they can" are the words in the Bill. In the current Act, the words are "so far as possible". They are important in recognising the difficulties and limitations in defining and then securing impartiality.

As the noble Lord, Lord Peyton, said pungently a few moments ago, there are bound to be difficulties as to where impartiality lies on any subject. On occasions, errors of judgment are bound to occur on the part of both regulators and broadcasters. However, successive boards of both the IBA and the BBC have given the highest priority to doing "all that they can" to ensure due impartiality.

A certain element of confusion has crept into the debate with regard to the approach to the amendment. A number of your Lordships have perfectly understandably and properly expressed the anxieties that all of us feel from time to time about the way in which programmes have been dealt with by the broadcasting authorities. That is not the issue that is before your Lordships' House in terms of making a judgment about the amendment. The issue before the House is the relationship between government and Parliament on the one side—the constitutional relationship—and the broadcasting authorities that government appoint on the other. I have no doubt that the long debates that we have had on due impartiality will have been listened to extremely carefully by the board of governors of the BBC and by the IBA and the shadow ITC. It is no bad thing that the concerns that have been expressed should be listened to carefully and taken on board.

However, the amendment does not deal with that problem. If the amendment is passed, the broadcasting authorities will still have the problem of dealing with the individual programme issues as they come along. As Parliament will have trespassed on what were previously regarded as the responsibilities of the independent broadcasting authorities, a new situation will be created both for the broadcasting authorities, about interpreting the responsibilities of programme regulators, and, above all, as a number of noble Lords have said, for the courts of this country.

As I sought to say at Report, the House should remember that the disputes about due impartiality, although they are often well publicised and on important issues, occur in a minuscule part of the vast news and current affairs output of the broadcasting organisations of this country. Those who complain are a tiny, although potentially influential and litigious, minority of the multi-million viewing public of this country.

Against that perspective, it is wrong and dangerous in our pluralistic society to upset the well-tried, arm's-length relationship between government and the independent broadcasting authorities that they appoint and to trespass on their responsibility for what they put in their codes. In a comprehensive opening speech in answer to the noble Earl, the noble Baroness, Lady Birk, called it a very fragile balance. It is a fragile and important balance and I do not think that the case has been made out for upsetting it in the way that is now proposed.

Although, technically, the amendment relates to the future ITC, it also affects the BBC and the whole of British broadcasting. In asking the House to reject the amendment, we are not in this case, as has been said, asking the Government to go against the grain of the Broadcasting Bill as we have felt conscientiously obliged to do on a number of aspects of the Bill. It is the Government's amendment which goes against the grain of what is supposed to be a deregulating and liberalising measure. The light touch of which we have heard a great deal has suddenly, at the tail end of all our debates, become the heavy hand. We simply ask the Government to stick to the text of the Bill as it stands before us today on the very eve of its Royal Assent, as they have vigorously defended it for the past nine months, perhaps particularly so in another place, in the elected House.

The noble Earl, whose courtesy is so totally disarming that it is almost impossible ever to get cross with him, suggested that, after all the efforts that had been made with the amendment, it would be not merely ungracious to persist in the position that I seek to put, but a case of intransigence. I think that was the word he used. With respect to the noble Earl, I should have thought that the intransigence is to be found on the Government side in this matter.

The noble Lord, Lord Boston, put a totally devastating case on the likely legal consequences of going ahead with the amendment. Here again, I believe that there is a genuine misunderstanding on the part of such noble Lords as the noble Lord, Lord Wyatt. He complains that, in his experience, broadcasters have not been sufficiently aware of the code. He therefore wants these provisions to be written into an Act of Parliament. If the broadcasters of whom he complains—I think that he will at least agree with me on this point—do not sleep with the code under their pillow, they do not read Acts of Parliament before they go to bed either. That is not the issue.

Again, the noble Lord, Lord Wyatt, is under a misunderstanding about the implications of the matter. He seemed to think that to have the provision written into the legislation would strengthen the hands of the broadcasting authorities. To do that would bring about a fundamental change. When I was chairman of a broadcasting authority, I went through the ordeal of judicial review. It is not a particularly agreeable experience, although it is a necessary one in our society. When I went through it, the test for the courts lay in the text of the existing Broadcasting Act and in whether the regulatory authority had performed its duties in a reasonable way.

If the amendment is accepted, the test for the courts will be widened and will be very different. I am a layman, but I gather from what has been said by noble Lords who are lawyers that the ambiguity and uncertainty of the amendment make it totally unknown territory as regards the final outcome. That is the difference that will be brought about by the proposal.

I have the sense—I hope that it is not unfair—that the Government, and certainly the Front Bench in your Lordships' House, are not totally easy about the position that has emerged. As we all know, the matter began with an amendment of a much more radical and, to use my phrase, at times mechanistic character from the noble Lords, Lord Wyatt and Lord Orr-Ewing, who, as my noble friend Lord Boston said, are absolutely entitled to the point of view that they expressed with great sincerity. However, when we on these Benches—it is worth reminding your Lordships of that fact—sought to force a vote on their amendment, the Government, aware presumably that they were likely to be defeated, allowed the House to negative it.

Since then, the Government have plainly found it difficult to come forward with a satisfactory form of words of their own. At a late point before the Report stage, they finally produced an amendment which immediately aroused the unanimous opposition of broadcasters who might have been expected to react in that way. But it went much wider. It aroused the passionate opposition of the noble Viscount, Lord Whitelaw. It aroused—and, as far as I know, still arouses—the unanimous opposition of the serious Conservative press. At that time it also aroused the opposition of the shadow ITC which had made its preference clear throughout for the present text of the Bill. As the noble Earl rests a good deal of his case on the fact that the shadow ITC has now said that it is content with the amendment, which I do not think there is any doubt that the Government have pressed on it hard, it is worth returning to what the ITC said in its briefing to your Lordships in July: In our view, the Bill as drafted offers appropriate safeguards for impartiality". The proper question to ask the shadow ITC is not whether it feels duty bound as a statutory body to come to a compromise agreement with a Government who are determined to make this fundamental change in these constitutional arrangements but whether it would prefer to go back to what was its considered position in July. Now we face a further amendment to the amended government amendment.

I am a relative newcomer in terms of re-entry into your Lordships' House, having been away for many years on other matters, but it must be rare, on an important constitutional issue raising questions of freedom of speech in our society, to see the Government treating the House in this manner by bringing forward a major proposal at this stage of an important government Bill. Those affected have had little time to take the views of learned counsel on what has become a moving target. The legal opinions quoted today by a number of noble Lords have made it clear that there are serious doubts, both in principle and in practice, about the final amendment. Although the Government have very distinguished legal advice we have not yet heard from them a legal opinion. I doubt whether they could obtain an opinion of the same weight as those before the House today.

As I said on Report, compromises—the noble Earl has done his level best to produce a compromise—always appeal to reasonable people, but they have to be examined on their merits. This amendment has now been rewritten four times. That kind of frantic scribbling at the last minute is rarely satisfactory, and in the battle of legal opinions as expressed in the debate today the Government's amendment has lost heavily on points. If the amendment passes, the result is likely to be bad for the viewer in terms of a less courageous quality of current affairs programming; but it is certain beyond a shadow of doubt that it is going to be extremely good for the lawyers.

I seriously ask the noble Earl and the Government whether the game is worth the candle. I echo the words of the noble Lord, Lord Boston. Is it worth abandoning what the Government believed until very recently—and I am sure believed genuinely and deeply —was the right relationship between government and broadcasting authorities for a cobbled together compromise which may poison that relationship and do great damage to the quality, virility and international reputation of British broadcasting?

Lord Boyd-Carpenter

My Lords, I do not claim that the amendment is perfect or that, if enacted, it will work miracles. But I should like at any rate to express appreciation of the care which my noble friend Lord Ferrers has taken both at this stage and at previous stages to consult opinion on all sides of the House, to listen to argument and to adjust the earlier amendment in the light of those comments. Your Lordships generally have good cause to be grateful to him for that. I do not think the amendment will work miracles but the broadcasting agencies will, in the future as in the past, rather follow the principle of the provincial mayor who on being elected to office pledged himself to steer between partiality on the one hand and impartiality on the other without actually falling into either.

I ask the House to consider the practical effects of a decision on the amendment. If the House rejects it at this final stage or if it is withdrawn, it will be clear to all concerned in the broadcasting industry that the Government's efforts to secure a greater degree of impartiality have failed and that opinion in your Lordships' House and therefore for practical purposes in Parliament is against worrying very much about impartiality. That would be extremely dangerous. It would be dangerous to our political system because the great power and influence of the broadcasting system and particularly of television would appear to be going unchecked. Those concerned with broadcasting would believe that there was no great need to worry about the old rules, the old provisions and the old charters on impartiality because Parliament had rejected an attempt to bring them up to date and to impose them. For those reasons, whatever imperfections may be found in the amendment—I think that I could find one or two myself—I would regard it as quite disastrous if the amendment were rejected. I shall warmly support it.

Lord Bonham-Carter

My Lords, I had not intended to intervene in this debate, which has gone over ground covered many times, but the remarks of the noble Lord, Lord Boyd-Carpenter, require a response from someone who has had something to do with broadcasting. He grossly underestimates and is deeply insulting to those we have entrusted with the oversight of our broadcasting authorities. We have with us the noble Lord, Lord Barnett, but we do not have Mr. Duke Hussey or Mr. George Russell. Is the noble Lord seriously saying that if we maintained the system which has existed in this country for so many years those gentlemen would say that this House had decided that the broadcasters could neglect impartiality? That is a travesty of the position.

Lord Boyd-Carpenter

My Lords, will the noble Lord give way as he has been good enough to refer personally to me? Why he should regard it as an insult to say to people that they prefer to act in one way or another I cannot follow. All of us in this House speak sometimes with considerable partiality: certainly the noble Lord does. I was trying to say that, if one undermines the legal framework, it is no insult to those operating inside it to say that they will act more freely and express more partiality than if they know that legal duties are being properly imposed upon them. That is the point. It is no good the noble Lord trying to stir up excitement by saying that I was insulting anybody. I am not even insulting him.

Lord Bonham-Carter

My Lords, I am deeply gratified by the noble Lord's compliment. All I was trying to suggest is that on countless occasions in this debate noble Lords on both sides have reiterated that we are absolutely committed to the importance of impartiality. All we have argued is that the due impartiality law as set forth in previous Acts of Parliament has worked very well and that the proposed amendment which has come forward at the last moment undermines the authority of those who heretofore have been expected to regulate and to carry out that law. To say that if we reject the amendment they will conclude that impartiality is less important, or is in some way undermined, seems to be a travesty of what their reaction is likely to be.

5 p.m.

Lord Chalfont

My Lords, it may be of service to your Lordships' House if I very briefly reiterate the position of the Independent Broadcasting Authority and that of the shadow ITC, on both of which bodies I serve as deputy chairman. An opinion has been expressed on several occasions during the debate on this amendment today. Sometimes it has been represented not entirely accurately and on other occasions people have sought to interpret it, to place glosses upon it and to refer to the advice upon which it was based. It is not my intention at this late stage to rehearse any of the arguments about the history of the amendment or to go into any detail. I simply wish to reiterate precisely what is the position of the shadow ITC and the IBA.

When the Government first brought forward these amendments, the IBA and the shadow ITC, having taken legal advice, gave their opinion to the Government that this particular amendment was not workable. A subsequent amendment was drafted by the Government in consultation with the shadow ITC. The position of the ITC now is that if this amendment were to be incorporated in the Bill it would produce a workable code on impartiality which the shadow ITC could make work, as required by the Broadcasting Bill. That is the position of the authority.

Earl Ferrers

My Lords, if I may say so without being in any way patronising, the speech made by the noble Lord, Lord Chalfont, to which we have just listened, was masterly in its presentation, in its conclusions and in its brevity. Indeed, it said everything. We have had an exceedingly interesting debate this afternoon during which the sole issue has been the method by which we achieve impartiality. We are all concerned to try to achieve that aim in the best possible way.

I am bound to say that the noble Lord, Lord Goodman, did me such an unbelievable honour—indeed, I could not quite believe my ears—when he said that I had almost persuaded him. The thought that I should almost have persuaded a person of the eminence of the noble Lord, bearing in mind his legal background, made me feel as if I had swallowed a bowl of cream. However, he then went on to say that I had not actually persuaded him and hence my ego dropped back to its low normal point.

There is a curious aspect to this matter. My noble friend Lord Coleraine said that the amendment would not add one jot or tittle to the Bill. My noble friend Lord Peyton said that he did not think it would add anything and, in that case, asked what was the purpose of putting it in. I shall deal with that point later. On the other side of the coin we had the noble Lord, Lord Goodman, saying that what is proposed could be an infringement of the freedom of speech with the sword of Damocles hanging over producers. The noble Baroness, Lady Birk, said that this would wreck the present position where the Government are at arm's length from editorial policy and that what is proposed alters the fragile balance between independence and government control. The noble Lord, Lord Thomson, was in agreement with that view. Therefore, we have two totally separate views: one states that what is proposed does nothing at all and therefore why worry about it and why put it in the Bill; and the other states that it does such terrible draconian things that we should all make sure that it is not included.

Perhaps I may deal with some of the points of concern which were raised during the course of the debate. Many important issues were raised. The noble Lord, Lord Boston, was concerned about several matters. He started his speech by saying some justified and pleasant things, not only to my noble friend Lord Orr-Ewing, but also about the principles upon which the House operates. It was most helpful that he did so; indeed, the House has its own way of operating for the mutual benefit of all concerned. However, having said that in such nice tones I thought, "My goodness, there is trouble coming". Sure enough, he proceeded to do a monumental rugger tackle on the Government's amendment. He did so in the most impressive way.

Nothing in the present amendment imposes any different or greater requirement on the broadcasters than that which arises at present under the existing requirement for due impartiality. This point troubled the noble Lord, Lord Boston, and many others. If anything, the amendment helps the broadcasters by allowing the ITC to indicate the circumstances under which a strict interpretation of impartiality need not be maintained. If the noble Lord, Lord Boston, is correct in his argument, I think that that could be regarded as a criticism of the existing law rather than of the present amendment.

The noble Lord, Lord Boston, and my noble friend Lord Orr-Ewing were worried about "major matters". It will be for the ITC code to define what is a major matter. I believe that my noble friend asked whether I could define what was a major or a minor matter. I shall not be so sufficiently stupid as to do so. That is precisely what the ITC has to do. Matters of political or industrial controversy are not defined in the existing law; they are left to the IBA to determine. That situation has not led to any rash of legal proceedings; indeed, quite the reverse.

Due impartiality has always been the test which has been set by broadcasting legislation. It is, therefore, false to suggest that our amendments create some new and unworkable test. Since 1954 due impartiality has applied to matters of political or industrial controversy. All the opinions which have been quoted today about the difficulties of defining major matters could apply equally to the definition of the word "matters". However, this has not been a problem until now. For example, the IBA has found it possible to broadcast interviews given by the Prime Minister and the Leader of the Opposition on different subjects, despite the need for all matters to be treated impartially. I do not understand why it should be found any more difficult to broadcast such interviews in the future when the requirement will relate to major matters.

In his trenchant speech the noble Lord, Lord Boston, mentioned many different legal opinions which he had received. He said that he had sent them on to my department and I am indebted to him for doing so. He pointed out that there were many different opinions and quoted them with some force. I must say, with deference to the noble Lord and to his profession, that it is a fact that if you ask 12 lawyers for their views you will end up with 13 different opinions. Therefore, it is not surprising that there are a number of views.

I see that the noble Lord is shaking his head. However, during the course of his speech I wondered whether he had forgotten those occasions in this House when we have been debating a matter of legal content and when we have had contributions from the Law Lords. They sometimes set about each other like fighting cocks; there is no unanimity of view among those noble and learned gentlemen. Therefore, when the noble Lord says that there are various views stating that what is proposed is unworkable, I must point out to him that there are other views which say that it is workable. The IBA and the Government have received such legal advice and I think, therefore, that the score is 30:15 to us.

We do not accept that the amendment will necessarily involve the courts in deciding what is a major matter. In such circumstances it will be for the ITC to indicate what constitutes such matters. In the event of litigation, the question will be whether the ITC has taken a reasonable view of what is a major matter. That is very different from the court imposing its own view about what is a major matter. It has been suggested that litigation will be more likely in the future. I believe that what is proposed will make litigation less likely. Without the amendments there could well be doubt as to the degree of discretion which the ITC could have in drawing up its code.

I turn now to deal with the agitation expressed by my noble friend Lord Peyton. He said that he could not see what this amendment would add to the Bill. I shall give him some examples. Our amendments make it clear that the rules can make different provisions for different circumstances.

The ITC can determine what constitutes a series. Due impartiality can require different approaches according to circumstances, and the ITC can indicate the timescale within which due impartiality should be achieved. Without the amendments there could be serious doubt that the ITC could reflect those points and it would have no statutory backing to the provisions in the code. In that respect the amendments help rather than hinder the ITC and will make litigation less likely. The amendment gives the ITC statutory backing in drawing up its code and makes clear what it can cover and how it can exercise its discretion where otherwise there might be doubt. It also makes clear to the broadcasters and the public that there are certain matters that the code must cover and therefore guarantees that the broadcasters will be informed what is expected of them. Members of the public will be reassured as to the subjects that the code must cover.

The noble Lord, Lord Annan, in a delightful way, paraphrased the effect of the code. It will say, "There is a problem". To the broadcasters it will say, "Think about the code". Broadcasters should take heed. That was a good encapsulation. A code already exists. There is provision for a code in the Bill. All we are doing is laying down some of the subjects which must be covered in the code. I can only say to your Lordships, including those like the noble Lord, Lord Goodman, who said that the provision would be an infringement of the freedom of speech, that how the subjects are covered, what wording is used, the strength of leniency of the coverage and the severity of the enforcement are matters wholly and exclusively the prerogative and the responsibility of the ITC. The measure is not a draconian one. It is a clarifying one. I hope that your Lordships will approve of it.

5.12 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 155; Not-Contents, 116.

Division No. 1
Allerton, L. Davidson, V. [Teller.]
Annan, L. De L'Isle, V.
Ashbourne, L. Denham, L. [Teller.]
Astor, V Digby, L.
Atholl, D. Dilhorne, V.
Auckland, L. Eccles, V.
Balfour, E. Ellenborough, L.
Balfour of Inchrye, L. Elles, B.
Barber, L. Elliot of Harwood, B.
Belhaven and Stenton, L. Elliott of Morpeth, L.
Beloff, L. Elton, L.
Belstead, L. Fairhaven, L.
Bessborough, E. Ferrers, E.
Blatch, B. Flather, B.
Blyth, L. Foley, L.
Beardman, L. Fraser of Kilmorack, L.
Bolton, L. Gainford, L.
Borthwick, L. Gibson, L.
Boyd-Carpenter, L. Glenarthur, L.
Brabazon of Tara, L. Goold, L.
Brightman, L. Gray of Contin, L.
Brookeborough, V. Greenhill of Harrow, L.
Buckmaster, V. Gridley, L.
Butterworth, L. Grimthorpe, L.
Carnegy of Lour, B. Hailsham of Saint Marylebone,
Carnock, L. L.
Cavendish of Furness, L. Halsbury, E.
Clanwilliam, E. Harmar-Nicholls, L.
Colnbrook, L. Hastings, L.
Colwyn, L. Henley, L.
Constantine of Stanmore, L. Hesketh, L.
Cottesloe, L. Hives, L.
Cox, B. Holderness, L.
Croham, L. Hood, V.
Cross, V. Hooper, B.
Cullen of Ashbourne, L. Howe, E.
Cumberlege, B. Hylton-Foster, B.
Iddesleigh, E. Pearson of Rannoch, L.
Jakobovits, L. Penrhyn, L.
Johnston of Rockport, L. Perth, E.
Kimball, L. Porritt, L.
Kinloss, Ly. Radnor, E.
Kinnoull, E. Reay, L.
Kitchener, E. Rees, L.
Knollys, V. Renton, L.
Lane of Horsell, L. Renwick, L.
Lauderdale, E. Rippon of Hexham, L.
Liverpool, E. Rodney, L.
Long, V. Romney, E.
Luke, L. Saint Albans, D.
Lyell, L. St. Davids, V.
McColl of Dulwich, L. St. John of Bletso, L.
Mackay of Clashfern, L. Saltoun of Abernethy, Ly.
MacLehose of Beoch, L. Selkirk, E.
Mancroft, L. Shannon, E.
Manton, L. Skelmersdale, L.
Margadale, L. Slim, V.
Marshall of Leeds, L. Strange, B.
Massereene and Ferrard, V. Strathcarron, L.
Merrivale, L. Strathclyde, L.
Mersey, V. Strathcona and Mount Royal, L
Middleton, L. Strathmore and Kinghorne, E.
Milverton, L. Swinfen, L.
Monson, L. Terrington, L.
Monteagle of Brandon, L. Teviot, L.
Morris, L. Thomas of Gwydir, L.
Mountevans, L. Tonypandy, V.
Mountgarret, V. Tranmire, L.
Moyne, L. Trefgarne, L.
Moyola, L. Trumpington, B.
Munster, E. Ullswater, V.
Murton of Lindisfarne, L. Vaux of Harrowden, L.
Nelson, E. Wade of Chorlton, L.
Nugent of Guildford, L. Wise, L.
Oppenheim-Barnes, B. Wolfson, L.
Orkney, E. Wyatt of Weeford, L.
Orr-Ewing, L. Wynford, L.
Oxfuird, V. Young, B.
Addington, L. Gallacher, L.
Airedale, L. Galpern, L.
Aldington, L. Gladwyn, L.
Ampthill, L. Glasgow, E.
Ardwick, L. Goodman, L.
Attlee, E. Graham of Edmonton, L.
Aylestone, L. [Teller.]
Beaumont of Whitley, L. Greenway, L.
Birk, B. Gregson, L.
Birkett, L. Haden-Guest, L.
Blackstone, B. Hampton, L.
Bledisloe, V. Hanworth, V.
Bonham-Carter, L. Holme of Cheltenham, L.
Boston of Faversham, L. Hooson, L.
Bottomley, L. Houghton of Sowerby, L.
Briggs, L. Howie of Troon, L.
Broadbridge, L. Hunt, L.
Bruce of Donington, L. Hutchinson of Lullington, L.
Carmichael of Kelvingrove, L. Irvine of Lairg, L.
Carter, L. Jacques, L.
Cledwyn of Penrhos, L. Jay, L.
Clinton-Davis, L. Jeger, B.
Cocks of Hartcliffe, L. Jenkins of Hillhead, L.
Coleraine, L. Jenkins of Putney, L.
Craigavon, V. John-Mackie, L.
Crook, L. Kearton, L.
Dacre of Glanton, L. Kilbracken, L.
Darcy (de Knayth), B. Leatherland, L.
David, B. Listowel, E.
Dean of Beswick, L. Llewelyn-Davies of Hastoe, B.
Donaldson of Kingsbridge, L. Lloyd of Hampstead, L.
Dormand of Easington, L. Lockwood, B.
Ennals, L. Longford, E.
Ewart-Biggs, B. McGregor of Durris, L.
Ezra, L. McIntosh of Haringey, L.
Falkland, V. Mackie of Benshie, L.
Fitt, L. McNair, L.
Marsh, L. Sharples, B.
Mason of Barnsley, L. Shaughnessy, L.
Mayhew, L. Stedman, B.
Morris of Castle Morris, L. Stockton, E.
Murray of Epping Forest, L. Stoddart of Swindon, L.
Nicol, B. Strabolgi, L.
Northfield, L. Taylor of Blackburn, L.
Ogmore, L. Thomson of Monifieth, L.
Peston, L. Thurlow, L.
Phillips, B. Tordoff, L. [Teller.]
Pitt of Hampstead, L. Underhill, L.
Richard, L. Wallace of Coslany, L.
Robson of Kiddington, B. Walston, L.
Rochester, L. Whaddon, L.
Roskill, L. White, B.
Runciman of Doxford, V. Wilberforce, L.
Russell, E. Williams of Elvel, L.
Sainsbury, L. Wilson of Rievaulx, L.
Seear, B. Winchilsea and Nottingham, E.
Seebohm, L. Winstanley, L.
Serota, B. Woolton, E.
Shackleton, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.21 p.m.

Earl Ferrers moved Amendments Nos. 3 to 5: Page 7, line 10, at end insert: ("and the Commission may make different provision in the code for different cases or circumstances."). Page 7, line 11, leave out ("(c)"). Page 7, line 16, at end insert: ("(4A) The rules specified in the code referred to in subsection (3) shall, in particular, take account of the following matters—

  1. (a) that due impartiality should 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 hat provision taken as a whole; and
  2. (b) the need to determine what constitutes a series of programmes for the purposes of subsection (2).
(4B) The rules so specified shall, in addition, indicate to such extent as the Commission consider appropriate—
  1. (a) what due impartiality does and does not require, either generally or in relation to particular circumstances;
  2. (b) the ways in which due impartiality may be achieved in connection with programmes of particular descriptions;
  3. (c) the period within which a programme should be included in a licensed service if its inclusion is intended to secure that due impartiality is achieved for the purposes of subsection (1) (c) in connection with that programme and any programme previously included in that service taken together; and
  4. (d) in relation to any inclusion in a licensed service of a series of programmes which is of a description specified in the rules—
    1. (i) that the dates and times of the other programmes comprised in the series should be announced at the time when the first programme so comprised is included in that service, or
    2. (ii) if that is not practicable, that advance notice should be given by other means of subsequent programmes so comprised which include material intended to secure, or assist in securing, that due impartiality is achieved in connection with the series as a whole;
and those rules shall, in particular, indicate that due impartiality does not require absolute neutrality on every issue or detachment from fundamental democratic principles.").

The noble Earl said: My Lords, I beg to move Amendments Nos. 3 to 5. They were spoken to under the previous amendment.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 6: Page 7, line 18, at end insert: ("() Nothing in this section or in sections 7 to 12 has effect in relation to any licensed service which is an additional service other than the teletext service referred to in section 49(2).").

The noble Earl said: My Lords, I beg to move Amendment No. 6 and at the same time speak to Amendments Nos. 65, 66 and 77. The amendments fulfil the commitment which I gave to my noble friend Lord Swinfen in Committee that we would apply the provisions of Clauses 6 to 12 in the Bill to the designated teletext service. The amendments to Clauses 150 and 203 are necessary in order to ensure that teletext comes within the Broadcasting Complaints Commission's remit and to make clear that teletext transmissions come within the definition of "television programme" for statutes which are amended by this Bill.

On Question, amendment agreed to.

Clause 8 [General provisions as to advertisements]:

Earl Ferrers moved Amendment No. 7: Page 8, line 20, leave out ("this Act or of the code under").

The noble Earl said: My Lords, I beg to move Amendment No. 7 and speak to Amendments Nos. 8, 9, 48, 49 and 50. These are minor technical amendments. It is unnecessary to set out that a licensee should not act as an advertising agent since this restriction already exists in Schedule 2.

Lord Thomson of Monifieth

My Lords, before we leave this amendment, perhaps I may ask the noble Earl to expand a little on it. It is true that an advertising agent is totally prohibited from owning a television contract. Is there any reason why the words about the television contractor being an advertising agent are to be omitted? He might perhaps advertise his own programmes, or that kind of activity.

Earl Ferrers

My Lords, certain people can be advertisers; they can purchase advertising or sell advertising. The point is to get the right people. For instance, the Rank Organisation has argued that it could be held on analysis to be an advertising agent in connection with the provision of advertising space for cinema advertising. The organisation argues that this should not prevent it from becoming a licensee. The Bill precludes any person who is defined as being an advertising agent from having a controlling interest or an interest of more than 5 per cent. in an ITV licence. The definition of "advertising agent" in subsection (1) refers to subsection (4); it should refer to subsection (6). This is a printing error which will be amended in due course. It does not need a formal amendment to make the change. I hope that that clarifies the point.

Lord Thomson of Monifieth

My Lords, I am grateful to the noble Earl for spotting the misprint which I came across this morning relating to the interpretation of the clause. I am also grateful to him for his clarification. It means that the position of an organisation such as the Rank Organisation, for example, which does not engage in television advertising but does engage in cinema advertising will be safeguarded under this provision.

Earl Ferrers

My Lords, with the leave of the House perhaps I may respond to that. Provided the Rank Organisation engages only in selling advertising space, it would not come within the definition of the Bill. However, if the Rank Organisation were to act as an advertising agent purchasing space in cinemas for persons wishing to advertise, it would be caught by the provision in Clause 202(6). It would be right and we have felt it appropriate to prevent advertising agencies from holding a stake of more than 5 per cent. in any licensee because of the possible conflict of interests between the provision of the service and representing person; who wish to advertise, no matter in which media he might purchase space. The close tie with the advertisers could result in a conflict of interest, even though the advertising agent was not purchasing space on the broadcasting services.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 8: Page 8, line 31, leave out ("Neither the Commission nor the holder of any licence shall") and insert ("The Commission shall not").

On Question, amendment agreed to.

Clause 9 [Control of advertisements]:

Earl Ferrers moved Amendment No. 9: Page 9, line 21, leave out ("their general responsibility for") and insert ("a general responsibility with respect to").

On Question, amendment agreed to.

Clause 18 [Failure to begin providing licensed service and financial penalties on revocation of licence]:

Earl Ferrers moved Amendment No. 10: Page 19, line 25, leave out from beginning to ("(as") in line 30 and insert:

The noble Earl said: My Lords, I beg to move Amendment No. 10 and speak to Amendments Nos. 11 to 17, 26, 27, 29 to 33, 36 to 43, 51, 59 to 61, 63, 64, 67, 74 to 76, 90 and 114. These amendments are all minor drafting improvements to various provisions in the Bill resulting from the final look through the Bill. None of them raises any issue of substance.

On Question, amendment agreed to.

Clause 21 [Restriction on changes in control over Channel 3 licence holder]:

Earl Ferrers moved Amendment No. 11: Page 23, line 43 leave out ("body to which") and insert ("person to whom").

On Question, amendment agreed to.

Clause 32 [Nomination of bodies to provide news for regional Channel 3 services]:

Earl Ferrers moved Amendments Nos. 12 to 15: Page 32, line 1, leave out from ("to") to ("invite") in line 4 and insert ("enabling them to nominate bodies corporate as nominated news providers for the purposes of section 31(2), the Commission shall"). Page 32, line 11, leave out ("before or after the commencement of section 31(2))") and insert ("in pursuance of any such invitation or not)"). Page 33, line 2, leave out ("or (5)"). Page 33, line 4, at end insert ("; and they shall not terminate a body's nomination under subsection (5) unless they have given the body a reasonable opportunity of making representations to them about the matters complained of.").

On Question, amendments agreed to.

Clause 39 [Networking arrangements between holders of regional Channel 3 licences]:

Earl Ferrers moved Amendments Nos. 16 and 17: Page 38, line 35, leave out ("that, by the relevant") and insert ("(in the case of a licence granted before the relevant date) that, by that"). Page 38, line 40, after ("(b)") insert ("(in any case)").

On Question, amendments agreed to.

Lord Thomson of Monifieth moved Amendment No. 18: Page 39, line 36, at end insert: ("(10A) Without prejudice to the other provisions of this section, the Commission shall discharge their functions under this section in a manner which they consider is calculated to ensure that a suitable proportion of any programmes which any participant in networking arrangements in force under this section makes available under those arrangements are made within the area for which that participant is licensed to provide a regional Channel 3 service.").

The noble Lord said: My Lords, this matter was thoroughly debated at Report stage and I have no wish to speak to it.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, is the amendment not moved?

Lord Thomson of Monifieth

My Lords, I did not wish to take up the time of the House on a matter on which I had already spoken. However, I now realise that other noble Lords wish to speak on it so perhaps I may formally move the amendment. I beg to move.

Lord Boston of Faversham

My Lords, I shall not detain your Lordships more than a few moments. As my noble friend Lord Thomson of Monifieth said, the matter was explored on Report and to an extent, although perhaps using slightly different words, in Committee as well. I hope very much that since our debate on this matter last Tuesday the Government will have reflected further and will see that they have no cause whatever to fear that a quota system will be needed for this proposal to be implemented. The Government have been under a misapprehension on this matter both in Committee and on Report. The ITVA has made it quite clear—both the association and the IBA shadow ITC support this amendment —that there is no question whatever of guarantees or quotas for the supply to the network. The noble Earl, Lord Stockton, made that point during the course of our previous debates on this matter and my noble friend Lord Thomson has also made that point.

The words "suitable proportion" in the amendment follow the use of the same words in Clause 16(2) (f). Those words place on the ITC a duty to ensure that, a suitable proportion of the regional programmes included in the service in accordance with paragraph (e) are made within the area for which it is to be provided". The ITC will be well able to interpret and is used to interpreting that phrase. The Government have also shown themselves to be happy with that phrase by including it in the Bill. The discretion given to the ITC will allow it to choose a proportion best suited to the needs, abilities and capacity of each region. The proportions may vary from region to region. The IBA is used to this matter—and therefore the ITC will have no difficulty with it—because the authority has for many years worked out for each region the amount of local interest programming that should be shown. That programming comprises regional news and current affairs, and other programmes of regional interest. It has set a minimum number of hours of regional programming especially for the region concerned to be broadcast each week. It has reviewed those numbers of hours annually. Many companies exceed that amount because they like to provide more than the minimum.

That experience and the exercise of its discretion by the IBA is not dissimilar from what would be required under the terms of this amendment. If a particular region does not wish to produce programmes for the network, or is not able to do so, that will be permissible because no proportion will therefore arise in those circumstances. The essential point is that whatever the amount of programming a licensee manages to get on the network, a suitable proportion must be made, either by the licensee or independent producers, within the region.

The only other point that I wish to make is the following. The Minister will recall the great campaign which the Government initiated and conducted to get a proportion of output from both the BBC and all of the ITV programme companies made by independent producers. Eventually the Government settled on 25 per cent. of output to be produced both by the BBC and by the ITV companies from independent producers. I am happy to say that some broadcasting companies are on the point of reaching that target, if it has not already been exceeded. That campaign was supported by the IBA. I believe that all the ITV companies joined in it enthusiastically, once it was instituted. There were a few complaints at the beginning, however, as we well know. But now that the campaign has been instituted, they have flung themselves into it most enthusiastically.

The purpose of that government campaign, as the noble Earl will recall, was to ensure that production was spread from independent producers around the country, and was not centred on London and perhaps one or two other metropolitan areas. This amendment is designed to do precisely that. It is entirely in line with those purposes of the Government. Therefore it is difficult to understand why the Government should not accept this amendment. As I said at the outset, there is no question of quotas so there is no problem for the Government there. There is no question of guarantees, so there is no problem for the Government there either. This measure is entirely in line with the Government's purpose of spreading work throughout the regions of this country and throughout Scotland and Wales. Therefore the measure would be entirely beneficial to government policy as well as to other areas.

5.30 p.m.

Lord Ardwick

My Lords, we are wholly in accord with what the noble Lord has just said. Throughout the Bill we have been concerned about the contribution of regional television to the whole. A good deal of the excellence of television in this country is due to the work done in the regions. A good deal of television's acceptability is also due to the work done in the regions. We hope that the Minister will be able to accept the amendment.

Earl Ferrers

My Lords, noble Lords opposite are enormously persuasive. However I shall try to explain the Government's view to them. Our proposals for networking envisage that programmes will be commissioned for the network on the basis of value for money. Therefore there will no longer be any need for guaranteed quotas. That is the underlying philosophy, but I gather that in the past some ITV contractors have found it difficult to obtain access to the network because of the quota arrangements which have been a feature of the network system up to now. The new network arrangements should open up access to the network which will enable all licensees who choose to do so to offer programmes to the network and 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.

The noble Lord, Lord Boston, said on two or three occasions that there was no question of quotas in this matter. He said that it was a question of a suitable proportion of programmes. However, if one starts to query what constitutes a suitable proportion, it is difficult to evade the issue of quotas. Although quotas as such may not be the intention of this measure, I do not think there is any way in which the system envisaged in the amendment could operate other than by quotas.

Clause 16(2) (f) concerns a quite different proposition. The requirement in that paragraph is imposed separately on each licensee, whereas the present amendment we are discussing relates to the network system as a whole and not to individual licensees. In commissioning programmes the commissioning group would not necessarily have to select the cheapest programme. That is an important point. The commissioning group would certainly need to take the quality of the programme into account, and it would have to consider the programme's artistic merits and its regional perspective in determining what constitutes value for money. Where a programme offered some distinctive regional flavour, this would obviously be an important element in the overall assessment of value.

If we were to use the words of the noble Lord, Lord Boston and state that a suitable proportion of programmes must be produced locally, we would be bound to return to the quota system. I cannot see how that can be avoided. It is the concept of the freedom to offer programmes to the network which is the best guarantee of having a network which reflects the social and cultural diversity of the United Kingdom. I fear that if this amendment were accepted, we would go straight hack 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 be left high and dry. I hope, therefore, that the noble Lord, Lord Boston, will appreciate our reasons for considering that the amendment of the noble Lord, Lord Thomson of Monifieth, is not suitable.

Lord Thomson of Monifieth

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, Amendments Nos. 19 to 25 have all been spoken to. The question is that Amendment No. 19 be agreed to?

Earl Ferrers

My Lords, I believe that we have to move the amendment.

The Deputy Speaker

My Lords, the question is that Amendment No. 19 be agreed to?

Earl Ferrers

My Lords, I hope I may intervene because I believe that the noble Lord has, unusually, got out of cog. We were speaking to Amendment No. 18 which the noble Lord, Lord Thomson, was going to withdraw but then moved to enable the noble Lord, Lord Boston of Faversham, to speak. I made my observations on Amendment No. 18 which I believe the noble Lord, Lord Thomson of Monifieth, then withdrew. I hope I may suggest we should now proceed to Amendment No. 19.

Clause 43 [Domestic and non-domestic satellite services]:

Earl Ferrers moved Amendment No. 19: Page 43, line 4, leave out ("(subject to subsection (3)").

The noble Earl said: My Lords, in moving Amendment No. 19 I should also like to speak to Amendments Nos. 20 to 25 and 56. This series of amendments makes a number of technical changes to the provisions relating to the regulation of non-domestic satellite services and licensable programme services. They ensure that the satellite provisions are in conformity with the European Convention on Transfrontier Television and make clear that for both non-domestic and satellite services and licensable programme services the person who should be licensed is the person who has editorial responsibility for the service. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 20 to 24: Page 43, line 7, leave out ("whether in the United Kingdom or elswhere") and insert ("in the United Kingdom or in any prescribed country (or both)"). Page 43, line 15, leave out ("reception in the United Kingdom or in any such country,") and insert ("such reception as is mentioned in paragraph (a) (ii),"). Page 43, line 18, leave out from ("provided") to end of line 19 and insert ("by a person in the United Kingdom who is in a position to determine what is to be included in the service (so far as it consists of programme material provided by him)."). Page 43, line 20, leave out subsection (3). Page 43, line 30, leave out from ("provided") to ("be") in line 31 and insert ("by a person in the United Kingdom who is in a position to determine what is to be included in the service (so far as it consists of programme material provided by him),").

On Question, amendments agreed to.

Clause 46 [Licensable programme services]:

Earl Ferrers moved Amendment No. 25: Page 45, line 9, leave out ("(complete and unchanged)").

On Question, amendment agreed to.

Clause 47 [Licensing etc. of licensable programme services]:

Earl Ferrers moved Amendments Nos. 26 to 28: Page 46, line 31, after ("provided") insert ("with a view to its programmes being conveyed for reception"). Page 46, line 42, leave out ("current"). Page 47, leave out lines 1 and 2 and insert:

(5A) The Commission shall—
  1. (a) draw up, and from time to time review, a code giving guidance as to the rules to be observed in connection with the application of section 6(1) (c) (as substituted by subsection (5) above) in relation to a service in respect of which a determination under subsection (4) above is in force; and
  2. (b) do all that they can to secure that the provisions of the code are observed in the provision of any such service.
(5B) The Commission shall publish the code drawn up under subsection (5A), and every revision of it, in such manner as they consider appropriate.").

On Question, amendments agreed to.

Clause 53 [Duration of licences, and renewal of licences for provision of services on assigned frequencies]:

Earl Ferrers moved Amendments Nos. 29 to 31: Page 53, line 31, leave out ("shall only") and insert ("may only (subject to subsection (5A))"). Page 53, line 38, after ("service") insert ("authorised to be"). Page 53, line 47, at end insert: ("(5A) Section 17(5) to (7) shall apply in relation to an applicant for the renewal of an additional services licence as those provisions apply in relation to such an applicant as is mentioned in section 17(5), but as if—

  1. (a) any reference to the awarding of a Channel 3 licence to the applicant were a reference to the renewal of the applicant's licence under this section; and
  2. (b) in section 17(7), the reference to section 19(1) were a reference to section 52(1).").

On Question, amendments agreed to.

Clause 59 [Requirements to be complied with in relation to S4C programmes]

Earl Ferrers moved Amendments Nos. 32 to 35: Page 57, line 28, leave out ("current"). Page 57, line 48, leave out ("current"). Page 58, line 2, leave out ("subsection (2) above and"). Page 58, line 3, leave out ("section 6(2) and").

On Question, amendments agreed to.

Clause 60 [Advertising on S4C]

Earl Ferrers moved Amendment No. 36: Page 58, line 31, leave out ("below or any other provision of this Act") and insert ("or (4) below").

On Question, amendment agreed to.

Clause 65 [Assignment of frequencies by Secretary of State]

Earl Ferrers moved Amendment No. 37: Page 61, line 12, after ("area") insert ("or areas").

On Question, amendment agreed to.

Clause 71 [Interpretation of Part I]

Earl Ferrers moved Amendments Nos. 38 to 40: Page 64, line 32, leave out ("in force") Page 65, line 9, leave out from ("holder")") to ("to") in line 10 and insert ("is not the person to whom the licence was originally granted, any reference in this Part (however expressed)"). Page 65, line 12, at end insert ("including").

On Question, amendments agreed to.

Clause 72 [Local delivery services]

Earl Ferrers moved Amendment No. 41: Page 66, line 3, leave out ("a licence in force") and insert ("(unless the context otherwise requires) a licence").

On Question, amendment agreed to.

Clause 78 [Duration and renewal of local delivery licences]

Earl Ferrers moved Amendments Nos. 42 and 43: Page 72, line 26, after ("only") and insert ("(subject to subsection (4A))"). Page 72, line 39, at end insert: ("(4A) Section 76(5) to (7) shall apply in relation to an applicant for the renewal of a local delivery licence as those provisions apply in relation to such an applicant as is mentioned in section 76(5), but as if any reference to the awarding of such a licence to the applicant were a reference to the renewal of the applicant's licence under this section.").

On Question, amendments agreed to.

Clause 84 [Regulation by Authority of independent radio services]

Earl Ferrers moved Amendment No. 44 Page 76, line 27, leave out from ("BBC)") to end of line 29 and insert ("which consists—

  1. (i) in the transmission of sound programmes by satellite from a place in the United Kingdom for general reception there, or
  2. (ii) in the transmission of such programmes by satellite from a place outside the United Kingdom for general reception there, if and to the extent that the programmes included in the service consist of material provided by a person in the United Kingdom who is in a position to determine what is to be included in the service (so far as it consists of programme material provided by him), 1186 and any such service is referred to in this Part as a "satellite service".
(2A) For the purposes of this Part satellite services shall be regarded as provided by the following persons—
  1. (a) a service falling within subsection (2) (b) (i)—
    1. (i) shall, if and to the extent that the programmes included in it consist of material provided by a person in the United Kingdom who is in a position to determine what is to be included in the service (so far as it consists of programme material provided by him), be regarded as provided by that person (whether the programmes are transmitted by him or not), but
    2. (ii) shall otherwise be regarded as provided by the person by whom the programmes are transmitted; and
  2. (b) a service falling within subsection (2) (b) (ii) shall be regarded as provided by the person by whom the programme material in question is provided as mentioned in that provision.").

The noble Earl said: My Lords, in moving Amendment No. 44 I should also like to speak to Amendments Nos. 45, 46, 52, 53, 54, 55, 57 and 58. These are amendments to the radio provisions in Part III and are minor drafting improvements. None of them raises any issues of substance. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 45: Page 76, line 35 after ("area") insert ("or areas").

On Question, amendment agreed to. Clause 86 [Licences under Part III]

Earl Ferrers moved Amendment No. 46: Page 78, line 30, leave out ("throughout the remainder or') and insert ("which would have effect during").

On Question, amendment agreed to.

5.45 p.m.

Clause 87 [General licence conditions]

Earl Ferrers moved Amendment No. 47: Page 79, line 5, at end insert: ("(dd) conditions requiring the licence holder, if found by the Authority to be in breach of any condition of his licence, to reimburse to the Authority, in such circumstances as are specified in any conditions, any costs reasonably incurred by them in connection with the breach of that condition.").

The noble Earl said: My Lords, perhaps I may be allowed to move the amendment of my noble friend Lord Colwyn, who is not in his place. Had he been here to move the amendment I would have said that the Government would accept it. It would seem rather a pity if the amendment were to disappear. On behalf of my noble friend, I beg to move Amendment No. 47.

The Deputy Speaker

My Lords, does the noble Earl wish to respond to the amendment?

Earl Ferrers

My Lords, I have already spoken to the amendment. I can only commend it to your Lordships as an excellent amendment.

On Question, amendment agreed to.

Clause 92 [General provisions as to advertisements]

Earl Ferrers moved Amendments Nos. 48 and 49: Page 83, line 47, leave out ("this Act or of the code under"). Page 84, line 10, leave out ("Neither the Authority nor the holder of any licence shall") and insert ("The Authority shall not").

On Question, amendments agreed to.

Clause 93 [Control of advertisements]

Earl Ferrers moved Amendment No. 50: age 85, line 1, leave out ("their general responsibility for") and insert ("a general responsibility with respect to").

On Question, amendment agreed to.

Clause 101 [Failure to begin providing licensed service and financial penalties on revocation of licence]

Earl Ferrers moved Amendment No. 51: Page 91, line 25, leave out from beginning to ("(as") in line 30 and insert:

  1. ("(a) where—
    1. (i) the licence is revoked under this section, or
    2. (ii) the first complete accounting period of the licence holder falling within the period for which the licence is in force has not yet ended,
  2. 7 per cent. of the amount which the Authority estimate would have been the qualifying revenue for that accounting period (as determined in accordance with section 102(2) to (6)); and
  3. (b) in any other case, 7 per cent. of the qualifying revenue for the last complete accounting period of the licence holder so falling").

On Question, amendment agreed to.

Clause 103 [Restriction on changes in control over holder of national licence]

Earl Ferrers moved Amendment No. 52: Page 94, line 6, leave out ("body to which") and insert ("person to whom").

On Question, amendment agreed to.

Clause 104 [Applications for other licences]

Earl Ferrers moved Amendment No. 53: Page 95, line 10, leave out ("on the expiry of a local licence") and insert ("in the case of any local licence which is due to expire").

On Question, amendment agreed to.

Clause 105 [Special requirements relating to grant of local licences]

Earl Ferrers moved Amendment No. 54: Page 95, line 33, leave out from ("provide") to end of line 35.

On Question, amendment agreed to.

Clause 109 [Power to require scripts etc. or broadcasting of correction or apology]

Earl Ferrers moved Amendment No. 55: Page 98, line 7, leave out ("shall") and insert ("may").

On Question, amendment agreed to.

Clause 112 [Licensable sound programme services]

Earl Ferrers moved Amendment No. 56: Page 100, line 16, leave out ("(complete and unchanged)").

On Question, amendment agreed to.

Clause 122 [Certain receipts of Authority to be paid into Consolidated Fund]

Earl Ferrers moved Amendments Nos. 57 and 58: Page 107, line 31, leave out ("institution or") and insert ("establishment or other place, or for any"). Page 107, line 34, leave out ("institution or") and insert ("establishment or other place, or for any").

On Question, amendments agreed to.

Clause 126 [Interpretation of Part III]

Earl Ferrers moved Amendments Nos. 59 to 61: Page 109, line 13, leave out ("in force"). Page 109, line 32, leave out from ("holder")") to ("to") in line 33 and insert ("is not the person to whom the licence was originally granted, any reference in this Part (however expressed)"). Page 109, line 35, at end insert ("including").

On Question, amendments agreed to.

Clause 131 [Supplementary provisions relating to variation of programme contracts]

Earl Ferrers moved Amendment No. 62: Page 116, line 2, at end insert ("; and any such variation may be made with retrospective effect as from that date.").

The noble Earl said: My Lords, this is a technical amendment to the powers of the IBA to amend programme contracts to take account of new arrangements for transmission. I beg to move.

On Question, amendment agreed to.

Clause 143 [Function of BCC]

Earl Ferrers moved Amendment No. 63 Page 122, line 7, leave out subsection (2).

On Question, amendment agreed to.

Clause 146 [Publication of BCC's findings]:

Earl Ferrers moved Amendment No. 64: Page 126, line 7, leave out ("143(2) or").

On Question, amendment agreed to.

Clause 150 [Interpretation of Part V]

Earl Ferrers moved Amendments Nos. 65 and 66: Page 127, line 16, at end insert (", or any additional service (within the meaning of Part I or III of this Act) which is licensed under that Part of this Act and constitutes a teletext service;"). Page 127, line 31, at end insert: (""television programme" includes a teletext transmission, and references to programmes shall be construed accordingly;").

On Question, amendments agreed to.

Clause 155 [Consideration of complaints]

Earl Ferrers moved Amendment No. 67: Page 130, line 37, leave out (", or (where they are not individuals) their representatives,").

On Question, amendment agreed to.

Clause 175 [Use as of right of sound recordings in broadcasts and cable programme services]

Earl Ferrers moved Amendment No. 68: Page 143, line 35, leave out ("relating to that") and insert ("under section 135D relating to such a").

The noble Earl said: My Lords, the amendment concerns statutory licensing for broadcasting sound recordings and provides that orders of the tribunal referred to in the new Section 135A are those made under the new provisions for settling payment terms and not those made under the existing law. I beg to move.

On Question, amendment agreed to.

Clause 179 [Unauthorised decoders for encrypted services etc.]

Lord Lloyd of Hampstead moved Amendment No. 68A: Page 151, leave out from beginning of line 5 to ("; and) in line 8.

The noble Lord said: My Lords, I have to express the regrets of the noble Lord, Lord Hacking, who is unable to be present this evening. I have agreed to move the amendment on his behalf. I do so the more willingly because it concerns unauthorised decoders, which was the subject of an amendment that I moved both at Committee stage and at Report stage.

Your Lordships may recall that I withdrew my amendment at Committee stage on receiving an indication from the Government that they agreed in principle with the point that I sought to make in the amendment and that they would produce their own amendment. They produced their own amendment on Report. I ventured to point out certain objections to that amendment. While my objections were treated with some measure of sympathy by the noble Earl, Lord Ferrers, it was indicated that in view of the pressures of time it was not possible to meet any of those difficulties. Accordingly, I did not press the matter.

The amendment standing in the name of the noble Lord, Lord Hacking, raises two further points in regard to unauthorised decoders. They are not the same points as those which I previously raised, so I shall not be taking up your Lordships' time reiterating points that have already been made. The objections which have already been raised are that the wording of the new Section 297A of the copyright Act introduced by the Government gives rise, in the view of the BBC, to certain difficulties. It is for that reason that the two amendments in the name of the noble Lord, Lord Hacking, are put forward. The matters are of a rather technical character but nevertheless I shall try to explain them as briefly as possible.

The first objection to the wording of the new Section 297A to the copyright Act is that it contains a definition of transmission which is both too narrow and conflicts with Section 6 of the existing copyright Act. In the new Section 297A transmission is defined in terms of being a programme, whereas in Section 6 of the 1988 copyright Act transmission, though it is not defined as such, is treated as an activity which includes broadcasting but is not limited to programmes as such. Therefore, under new Section 297A a broadcast which is not a programme may not be protected. It is the view of the BBC—and it seems a well founded view—that a number of transmissions which ought to be protected under the new section will not be protected; for instance, a data transmission. For example, a transmission which merely puts over telex material cannot be regarded as a programme but nevertheless ought to qualify for protection. That is the first objection to the new clause as it stands.

The second objection relates to the definition of "unauthorised" in the new Section 297A. I venture to submit that this is a matter of some importance. The Government's amendment does not require the authority to be given by the broadcaster. It simply refers to lack of payment. Your Lordships will see in the new Section 297A to be inserted in the copyright Act, it is said that: 'unauthorised', in relation to a decoder, means a decoder which will enable encrypted transmissions to be viewed in decoded form without payment of the fee". In other words the only point that is made there is the absence of payment of a fee.

The amendment in the name of the noble Lord, Lord Hacking, wishes for those words to substitute: 'unauthorised'… means a decoder which will enable encrypted transmissions to be viewed in decoded form without the authority of the person making the transmission", thereby introducing the vital concept of lack of authorisation.

In my respectful view there is a mischief that the section will not cover if it remains in its present form. Let us suppose the case of a person who makes a decoder and then pays or offers to pay the appropriate charge. That will legalise the decoder even if it is not authorised by the broadcaster. The consequence will be that the broadcaster will have no effective quality control, as one may describe it, over the decoder, with the result that a very poor and defective decoder can be put into circulation. That is something which the BBC quite understandably would deplore.

Noble Lords might see some analogy with a case which is perhaps more familiar'—the case of a telephone apparatus which has to be authorised by British Telecom before it can be plugged into the British telephone circuit because British Telecom thereby wants to protect the quality of the apparatus that can be used on its circuits. The point is very similar in this case.

There is also a further objection to the definition of "unauthorised" as appears in the present Section 297A. When the matter was discussed on report the noble Earl, Lord Ferrers, objected to the part of my amendment which sought to alter the wording in relation to authorisation so as to affect the reasoning in the Hi-Tech case which noble Lords may recall was decided by the Court of Appeal in favour of the BBC, overruling the decision of the High Court.

The present wording of the new Section 297A might well affect whatever judgment emerges in the House of Lords when the case comes on further appeal. It therefore comes within the ambit of the noble Earl's objection to my change of wording on the ground that the matter is sub judice because in the Court of Appeal it was held that Section 298 (which was the section relied upon in the Hi-Tech case) dealt with the phrase: reception by a person not entitled to do so". In the Court of Appeal that was held to mean that it was not without the authority of the broadcaster.

The new wording which eschews any consideration of the authority of the broadcaster may well be held to affect the interpretation of this clause and so bring one back to the decision of the High Court which considered that authorisation was not relevant. So in fact by relying upon this wording there may be a consequence in regard to the interpretation of this phrase which would be most unfortunate. Therefore, as I said, my amendment suggests that for the words "without payment of the fee" there should be substituted the words, without the authority of the person making the transmission".

I venture to submit that these two comparatively small amendments would be most valuable in achieving the objectives of the Government's clause. Therefore I beg to move Amendment No. 68A. If necessary in due course I shall move Amendment No. 68B.

Earl Ferrers

My Lords, your Lordships will be grateful to the noble Lord, Lord Lloyd of Hampstead, for introducing the amendment which stands in the name the noble Lord, Lord Hacking, and for explaining what they are designed to do. I am also grateful for the fact that the BBC sent me a note explaining the purpose of these amendments.

Amendment No. 68A deletes the definition of "transmission". We believe that it is important for the Bill to contain a definition of transmission. The wording in the Bill refers to: programmes included in a broadcasting or cable programme service which is provided from a place in the United Kingdom". We did not extend the provision to premises provided from anywhere else because there are no pay satellite services which are intended for subscribers in the United Kingdom provided from a place other than the United Kingdom. But we intend the definition of transmission in Section 297A to be different from the following use of the word "transmission".

Amendment No. 68B redefines the term "unauthorised". At present an authorised decoder is defined as a: decoder which will enable encrypted transmissions to be viewed in decoded form without payment of the fee … which the person making the transmission, or on whose behalf it is made, charges for viewing those transmissions". The amendment would define an unauthorised decoder as one which will: enable encrypted transmissions to be viewed in decoded form without the authority of the person making the transmission or … without the authority", of the person on whose behalf that transmission is made.

I can see the desirability of that amendment. It would make it absolutely essential for anyone who manufactures a decoder to seek the authority of the person who is providing the service. I am bound to tell the noble Lord, Lord Lloyd of Hampstead, that we have two concerns about this amendment.

First, there may well be circumstances in which satellite broadcasters send their signals in encrypted form not because they intend to charge for the service, which may be advertiser-supported, but simply in order to ensure that such signals cannot be received in other countries. They may therefore have no objection to anyone manufacturing decoding equipment and indeed may positively welcome such equipment being manufactured and distributed since it will enable more viewers to receive their service. We should not therefore wish to make a criminal offence an activity which both broadcasters and the manufacturers of some equipment would in fact positively welcome.

Secondly, the noble Lord explained that the present drafting of Clause 179 might prejudice the BBC's chances in the House of Lords when the House, sitting in its judicial capacity, reviews the Hi-tech case. If that were true I believe that the revised wording places the BBC in an even worse position. The House of Lords might easily conclude that if the amendment proposed were necessary it must follow that such a provision did not exist in the current legislation and might therefore be more likely to find against the BBC.

I have said before and state again today that we are not unsympathetic to the difficulties faced by satellite broadcasters in relation to decoders which are manufactured without the express authority of those who provide the signals. I do not believe that the amendments provide the right way to tackle the problem. I very much regret that I cannot advise noble Lords at this stage of the Bill to accept the amendment.

Lord Thomson of Monifieth

My Lords, before the noble Earl concludes, even at this late stage of the Bill is there any possibility that the Government will consider an alternative way to deal with what the noble Earl has conceded is a problem although this amendment may not be the best way to deal with it? Satellite broadcasters, whether it is BSB or Sky Channel, are engaged with vast investment in a high risk operation. We have a legitimate interest to ensure the proper safeguarding of their encoding and encryption systems. Will it still be possible to write some additional safeguard into the Bill in another place?

Earl Ferrers

My Lords, I understand the problem. It is very technical. We shall consider whether it is possible to find a way round it. I should mislead the noble Lord if I were to say that we shall put down amendments in another place. If that is the position, we cannot amend this particular Bill. However, I acknowledge the concern. I am not sure whether anything can be done to rectify it without legislation.

Lord Lloyd of Hampstead

My Lords, I am sorry that the noble Earl is unable to accede to the proposals of the noble Lord, Lord Hacking. He does not consider that the amendments will make a useful contribution to the difficulty although with his customary courtesy he recognises the problems. I am sorry too that he does not feel that within the time still vouchsafed to the Government, which is obviously very limited, anything effective can be done.

As we are both agreed, it is a highly technical matter. It would obviously be futile for me to seek to press the matter further. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68B not moved.]

6 p.m.

Clause 182 [Certain events not to be shown on pay-per-view terms]:

Earl Ferrers moved Amendment No. 69: Page 152, line 40, after ("any") insert ("television broadcasting").

The noble Earl said: My Lords, it is a minor technical amendment to make clear that the listed events provisions apply to BBC Television only and not to BBC Radio. I beg to move.

On Question, amendment agreed to.

Clause 185 [Contributions towards maintenance of national television archive]:

Lord Lloyd of Hampstead moved Amendments No. 70: Page 155, line 26, after ("Channel 3") insert ("Channel 4").

The noble Lord said: My Lords, Amendment No. 70 and Amendments Nos. 71 to 73 are in similar terms. They are amendments to Clause 185. They relate to a national television archive. I moved the amendments in Committee but the noble Earl felt unable to accept them. I then proposed to move the amendments at Report stage. However, unfortunately our proceedings lasted until such a protracted hour that I left at half-past midnight and was unable to move them. I am therefore moving the amendments at this late stage because they seem to be a matter of some importance.

Clause 185 makes financial provision for a national television archive by way of a nominated body. It is assumed—and the noble Earl gave his concurrence to that assumption—that it will almost certainly be the British Film Institute, which now runs the national film archive. As a former chairman of the British Film Institute, I warmly support the amendment to Clause 185. I believe that it is universally agreed—I am happy to say that the noble Earl gave his support when I mentioned the matter on a previous occasion—that the BFI has done a remarkable job in building up both a film and television archive. It has done so largely out of its own resources and on a voluntary basis. It has recently been helped by a most generous contribution from Mr. Paul Getty junior. He is a very well known benefactor to the arts in this country. He has given a very large sum to the national film archive to place it on a more satisfactory financial basis.

Nevertheless, despite all the good work of the British Film Institute, it is generally acknowledged that there are huge gaps in its collection. Those have been due to its inability to secure on a voluntary basis adequate material. Perhaps I may mention some areas —for example, current affairs, and the presentation of orchestral music, opera and ballet. Arts programmes generally have suffered over the years because of the inability of the archive to secure adequate material.

I believe that the need for comprehensive cover of all worthwhile material in the area of television is universally recognised. That does not involve all material. The most passionate devotee of television would not regard every programme broadcast on television as worthy of being placed in a national archive. The process of assembling material for the archive is a highly selective business. Nevertheless, it covers a wide range.

Clause 185 makes valuable provision for Channel 3 and the new Channel 5 to be included within the provision for a national television archive. That immediately presents a glaring omission. I refer to Channel 4. It is accepted that Channel 4 is one of the most creative sources of high quality television programmes. It has been so since its inception. There seems therefore an overwhelming reason to include Channel 4 in the project. It is totally inconsistent to omit it and to allow it to continue on a voluntary basis.

As I understand the argument put forward by the noble Earl at Committee stage, the Government's only objection to including Channel 4 is that Channel 4 has indicated that it will continue to do its best to support the archive on a voluntary basis. That does not seem good enough. Apart from the fact that circumstances may change, the competitive basis of the new Broadcasting Bill will change the climate of the competition with regard to television to a considerable degree. In future that may well put Channel 4 in a difficult situation in trying to maintain adequate material on a voluntary basis.

As regards Amendment No. 71, it appears arbitrary to exclude the domestic satellite services. In the interests of completeness, there seemed every reason why they should be included. The only objection is the suggestion that in some way that might be unfair to Sky Television or to foreign satellite services which would not be included. However, surely the weight of the argument is in favour of treating domestic satellite services on the same basis as other domestic channels.

It is important to try to put on a proper basis the excellent project of the National Television Archive and therefore I feel justified in moving my amendment at this late stage. I beg to move.

Baroness Birk

My Lords, I support the amendment. I also wish to congratulate the noble Lord, Lord Lloyd of Hampstead, on his 75th birthday today. I have always supported the proposal because for some years I too was a governor of the British Film Institute. The noble Lord, Lord Lloyd, has made all the points most strongly and there is little that I can add. It appears to be anomalous to leave out Channel 4 and the domestic satellite services when other channels are included. The commission has the right to determine the aggregate amount, so nothing is fixed. Some of the channels are included in the statute and therefore it would be wrong to exclude others and to leave only some on a voluntary basis. I support what my noble friend has said.

Lord Colwyn

My Lords, the preservation and public accessibility of what has become the most important record of British life should be placed on a secure footing by putting a statutory obligation on the ITC to ensure that the correct voluntary arrangements which are working well are continued and expanded to cover new services. The current agreements between the British Film Institute, the independent television companies and Channel 4—whereby companies contribute substantial sums towards the funding of the television preservation and access work of the BFI's National Television Archive with regard to their output—are based largely on the IBA's insistence on including an archival provision in the licence that it has granted since 1980.

Since 1985 the archive has been recording programmes with its own machinery. That is expensive but more cost effective than purchasing copies of programmes from the companies as was the previous practice. I understand that the current grant levels are sufficient for recording about 25 per cent. of the output of both channels which is selected on a weekly basis by archive staff. They are essentially voluntary arrangements in that the IBA has no statutory duty to insist on archival provision and does not formally direct its licence-holders towards co-operation with the BFI to discharge the responsibilities. The BFI recognises the value and effectiveness of the agreements and is grateful for the industry's support for what it considers to be a work of national importance.

Although the voluntary agreement between the BFI and Channel 4 is sound, it is an anomaly that this channel, which has been among the most archivally minded, should be left as the only terrestrial channel without a specific obligation in this regard given that the two BBC channels are covered by the archival requirement in the Royal Charter. Moreover, the omission of the domestic satellite services from the clause is equally difficult to comprehend because they are the subject of similar licensing arrangements to those which apply to Channels 3 and 5. Although as yet there are no voluntary arrangements in place to cover the national archiving of these channels, undoubtedly they will be carrying material of national interest particularly in the area of sport.

It is important that the clause is expanded to cover Channels 3, 4 and 5 and domestic satellite services. The Government have already recognised the need for the BFI to operate a national television archive and, as a matter of public record, to provide for the preservation and availability of our most important medium of communication. The agreement will appear in this legislation as well as in the Copyright, Design and Patents Act 1988. The amendment ensures that the BFI is given the proper scope to provide such a vital service.

6.15 p.m.

Earl Ferrers

My Lords, I am grateful to the noble Lord, Lord Lloyd of Hampstead, for having stood his ground in preventing me from travelling down a road of my own making in moving an amendment which was his and not mine. I might have found myself in the somewhat bizarre position of eventually advising your Lordships not to accept an amendment which I had inadvertently moved. I wish to add to the congratulations expressed by the noble Baroness on the noble Lord's birthday. It is an event in which we all rejoice and I should have loved to have given him a birthday present. However, the only present that I can think of is accepting the amendment but it would be such an expensive present that I must be constrained not to do so.

The noble Lord's amendments would extend the statutory requirement on Channels 3 and 5 to fund a national television archive also to Channel 4 and BSB. When the Government accepted the case for statutory provision for a national television archive, we made clear that the obligation to fund that archive could be extended only to those channels which would be capable of bearing these additional financial obligations. It is because Channels 3 and 5 are likely to have the lion's share of audiences for some time to come that we have felt able to impose such additional obligations on them in the Bill.

But the same could not be said for BSB, which is a new high-risk, capital-intensive venture which will not begin to make money for some years and for which additional financial responsibilities could represent a severe strain. We have consulted BSB and it has made it very clear that it would not wish to be included in any statutory requirement to fund the National Television Archive.

We have also consulted the Channel 4 board which has repeated its undertaking that Channel 4 will continue voluntarily to fund the National Television Archive, but that it would be inconsistent with its status as a public service broadcaster specifically to single out this one issue for special statutory mention.

I hope that with that explanation the noble Lord, Lord Lloyd, will consider that his amendment is not a suitable addition to the Bill and that in any event Channel 4 will continue to provide the funding.

Lord Lloyd of Hampstead

My Lords, I am grateful to noble Lords who have supported my amendments. I am also grateful to those who have expressed such kindly good wishes towards me personally. Perhaps it was an error of tactics on my part to impede the noble Earl in moving the amendment. By that means I might have achieved more success in the enterprise than I otherwise have. At this stage I cannot seek to press the amendment although I am sure that to have made the project comprehensive instead of limiting it to commercial Channels 3 and 5 would have been of considerable value. However, in those circumstances I believe that I have no alternative but to ask your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 73 not moved.]

Earl Ferrers moved Amendment No. 74: Page 155, line 43, at end insert ("(and different proportions may be determined in relation to different persons).").

The noble Earl said: My Lords, Amendments Nos. 74 to 77 have been spoken to previously. I beg to move.

On Question, amendment agreed to.

Clause 189 [Sharing of apparatus by operators of telecommunication systems]

Earl Ferrers moved Amendment No. 75: Page 159, line 2, leave out ("granted under, or continued in force by,") and insert ("continued in force by, or granted under, Part II or).

On Question, amendment agreed to.

Clause 202 [General interpretation]

Earl Ferrers moved Amendment No. 76: Page 166, line 30, at end insert: ("(3A) Any reference in this Act (however expressed) to a licence under this Act being in force is a reference to its being in force so as to authorise the provision under the licence of the licensed service; and any such reference shall accordingly not be construed as prejudicing the operation of any provisions of such a licence which are intended to have effect otherwise than at a time when the licensed service is authorised to be so provided.").

On Question, amendment agreed to.

Clause 203 [Consequential and transitional provisions]:

Èarl Ferrers moved Amendment No. 77: Page 167, line 19, at end insert: ("(1A) Unless the context otherwise requires, in any enactment amended by this Act—

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 78: Page 167, line 22, at end insert: ("(3) The transitional provisions and savings contained in Schedule (Transitional Provisions and Savings) to this Act shall have effect.").

The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments No. 132. These are technical amendments. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Restrictions on the Holding of Licences]:

Earl Ferrers moved Amendment No. 79: Page 172, line 35, at end insert: (""equity share capital" has the same meaning as in the Companies Act 1985;").

The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 80 to 87. These are technical amendments to the ownership provisions in Schedule 2.

Perhaps I could draw attention to the new declaratory provision inserted at the end of page 173, line 31, which meets a point raised by the noble Lord, Lord Thomson, on Report. This puts beyond doubt that a person is to be taken as controlling a licensee, even if he has less than 50 per cent. of the shares or voting power in the licensee, wherever he is directly or indirectly able to secure that the affairs of the licensee are conducted in accordance with his wishes. This must be the right approach if we are to prevent circumvention of the rules.

The amendment of the noble Lord, Lord Thomson, to this amendment seeks to deal with a slightly different point. Its effect would be that where, say, two or more non-EC companies had aggregate interests of more than 50 per cent. in a licensee, the ITC and Radio Authority could regard this as constituting control and would not have to satisfy themselves that the companies were acting together in concert. This amendment has been discussed between the shadow ITC and the Government, and I can tell the noble Lord, Lord Thomson, that I would be happy to recommend that your Lordships should accept that amendment. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 80 to 83: Page 173, line 6, at end insert:

Page 173, line 21, after ("or") insert: Page 173, line 22, after ("body)") insert ("he"). Page 173, line 30, leave out ("shares") and insert ("equity share capital").

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 84: Page 173, line 31, at end insert: ("(3A) It is hereby declared that a person may be regarded as controlling a body corporate by virtue of paragraph (aa) of sub-paragraph (3) despite the fact that—

  1. (a) he does not have a controlling interest in any such other body corporate as is mentioned in that paragraph, or
  2. (b) any such other body corporate does not have a controlling interest in the body in question, or
  3. (c) he and any such other body corporate together do not have a controlling interest in that body.
(3B) For the purposes of any provision of this Schedule which refers to a body controlled by two or more persons or bodies of any description taken together the persons or bodies in question must be acting together in concert.").

The noble Earl said: I beg to move.

Lord Thomson of Monifieth moved, as an amendment to Amendment No. 84, Amendment No. 85: Line 13, leave out ("must be") and insert ("shall not be regarded as controlling the body by virtue of paragraph (aa) of sub-paragraph (3) unless they are").

The noble Lord said: My Lords, I move this amendment very quickly in the unusual circumstances of having been told in advance that my amendment is to be accepted. I am very grateful for that.

However, as the noble Earl knows, I am an innocent intermediary in the case between the noble Earl and the Home Office on one side and the IBA on the other in a dialogue to find an agreed definition of this very difficult question as regards the control of a television contract by disqualified persons from the EC.

The difficulty which arose—and this should be put on record—is that under the government amendment, as I understand it, it would have been possible to have had the generally unacceptable position whereby a licensee had nine or even 10 per cent. disqualified shareholders and yet would not be disqualified unless the ITC could prove that they were acting in concert.

The effect of my amendment is that if disqualified interests —that is, non-EC interests—total over 50 per cent., even if they are not acting in concert the licensee is disqualified. However, if disqualified interests total less than 50 per cent., it will still be for the ITC or the Radio Authority to decide whether any of them are either acting together or representing the total interests of 30 or 40 per cent. which by virtue of the fact that they are acting together constitutes effective control.

That is extremely technical and complicated but it is an important matter. I am glad that that has been resolved and I am sure that I express the ITC's gratitude to the noble Earl for so readily accepting the amendment. I beg to move.

Earl Ferrers

My Lords, I am grateful to the noble Lord for having been the intermediary. He has cleared up a technical point of some complexity and I am most grateful to him for having done so.

On Question, Amendment No. 85, as an amendment to Amendment No. 84, agreed to.

On Question, Amendment No. 84, as amended, agreed to.

Earl Ferrers moved Amendments Nos. 86 and 87: Page 173, line 43, after second ("shares") insert ("or equity share capital"). Page 180, line 24, after ("licensed") insert ("(or, as the case may be, was first so licensed)").

On Question, amendments agreed to.

Schedule 9 [Scheme Providing for Division of Assets of IBA]

Earl Ferrers moved Amendment No. 88: Page 206, line 51, at end insert (", or with respect to any such rights and liabilities as are mentioned in sub-paragraph (11). (11) Those rights and liabilities are rights and liabilities acquired by the IBA in connection with the sharing by the IBA and the BBC of the use of facilities (of whatever description) in connection with the transmission of television programmes or local sound broadcasts.").

The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendment No. 89. These are technical amendments relating to the treatment in the transfer scheme to be made under Schedule 9 of the rights and liabilities acquired by the IBA over the years in connection with the sharing with the BBC of transmission sites and other facilities. I indicated at Report stage that we would be bringing forward these provision. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 89: Page 207, line 21, at end insert: ("(1A) Without prejudice to the generality of sub-paragraph (1) (a), a transfer scheme may, in connection with any transfer to be made in accordance with the scheme, exclude from the transfer any rights and liabilities falling within paragraph 2(11) above and described in the scheme.").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 90: Page 211, line 1, at end insert ("any enactment relating to").

The noble Earl said: My Lords, I have already spoken to this amendment when speaking to Amendment No. 10. I beg to move.

On Question, amendment agreed to.

Schedule 11 [Transitional Provisions Relating to IBA's Broadcasting Services]

Earl Ferrers moved Amendment No. 91: Page 214. line 12, leave out paragraph 2.

The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 92 to 95 and Amendments Nos 97 to 104. This series of amendments makes a number of technical changes and drafting improvements to the transitional arrangements for ITV, DBS and Independent local radio. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 92 to 96: Page 216, line 38, after ("no") insert ("person who is, or is an associate of, a"). Page 216, line 45, leave out ("paragraph (c) above") and insert ("this sub-paragraph"). Page 217, leave out lines 44 and 45. Page 218, line 35, leave out from ("service") to ("that") in line 36 and insert ("falling within section 46(1) of this Act is provided during the interim period on any of the spare capacity within the frequencies on which any DBS services are provided by the Commission in accordance with this Part of this Schedule,"). Page 218, line 37, at end insert ("; and in this sub-paragraph "spare capacity" has the same meaning as in Part I of this Act.").

On Question, amendments agreed to.

Earl Ferrers moved Amendments Nos. 97 to 104: Page 220, line 41, at end insert: ("Delivery of programmes by means of local delivery services 8A. Part II of this Act shall have effect as if section 72(2) of this Act included a reference to any television broadcasting service provided by the Commission in accordance with this Part of this Schedule."). Page 223, line 5, leave out ("(4)") and insert ("(3)"). Page 224, line 50, leave out ("(3)") and insert ("(2)"). Page 227, line 37, leave out ("the programme contractor under the contract neither-") and insert ("neither the programme contractor under the contract nor any associate of his-"). Page 227, line 39, leave out ("nor") and insert ("or"). Page 227, line 40, leave out ("nor") and insert ("or"). Page 227, line 45, leave out ("paragraph (c) above") and insert ("this sub-paragraph"). Page 227, line 49, at end insert: ("Delivery of programmes by means of local delivery services 2A. Part II of this Act shall have effect as if section 72(2) of this Act included a reference to any local sound broadcasting service provided by the Authority in accordance with this Part of this Schedule.").

On Question, amendments agreed to.

6.30 p.m.

Schedule 12 [Transitional Provisions Relating to Existing Cable Services]

Earl Ferrers moved Amendment No. 105: Page 231, line 22, leave out (", or having effect as if granted,").

The noble Earl said: My Lords, in moving Amendment No. 105 I shall speak also to Amendments Nos. 106 to 111. These amendments make a number of technical and drafting improvements to the schedule in the Bill dealing with transitional arrangements for existing cable systems. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 106 to 111: Page 232, line 26, at end insert:

Page 234, line 47, leave out ("and"). Page 234, line 49, at end insert ("; and
  1. (d) in subsection (7), the words from "formally" to "so" shall be omitted.").
Page 236, line 43, after ("(3)") insert ("Any local delivery licence granted in pursuance of this paragraph shall be so granted notwithstanding anything in sections 74 to 76 of this Act; and"). Page 237, line 1, at end insert: Page 245, line 27, after ("Authority") insert (", and the words "or sound" shall be omitted").

On Question, amendments agreed to.

Schedule 16 [Amendments of the Marine, etc., Broadcasting (Offences) Act 1967]

Lord Monson moved Amendment No. 112: Page 259, line 16, at end insert: ("(5A) Searches of persons carried out under the provisions of subsection (5) above shall be subject to the constraints imposed by the Police and Criminal Evidence Act 1984, notwithstanding that such searches may take place outside the United Kingdom or its tidal waters.").

The noble Lord said: My Lords, once again I propose to deal with Amendments Nos. 112 and 113 separately. Amendment No. 112 has nothing to do with the merits or demerits of unauthorised offshore radio stations. It is merely an attempt to protect the rights, dignity and civil liberties of individuals—an objective to which I am sure we all aspire irrespective of our views on the merits of Clause 171 and the associated Schedule 16 as a whole.

In order to safeguard the rights and dignity of the individual it is necessary that the protection conferred by the Police and Criminal Evidence Act 1984 be extended to personal searches carried out on the high seas under the provisions of Schedule 16. As I pointed out last week, without such an amendment civilians may be searched by members of the armed forces, women may be strip-searched by men and the other way round; both sexes may be intimately searched by someone with no medical knowledge or qualifications.

The reaction of the noble Earl, Lord Ferrers, was to accuse me of having a vivid imagination. That may be so; but one thing one learns in politics is that the inconceivable almost always happens sooner or later. If I had correctly forecast in 1965 that by 1990 the proportion of single parents in the population would be astronomical, no doubt the noble Earl would have accused me of having a vivid imagination. If two years ago I had forecast that the Berlin Wall would be virtually demolished by mid-1990, I am sure he would have said that I had a vivid imagination—but demolished the wall is. If we can prevent potential abuses by means of a simple amendment such as Amendment No. 112, surely we are under an obligation to do so.

It is true that the noble Earl assured me most vigorously that personal searches will only be carried out following an arrest. Last Tuesday evening he also said that all personal searches carried out under the provisions of Schedule 16, no matter where they are carried out, will conform to the Police and Criminal Evidence Act 1984 Code of Practice. I know that we can rely totally on the word of the noble Earl: if I thought that he was to remain Minister of State for the Home Office for the next 15 to 20 years my worries would be over. But that is not likely to happen. Still less will the noble Earl wish it to happen. As he well knows, no Minister can bind his successor where executive decisions are concerned; still less can any Government bind their successor.

Since last Tuesday expert legal opinion has confirmed my view that the Police and Criminal Evidence Act 1984 does not automatically extend to actions carried out outside the United Kingdom or its territorial waters. However, it can be made to do so by means of a simple amendment to the Bill; an amendment which will ensure that the rights and liberties of individuals are not dependent on the continuing presence at the Home Office of the noble Earl or some other Minister of State whose views on the subject are no less liberal. I beg to move.

Earl Ferrers

My Lords, the noble Lord, Lord Monson, appears to be perturbed that I accused him of having a vivid imagination. If I had said that he had an imagination like scorched earth I am sure that that would be a lot more offensive.

I know that the noble Earl is concerned about the provision. However, the amendment is unnecessary. The Police and Criminal Evidence Act—known as PACE—Code of Practice will apply under the Bill as it is drafted, even if the powers are exercised outside United Kingdom territorial waters. The noble Lord is concerned with the difference between the Police and Criminal Evidence Act and the code which operates under it. The code will apply even if the powers are exercised outside United Kingdom territorial waters.

There is a very good reason for that. What is important is where the court proceedings take place, and not where the investigation powers are exercised. The courts have the same duty to consider the code, and discretion not to admit evidence obtained in breach of it whether the evidence is obtained inside or outside the United Kingdom. The anxiety of the noble Lord, Lord Monson, is that people will carry out arrests in a way which does not operate under the code. If that were to happen the courts would be entitled to reject the evidence because it did not come under the Police and Criminal Evidence Act Code of Practice.

Amendment No. 112 subjects the Radio Investigation Service to constraints that do not apply to similar enforcement authorities. It gives suspected pirate radio broadcasters preferential treatment compared to other suspects. That cannot be right. It would be doubly anomalous. The noble Lord's amendment is unnecessary and inappropriate. Nevertheless, I commend him on his vivid imagination.

Lord Monson

My Lords, we are up against the same dilemma as the House faced when debating Amendment No. 2. The Government's legal advisers say one thing and the legal advisers of what might loosely be termed the opposition say something else. It is a question of taking one's pick of legal advice.

In the absence of any support for my view and because the noble Earl has given a more convincing reason why the amendment is unnecessary than he gave previously, all I can do is beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Monson moved Amendment No. 113: Page 259, line 35, at end insert: ("Save that in relation to such suspected offences the Secretary of State shall not issue any authorisation under subsection (2) above for the exercise of the powers conferred by subsection (5) above until twelve months after the date on which the 1982 United Nations Convention on the Law of the Sea has been ratified by no fewer than sixty States in accordance with international law.").

The noble Lord said: My Lords, we now return to the extremely important question of legality. I was heartened by the assurance of the noble Earl last Tuesday, 16th October, in col. 830 of Hansard when he said that new enforcement powers will be exercised in accordance with international law. The difficulty is that not all those enforcement powers can be used without contravening international law as the latter stanch at present.

Amendment No. 113 may not be perfectly drafted but that can be corrected in another place. It is designed to prevent the possibility of the United Kingdom facing the embarrassment and possibly the obloquy of being hauled over the coals by the international court or possibly the European Court for the breach of international law that would occur if foreign registered vessels were forcibly boarded and searched—and their passengers also searched —on the high seas, without the consent of the foreign government concerned, before at least 12 months had elapsed since the date when at least 60 states have ratified the 1982 United Nations Convention on the Law of the Sea. To do so before then would be illegal.

This morning I received a long written opinion from a well known, highly respected firm of City of London solicitors specialising in the law of the sea. Perhaps I may quote some salient points from the letter. It says: In our view, it requires positive international agreement before national legislation permitting national authorities to exercise jurisdiction over foreign flag vessels on the high seas can be said to be in accordance with international law. Therefore, if and when HM Government adheres to the 1982 Law or the Sea Convention"— they have not yet done so— and when its provisions come into effect, it will be arguable that at least some of the powers contained in Schedule 14 will be in accordance with international law (although some elements may well be in breach of other provisions of international law, such as the European Convention on Human Rights). Therefore, in our view, with the situation as it stands it is simply untenable to say that the proposed powers are 'in accordance with international law'".

Until such time as the 1982 convention is ratified by the United Kingdom and in force—perhaps the most important aspect—exercise of the proposed powers against a foreign flag vessel other than with the consent of the state concerned would be in breach of international law. It is surely correct to say that none of us wishes to see this country behaving in an illegal or even bullying manner. There are quite enough countries in the world behaving badly as it is and we do not want to find ourselves in their company. I beg to move.

Earl Ferrers

My Lords, the noble Lord, Lord Monson, is concerned that we might be in breach of international law. He was kind enough to say that I had persuaded him more on the previous amendment than I had on an earlier occasion. I shall see whether I can carry that achievement further now.

Amendment No. 113 would make the exercise of the enforcement powers conditional upon the ratification of the United Nations Convention on the Law of the Sea on which the noble Lord said he has taken legal advice. I venture to suggest to him that the amendment is unnecessary. I have given him the assurance that the powers will be exercised in accordance with international law. The powers do not hinge upon the convention but upon the international radio regulations of the International Telecommunications Union. These are already in force. Therefore, there is no need to delay the exercise of the powers until the convention, which is a separate matter, is ratified. With that explanation the noble Lord will see that we do not intend to operate in breach of international law.

Lord Monson

My Lords, the noble Earl has not satisfied me. As I set out at length on the previous occasion, various ministerial statements both in this House and in another place have made it quite clear that as the law then stood, despite the international radio regulations to which the noble Earl referred, there was no power to board foreign ships on the high seas without the consent of the foreign power concerned.

Nothing has changed. The only difference is that the 1982 UN Convention on the Law of the Sea now potentially provides the power, but it has not yet been ratified by 60 nations and it cannot be binding until at least 60 nations have ratified it. That is the crux of the matter. Nothing has changed since Mr. Ted Short, as he then was, made the statement to which I referred last Tuesday evening.

I am somewhat surprised at the silence of noble Lords on the Opposition Benches because I should have thought they would be concerned about the possible breach of international law by this country. It will reflect badly on all of us if that takes place. When the noble Earl assured me that no action would be taken in breach of international law I was under the impression that Her Majesty's Government would delay the exercise of this power notwithstanding the fact that the Bill would become law. The Government would simply sit on their hands, so to speak, until such time as the 60 countries had ratified the 1982 convention and would not take any action against foreign registered ships on the high seas until that time; in other words, the Bill would be enacted but this part of it would not be used.

However, it now appears that the Government intend to proceed straightaway, without waiting for 60 countries to ratify the convention. In that case, the Government would be almost certainly acting against the rules of international law. That would be a great pity. Perhaps the noble Earl has further information in his hands and wishes to make a further reply.

6.45 p.m.

Earl Ferrers

My Lords, I do not wish to trespass on the patience of the House or to break its rules but perhaps I may have the leave of your Lordships to speak again.

The noble Lord appears to take a great deal of persuading but I shall have another shot at it. The powers will be exercised with moderation and restraint. We intend to consult the flag state, where there is one, to ensure that it does not object before we act against a foreign flag vessel. Stateless vessels of course are not under the diplomatic protection of any government when on the high seas. Any force used will be kept to the minimum.

The powers are modelled on Articles 109 and 110 of the United Nations Convention on the Law of the Sea. The noble Lord is perfectly right that the United Kingdom has not yet become a party to that convention. However, that is for reasons totally unconnected with radio. The exercise of the powers will be in accordance with international law. That does not depend on the convention coming into force or the United Kingdom becoming a party to it.

I hope that I have been able to take the noble Lord a little further down the path with me.

Lord Monson

My Lords, I am grateful to the noble Earl for what he said. However, as I said when speaking to the previous amendment, if he were to guarantee his presence at the Home Office for many years to come there would be no problem because he has given an assurance at the Dispatch Box and that is good enough for me. The trouble is of course that he is referring to executive action and not statute law, which is a different matter.

I agree with the noble Earl about stateless vessels. The Government are perfectly entitled at the moment to take action against stateless vessels: we do not quarrel about that. It is good to know that the Government intend in practice to consult foreign governments when it is proposed to board their vessels; but there will be no legal obligation on the Government to do so, and therein lies the difficulty. We must hope that the Government do the right thing notwithstanding the fact that the law is defective.

In the absence, disappointingly, of support from any other part of the House I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 19 [The Gaelic Television Committee: Supplementary Provisions]:

Earl Ferrers moved Amendment No. 114: Page 264, line 28, leave out ("in writing").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 10. I beg to move.

On Question, amendment agreed to.

Schedule 20 [Minor and Consequential Amendments]

Earl Ferrers moved Amendment No. 115: Page 267, line 20, leave out ("includes") and insert ("means").

The noble Earl said: My Lords, in moving this amendment I speak also to Amendments Nos. 116 to 131. This series of amendments makes a number of minor drafting and technical changes to the schedules dealing with minor and consequential amendments and repeals of other statutes resulting from this Bill. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 116 to 129: Page 267, line 37, leave out ("includes") and insert ("means"). Page 268, line 9, after ("performance") insert ("not falling within paragraph (c) above but"). Page 269, line 7, after (" 1990)") insert ("other than a sound or television broadcasting service."). Page 269, line 17, after ("performance") insert ("not falling within paragraph (c) but"). Page 269, line 25, leave out ("includes") and insert ("means"). Page 272, line 34, before ("such") insert ("in, or"). Page 272, line 35, after ("programme") insert ("for reception in,"). Page 272, line 40, after second ("programme") insert ("for reception"). Page 273, line 10, after ("6(6))") insert ("for reception"). Page 277, line 18, at end insert: ("(3A) In section 43(2) (improper use of public telecommunication system), for "cable programme service" substitute "programme service (within the meaning of the Broadcasting Act 1990)"."). Page 277, line 18, at end insert: ("(4) In section 49 (investigation of complaints by the Director General of Telecommunications) omit subsection (2)."). Page 278, line 12, leave out from ("(b)") to end of line 18 and insert ("omit subsection (4)"). Page 278, line 23, after (""included") insert (", or made for inclusion,") Page 278, line 24, leave out from ("(b)") to end of line 27 and insert ("for sub-paragraph (2), substitute— (2) In this paragraph

  1. (a) "programme", in relation to a programme service, includes an advertisement and any other item included in that service; and
  2. (b)")

On Question, amendments agreed to.

Schedule 21 [Repeals]

Earl Ferrers moved Amendments Nos. 130 and 131: Page 284, line 20, column 3, at end insert:

("Section 49(2).")

Page 284, line 32, at end insert:

("1986 c. 60.Financial Services Act Section 207(4)."). 1986.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 132: After Schedule 21, insert the following new schedule:


Preservation of appointments. of existing members of the Welsh Authority, the BCC and the BSC

1.—(1) Where, immediately before the date when the relevant section of this Act comes into force, any person holds office as chairman, deputy chairman or other member of the Welsh Authority, the BCC or the BSC, he shall continue to hold office as from that date as if he had been appointed under that section.

(2) Except in so far as the Secretary of State may otherwise determine, any such person shall hold office as from that date in accordance with the terms of his original appointment.

(3) In this paragraph, "the relevant section of this Act" means—

  1. (a) in relation to the Welsh Authority, section 56;
  2. (b) in relation to the BCC, section 142; and
  3. (c) in relation to the BSC, section 151.

(4) In this paragraph and in paragraph 2, "the BCC" means the Broadcasting Complaints Commission and "the BSC" means the Broadcasting Standards Council.

Power to make provision with respect to complaints to the BCC or BSC

2.—(1) The Secretary of State may by order make such transitional provision as he considers appropriate in connection with—

  1. (a) the making, on or after the transfer date, of complaints to the BCC concerning programmes broadcast by the IBA before that date and the performance by the BCC, on or after that date, of functions in connection with complaints made to them about such programmes (whether so made before that date or by virtue of this paragraph), and
  2. (b) the making, on or after the relevant date, of complaints to the BCC or the BSC concerning programmes broadcast in accordance with Schedule 11 and the performance by the BCC and the BSC respectively, on or after that date, of functions in connection with complaints made to them about such programmes (whether so made before that date or by virtue of this paragraph);
and (subject to sub-paragraph (4)) references in this sub-paragraph to the performance of functions are, in relation to the BCC, references to the performance of functions under Part V of this Act and, in relation to the BSC, are references to functions under Part VI of this Act.

(2) Without prejudice to the generality of sub-paragraph (1), an order under that sub-paragraph may provide that, in relation to complaints falling within that sub-paragraph, the BCC or (as the case may be) the BSC may give directions in pursuance of section 146 or (as the case may be) 156 of this Act to persons other than those referred to in section 146(1) or 156(1).

(3) Without prejudice to the generality of section 200(2) (b) of this Act, an order under sub-paragraph (1) may make—

  1. (a) such transitional modifications of any provision of this Act, and
  2. (b) such modifications of and savings in any other statutory provision,
as the Secretary of State considers appropriate.

(4) In this paragraph—

  1. (a) "the relevant date" means—
  2. 1208
    1. (i) in the case of a complaint concerning a television programme, the day after the end of the interim period within the meaning of Schedule 11, and
    2. (ii) in the case of a complaint concerning a sound programme, the day after the end of the period during which the local sound broadcasting service in which it was broadcast was provided in accordance with Schedule 11,
  3. (b) "the transfer date" means the day appointed under section 127(1) of this Act,
  4. (c) "statutory provision" means any provision of an enactment or of an instrument having effect under an enactment,
  5. (d) "the IBA" means the Independent Broadcasting Authority, and
  6. (e) references to programmes include references to teletext transmissions,
and in connection with complaints to the BCC concerning programmes broadcast by the IBA before the transfer date, a reference to Part V of this Act or to any provision of that Part includes a reference to Part III of the Broadcasting Act 1981 or (as the case may be) to any corresponding provision of that Part of that Act.

Power to make provision with respect to complaints under the Control of Misleading Advertisements Regulations 1988

3.—(1) The Secretary of State may by order make such transitional provision as he considers appropriate in connection with—

  1. (a) the making, on or after the transfer date, of complaints to the relevant authority concerning advertisements included before that date in any programme or teletext transmission broadcast by the IBA or in any licensed service; and
  2. (b) the performance by each of the relevant authorities, on or after that date, of functions under the Control of Misleading Advertisements Regulations 1988 in relation to complaints concerning such advertisements (whether made before that date or by virtue of paragraph (a)).

(2) In sub-paragraph (1) "the relevant authority—"

  1. (a) in relation to an advertisement included in—
    1. (i) a television programme, other than one broadcast on the Fourth Channel in Wales,
    2. (ii) a teletext transmission, or
    3. (iii) a licensed service, means the Independent Television Commission;
  2. (b) in relation to an advertisement included in a television programme broadcast on the Fourth Channel in Wales, means the Welsh Authority; and
  3. (c) in relation to an advertisement included in a sound programme, means the Radio Authority.

(3) In this paragraph—

  1. (a) "the transfer date" means the day appointed under section 127(1) of this Act,
  2. (b) "the Fourth Channel in Wales" has the same meaning as in Part II of the Broadcasting Act 1981, and
  3. (c) "the IBA" means the Independent Broadcasting Authority;
and expressions used in this paragraph which are also used in the Control of Misleading Advertisements Regulations 1988 (as they have effect without the amendments made by paragraph 51 of Schedule 20 to this Act) have the same meaning as in those Regulations.

Saving of amendments made by Cable and Broadcasting Act 1984

4. The amendments made by paragraphs 12, 24, 32 and 45 of Schedule 5 to the Cable and Broadcasting Act 1984 shall not be affected by the repeals made by this Act but shall continue to have effect, subject to any amendments made by Schedule 20 to this Act.

Transitional modification of amendments made by this Act

5.—(1) Any provision to which this sub-paragraph applies—

  1. (a) shall have effect in relation to the programme contractor or teletext contractor under a contract which continues in force by virtue of Part II of Schedule 11 to this Act, or in relation to any such contract, as it has effect in relation to the holder of a licence granted under Part I of this Act or in relation to any such licence;
  2. (b) shall have effect in relation to the programme contractor under a contract which continues in force by virtue of Part IV of Schedule 11, or in relation to any such contract, as it has effect in relation to the holder of a licence granted under Part III of this Act or in relation to any such licence; and
  3. (c) shall have effect in relation to any broadcasting service provided by the Independent Television Commission or the Radio Authority in accordance with Schedule 11 as it has effect in relation to any service provided under a licence granted under Part I or Part III of this Act.

(2) Sub-paragraph (1) applies to the following provisions (as amended by this Act), namely—

  1. (a) section 9 of the Industry Act 1975;
  2. (b) section 19 of the Welsh Development Agency Act 1975;
  3. (c) sections 75(1) and 93(1) of the Representation of the People Act 1983; and
  4. (d) regulation 8(1) of the Control of Misleading Advertisements Regulations 1988.

(3) Where regulation 8(1) of the Control of Misleading Advertisement Regulations 1988 has effect in relation to any complaint in accordance with sub-paragraphs (1) and (2) above, regulation 9(1) of those Regulations shall have effect in relation to the complaint as if for the words from "exercise" onwards there were substituted "refuse to broadcast the advertisement".

6.—(1) Section 92(1) of the Representation of the People Act 1983 (as amended by this Act), shall have effect as if—

  1. (a) the reference to the holder of a licence granted by the Independent Television Commission or the Radio Authority included a reference to the holder of a relevant licence within the meaning of Part III of Schedule 12 to this Act; and
  2. (b) there were added at the end "or in pursuance of arrangements made with—
    1. (i) the Independent Television Commission or the Radio Authority, or
    2. (ii) any programme contractor whose contract continues in force by virtue of Part II or IV of Schedule 11 to the Broadcasting Act 1990,
  3. for the matter to be received by that body or contractor and re-transmitted by that body in the provision of any broadcasting service in accordance with the said Schedule II".

7. Regulation 8(1) and (2) of the Control of Misleading Advertisements Regulations 1988 (as amended by this Act) shall apply to any service provided under a relevant licence within the meaning of Part III of Schedule 12 to this Act as they apply to a service licensed under Part II of this Act.").

The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 78. I beg to move.

On Question, amendment agreed to.

Earl Ferrers

My Lords, I beg to move that the Bill do now pass. In doing so I thank all those noble Lords who have taken part in our proceedings during the Committee and Report stages and also the Third Reading of this Bill. I thank them for the constructive contributions that have been made and also, if I may say so, for their forbearance and good humour.

Taking this Bill through the House has sometimes felt rather like riding a bucking bronco, where the prime object is to hang on. With your Lordships' assistance—and with the distinctive help of my noble friends Lord Sanderson and Lord Ullswater to hold the beast by the tail and by the muzzle—this has been possible, despite the concerted and continuous efforts of the noble Baroness, Lady Birk, the noble Lords, Lord Thomson and Lord Bonham-Carter, and others perpetually to stick pins in the horse in an endeavour to unseat the hapless rider or to bring the poor beast to its knees. Fortunately they failed and the Bill has survived. I can truthfully say that with the help of noble Lords on all sides of the House it is a better Bill than when it came to your Lordships. It also happens to be a longer Bill, but that is by the by.

As your Lordships know, the Bill will eventually replace completely the Acts of 1981 and 1984, as well as amending many other pieces of legislation.

It deals with a range of broadcasting services and topics undreamt of by our predecessors when they first legislated for independent broadcasting in the 1950s. So it is hardly surprising that the Bill is what one might call such a blockbuster. It is, in fact, the longest Home Office Bill of recent years. Your Lordships may say, "And it feels like it too!"

Your Lordships have shown great stamina and have, on occasions, had to sit far later than we all would have wished. I regret that noble Lords have sometimes had an uncomfortably short time in which to absorb late waves of often highly technical amendments. I can only repeat my apology for that.

It is perhaps worth remembering that the Bill affects an enormous range of interests who have—naturally enough—continued to comment and to urge various changes right up until the last minute. Your Lordships' consideration of the Bill has ranged far and wide. But I hope you will consider that its discussions have borne much fruit.

The Bill had already changed substantially by the time it reached this House. I said at the outset that I did not wish to incite your Lordships to unbridled bouts of enthusiasm about the scope for changing it yet further. I do not think that that stricture on exhortation was particularly observed. In the event, many changes have been made. Between us all, we have succeeded in producing about 800 amendments to the Bill—a fact about which, particularly at this stage of the parliamentary session, another place will, I am sure, feel quite charmed.

The list of amendments, which have been made by your Lordships includes such major topics as the quality threshold for Channels 3 and 5; a moratorium on takeovers for Channel 3, Channel 5, DBS and national radio services; provision of a quality threshold for teletext; networking; equal opportunities; archiving; coverage of compliance with licence conditions in the ITC Annual Report of Channel 3; religious broadcasting; access to television for the deaf and blind; the index-linking of financial bids; the quality of independent radio services taken as a whole; needletime; and—dare I say it?— impartiality.

That is a somewhat selective list. It is not the totality. It is no mean feat for noble Lords to have covered so much ground. Your Lordships have made known your views on all the major issues which I have mentioned, and on many others. If you agree that the Bill do now pass, it will now be for another place to consider the amendments made.

It has been a long haul, but the list of important changes which your Lordships have made is impressive. I think that it bears testimony to the effectiveness—and indeed the purpose—of your Lordships' House in considering, revising and improving legislation.

It has been a very technical Bill. In some cases, I felt that it was necessary almost to don a white jacket and carry a screwdriver in order to comprehend it. Without seeming to be cavalier, I think I might not have been alone in that. But I am deeply indebted to your Lordships that, throughout, your Lordships have conducted yourselves with characteristic courtesy and fairness even over matters about which you felt very strongly.

I am particularly grateful to the noble Baroness Lady Birk, who has had an astonishing grasp of the whole Bill. That is never an easy matter when in opposition and never an easy matter with a Bill like this. She has always been personally kind and considerate. Her enthusiasm and her determination never left her, and nor did her charm. She was ably helped by the noble Baroness Lady Ewart-Biggs, and the noble Lord, Lord Ardwick, who showed a particularly attractive sense of care over the protection of his grandchildren's eardrums when they are assaulted by the dulcet tones of pop.

The noble Lord, Lord Thomson of Monifieth, came back to the rigours of parliamentary scrutiny of a Bill after 25 years' absence. I can only say that he had lost none of the technique, and had learnt some new ticks and knowledge on the way as well. His style was endearing, and even enticing, and sometimes he looked as if he was wearing Little Red Riding Hood's clothes, but he never, in fact, looked like a wolf.

The noble Lord, Lord Bonham-Carter, also helped him a lot, but not me very often—unless it was when he remained silent. His contributions were, if I may say so, trenchant and masterly but, in my view, usually misguided—but delightfully and determinedly so, and I hold nothing against that.

Many other noble Lords helped in this debate and on different subjects. It is invidious to single out people, but I could not let the occasion pass without referring to the noble Lord, Lord Boston, who brought such knowledge to these debates and attractive parliamentary skill. Then there were the noble Lords, Lord Annan, Lord Chalfont, Lord Wyatt of Weeford, and Lord Monson, the noble Earl, Lord Halsbury, and the noble Lord, Lord Birkett, all of whom made significant contributions; the right reverend Prelate the Bishop of Peterborough, who was helpful over the Broadcasting Standards Council, of which he has such knowledge; and the right reverend Prelate the Bishop of Liverpool who helped over religion and got the stick over CRAC, but he gave as good as he got; and also my noble friends Lord Colwyn and Lord Orr-Ewing; and my noble friend Lord Stockton who tried—I am glad to say unsuccessfully —to blast Mr. Murdoch out of the sky.

Many others of your Lordships have contributed to these debates as well. I am grateful for that, and I hope that noble Lords will agree that the Bill is a better Bill than it was when it started. However we may individually view it, I think it will become a very important monument in the future.

Moved, That the Bill do now pass.—(Earl Ferrers.)

7 p.m.

Baroness Birk

My Lords, from these Benches may I first thank the noble Earl for the extremely nice and pleasant things he has said, not only about myself but about my colleagues on the Front Bench, my noble friend Lord Ardwick and my noble friend Lady Ewart-Biggs. I should also like to thank a number of other noble Lords who helped from time to time: my noble friend Lord Peston who dealt late at night with the complicated problem of copyright, together with the noble Lord, Lord Willis, who kept us up very late but I am sure it was in a very good cause; and the noble Lord, Lord Graham, who behind the scenes was trying to help to arrange things for us all; and the other Whips who work with him.

On the Back-Benches I must also thank my noble friend Lord Boston of Faversham, and reiterate all that the Minister said about him. He certainly was a tower of strength, and he also sat late into the night. It is always nice to have supporters sitting there and taking an active part when it is extremely late.

The noble Earl was very understanding of the way things go. He was always very appreciative of the fact that we did not have a Home Office or even a shadow Home Office behind us and that it is very difficult to work on a Bill like this with a skeleton staff as we are. But we are extremely grateful to a very small number of researchers who helped us all through the Bill in a most remarkable way. We really cannot thank them more; and also our own researcher in the House, Natalka—whose surname I cannot pronounce or spell so in Hansard it will have to be "Natalka"—who works here for us in the House of Lords.

As the noble Earl said, there have been some gains from this House. He mentioned (I understand why my noble friend Lady David will say a few words on this subject) the programming requirements for radio—social action, education, and documentaries—and the scheduling powers which were won in a Division in this House. He mentioned the subtitling of Teletext which will obviously be of great benefit to many people. My noble friend Lady Ewart-Biggs spoke well on the issue of equal opportunities. We have managed to incorporate something on that subject. Although it is not as detailed as we should like, at least there is something in the Bill where there was nothing before.

There is agreement on networking that was not there before, although it is by no means perfect. One of the important successes that we achieved in this House was the moratorium. Although many of us would have preferred a longer moratorium, at least a moratorium is built into the Bill which was not there when it came to us. We moved an amendment on Report regarding high quality radio. As a result, high quality overall must be attained—a provision which was not formerly in the Bill. The Government gave way on that point.

On the IBA transmission privatisation, we achieved a television cross-subsidy. The situation on pensions is much better and we have been able to reassure a number of pensioners, widows of pensioners and those receiving preserved pensions who were worried about the matter. The noble Lord, Lord Lloyd of Hampstead, tried to add to the national television archive on Third Reading with our support. There is now a national television archive which is extremely important. The listings have been sorted out. Although the people concerned are not happy about the matter, at least something has been done.

However, we are not left with a very good Bill. There are a great many matters in the Bill about which we on these Benches are still unhappy. We have made no dent in the cross-media concentration. We still do not have a remit for Channel 5. The Broadcasting Standards Council—that quite unnecessary body—is still there and retains its power to initiate complaints, although we had a last attempt to try to get rid of those powers.

The issue of listed events was a pretty sad affair because there was great support for that, not just from the people who are considered esoterics. It is something that affects everyone in this country. That was very bad.

We all know how we feel about impartiality, certainly on these Benches. I am trying to look for a glimmer of light. The Government embarked on that unfortunate course, but at least the amendment that was passed today was somewhat better than the original amendment. The Minister confused me towards the end as to whether it really did nothing at all, which would have pleased me, or whether it did something that we were not quite sure about. However, it was better than the original amendment, so that is some small comfort.

The point of greatest anxiety about the Bill, which will soon be an Act of Parliament, concerns the high cash bids to obtain licences. That is the basis of the Bill and it remains in spite of exceptional circumstances. It is cash, not quality, that is the important matter. The concept of public service broadcasting has received a devastating blow.

Having said all that, I feel that I must finish on a more upbeat note. We wish the future ITC good luck. We also wish the viewers and listeners good luck and hope to goodness that our fears about the future of broadcasting will, in some miraculous way, not be realised. Perhaps we shall have to wait until there is another government; let us hope that that comes about. In the meantime, I must say that, thanks to the work and co-operation of my noble friends on the Liberal Democrat Benches, I enjoyed the Bill, although it was hard going. My enjoyment was due to that and to the Minister's courtesy. I have tried to find another word for courtesy because we keep telling him that he is courteous. He is also gracious—perhaps that is another suitable word. It has been a friendly exercise all the way through, although we fought hard on individual amendments. I thank everyone very much.

Lord Orr-Ewing

My Lords, I should like, with the support of my noble friends, to make a short speech on the Motion that the Bill do now pass. Like everyone else, I look forward to the deregulation of broadcasting which the Bill will introduce, but I am unhappy about the IBA religious decision-making process and the guidelines for religion which are being drafted for the new ITC and the Radio Authority.

The controversial clause— no religious broadcast … should attempt to proselytise, that is to make converts —in the 1989 IBA religious guidelines will be abandoned on 1st January. No one wants to see coercion, but the freedom to encourage or persuade people of the merits of believing in a particular religious faith—or, for that matter, no faith at all—has been guarded for centuries by the Queen, Parliament and, as I have stressed before, particularly by this House.

However, the draft guidelines which are now being drawn up at the IBA for the ITC and the Radio Authority contain clauses which would ban or censor the United Christian Broadcasters radio station in Stoke-on-Trent and the Vision Broadcasting TV station in Swindon because they exercise that freedom. Both those overtly Christian stations are licensed under the Cable and Broadcasting Act 1984 and the Cable Authority has publicly described them as providing a, worthwhile service which operates in a responsible manner". We heard repeated assurances, here and in another place, that there is no intention to use the Bill to ban or censor any religious broadcasting. A letter from the Prime Minister's private secretary at 10 Downing Street on 8th March stated: I hope this letter reassures you that the automatic disqualification of channels such as Vision will be lifted". Another letter from the same office on 19th January stated: the Prime Minister has asked me to assure you that Vision Broadcasting Communications will not be subject to any automatic disqualification on the ground that it is a body with a religious purpose … The Government is now considering how the Broadcasting Bill should be amended to achieve this result. I hope this is reassuring". In view of all the promises given in writing throughout the passage of the Bill that there would be no attempt to stop United Christian Broadcasters and Vision Broadcasting from operating amidst hundreds of new radio stations and dozens of cable TV channels, I sincerely hope that the Government will keep their word and ensure that the IBA religious decision-making process, acting on behalf of the shadow Radio Authority and the ITC, will not be allowed to enforce guidelines which interpret the Bill by banning or censoring either of those two stations.

The Earl of Halsbury

My Lords, on the Motion that the Bill do now pass, I rise to support the sentiments expressed by the noble Lord, Lord Orr-Ewing.

This is a complex Bill covering very many subjects, many of them highly technical. I shall start by expressing my admiration for the combination of fortitude and courtesy which has enabled the noble Earl to see us through to this point.

Over the weekend I received a blockbuster from the IBA about my having said on Report that the meeting between my colleagues of the national council and the IBA was hostile. I am advised to assuage its dismay by withdrawing the word "hostile" and substituting "freezingly polite". I now come to the support of my friend, the noble Lord, Lord Orr-Ewing. I have had an immaculate assurance from the noble Earl, which I naturally accept, that the guidelines will emphasise the position of the Christian religion in this country. The right reverend Prelate the Bishop of Liverpool stated on Report that there is in this land a multiplicity of faiths. I submit that there is only one faith native to this country—the Judaeo-Christian tradition. Minority faiths are exotic. They come from abroad and were imported mostly after the war. I do not count people who dress up at the summer solstice and parade through Stonehenge in what they imagine look like the clothes of ancient druids.

In addition to the assurances I have had from the noble Earl, I should like to quote, with the leave of the House, an extract from what I have been promised by the Prime Minister in a personal letter: The Government has no wish to prohibit or unnecessarily impede the development of religious broadcasting. We share your view that it can and should be a force for good with potential for raising standards in society. There will be a much larger number of radio stations carrying a very wide range of programmes. We intend therefore that Christian groups and those of other religious faiths should be allowed to own independent radio stations provided they stay within the rules of programme content. Your briefing note refers specifically to the Vision channel. This channel was referred to by the noble Lord, Lord Orr-Ewing. I understand that this channel provides a valued and worthwhile service. We are considering separately how the Broadcasting Bill might be amended to cater for their position". I think it will be in the guidelines rather than on the face of the Bill. On that I have the assurance of the noble Earl. The letter continues: Finally, your briefing note mentions advertising and sponsorship. You will have seen from the Bill that there is no prohibition in it of either religious advertising or sponsorship". That was the Prime Minister's undertaking to me at the outset of our proceedings on the Bill. So far as I can see, those undertakings have been kept. I now have an assurance from the noble Earl—an honourable assurance—as to what will be in the guidelines. I accept that assurance. On that basis, I am happy that the Bill should now pass.

7.15 p.m.

Lord Thomson of Monifieth

My Lords, I should like immediately to thank the noble Earl for his characteristically kind personal words. I join the noble Baroness in paying tribute to all those inside the House and behind the scenes—the staff of the House and our personal staffs—who have contributed to the passage of this long and important Bill. I know that all noble Lords would like to pay a special tribute to the noble Earl himself. As I understand it, he has taken on a subject that was not directly his own inside his department. It is a difficult, complex and technical subject. It has been a marathon Bill and yet we have had from him constant courtesy and good temper. We have had not only good humour but some wit as well, which has leavened our proceedings so frequently. He has never lost his cool in the face of criticism; and some of our criticism has been fundamental and some of it quite fierce. We appreciate his good humour.

We thank him also for his genuine willingness to look into issues, to take them away and look at them again, and then to give some ground and accept amendments, particularly when they were not central to the Government's policy. One understands that the Government have a policy and that they have a mandate for it. In this House we have always accepted the limitations of that fact. Even there we have made some useful progress on important matters quite close to the main thrust of the Government's policy. The moratorium is one of the outstanding examples. I shall not cover the other matters which were described so comprehensively by the noble Baroness.

This has been a long Bill. It would be astonishing if in a Bill of this length there were not some good and necessary changes. But like the noble Baroness I am bound to say that it remains at heart a bad Bill despite the improvements made to it. In my parliamentary experience I cannot remember a Bill that has changed so greatly between its original introduction and its final passage through the second Chamber. We pay tribute to the willingness of the Government, both here and in another place, to listen to the arguments and to make concessions. Nevertheless, from my point of view it is a bad Bill, especially in relation to commercial television with which I have had an association over a number of years.

Commercial television in Britain has so far been public service television. It has been of good quality and has been fully compatible and competitive with the BBC. This year commercial television has won the major European television prizes—the Golden Rose of Montreux and the Prix Italia. Commercial television of this quality has been an achievement of previous Conservative Administrations. I find it rather sad that commercial television today has been destabilised, demoralised and diluted in terms of its public service obligations by the present Conservative Government. What is especially sad is that they have done it unnecessarily. Of course great technological changes are going on and of course there will be greater numbers of buttons for us all to press in the years immediately ahead. But that was going to happen anyway. A Broadcasting Bill was not needed to introduce the video cassette recorder, which has revolutionised many of our lives in terms of our viewing habits. So far as I am concerned, good luck to the newcomers in cable and satellite. But more buttons do not of themselves mean a wider and richer choice. That requires positive regulation to encourage quality rather than the deregulation which we have in this Bill.

I say this with sorrow but make no mistake about it. What the Government are doing in this Bill will change the culture of commercial broadcasting in this country. The highest bid system, for all the welcome quality thresholds that have been conceded and for all the welcome amendments in terms of exceptional circumstances, means that creative accounting will take the place of and priority over creative programme-making in commercial television. Quality in broadcasting—one of Britain's greatest achievements is our broadcasting system—is indivisible. Downward pressure on commercial broadcasting standards will put downward pressure on the BBC. The "Bolshy BBC", as I think I heard someone at the Conservative conference in Bournemouth call it, is the next target for the Government. I admired the way Mr. David Mellor stood up to that clamour at the Conservative Party Conference. But the evidence of the way the Government have caved in at the last minute to Right-wing pressure on due impartiality cannot give us any confidence that the future of the BBC is safe in Conservative hands in present circumstances.

I apologise to the House for making somewhat sour and perhaps what might be regarded as partisan remarks alongside the normal and very proper politenesses on the Motion, That the Bill do now pass. I conclude by saying to the noble Earl and his colleagues that this has been a marathon Bill. The stamina required from the Front Bench has been very great indeed. Significant concessions have been made. That is the way we do things in our parliamentary democracy and we express our gratitude for that.

Lord Ardwick

My Lords, I should like to say a few words about radio, which has been almost buried, inevitably, under the Bill. Radio has a great tradition, going back to the days of Vernon Bartlett and Joe Middleton and, nowadays, Rabbi Blue and Alistair Cooke, whom God preserve. In spite of that radio has popped out of obscurity from time to time. I am glad to recall that two important and progressive clauses have been inserted into the Bill—one dealing with diversity and the other with quality.

As regards the diversity which will give us the famous kind of non-pop musical channel, alas! there is no money for it. The same applies to the new all-speech channel which I welcome. When one thinks of the cleverness and the ingenuity that LBC has had to show in order to survive, I am not very hopeful that the all-speech station will be able to survive without some public help. However, we look forward to its beginning. Some of the local stations on London radio have recently shown great promise.

The one disappointing feature of the Bill has been the lack of real interest in community broadcasting. Community broadcasting is being tolerated; there is a place for it, but it is not being positively encouraged as we should have liked.

Lord Ashbourne

My Lords, I rise to express my welcome for this Bill, especially the fair and acceptable religious broadcasting freedoms introduced by the Government. I entirely agree with the noble Lord, Lord Thomson, when he says that he can seldom remember a Bill which has been so improved since it started its passage through Parliament. However, I am disturbed to hear that the Radio Authority's draft guidelines for religion contain the following clauses. I shall now quote from paragraph 7.7 of the guidelines. It reads: Neither the programmes themselves, nor any follow up material, may be used to proselytise or recruit members for any religious faith". Paragraph 7.6 says that, nothing may be included which constitutes an appeal for money by groups whose aims are wholly or mainly religious; nor may donations to such groups be solicited either in any literature provided as support material for such programmes, or by the offer for sale of items". The word "proselytise" may be slightly confused with the word "evangelise" which refers to preaching the good news of the Christian gospel. There should be positive advocacy, but no denigration or improper exploitation of other views and beliefs. However, there is concern among Christians that these guidelines may be used to block freedom to encourage people to consider embracing a particular faith. This could even be used to block freedom to expound an atheistic or agnostic doctrine.

I do not favour American tele-evangelists broadcasting requests for money, but surely such guidelines are unacceptable when they threaten to destroy the programming output and all sources of finance for both of the British Christian broadcasting stations; namely, United Christian Broadcasters on radio and Vision Broadcasting on cable television.

In response, the chief executive of Vision Broadcasting said: We have carried programmes for the last 4 years, from Christian organisations which advertise their Christianity. If the Independent Television Commission imposes these guidelines on us, it would mean an end to our programmes and advertising. It would be unnecessarily restrictive to other religions, not just Christianity, and it would break all the promises that the Prime Minister has given in writing to us". In his response, the managing director of United Christian Broadcasters said: We cannot do anything. It's totally opposed to all the promises given by David Mellor. The Government has allowed us to get to the starting line, now the new authorities are trying to nail our feet to it, which will make us a non-runner". Among his many letters Mr. David Mellor, the Minister, said: The Radio Authority would be able to allow religious groups to own special event, local (including community) and satellite radio stations". He is also recorded in Hansard as saying, on Report in another place that, legitimate Christian broadcasters have nothing to fear". — [Official Report, Commons, 9/5/90; col. 158.] Accordingly, I trust that the final draft of the ITC and Radio Authority religious guidelines for programming, ownership and advertising will honour that promise and give Christian broadcasting stations, whether on television or radio, nothing to fear.

Baroness David

My Lords, the wish to protect the quality threshold in the Bill has been expressed by a great many people, including the Government, during our discussions at all stages. Therefore, the noble Lords, Lord Allen of Abbeydale, Lord Norrie, Lord Plowden and I were delighted when our amendments to protect documentaries, education and social action programmes, and to ensure that those programmes were shown at high viewing times, were passed by the large majority of 27 with all-party support in Committee. No one, except the Minister, spoke against them.

Our delight and relief was shared by the many organisations —91 in all—that came together under the Broadcasting Consortium and the Third World and Environment Broadcasting Project to try to influence and improve the content of the Bill. Therefore, I was glad to hear the noble Earl say just now that the Bill had been improved. However, it was with considerable dismay that we read the report of David Mellor's speech to the Royal Television Society on 4th September in which he said that the Government would seek to overturn the amendments in another place. There was such strong feelings about this that the four sponsors of the amendment asked to see the noble Earl, Lord Ferrers. I have to thank the noble Earl for seeing us last Thursday and for allowing us to put our case.

Until now the qualities that we seek to safeguard in broadcasting have been safeguarded so far as concerns independent television by the obligation laid upon the IBA by Section 2(2) (a) of the 1981 Act, to provide the television … services as a public service for disseminating information, education and entertainment". No such obligation appears in the new Bill. Mr. Mellor's case for abolishing it seems to be first that the requirement that programmes be calculated to appeal to a wide variety of tastes and interests, together with the illustrative guidelines, will ensure, without any protected categories, that all the present types of programme will be included in applicants' programming; secondly, that if there is to be a list of desirable categories, it is invidious to include documentaries, education and social action programmes but not arts, sport and drama; and, thirdly, that scheduling requirements prevent the flexibility necessary for Channel 3 licensees to be able to compete with new satellite and terrestrial services.

These arguments are themselves inconsistent; indeed, the Government have contradicted their own case. You could perhaps argue for no list of categories. But the Government produced such a list with news, current affairs and regional programmes. They then agreed in Committee in another place to add religious programmes and programmes for children. For all these five categories, Mr. Mellor said that either the threat to them, or the need to clarify in the Bill that the Government understood that diversity must include them, had persuaded him to insert them into the quality threshold in Clause 16. In short, specific conclusions about the social value of programmes, and the risk that, without clarity in the Bill, applicants might not offer them, have been the principles for inclusion in the list.

Documentaries, programmes with an educational purpose and social action broadcasting all meet these criteria and should be included. There is no need to worry about sport with its huge popularity. We say that documentaries and educational programmes embrace many arts and drama programmes.

Television is a very important source of information. Research has shown this to be so and indicated the value that audiences place on these programmes, particularly in educating people on third world, environmental or global issues. We must also remember the connection between the social action programmes, and the telephone help lines and field agencies, which enable people to do something in response to the information they receive.

Programmes with an educational purpose are highly valued by viewers. In the IBA's list of programme preferences, education for adults came third. A survey commissioned by the "Media Show" showed that 75 per cent. of viewers felt that it was important that television companies should continue to make and show educational programmes. We heard at the Conservative conference that education is to be top of the political agenda. It would surely be ironic if after that declaration the Government were to delete educational programmes from the obligation put upon the new companies when television is such a powerful force and influence.

It is a matter of quality. If the Government are serious when they say that they mind about the quality of what appears on our television screens, they should not seek to reverse the amendments passed by the House on 18th July, especially when one remembers that the condition contained in the 1981 Act, that the IBA must inform, educate and entertain does not appear in the requirements to be laid upon the ITC. I hope that the Minister will use his influence to prevent the overturning of those amendments and convey the strength of feeling that there is on those issues.

Your Lordships may have read in the press of a delegation to 10 Downing Street this morning. It took a letter to the Prime Minister signed by six organisations (the UNA, Age Concern, the World Wildlife Fund, Community Service for Volunteers, the Carers' National Association and the Catholic Fund for Overseas Development) asking that those four amendments should not be overturned. That letter was supported by 33 other organisations, among which were the Save the Children Fund, the National Council for Voluntary Organisations, the National Association of Citizens' Advice Bureaux and Voluntary Service Overseas. That letter and its sponsors show the strength of feeling that exists about this matter. I hope that the Minister and the Prime Minister will pay great attention to the strength of feeling everywhere.

7.30 p.m.

Viscount Buckmaster

My Lords, as Vice-President of the Christian Broadcasting Council perhaps I may say a few words about Christian broadcasting in support of the noble Lord, Lord Ashbourne. Naturally, I wish the Bill well, as we all do, but I am deeply concerned about the position of the United Christian Broadcasters' radio station in Stoke and the Vision Cable television station in Swindon, because there appears to be some danger of the religious guidelines being used to threaten their continued existence. It seems to me, and I hope that I am wrong, that that would amount to a handful of religious advisers trying to overrule the clear wishes of the Government and both Houses of Parliament with regard to religious broadcasting as contained in the Bill.

As the Bill passes to another place, I hope that the Labour Member of Parliament for Stoke on Trent Central and the Conservative Member of Parliament for Swindon will pursue vigorously the cause of those broadcasting installations located within their respective constituencies. I hope that your Lordships can appreciate the nervousness, especially at Vision Cable, because in recent years the IBA religious broadcasting department has blocked the broadcasting of a number of Christian programmes, as was mentioned at earlier stages of the Bill in your Lordships' House. It blocked them for a number of reasons. Some, including myself, would say the reasons were theological; others might say they concerned production or even content. Virtually all of those programmes have in the end been broadcast, with some editing or modification by Vision Cable; but from 1st January 1991 Vision Cable will be subject to the ITC and the authority of members of the same IBA religious department as originally refused broadcasting permission for those programmes. Obviously they are fearful that the broadcasting of those programmes may again be banned, or that Vision Cable's future licensing needs may be prejudiced because those programmes continue to be broadcast.

There is a real difference in religious broadcasting policy, and that lies at the root of the religious broadcasting debate. Fortunately, the National Council for Christian Standards was reassured on 30th May by a letter from the Prime Minister's office. This is important. The letter stated: The Government has repeatedly stressed that it has no wish to inhibit, still less to stifle, lively new ideas for responsible Christian broadcasting. The amendments made to the Bill on report, and the further consideration of the rules announced by Mr. Mellor, further demonstrate its commitment to that objective". I quote even more reassuring words from a letter dated 19th June from the Political Secretary at 10 Downing Street: The Government's aim is to ensure that any revised approach … should provide sufficient safeguards against abuse, without inhibiting responsible Christian and other religious broadcasting from developing and flourishing in the 1990s. So, as you can see, the Broadcasting Bill is a landmark in the development of responsible Christian broadcasting". I hope that that policy will be carried out effectively.

Lord Colwyn

My Lords, I too am most grateful to my noble friend the Minister and to his department for all the help that has been given to me during the Bill's passage. That help culminated this afternoon in my noble friend moving my Amendment No. 47. I had become so used to the various stages of the Bill going on long into the night that I had a quick break for a cup of tea and, as a result of the rapid progress of our business, missed being able to move the amendment. I am most grateful to my noble friend for doing that for me, and regret missing the opportunity of having a Back-Bench amendment accepted.

I also thank my noble friend for the changes that he has made to Clause 175. The House has been most patient with me and others of a similar opinion. It has indulged us in a great deal of complicated debate. The Bill, with its exorcism of needle time, brings to an end a most unfortunate and damaging episode in the history of British broadcasting. The Government's decision to refer those matter to the MMC has been entirely vindicated. In future, disputes between the broadcasting industry and the record industry will be approached afresh, without undue store being set by the unfortunate circumstances of the past. I am opposed to a monopoly having the right to impose its will upon a dependent consumer under threat of injunction. The MMC, and now the Bill, by and large attempt to strike a fair balance. I am delighted that the Bill should now pass.

Lord Boston of Faversham

My Lords, I thank the Minister and my noble friend Lady Birk for their generous remarks about me. I also congratulate the Minister on the way in which he has conducted the Bill through your Lordships' House with great expertise and charm. I congratulate too my noble friends Lady Birk, Lady Ewart-Biggs, Lord Ardwick, Lord Thomson of Monifieth and Lord Bonham-Carter for the parts that they have played in the Bill.

Legislation was clearly needed because of the new developments in broadcasting in our country and elsewhere. However, I should not have started from here had I been left with the task of producing the Bill. I echo the words used by my noble friend Lord Thomson of Monifieth. It is a much better Bill now than it was when it started its passage through another place. As someone who works in the industry, I can say that because it Is a view that is shared by many people in the industry. The Bill is also, as the Minister pointed out, much larger. When it reached your Lordships' House it was 217 pages long. After we finished with it last week on Report it was 285 pages long. No doubt after today it will be a little longer. That is a tribute to the fact that a great deal of work is done on legislation in your Lordships' House.

Warm thanks are due to the Minister's honourable friend the Minister for the Arts, Mr. David Mellor, the Home Secretary and the noble Earl himself for the way in which he and they have shown their flexibility and willingness to listen on many major matters which have resulted in major changes being made to the Bill. In saying that, perhaps I may ask him to find a way to pass oil these thanks to his officials in the Home Office, particularly in the department with responsibility for broadcasting. When the Government came to exercise their flexibility and to implement new provisions as a result of having listened to the debates in your Lordships' House and elsewhere, I have no doubt at all that the officials were a very great help indeed in formulating the proposals into legislative terms.

A number of the changes have been mentioned already, so I need not go into any of them in detail. The exceptional circumstances matter is one where a major change has been made. We would not have started with the highest bid system, but there is a considerable improvement as a result of that change.

The moratorium has been mentioned, and that too is a major change. On inflation and the cash bid, the noble Earl described it a little while ago as a technical matter in relation to the amendment passed on the index linking of payments. Although a technical matter—and he described it as that at the time when we considered it in Committee, and so it is—it is a major matter. When it comes to making a change to this Bill, it is on the same level as the changes to the moratorium and the quality threshold. So that is a significant change.

As my noble friends mentioned at earlier stages, the inclusion of networking provisions has been a substantial improvement to the Bill. Some of us still do not like the inclusion to that extent of the Office of Fair Trading's involvement in these matters, but nevertheless the very provision of networking in itself is a fundamental improvement. It will be of great benefit to viewers and to the television industry.

Probably the less said about cross-media ownership the better. Some of us still cling to our views on that matter, as we do on ITN. It is a shame that that position could not have been improved by leaving 51 per omit. of the shareholding in the hands of the existing shareholders.

On advertising and giving a remit to the Broadcasting Standards Council, some of us again would have wished the position to have changed. Also, there is the subject which we returned to for the third time today—regional production. Some of us would have wished that that position had changed as well.

Perhaps I may say that the Government have at least on some of these matters shown an appealing consistency. Logical arguments, I should have thought, had been advanced as concerns the advertising point. Logical arguments have been advanced as concerns regional production. Highly logical arguments were advanced as concerns cross media ownership. The Government have consistently and persistently resisted those logical arguments, and that at least shows some consistency.

The only other matter I wish to mention is impartiality. I follow the noble Earl completely in this. He did not seek, when he mentioned it just now—and I only venture to mention it because he did so—to reopen the argument we had had this afternoon. However, since he has mentioned it, I must confess that I was tempted to intervene in the closing passages of his speech this afternoon when he said that there was a difference of legal opinion and that there were various views among the legal profession. Had I intervened I should have pointed out—and I thought it was not proper to take up your Lordships' time on this and to impede the progress of the noble Earl's excellent speech—that, in saying that there were different legal points of view, he has conceded part of my argument. That is precisely the point—that there are these uncertainties. That is what we are all worried about. I shall not reopen the subject, but since he mentioned it I felt I could not avoid responding.

The only other point I make is this. All of us in all parts of your Lordships' House, throughout the lengthy debates on the Bill, have put at the forefront of our minds the interests of viewers. As I pointed out the other night to the right reverend Prelate the Bishop of Peterborough, the noble Earl has done that consistently throughout the series of debates. My noble friends on these Benches, my noble friends Lord Thomson of Monifieth and Lord Bonham-Carter and Cross-Bench Members of your Lordships' House as well as those generally from the Government Benches and this side of the House have put viewers' interests first. Although there have been great differences of view about this legislation —and there will continue to be great differences of view —I am quite satisfied that that has been the whole approach of Members from all parts of your Lordships' House. This is due in large measure to the skill and the generous and charming way in which our Minister in your Lordships' House has conducted proceedings on this legislation.

7.45 p.m.

Lord Chalfont

My Lords, perhaps I may trespass on the patience of the House to make two points. The first is simply to point out that the radio guidelines which have been referred to twice today in the context of religious matters are contained in a consultative document which has been issued for the moment purely for consultation. There will be no radio guidelines until that consultation is complete.

The main point I wish to make arises from a comment that the noble Lord, Lord Ardwick, made about the radio portion of the Bill. I am grateful to him for the interest he has taken in the radio aspect of the legislation and for his interesting remarks this evening. Speaking as the chairman designate of the Radio Authority, I must say that in general terms we at the authority are now happy with that section of the Bill which deals with radio broadcasting, as it now appears, as we move towards the passage of the Bill on to the statute book.

We had a number of anxieties; we were disappointed about a number of matters. I wrote to the noble Earl setting out some areas of concern a few days ago. Noble Lords will not be surprised to hear that he was prompt to reply to me in constructive and courteous terms, taking up in detail all the points that I raised. In addressing them, he was able to set most of our worries at rest.

There is one point that I wish to make before the Bill passes. It is a shame that the moratorium was not applied to independent local radio. The moratorium on takeovers, as your Lordships will know, applies to television and to national radio but not to independent radio. It is a shame that we have a position in which 200 or 300 companies may put forward their programme plans and applications over the next 10 years but the Bill has left us in a position in which they may make a successful application only to find it taken over perhaps 24 hours later by someone with enough money who did not bother to enter the competition in the first place. I say this without any deep sense of grievance because I have heard the opinions of the Government upon it. They are, as always, logical and persuasive. However, I remain convinced that it is a disappointment to us that the Bill did not go that far.

Perhaps I may echo the comments of noble Lords on all sides of the House who have expressed their gratitude to the noble Earl for the courteous, elegant and effective way in which he has piloted the Bill through the House. Perhaps I may also say that as concerns the shadow ITC and the shadow Radio Authority, we are most grateful for the excellent working relationship which has existed between the Government, in the persons of the noble Earl, his right honourable colleague in another place and all the officials in the Home Office who have had such a monumental task in the past months, piloting the Bill through both Houses. I wish the Bill well in the short time that remains before it becomes, I hope, the Broadcasting Act 1990. I share with all in your Lordships' House a deep sense of gratitude to the noble Earl for the way he has piloted the Bill through the House.

Lord Bonham-Carter

My Lords, I join the procession of noble Lords who have pronounced the obsequies of this Bill because I feel that not to do so might be misinterpreted as rudeness. I believe it would be even ruder, however, if I kept your Lordships sitting here one moment longer than was absolutely necessary.

On an occasion such as this I wish I had the eloquence of the noble Lord, Lord Mishcon, to describe the pellucid skill with which the noble Earl has conducted the proceedings on this Bill and the courtesy with which he has dealt with even his most tiresome opponents such as myself. We have enjoyed watching him carry out his functions in this fashion. We congratulate him on his success in doing so and we are grateful for his wit and his humour as well as for his courtesy. That having been said, I join wholeheartedly with the nicely balanced mixture of compliment and censure which was so well expressed by my noble friend Lord Thomson of Monifieth, the noble Baroness, Lady Birk, and the noble Lord, Lord Boston of Faversham.

Whatever we have managed to do in improving the Bill—if we have not improved it, we would have been delinquent—it will indeed change the face and the focus of British broadcasting. Whereas before British broadcasting was governed by public service, it will now be governed by the ratings and by the advertisers. Nothing we have been able to do can change that fundamental fact about the Bill. That step is a pity. I believe that its consequences will be bad because more need not mean worse. However, I sincerely fear that unless those two standard bearers of quality, the BBC and Channel 4, are supported wholeheartedly—there is no sign that the BBC will be supported wholeheartedly—more may well mean worse.

Earl Ferrers

My Lords, we have had in the concluding stages of this Bill an interesting and short debate. We have had, as it were, puffs of smoke from around the Chamber issuing forth on all the issues over which we have wrangled hard in the past. I do not propose to go into those issues again this evening. I merely wish to thank your Lordships for the kind remarks that have been made about me. I remarked that the noble Lord, Lord Bonham-Carter, did not help me very much when he was silent. However, I appreciate the fact that he was not silent this evening, even though he has now vanished.

The noble Lord, Lord Boston of Faversham, was wholly right to ask me to pass on noble Lords' thanks to the officials involved with the Bill. I believe the noble Lord, Lord Chalfont, also mentioned that. I shall take the greatest pleasure in doing so. I have admired enormously the way in which the officials grasped the most complicated problems, very often at short notice, and produced answers. That in itself was a Herculean effort, but for them to try to ensure that a Minister understood those points was an even greater effort. They did that with an astonishing skill.

The noble Baroness, Lady David, referred to a meeting between myself, the noble Baroness and some other noble Lords. I shall not comment upon her speech this evening other than to say that the points she made will be taken note of. It is now up to another place to decide what to do.

The noble Lord, Lord Thomson, said that he had made a few sour remarks and hoped that I did not mind them. I did not think they were sour remarks at all. The noble Lord was merely explaining his reservations. We know that he has had reservations throughout the Bill. This is an enormous Bill and it covers a huge and complicated area. It is impossible to satisfy everyone. Strong and opposing views are held on the Bill. I bear no grudge to the noble Lord for his views. The important thing is that when the Bill becomes an Act, it will be up to the ITC and the Radio Authority to make it work. I know that your Lordships will wish those bodies well in their efforts.

It is the viewers who will benefit from what those bodies portray. It is also up to the viewers to keep up the standards which Parliament and the people expect. Those standards cannot always be affected or created by written words or written Acts. We wish the ITC and the Radio Authority well. I thank noble Lords for the way in which they have collectively and constructively helped to improve the Bill.

On Question, Bill passed, and returned to the Commons with amendments.

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