Lords Sitting of 15 February 1996

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Oxford): The LORD CHANCELLOR on the Woolsack.

Recruitment and Assessment Services
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What benefits they expect Recruitment and Assessment Services to be able to confer on existing customers and in what wider markets will the services be able to pursue business opportunities following privatisation.
The Parliamentary Under-Secretary of State, Ministry of Defence (Earl Howe): My Lords, Recruitment and Assessment Services will be able to exploit its considerable expertise in graduate and other recruitment with new customers in the private sector. In combination with the skills—and the capacity for investment—which a private sector buyer will bring, RAS will be well-placed to develop its services to take full advantage of opportunities in other markets, both in the private sector and in the wider public sector. All RAS's customers, including existing ones, will benefit from success in developing high quality services across a wider customer base.
Lord Peyton of Yeovil: My Lords, I hear the hopes expressed by my noble friend. Will he try to persuade his colleagues to reveal the thinking that lies behind a very far-reaching proposal which has not yet been much discussed in public and which seems to suggest that they perhaps undervalue an institution which has been famous both for its intelligence and its total lack of corruption, which is a rare combination in our times?
Earl Howe: My Lords, I could not agree more with the last part of my noble friend's remarks. The excellence and expertise within RAS is something very special. But we debated this matter some three weeks ago. I understand that arrangements are being made for us to debate it more fully at another time. I believe that the Government's reasons for setting out these proposals have already been clearly stated. I stress one key point, which is that nothing in the Government's proposals will undermine the integrity and the quality of the service provided by RAS. At the moment it is a centre of excellence, and it will be no less so when it is in the private sector.
Lord Allen of Abbeydale: My Lords, is it not most regrettable that such a very important change should have been announced as a decision already taken in reply to a Question for Written Answer in another place, without any comparable Statement being volunteered in this House? Further, that original reply was very short
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on explanation and left quite a number of queries totally unanswered—queries such as the position of the existing staff. Is that quite the way to treat the Civil Service?
Earl Howe: My Lords, my understanding is that when a Statement is made in another place, an opportunity is offered for that Statement to be repeated in your Lordships' House. I am not aware of the discussions that took place through the usual channels. Perhaps I may finish answering the noble Lord's question before he asks a supplementary. The decision to privatise RAS reflected the view of Ministers that privatisation was the best way to secure the long-term interests of the staff and the customers as well as the interests of the taxpayer. As I said, your Lordships will have an opportunity to debate this matter at some point in the fairly near future.
Lord Harris of Greenwich: My Lords, is the Minister aware that it is not a question of a Statement being made in the other place? The issue is that it was an arranged Question for Written Answer. Why was this House not informed?
Earl Howe: My Lords, not every Question that is tabled and answered in another place is repeated in this Chamber. If that were the case, then your Lordships' Hansard would, I suggest, be unnecessarily cluttered. I understand that this is a matter close to many noble Lords; but, as I said, we have had an opportunity to debate the matter already, and we shall have a further opportunity to debate it on another occasion. I believe that noble Lords will be well placed to put forward their views.
Lord Shepherd: My Lords, without trespassing on another place, does the noble Earl agree that it was a placed Question which the Government wanted to receive to be able to make that Statement? If that was the procedure in another place, presumably it would have been open to the Government to have tabled the same Question here through one of their noble friends in order that the Answer could be available in our Hansard. Is that not a fact?
Earl Howe: My Lords, to be perfectly honest, I am not aware of whether it was a placed Question. I shall make it my business to find out quite clearly. I shall let the noble Lord know. Whenever such matters fall to be announced, consideration is given by the appropriate Minister in the department concerned as to whether a Statement or Question should be repeated in your Lordships' House. I am not aware of the reasons why that was not done in this case.
Lord Acton: My Lords, can the Minister say how privatisation will improve RAS in its vital task of recruiting the fast stream entry?
Earl Howe: My Lords, RAS is a centre of expertise. Making that expertise available to the private sector will not only be of advantage to commerce and industry, it will also bring with it efficiencies and thus better value for money for existing customers in the public sector.

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That is why I believe that this proposal is in the best interests of the taxpayer, the Civil Service and the country as a whole.
Lord McIntosh of Haringey: My Lords, in his first Answer, the Minister referred to the opportunities for investment which will be available to RAS in the private sector. Can he give the House any specific examples of cases where RAS in the public sector has failed either to meet its own objectives or to perform to the satisfaction of its customers as a result of failure of investment possibilities?
Earl Howe: My Lords, indeed, no. RAS has fulfilled all the objectives set for it as an agency. We have every reason to be proud of the way in which that agency has been run. The point I sought to make was that if RAS expands its horizons as is now proposed, further investment will be required. It is appropriate, if RAS is serving the private sector, that that investment should come also from the private sector.
Lord Campbell of Alloway: My Lords, can the Minister say whether there was any consultation with the Civil Service before the decision was taken?
Earl Howe: My Lords, there was consultation with the customers of RAS, who are the group of government departments which avail themselves of RAS's services in recruiting to the fast stream of the Civil Service. There was no consultation with the staff.
Lord Peyton of Yeovil: My Lords, will my noble friend do his best to ensure that the promised debate takes place before it is too late, and that it is not sidelined to a Friday Sitting?
Earl Howe: Clearly, my Lords, that must be a matter for the usual channels.

European Court of Human Rights
3.10 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they intend to seek the approval of Parliament for their decision to accept the jurisdiction of the European Court of Human Rights at Strasbourg in cases affecting British citizens over the next five years.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the decision to renew the United Kingdom's acceptance of the compulsory jurisdiction of the court for five years, as well as the right of individual petition, was announced on 13th December and has been communicated to the Council of Europe. Parliament has been kept fully informed.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that she has not answered the Question? I did not ask whether Parliament had been informed.
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I asked whether the agreement of Parliament to this substantial transfer of authority had been obtained. Is my noble friend aware that it has not been obtained? Yet it is still possible for this body, this so-called court, to impose a charge on the British taxpayer at the moment at an annual rate of £40 million. Surely it is for Parliament to approve or disapprove of such a proposition.
Baroness Chalker of Wallasey: My Lords, I apologise to my noble friend. This has been a matter of discussion for over 30 years. I was unaware that he thought that renewal of the optional articles required parliamentary approval. In those 30 years renewal has never been the subject of advance debate or scrutiny. A similar Question received Written Answer in the other place. There was an exchange with my right honourable friend the Prime Minister on 7th December. Subsequently a Question was tabled in the other place on 10th January and in your Lordships' House on 29th January. Perhaps I can point out that we are talking about the European Court of Human Rights. We contribute £2.25 million annually towards the administering of the convention which covers both the Commission and the Court of Human Rights.
Lord Archer of Sandwell: My Lords, I accept that in the early days it was sensible to adopt the jurisdiction for a limited period. What is now the objection to adopting it indefinitely?
Baroness Chalker of Wallasey: My Lords, I understand the point made by the noble and learned Lord. However, we are looking for improvements in the procedures. While those improvements to the Strasbourg Court of Human Rights are being discussed, it is right to renew for only a limited period.
Lord Renton: My Lords, is my noble friend aware that there are immensely strong reasons for enabling our own courts to try cases under the convention? The reasons so far given for not doing so have convinced few people. Will the Government open their mind to that point?
Baroness Chalker of Wallasey: My Lords, I know that my noble friend feels strongly about this matter and I have some sympathy. We must look again at the situation. However, we must also look at improvements in the fact-finding procedures in Strasbourg. We must ensure that the quality of judges in the new permanent court and the procedures for their selection are top rate. We are looking for worthwhile improvements and that matter will be considered.
Earl Russell: My Lords, will the Minister dissociate the Government from the phrase "so-called court" used by the noble Lord, Lord Boyd-Carpenter?
Baroness Chalker of Wallasey: My Lords, sometimes there are misconceptions. The Court of Human Rights in Strasbourg is quite different from the European Court of Justice. That is why the phrase "so-called" sometimes creeps in.
Lord Clinton-Davis: My Lords, in view of the fact that this Government—the Home Secretary, in

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particular—are one of the most unsuccessful litigants in the English courts, will the Government be looking for improvements in the procedures in this country in relation to judicial review?
Baroness Chalker of Wallasey: My Lords, that has nothing to do with the European Court of Human Rights. However clever the noble Lord believes himself to be, that was not a clever question.
Lord Boyd-Carpenter: My Lords, will my noble friend answer my Question as to whether the transfer of authority to raise large sums from the British taxpayer should be a matter for approval by both Houses of Parliament, which it was not in this case?
Baroness Chalker of Wallasey: My Lords, considering the amounts that are raised from the British taxpayer, £2.25 million does not seem to be in the "large sums" category. I must correct my noble friend. The UK contributes £2.25 million annually towards the administering of the convention. If your Lordships wish to discuss the matter, the usual channels will take careful note of that. However, I cannot say any more today.
Lord Finsberg: My Lords, is it not a fact that until he recent perverse and stupid judgment in regard to Gibraltar, the Court of Human Rights in Strasbourg gave almost complete satisfaction? Is the noble Baroness aware that not only Ministers but also the Parliamentary Assembly—of which I have the honour to be vice-president—are examining the guidelines in order to ensure that potential judges, unlike some chosen in the past, are much more versed in the law?
Baroness Chalker of Wallasey: My Lords, my noble friend puts in far better terms exactly what I was seeking to explain when I talked of improving the quality of the European Court of Human Rights.
Baroness Farrington of Ribbleton: My Lords, will the noble Baroness tell the House why British citizens have, at great cost, to go to Strasbourg to exercise their rights when, if the Government changed their policy, cases could be heard in British courts?
Baroness Chalker of Wallasey: My Lords, that is exactly the same point raised by my noble friend Lord Renton a few moments ago. I said that steps to improve the quality of the system would be looked at.
Lord Kennet: My Lords, will the noble Baroness elucidate an earlier answer to a supplementary question? She spoke of the "so-called" court. Which does she consider to be more "so-called", the European Court of Justice or the European Court of Human Rights, and why?
Baroness Chalker of Wallasey: My Lords, they are entirely different bodies. I happen to believe that both have a rightful function. I did not use the word "so-called". I was attempting to clarify for the noble Earl, Lord Russell, how confusion sometimes arises and why people sometimes use the phrase "so-called".

Vehicles for the Disabled: VAT Rating
3.17 p.m.
Lord Tebbit Lord Tebbit asked Her Majesty's Government:
Whether, in the light of the Question asked by Viscount Ingleby on 24th January 1996 (HL Deb., col. 1030), they have reviewed the criteria for the exemption from VAT of vehicles such as the Scott-Track Venturer designed for the use of disabled people.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I am pleased to say that, in the light of further information provided by the manufacturer, Customs and Excise accept that the Venturer is eligible for zero rating as being designed solely for disabled people.
Lord Tebbit: My Lords, will my noble friend accept that he is now not only a popular Minister, but also that he has given a popular Answer? Is he also aware—and are noble Lords aware—that, although this Question was tabled by me after a hint from my noble friend, so it might be called "placed", to my knowledge no other Question of the same kind has been tabled in the other place? Can my noble friend say how many of these vehicles have had VAT charged upon them and whether that VAT can now be reclaimed? Will he also join me in thanking the noble Viscount, Lord Ingleby—who is unable to be here today due to the illness of his wife—for initially raising this matter?
Lord Mackay of Ardbrecknish: My Lords, I know that the noble Viscount, Lord Ingleby, was keen to be here today but unfortunately cannot be. I know that he will be pleased with the outcome. I believe two or three of those vehicles have been sold—one to our noble friend and one or two to an organisation which takes disabled people out into the country. Customers who have paid tax on the vehicles should contact Scott-Track, the manufacturers, for a refund. Lastly, I am delighted to have my popularity restored.

National Audit Office: Access to Papers
3.19 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
Whether they will give instructions to government departments to refrain from using the term "Not for National Audit Office eyes" in any documents circulating within the public service.
Lord Mackay of Ardbrecknish: My Lords, no. There is a long-standing convention agreed with the National Audit Office that the NAO does not have access to certain categories of departmental papers. These categories are papers dealing with the responses to NAO inquiries and proposals for NAO investigations and draft NAO reports; briefing papers for an accounting officer's appearance before the PAC; papers dealing with the contents of Treasury minutes

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responding to PAC reports; and papers, including interdepartmental correspondence, about relations with the NAO.
Lord Harris of Greenwich: My Lords, is the noble Lord aware that the Answer he has just given will puzzle a number of us because the papers which appeared on the front page of the Independent earlier this week did not fall into any of those categories? What is the point of having a National Audit Office as the guardian of public expenditure if officials can try to deprive it of critical information? Is he aware that the case to which I refer concerns a report by Price Waterhouse? Is he further aware that it seems to many of us astonishing that this procedure has been accepted by the Government?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord should guard against founding on leaked documents an attempt to build a case in public. At the time the official wrote the document the Department of Transport was considering a draft report by the NAO into British Rail Maintenance Limited sales. His note was in the context of considering a response to the NAO. That falls very firmly within the first category I mentioned in my original Answer.
Viscount Chandos: My Lords, if the Minister does not feel that the parallels between this shabby saga and the subject of this afternoon's Statement are enlightening, can he instead say what the Government's attitude would be to a public company making a similarly poor sale of assets and concealing that from its auditors, from the Stock Exchange and consequently from its shareholders? Should the public sector not adhere to best practice, not only in achieving value for taxpayers but also in disclosure of its dealings, particularly in respect of management buy-outs of privatised industries?
Lord Mackay of Ardbrecknish: My Lords, I am sorry that the noble Viscount continued with his prepared question without altering it in the light of my Answer, which I think shows clearly that the rules and procedures of the Government and the National Audit Office, agreed by the National Audit Office, were fully followed. As to the case itself, the position is that the National Audit Office investigates every privatisation. In this particular example the Department of Transport is quite clear that the British Rail Board did not distinguish cash from other components of the assets, like debts and creditors. In its study for the Department of Transport Ernst & Young is confident that all the necessary information, including details of the Eastleigh depot's cash balances and its future trading prospects, was available to all bidders. The noble Viscount should not let his obsession against privatisation colour his judgment.
Lord Clinton-Davis: My Lords, will the Minister indicate why this pertinent question was asked by Price Waterhouse in relation to this privatisation measure? I quote:
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"Why was the business sold at such a discount to net assets, in particular a profitable and cash generative one?"
Will he also indicate—
Lord Hailsham of Saint Marylebone: Reading!
Lord Clinton-Davis: Of course I am reading. I am going to quote. Will he also indicate why a memorandum was sent by a senior civil servant in the Department of Transport criticising the BR vendor unit which managed the sale for,
"operating without satisfactory guidelines"?
He also asked whether there were,
"any similar skeletons in any other completed sale".
Perhaps the Minister will address himself to those two questions.
Lord Mackay of Ardbrecknish: My Lords, I shall repeat the point I made to the noble Lord, Lord Harris of Greenwich. I am astonished that the noble Lord is also prepared to found his case on leaked documents. But never mind about that. As far as the sale is concerned, clearly if the cash had been removed from this company—the Eastleigh BRML—the price obtained for it would have been that much less because it was part and parcel of the assets and liabilities of the company for which the private sector and indeed the management buy-out, which was successful in this case, were bidding. The answer to the noble Lord is that if the cash had been removed the price obtained would have been a good deal less.
Lord Harris of Greenwich: My Lords, as the Government constantly proclaim their enthusiasm for open government, why was this procedure used in the first place? Why are the Government so secretive when it comes to issues involving taxpayers' money?
Lord Mackay of Ardbrecknish: My Lords, that takes us back to the original Question. I have to tell the noble Lord that there is nothing secretive about the rules I read out. They were contained in a number of letters. The most recent I have is one from the Treasury to the accounting officers of the departments dated 1988. What I have just explained was the subject of a parliamentary Answer in 1985 to Mr. Bryan Gould, who was then a leading member of the party opposite. In fact, the rules I expounded have been in operation with the NAO since its beginning. They were in operation in the preceding body, the Exchequer and Audit Department, for a very long time before that, including times during which the noble Lord himself was a Minister in the last Labour Government.
Lord Ezra: My Lords, it is difficult for some of us to follow what information is being provided to the NAO and what is not. Can the Minister unequivocally state that the Government regard the operations of the NAO as serious; that they will provide it with all the information needed to conduct its inquiries; and that they will treat the resultant reports with the gravity they deserve?
Lord Mackay of Ardbrecknish: My Lords, we consider that the NAO has a vital part to play in looking

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after public funds. We take its reports very seriously indeed. As I explained, the convention is of very long standing. It is clear and open. Parliamentary Questions have been asked about it and answered in full, as I have done today. Departments regard the convention as something they must apply correctly. Their internal audit units are responsible for checking that the convention is being properly operated and they report to the accounting officer straightaway on any abuses which are found. The NAO also monitors the use of the convention as part of its normal audit work. I hope that that reassures the noble Lord.

Security Service Bill
3.26 p.m.
Brought from the Commons; read a first time, and to be printed.

Humber Bridge (Debts) Bill
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Viscount Goschen.)
On Question, Motion agreed to.

Business
Lord Strathclyde: My Lords, with the leave of the House, my noble and learned friend Lord Fraser of Carmyllie will repeat a Statement to be made at 3.40 p.m. in another place on the Scott Report. In order that the Statement may be repeated to your Lordships at the earliest opportunity, I beg to move that the House do now adjourn during pleasure until 3.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 3.27 to 3.45 p.m.]

Scott Inquiry
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, with your Lordships' permission, I should like to repeat a Statement being made in the other place by my right honourable friend the President of the Board of Trade, on the Scott Report.
"I should like to make a Statement about the report published today of the inquiry by Sir Richard Scott, which my right honourable friend the Prime Minister commissioned in November 1992, following the end of the Matrix Churchill trial.
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"The Government have arranged for the report to be debated in both Houses of Parliament on 26th February. During the past three-and-a-quarter years the inquiry, with the full co-operation of the Government, has received many tens of thousands of pages of documentation from government files and has taken written or oral evidence from 268 witnesses. All Ministers, former Ministers, and civil servants who were asked to give evidence, did so conscientiously and thoroughly. The detailed procedures of the inquiry were left to the discretion of Sir Richard Scott himself.
"The House will realise the diligence with which Sir Richard Scott and his team have scrutinised the events covered by their remit, and for which the Government are most grateful. The report is wide-ranging and detailed, extending to five volumes and some 2,000 pages. In addition, the inquiry will be making available as soon as possible several thousand copy documents.
"The House will recall that the essence of the inquiry, as reflected in its terms of reference, was to establish whether the relevant government departments, agencies and Ministers operated in accordance with the Government's policies and to report on decisions by the prosecuting authority in the Matrix Churchill case and by those signing public interest immunity certificates.
"Let me now turn to the question of whether arms were supplied to Iraq. The report confirms, and I quote:
`the Government was not prepared to countenance the supply of lethal equipment to either Iran or Iraq'.
Sir Richard Scott goes on to say in his report, and again I quote:
'Ammunition, guns, tanks, bombs, mines and the like were not licensed for export to Iraq. Nor for that matter were they licensed for export to Iran'.
"The inquiry also considered whether defence equipment supplied to countries other than Iraq might have been diverted to Iraq's armed forces. During the 1980s some evidence existed that certain other countries might have diverted goods to Iraq. As far as British goods were concerned, steps were taken to counter this. No British arms or ammunition were found in Iraq at the end of the Gulf War. Sir Richard Scott investigated a number of allegations to the contrary and found no evidence for them.
"On more general non-lethal defence equipment, Sir Richard Scott recognises that the Government strove to balance the interests of employment in this country with the objectives of our foreign policy. He makes no criticism of the Government's policy. He does, however, make strong criticisms of what he sees as a lack of openness on this, to which I shall return later. Nevertheless, the Government's restrictive policy on exports is in sharp contrast to many of our international competitors who, during the eight-year conflict between Iran and Iraq, in addition to non-lethal defence equipment, were also content to sell fighter aircraft, guided missiles, munitions and other lethal equipment. This country did not.

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"I now turn to the most important reason why my right honourable friend the Prime Minister set up the inquiry in the first place. This is the grave allegation that Ministers, by signing public interest immunity certificates, conspired in a way which could have sent innocent men to prison. Sir Richard Scott's report demonstrates that this allegation is false and without foundation.
"I quote from Sir Richard's words:
`Finally, I must refer to the charges made and repeated in the media that the Ministers who signed the PH certificates were seeking to deprive defendants in a criminal trial of the means by which to clear themselves'.
Sir Richard Scott concludes, after over three years of painstaking investigation, that all Ministers who signed PII certificates did so without any impropriety. There is no criticism of them for so doing. There was no attempt to gag. There was no conspiracy to gaol innocent men. Ministers who signed PII certificates did so in the knowledge that the judge was the final arbiter of what should be disclosed to the defence. There is no case for them to answer. As Sir Richard says, and I quote,
`The charges to which I have referred are not, in my opinion well-founded'.
"This conclusion gives the lie to the many scurrilous comments by honourable Members on the Benches opposite and by many in the media.
"For three years, several of my right honourable friends have had to endure repeated abuse and attacks upon their honour and integrity of the most offensive and unpleasant nature over their signing of public interest immunity certificates. They now stand wholly vindicated by the report.
"As one example, I remind the honourable Gentleman, the Member for Livingston, that he said on 7th November 1995 in respect of the PII certificates—I quote:
`Once again we see Ministers caught trying to cover up their role in arming Saddam Hussein'.
The quotation continues:
`Not only did they try to arm Saddam Hussein and keep it quiet but they were willing to cover up even at the expense of sending businessmen to court, knowing that those businessmen would be convicted, and knowing that if convicted they might well have gone to prison'.
"The same criticisms were made by others on the Benches opposite. As recently as last week, the right honourable Gentleman the Deputy Leader of the Labour Party said, and I quote:
`Next week, we'll have more evidence with the Scott report. Showing how Ministers were prepared to send citizens to jail to cover their own backs'.
"There could hardly be a more serious set of charges levelled against Ministers of the Crown; and they are now shown to be utterly unfounded. There was no conspiracy. There was no cover-up. Such charges were reckless and malicious and should never have been made. The House will now expect to hear them withdrawn without reservation.
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"Sir Richard Scott has cast his net widely and examined a whole range of issues. He has made recommendations in a number of areas, and he has also made some criticisms. I should like to comment now on the subjects of these recommendations and criticisms, including in particular export control legislation; the law on public interest immunity; the ministerial guidelines on exports; the Matrix Churchill trial; and ministerial accountability.
"The report deals with the legislation which has governed the control of imports and exports since 1939. This legislation has, since the Second World War, served its purpose effectively in allowing controls to be imposed on the import and export of certain categories of goods.
"Sir Richard criticises the continued use of wartime emergency legislation by both Labour and Conservative Administrations over the past 50 years.
"The appellants in the Ordtec appeal in early 1995 challenged the 1939 Act, praying in aid Sir Richard Scott's views which he had first expressed a year earlier. However, in the Court of Appeal hearing on 22nd May, before the Lord Chief Justice, the orders made under the 1939 Act were declared lawful. We will, however, wish to consider further the future arrangements in this area in the light of Sir Richard Scott's comments.
"I turn now to the interpretation of the common law as it relates to public interest immunity. The inquiry has suggested that the law did not support, in the period of the Matrix Churchill and Ordtec trials, the concept that Ministers had a duty to sign public interest immunity certificates nor that these certificates could be used in criminal prosecutions.
"The Government followed well-established case law, backed up by independent legal advice, that Ministers both had a duty to sign PII certificates and that such certificates were applicable in criminal trials. It was then for the judge to decide which documents to release. The Attorney-General took advice on this from independent and eminent counsel and the Government's handling of PII was, incidentally, endorsed by three defence counsel in the Matrix Churchill trial. That PII claims were a matter of duty was supported by authoritative judgments of such distinguished judges as Lord Scarman, Lord Donaldson of Lymington, and Lord Justice Bingham. The applicability of PII to criminal cases had been established by a decision by Lord Justice Mann. It has since been confirmed by a series of decisions of the Court of Appeal presided over by the Lord Chief Justice, Lord Taylor of Gosforth.
"In his report, Sir Richard Scott does not in any way question the personal integrity of the Attorney-General. He does, however, express criticism of the adequacy of the instructions to prosecuting counsel conveying the views of the then President of the Board of Trade, and in particular that the Attorney-General should personally have supervised them. It must be a matter of opinion whether that was something which the Attorney-General could reasonably have been

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expected to do. Sir Richard does, however, accept the genuineness of the Attorney-General's belief that it was not. In any event it made no difference. The judge exercised his discretion, as the Attorney-General had said he would, and ordered the release of the relevant papers to the defence counsel.
"The Government remain firmly of the view that the advice given at the time to Ministers by my right honourable and learned friend the Attorney-General was correct and there is no doubt he acted throughout with complete propriety and integrity.
"The distribution of intelligence material within and between government departments is an area where the inquiry has found failings to have arisen in the 1980s. We accept that there is substance in this criticism. The report makes it clear, for example, that the junior Ministers who approved the Matrix Churchill licences for which the directors were later prosecuted did so without the benefit of intelligence reports which would have shown the intended military use of the items covered. Sir Richard concludes that the Ministers took their decisions on a false footing, which he makes clear was not their fault. Substantial revisions of procedures have already been made to prevent as far as possible a repetition of such failings. Sir Richard's report recognises that improvements in this area have been made.
"I turn to the Government's policy from the outset of the Iran-Iraq war in 1980. Our policy was to remain neutral in the conflict and not to sell lethal weapons to either side. Further, the Government took steps to ensure that non-lethal defence goods that could have had an impact on the way the war was prosecuted were controlled. In support of that policy, and to assist in its application as events unfolded, a set of guidelines was established in 1984 by my noble and learned friend Lord Howe, then Foreign Secretary.
"The guidelines established that export orders which would, and I quote,
'significantly enhance the capability of either side to prolong or exacerbate the conflict',
would not be approved. Following the ceasefire in August 1988, these guidelines had to be applied in changed circumstances. Opportunities for expansion of legitimate trade began to emerge. At the same time, relations with Iran and Iraq were affected by concern over the hostages in Lebanon, human rights in Iraq, the fatwah against Salman Rushdie, the execution of Farzad Bazoft, and the safety of British nationals held in both Iraq and Iran. Ministers and officials were obliged to react to circumstances which were continually changing.
"Sir Richard Scott concludes that, following the ceasefire in 1988 but not before, government policy towards the export of non-lethal military goods changed in a way which, he believes, should have been drawn to the attention of the House. Both Ministers and officials believed at the time that they were applying policy in a way which remained within the existing guidelines and Sir Richard expressly accepts that they were sincere in doing so. However,
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he does not agree they were correct in their belief. On this basis, he concludes that a number of Ministers' letters and answers to parliamentary Questions were inaccurate because they restated what Ministers understood to be the policy but which Sir Richard believes, in retrospect, had changed.
"Discussion about the guidelines took place on several occasions in late 1988 and early 1989 between junior Ministers and officials at the Foreign and Commonwealth Office, the Department of Trade and Industry and the Ministry of Defence, as the situation developed. Those Ministers reached no settled decision to change policy which they regarded as requiring the approval of senior Ministers or an announcement to this House. As I said, Sir Richard disagrees with them but accepts they were sincere in their belief.
"The crucial issue is whether these junior Ministers intended to mislead this House and the country. Sir Richard gives an unequivocal answer on this. He accepts that the Ministers believed they were avoiding a formal change to the guidelines and that, in holding this belief, they had—to quote his words—no 'duplicitous intention'. In respect of my right honourable friend the Chief Secretary, who was at the time one of the junior Ministers concerned, Sir Richard goes on to say that—and I quote again—
'he did not intend his letters to be misleading and did not so regard them'.
My right honourable friend is therefore absolved of the charge that he intended to mislead members of this House or anyone else.
"The House will recall that the Scott Inquiry was set up following the collapse of the Matrix Churchill trial in 1992. Sir Richard has scrutinised this prosecution.
"The inquiry finds no evidence of impropriety in the way in which the Matrix Churchill prosecution was brought. There was no conspiracy and no deliberate withholding of material known to be relevant that might have helped the defence. It is worth emphasising too that the court itself at the time expressed no criticism of the way in which the prosecution, with the advice of independent and well respected counsel, was brought and conducted. But, as Sir Richard Scott says, with the benefit of hindsight this was a trial which ought never to have commenced. I stress, as Sir Richard Scott himself does unequivocally, that this is a judgment with the benefit of hindsight.
"While Sir Richard dismisses the serious allegations of personal impropriety that have been made about the conduct of Government Ministers, there is a continuing line of criticism running through the report of what he describes as the,
'consistent undervaluing by Government of the public interest that full information should be made available to Parliament'.
One of his major recommendations is that there should be a review of the long-standing parliamentary convention whereby Questions on certain subjects are not answered or are not fully answered. He

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recommends that this review should take account of an enhanced need for Ministers to provide full and accurate information to Parliament.
"This subject will form an important aspect of parliamentary consideration of the Scott Report. This Government have made advances in the openness of Government which go beyond the position of any of their predecessors. Nevertheless, it is right that we should debate these issues further in the light of the findings in Sir Richard Scott's report, and the Government are ready to do so. In the light of that debate, the Government will consider whether any amendments to current practice should be made. It would be unrealistic, however, if I did not say at the outset that there are bound to continue to be areas, particularly in the field of international diplomacy and commercial operations, in which a degree of confidentiality will sometimes be necessary.
"Sir Richard Scott's report contains a substantial section of recommendations. The Government have already taken action on a number of the issues on which the inquiry now makes recommendations; for example, on intelligence handling.
"We are able to accept others straight away, such as those relating to export controls and licensing procedures, where a consultation paper will be produced, as Sir Richard Scott recommends.
"Other recommendations, such as those on changes to the law, for example, relating to prosecution practices and the approach to public interest immunity, are technically complex and will need careful and detailed consideration. They will receive it.
"In sum, all Sir Richard Scott's recommendations are under active consideration and a number have already been accepted.
"The House will recognise that the Scott Inquiry has been long, searching and thorough. It will want to consider the report fully and to discuss the issues raised by it. There are lessons to be learned from the inquiry and Sir Richard Scott has made a number of important recommendations which the Government will now pursue. The inquiry has identified areas where systems and procedures can be improved, and these will be closely and urgently studied. The overall picture which emerges is that, while mistakes were made, Ministers and officials acted honestly and in good faith. This country went to enormous lengths rigorously to enforce a self-imposed ban on the supply of all lethal and other offensive weapons to either combatant in the Iran-Iraq war and to remain neutral in the conflict.
"Our policy towards the combatants in that terrible war was sound and principled. It stands very favourable comparison with that of any other nation. It was conducted and sustained throughout with integrity.
"Not only did Britain sell no lethal weapons to Iraq, but as Sir Richard Scott's report makes absolutely clear, neither was there any conspiracy among Ministers to send innocent men to gaol. Those who
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alleged otherwise should now withdraw unreservedly and apologise to the House and to my right honourable and honourable friends whom they have defamed".
My Lords, that concludes the Statement.
4.8 p.m.
Lord Richard: My Lords, I must confess to a certain sense of anger when I listened to the Minister reading out that Statement. I have not had an opportunity to read the report. I obtained it about 20 minutes ago in the same way as other Members of the House obtained it. But in that very short time that I had before I came into the Chamber I managed to look at three or four sections of the report. I have to say—I shall read it out in due course—that the Statement, and the gloss that has been put upon that aspect of the report, at which, as I say, I have had five minutes to glance, is frankly totally misleading and a travesty of what the report says.
I did not obtain a copy of the report earlier because, as the House will know, I was offered the chance to look at it in a controlled environment at the Department of Trade and Industry in circumstances which I regarded as totally unacceptable and insupportable. I was going to read the letter that I received from Mr. Lang. That is an argument that we have already had in the House, and so I shall read just two sentences from the letter:
"You will be met in the car park by an official of the Department. This official will escort you throughout your visit. This is for your own convenience and security".
I wondered from whom I was going to be secured: hordes of irate civil servants, no doubt, armed with their copies of the Scott Report about to attack the Opposition spokesman in the Lords.
"You will be escorted to a room in the conference suite where you will be able to read the report. You will be in an adjacent room to that of Mr. Cook as indeed will Mr. Blair. Your escort will be just outside your door".
I was then asked to give certain undertakings about the report itself—on disclosure and not to make any copies—which frankly I regarded as totally unacceptable and demeaning.
I hope that the House will therefore understand why I wrote back merely to say that I regarded the suggestions made in their letter as quite outrageous and that I was not prepared to attend on that basis.
That offer was specific, and was designed to achieve a certain object. That object was clear when the Minister read out the Statement. The object is to read out a Statement which bears not a great deal of relation to the substance of the report so that the House, and indeed the country, may get an impression of what is in the report without yet having had any opportunity to read it. I warn the House, as I have done in respect of Government Statements on a number of occasions in the past, that it is terribly important, particularly in the present atmosphere, that one reads the report and does not rely just upon the Statement.
There is not a word in the Statement which the Minister read about the fact that no less than 27 times Parliament was told that the guidelines were not changed. There is not a word in the Statement about the

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paragraphs in the report which I managed to fish out in seven minutes. Perhaps I may read a paragraph relating to the public interest immunity certificates. It is on page 1396, for those of your Lordships who are prepared to pick up your four volumes and turn to it. It states:
"Mr. Heseltine had taken his stand, not as a result of any legal analysis which he was not equipped to make, but as a result of an apprehension that justice might not be done if the documents were withheld from the defendants. Such an apprehension on the part of a senior Minister, charged, as is the Government as a whole, with the taking of decisions regarding the maintenance of national security and the promotion of the public interest, raised very serious issues, constitutional and legal, as to the role of PII Certificates in criminal cases. If the responsible Minister does not regard the withholding of the documents from the defence as being in the public interest, what is the function of the PII Certificate that he has, so it is said, a duty to sign?".
There is not a word about that in the Statement. That bit was glossed over so as to give it the governmental spin.
I turn to the summary on PII certificates. We were told by the Minister that the Government have been totally exonerated in that regard. During the five minutes that I had, I happened to look at page 1537, which states:
"In summary, in my opinion, the making of the PII class claims and the preparation and signing of the PII Certificates in the Matrix Churchill case suffered from the following defects:
(i) Class claims were made which were not, in my opinion, warranted by authority and which ought to have had no place in a criminal trial".
That is the opinion of Lord Justice Scott. The report continues:
"Mr. Heseltine's reluctance to sign the P1I Certificate in case he thereby deprived the defendants of access to material documents evidenced an instinct for the requirements of justice that was fully justified and corresponded, in my opinion, with the legal principles correctly understood.
(ii) The Category B class claims included a number of documents [for claims of public interest immunity] of which no more could be said than that they were confidential and in respect of which, even in a civil case, a PII claim would not, in my view, have been warranted by any of the judicial authorities that have underwritten the propriety of class claims".
That is hardly a unanimous acquittal on the part of the inquiry of the Government's handling of the matter. It continues:
"(iii) Ministers were led to believe that they were not entitled, when assessing whether the PII class claims should be made, to take into account that the documents in question had the degree of materiality in a criminal trial that would, bar PH, have required their disclosure to the defence.
(iv) Mr. Heseltine was led to believe that it was his legal duty to make the PII class claim notwithstanding that it was his view that the overall public interest required the disclosure of the documents to the defence".
I am sorry that I have not had the opportunity of going through the rest of this fascinating bundle. In view of the brief glance that I have been able to take in relation to chose items I suspect that I shall find some rather interesting ammunition in other parts of the report.
Where do we go from here? We shall have a debate on 26th February and I shall make only two or three simple points. In the end, the whole matter of the Scott Report and government behaviour comes down to two or three relatively simple points. First, were the guidelines changed? The answer to that is clearly yes.
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Secondly, was Parliament misled? The answer to that is clearly yes. Thirdly, was Parliament misled knowingly and intentionally? I do not quite understand the adverb in that connection. The fact of the matter is that, on the whole, people are deemed to know the effect of their actions. If the effect of the action was to mislead, those who misled must have known that that was what the effect would be. In those circumstances, it seems to me that the Government are culpable.
As regards Matrix Churchill, the issues again appear to be relatively simple. Did the Government know that the company was exporting those machine tools to Iraq? The answer to that is clearly yes. Did the Government try to ensure that the fact that they knew was kept from the trial court? The answer to that is clearly yes. Did the Government use public interest immunity certificates to try to achieve that end? The answer to that is clearly yes.
This is a murky and disreputable affair in which Parliament was misled and defendants were put at risk. Surely someone is responsible, and it is time that he faced up to it.
Lord Jenkins of Hillhead: My Lords, as some of your Lordships will know, under the conditions suggested I too did not think it right to have any access to the report until a few minutes ago. Therefore, I have had no more opportunity to look at it than the overwhelming majority of your Lordships' House, except for some Members of the Government. In those circumstances, I would think it no more appropriate to comment in detail upon the report than I would to review a book which I had picked up in a bookshop and handled for a few minutes. What I can say is that it is very large, very expensive and appears to be nicely printed. I will reserve more serious comments for the debate.
The Government have gone to remarkable lengths to impose a degree of ludicrous and insulting secrecy upon one of the most elite reports in the history of reports. It is extraordinary that in these circumstances the Government should choose this afternoon, through the President of the Board of Trade and the Minister who has repeated the Statement in this House, to make a Statement of considerable length and quite exceptional density, complexity and tendentiousness. I find it very difficult to believe that any noble Lord not having a copy of the Statement in his hand could possibly have told when the Minister was quoting from Sir Richard Scott and when he was giving the ex-parte view of the Government.
I do not propose to pronounce on the detail of the report until I have read it. I did not go through it as much as did the noble Lord, Lord Richard, but it so happens that it almost fell open at page 504, paragraph D4.60. That gives a very different impression from what we have heard this afternoon. One's memory goes back to the presentation of the Franks Report on the conduct of the Falklands War at the end of 1982 or the beginning of 1983. I pay tribute to the press officer of the noble Baroness, Lady Thatcher, because a most successful news operation was mounted, which meant that the immediate impact of that report on the afternoon and evening was very different from that which emerged in subsequent days.
I shall wait until our debate on 26th February to comment in detail. Today I shall confine myself to one comment and one question. My comment is that I never

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believed that when the report was published a primary objective—certainly not my primary objective—would be to see the heads of Ministers roll. I do not like seeing heads rolling and I believe that the Government ought to cling on to such talent as they have within their ranks. I trust that there will be no discrimination because it would be unacceptable to have discrimination in which the heads of civil servants rolled while the heads of Ministers were sacredly preserved.
A much more fundamental question lies behind that. It is how the Government react to the overwhelming exposure in the evidence—and from what was read out by the noble Lord, Lord Richard, I believe that a good deal will come out of the report—of a culture of excessive secrecy; of a miasma of half truths and occasional untruths; and of the love of an opaque screen, almost for its own sake, about the decision-making process. That has come out in the evidence. That habit has not produced particularly effective government in this country. It has certainly contributed to the alienation of the public from the political process.
I have a very specific question to ask. The noble Lord the Lord Privy Seal told us two days ago that he was not among the Ministers to see an advanced copy, so that is obviously the case. Clear discriminatory and perhaps rational decisions were made as to who should see it and who should not. Will the Minister tell us whether Dr. Mawhinney, the Chairman of the Conservative Party, was among those who received the report eight days ago? Upon that answer will substantially turn whether the advance distribution was in the self-defence of threatened Ministers or for a massive news management exercise in which Dr. Mawhinney is rather pathetically thought to be expert.
Lord Fraser of Carmyllie: My Lords, I wish to deal absolutely head on with the quite disgraceful allegations that have been made about access in advance of publication. As occurred on a previous occasion when the Learmont Report was published, particular arrangements were made for the Shadow Home Secretary which exactly mirrored the timing that was available and the circumstances offered today. What happened was that the Shadow Home Secretary at least had the courtesy to thank the Minister for making those exceptional arrangements.
As regards these arrangements, as I am sure noble Lords appreciate, Lord Justice Scott was insistent that prior to the publication of his report there should be only very limited access. He required that those who were to see the report should be notified to him. When we wished to allow access to both noble Lords who have just spoken, the President of the Board of Trade had to write to Sir Richard Scott to ask to be relieved from his obligation to disclose it to no other persons and we then managed to secure that opportunity.
Furthermore, the secretary to the inquiry headed by Sir Richard Scott wrote back saying:
"I would be grateful if you would let me have details of the arrangements which you propose for access to this report".
He was provided with those details and agreed with the details that were provided. In particular, there was a document that I know was sent to those noble Lords which
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required a signature indicating that they would not disclose it to anyone else. Those noble Lords, distinguished Privy Counsellors and holders of high political office in the past, seem to have been outraged by that suggestion. I must say, as my right honourable friend has just told another place, that he too signed just such a document. Before I was permitted access to the report, which I saw, I too had to sign such a document.
But one individual who was not given the opportunity to see that report and who was not afforded the opportunity even to give an undertaken of secrecy was the Chairman of the Conservative Party, Dr. Brian Mawhinney. Therefore, no effort was made by the Government to make it impossible for those who wished to have limited access. I hope that noble Lords who have spent so much time on that matter will appreciate that, in describing the events as outrageous in the vernacular, it is they who are rubbishing Scott, not anyone on behalf of the Government.
Lord Richard: My Lords, the noble and learned Lord is telling us how generous the Government were in relation to access to the report. He will know that my right honourable friend the Leader of the Opposition wrote to the Prime Minister suggesting that, far from having the report at 12 noon, access should be given under those terms and conditions at nine o'clock in the morning. Having seen the size of the report, will the noble and learned Lord tell us why that request was not acceded to?
Lord Fraser of Carmyllie: My Lords, if the noble Lord wishes to dig a deeper hole for himself, far be it from me to stop him. But I understand that what we proposed as being the appropriate arrangements were very much what Lord Justice Scott considered to be appropriate.
Of course I appreciate that, even if the document had been available at nine o'clock in the morning, as it has 2,000 pages clearly it would be extremely difficult to do more than skim it. But the point that needs to be grasped is that this is a Statement which accompanies the publication of the report. I believe that I have set out fully and fairly what are the Government's initial reactions to it. I should have thought that it would be welcome and useful to your Lordships' House to have some indication of those recommendations that are accepted without question; those areas on which we think there should be further debate; those areas on which we should go out to consultation; and those areas where we consider that we must, with respect, disagree with Lord Justice Scott. That seems to me a proper way to approach the matter, particularly in view of the fact that we have arranged that on 26th February there will be a full debate on this matter in both Houses of Parliament. We shall then have the opportunity for an informed debate on what is contained in the report.
Perhaps I may deal with two particular matters that were raised by the noble Lords who have spoken. In relation to the PII certificates, I took some time in the Statement to indicate that not only did the Attorney-General have the advice of eminent and independent counsel but he understood that he was

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following through a clear line of authority. I cited the names of those judges from which that authority was derived.
The short, simple conclusion should be that, had the Attorney-General decided to go against that independent and eminent advice from counsel, he would have been utterly perverse in the discharge of his duties as Attorney-General. Therefore, I invite the noble Lord to study very carefully what is said in the report about public interest immunity because in my heart of hearts I believe that he will probably accept that the view which the Attorney-General took of the law in 1988, 1989 and 1992 would probably be the same as his own.
Lord Richard: My Lords, is it not right that Matrix Churchill was the first case in which class PII certificates had been claimed in a criminal trial?
Lord Fraser of Carmyllie: My Lords, if the noble Lord finds it difficult to read the whole of the report, he may like to read what I said in the Statement, when I gave an indication of where the very issue of class claims was first considered. If the noble Lord does that he will understand what was the law. He will readily appreciate that subsequent to that there has been a development of the law culminating in the recent ex parte Wiley case.
The noble Lord said also that he considered it to be quite clear that the policy set out in the guidelines had changed. I accept that that is one of the central issues in this report. There are two points that I make about that in repetition of what I said in the Statement. First, those three Ministers who looked at it, and looked in particular at the third of the guidelines which referred to significant enhancement and contained the words "in our view", took the view then that they were justifiably using the flexibility contained within those guidelines. Sir Richard Scott does not agree with that view of it, but he says that Ministers who were looking at the matter then did not do so in the belief that they were changing the policy and he said expressly that they did not do so with "duplicitous intention". I hope that I have answered fully the questions put by both noble Lords. But, really, if access is the only matter, it seems to me that that is a thin response to the report.
4.30 p.m.
Lord Callaghan of Cardiff: My Lords, as no one else has risen to speak, I am happy to do so for a moment. It seems to me that the Government have been in power for so long that they simply have no appreciation of the offence that they cause to senior Privy Counsellors who are asked to subscribe to conditions that I regard as being absolutely offensive and demeaning. I fully understand why my noble friend Lord Richard and the noble Lord, Lord Jenkins, behaved as they did. I probably would have done the same.
That is a minor matter in one sense. The other matter I wish to raise is, I suppose, relatively minor. I believe that the Statement we heard repeated is close to an abuse of normal, parliamentary procedure. It was not wholly, as it should have been, a Statement of the Government's reactions to the report. It was an attack on some honourable Members of another place, which is quite out
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of place in such a Statement. That should have been reserved for the debate. It is clear that the Statement was intended to damage without Members of another place having an opportunity immediately to respond because they were not aware what was in it.
Those two matters are procedural. The third matter I find a little difficult to understand is that, if I understood the noble and learned Lord correctly—I experienced some difficulty in deciding when he was quoting from the report and when he was reading the Statement—Lord Justice Scott came to the conclusion that, when writing letters, the Ministers concerned not only had no intention of deceiving anyone, but also did not realise that there was a difference between what they were writing and the lines of policy that had been laid down.
I am sure that both Ministers will be very relieved at that decision—I would certainly not wish to dissent from anything if that is so—but there is something which puzzles me. Is there any information given in the report, or any reason suggested, as to why a highly intelligent man like Mr. Waldegrave, a Fellow of All Souls and a man of the utmost intellectual distinction, should not have recognised that what he was writing was different from the policy that had been laid down? It seems awfully difficult to understand that someone of that distinction should not recognise the fact that what he was saying was different from the policy to which he had agreed. Is there any explanation?
Lord Fraser of Carmyllie: My Lords, I very much regret if the noble Lord believes that I departed in any way from the practice that is appropriate when repeating such a Statement on the publication of a report. I do not want to weary the House in the limited time available, but I must ask the noble Lord whether, during his time in politics, he can recollect a time of such sustained attacks on Ministers about what might be in a report before it was available to enable anyone to form an opinion? I see that the noble Lord wishes to respond. I give way.
Lord Callaghan of Cardiff: My Lords, I ant much obliged. I believe that the answer is yes. I have in mind the Stanley Report of 1946–47. Anyone who recalls the occasion will remember the sustained attack made upon Hugh Dalton, Mr. Stanley and, indeed, on a number of other people. I must tell the noble and learned Lord in response that it would have been far better and more appropriate if the Government had just published the report and delayed any Statement of theirs for 48 hours so as to give everyone the opportunity to read it.
Lord Fraser of Carmyllie: My Lords, I was aged 18 months at the time, so I hope that the noble Lord will forgive me if I do not remember the report. What had been heralded prior to today's Statement by those on the Opposition Benches in another place was that the report would clearly reveal that a number of Ministers had acted in such a way that their resignations ought to be instant. In such circumstances, it seems to me entirely appropriate that, in putting forward a Statement on behalf of the Government, a number of observations in the report by Lord Justice Scott should he highlighted

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which, far from attacking the integrity of those Ministers, make it quite clear that their conduct remains unimpeachable.
I am also concerned that the noble Lord indicated that he would not have been prepared to submit to the type of conditions that were asked of those who wanted access to the report prior to its publication. I can only repeat that they were not conditions and an approach simply dreamt up by an officious government; indeed, it was what was required of government by Sir Richard Scott who headed up the inquiry. It was in those circumstances that not only were those noble Lords on the Benches opposite invited to sign the document, but so also was the most senior member of Her Majesty's Government, the Prime Minister, who signed such a certificate without demur.
Lord Campbell of Alloway: My Lords, in view of the remarks made by the noble Lord, Lord Richard, can my noble and learned friend the Minister confirm that the Attorney-General correctly advised Ministers that it was their responsibility, and hence their duty, to decide whether to claim immunity and not to usurp the functions of the judge who decided later, having read all the documents, whether they should be disclosed in the public interest? Can my noble and learned friend also confirm that there was no reason—and, indeed, not one has been found in the report which none of us has read—which would lead one to suppose that it would have been right for the Attorney-General to have taken over the personal supervision of a Customs and Excise proceedings?
Can my noble and friend also confirm that, contrary to the suggestion in The Times today, the Attorney-General made no attempt to influence the decision of the Ministers, nor did he make any attempt to influence the decision of the judge? I found the relevant passage in the report by chance. It is to be found on page 1361 of Volume III at G13.76. It says that there was no cause for the Attorney-General to read the documents which would be read by the judge and that he did not do so. In those circumstances, any suggestion of impropriety on the part of the Attorney-General was wholly without foundation.
Lord Fraser of Carmyllie: My Lords, as I indicated when repeating the Statement, there is certainly no attack on the personal integrity of the Attorney-General. I believe that I spelt out in some detail the basis upon which the Attorney-General proffered advice to those Ministers who had to sign PII certificates. In the ensuing circumstances, it seems to me that the law followed through its course exactly as might have been expected: the PII certificates were signed; they were submitted to the court; the court deliberated upon them and ruled on a significant number of them. The outcome of the ruling by the court was that the decision regarding most of the documents in respect of which public interest immunity had been claimed was overturned. The documents were then handed over to the defence counsel in the trial. As I revealed earlier, three of the defence counsel accepted that the way the Government handled the PII certificates was indeed correct. If the Attorney-General had acted other than he did, I believe that it would have been perverse.
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However, there is one criticism of the Attorney-General which was spelt out by Sir Richard Scott. He was concerned that, given Mr. Michael Heseltine's particular views on the subject matter in respect of which he was invited to sign a certificate, the Attorney-General should have made sure that those views were conveyed to prosecuting counsel. I indicated that it is a matter of opinion whether someone in the position of the Attorney-General could have been expected reasonably to have done just that. That is a matter for debate. However, I wish to stress that Sir Richard was in no doubt that the Attorney-General was honest in his belief that it was not for him to do that, and indeed his workload was such that he would be overburdened if he tried to take on that sort of task on every occasion.
Lord Mishcon: My Lords, I appreciate, as I am sure all Members of your Lordships' House do, that it is really useless to comment on the Statement in so far as it refers to the report until we have had an opportunity of reading the report. I wonder whether the Minister can deal, however, with one question. I imagine that he and his colleagues are extremely satisfied with the fair conduct of the inquiry by Sir Richard Scott. I pause to see whether or not the Minister nods his head. I invite him to nod his head. Does the fact that he does not nod his head mean that he does not agree that Sir Richard Scott conducted this inquiry in that way, or is he as wary of making any reply, committal or non-committal, as seems to be the case on this occasion with many of the questions that we have in our minds? I ask him this: if he is content with the fair conduct of this inquiry by Sir Richard Scott, can he explain the conduct of his senior colleagues, past Ministers of Her Majesty's Government, in criticising Sir Richard Scott, as they have done in the media and elsewhere, in the way that, quite honestly, no serious and responsible person could without even having read the report? Was the criticism, for example, of the noble Lord, Lord Howe, and others of his colleagues made on the basis that they thought that the report would be rather more critical of them than it was? Is this the way to treat Her Majesty's judges, and certainly one of the most senior and fine judges that the country has the privilege of having?
Lord Fraser of Carmyllie: My Lords, the noble Lord can scrutinise Hansard tomorrow and read my subsequent remarks. I defy him to find anywhere in my words any personal criticism of Lord Justice Scott. Certainly it is no part of my purpose in responding to questions on this Statement to offer any such criticism. On the contrary, I began by indicating to your Lordships that those who have the opportunity to read this full report will appreciate the extraordinary diligence with which he undertook his task. The noble Lord will appreciate from the Statement that there are a number of matters on which Lord Justice Scott made recommendations which are accepted. There are criticisms which he made that are accepted, and there are a number of issues where, with respect, we do not agree with Sir Richard Scott. That seems to me to be a perfectly responsible position for us to hold, and it is one which we can debate on 26th February.

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I have no doubt that my noble friend Lord Howe is more than able to explain his own views on the fairness or otherwise of the procedures followed by Sir Richard Scott's inquiry. I would simply say that I certainly acknowledge it has been carried out extremely thoroughly. I have not come across anything that I would consider to be, in a crude fashion, unfair. As I say, there are passages with which I do not agree, not least as regards Sir Richard's interpretation of some parts of the law. However, what is interesting and valuable in the report—which no doubt will be of particular interest to the noble Lord—is that Sir Richard considers whether the six cardinal principles set out in Salmon ought to be applied in each and every circumstance where there is an inquiry. He explains forcefully and robustly why he does not believe the right to cross-examination should be afforded on every occasion. I have no doubt that, independent of the substance of this report, the way he has approached that particular issue will certainly give rise to a great deal of debate and interest among lawyers.
Lord Tebbit: My Lords, is my noble and learned friend aware that when I picked up my copy of this report a few moments ago I fell into the familiar trap of most politicians when considering a book or publication about politics; namely, I looked for references to myself? I discovered that I am accused, on page 73, of a reprehensible abuse of executive power in the course of carrying out my duties as President of the Board of Trade. Does my noble and learned friend suggest that I should be more upset at that accusation than comforted by the fact that it is also made against my noble friend Lord Cockfield, the noble Lord, Lord Mason, the late John Smith, Sir Edward Heath and Mr. Peter Shore, to name but a few of the 15 who were accused of abusing executive powers? Does that not make the report slightly extraordinary?
Lord Fraser of Carmyllie: My Lords, I take it that my noble friend is referring to the occasions on which the powers that were available under the 1939 Act were exercised. It is certainly the case that on repeated occasions since the previous war that measure has been used by successive governments. It was a matter that was open to challenge. It was challenged in the Ordtec trial and a decision was made in the Court of Appeal. Notwithstanding the fact that the court upheld the legality of the orders made under the 1939 Act, we should like to look again at the whole issue in the light of the observations that have been made. However, my noble friend might remember that when the particular provisions of the 1939 Act ceased to be temporary and became permanent, that was done with the agreement of the Opposition, and the absence of any provision for even the negative resolution procedure was omitted from the Act with the knowledge and, indeed, possibly, at the instigation of the Opposition.
Lord Harris of Greenwich: My Lords, I wish to ask the noble and learned Lord one question arising from the Statement. He referred to the Learmont Report as being in some way analogous with the one we are
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discussing. Is he aware that that is a nonsensical comparison? The Learmont Report was a limited report on prison security. It raises none of the issues of the Scott Report and therefore the comparison he made in justifying, or attempting to justify, these strange distribution arrangements really does fall pretty flat.
However, on the question of the distribution arrangements, I return to the point made by the noble Lord, Lord Richard. As I understand it, the Government's case is that everything they have done in relation to the distribution arrangements is entirely because of the views of Sir Richard Scott. That is their position, as I understand it. That being so, I ask the noble and learned Lord one question. The noble Lord, Lord Richard, referred to a letter from the Leader of the Opposition in the House of Commons to the Prime Minister in which he asked for these reports to be made available at nine o'clock in the morning. Can I take it that Sir Richard Scott was consulted on that point? Can I also take it that he was opposed to it? Is that the Government's position?
Lord Fraser of Carmyllie: My Lords, it is certainly my understanding that when the suggestion was made that it should be made available from lunchtime, or twelve o'clock, he was in agreement with that. I certainly understand that to be his view. I did not suggest that the Learmont Report was, in terms of physical size, like this report. I referred to the Learmont Report to point out that on that occasion an exceptionally long period of consideration was allowed prior to the Statement. That decision was viewed with gratitude in another place. There have been many larger reports published as parliamentary papers where the period allowed to Opposition spokesmen for consideration has been much shorter than the time permitted on this occasion. It was only for that limited purpose that I made that observation.
Lord Barnett: My Lords, would it be fair to assume, following the noble and learned Lord's 20 minute repetition of the Statement made in the other place after more than three years' work by Lord Justice Scott, which has resulted in a report of 1,800 pages, that there is nothing wrong at all and everything is okay?
Lord Fraser of Carmyllie: My Lords, that is not a fair summary of what I said in the Statement. I recognised that on a number of matters, including the handling of intelligence, there were problems with procedures. I indicated that had those procedures been better it is likely that a different view would have been arrived at in the Matrix Churchill case. I also indicated that on a number of matters it would be appropriate to go out to consultation. I made it quite clear that there was a set of criticisms. I certainly did not indicate that there were no difficulties whatever
What I did set out—and I make no apology for doing so, given the outrageous accusations that have been made against a number of my right honourable and honourable friends in another place—was that this was an entirely suitable occasion to demand of those who have made those accusations, without having seen the report, that they withdraw them unequivocally.

Broadcasting Bill [H.L.]
4.50 p.m.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Inglewood.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (The Viscount of Oxfuird) in the Chair.]
Viscount Astor Viscount Astor moved Amendment No. 187:
After Clause 66, insert the following new clause—
MATTERS RELATING TO CONDITIONAL ACCESS SYSTEMS AND SUBSCRIBER MANAGEMENT SERVICES AND LICENCES TO RUN SYSTEMS
(". After section 191 of the 1990 Act there shall be inserted the following sections—
"Matters relating to conditional access systems and subscriber management services.
191A.—(1) Any person who runs a conditional access system or a subscriber management service in relation to a television programme service shall be required to obtain from the Director a licence for the running of such system or service.
(2) The Director may after consultation with the Commission and such other persons as appear to the Director to be appropriate grant a licence for the running of a conditional access system or a subscriber management service in relation to a television programme service.
(3) A licence granted under this section shall be in writing and, unless previously revoked in accordance with any term in that behalf contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence.
(4) A licence granted under this section may be granted to all persons, to persons of a class or to a particular person.
(5) A licence granted under this section may include—

(a)such conditions as appear to the Director to be requisite or expedient having regard to the duties imposed on him by subsection (9) below;

(b)conditions requiring payment to the Director on the grant of the licence or payments during the currency of the licence or both of such amount or amounts as may be determined by or under the licence; and

(c)conditions requiring any person who is authorised by the licence to run a conditional access system or a subscriber management service to furnish to the Director, in such manner and at such times as he may reasonably require, such documents, accounts, estimates, returns or other information as he may reasonably require.

(6) Without prejudice to the generality of paragraph (a) of subsection (5) above, conditions included by virtue of that paragraph in a licence granted under this section to a particular person may require that person—

(a)to comply with any direction given by the Director as to such matters as are specified in the licence or are of a description so specified;

(b)except in so far as the Director consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified; and

(c) to refer for determination by the Director such questions arising under the licence as are specified in the licence or are of a description so specified.

(7) A licence granted under this section otherwise than to a particular person shall be published in such manner as the Director considers appropriate for bringing it to the attention of the persons for whose benefit it will enure.
(8) Any sums received by the Director under this section shall be paid into the Consolidated Fund.
(9) It shall be the duty of the Director to exercise his function in the grant of licences hereunder in the manner which he considers is best calculated—

(a)to ensure fair and effective competition between persons engaged in the provision of conditional access systems, subscriber management services and services connected with them in particular television programme services;

(b)to promote the interests of consumers, purchasers and other users in the United Kingdom (in particular in respect of the prices charged, the quality and variety of service) of conditional access systems, subscriber management services and services connected with them in particular television programme services.

(10) The holding by any person of a licence authorising the provision of a conditional access system or subscriber management service shall not relieve him of any requirement to hold a licence under section 7 of the Telecommunications Act 1984 in connection with the provision of such a service or system.
Licences to run systems.
191B.—(1) Any person who runs a conditional access system or a subscriber management service within the United Kingdom shall be guilty of an offence unless he is authorised to run such a system or service by licence granted under section 191A above.
(2) A person guilty of an offence under this section shall be liable—

(a)on summary conviction to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(3) No proceedings in respect of an offence under this section shall be instituted except by or on behalf of the Director.
(4) Without prejudice to subsection (2) compliance with this section shall be enforceable by civil proceedings for an injunction or interdict or other appropriate relief.
(5) In this section and in section 191A—
"conditional access system" means any system or apparatus designed or adapted for the origination, initial transmission and final reception of signals for the actuation, operation or control from another place of other apparatus by means of which such signals comprising encrypted television programme services (save for such services which are broadcast in digital form) broadcast for general reception may be received and decrypted.
"subscriber management service" means a service provided to any person operating a conditional access system or to any other person in connection with television programme services (save for such services which are broadcast in digital form) provided or transmitted by another person whether or not that last person is in the United Kingdom for billing or payment handling in respect of charges for and payments received from viewers of encrypted television programme services broadcast for general reception in the United Kingdom. Broadcast shall include transmission by wire or other electromagnetic means.
"Director"meanstheDirectorGeneralof Telecommunications.".").
The noble Viscount said: The amendment enables the Government to extend their own code on conditional access to encryption services from digital satellite services to analogue satellite services. Perhaps the Committee will allow me to explain. The principle is simple, even if the technology is slightly complicated.
At present the only encrypted programmes available in this country are analogue channels broadcast by BSkyB, which are subscription channels. Encryption means that the signal is scrambled and the viewer, to see the broadcast, has to have a black box with a card. The card one pays for when one subscribes; it is the means by which the broadcaster collects his revenue.
The Government have rightly recognised that those who control the delivery systems should not unfairly bar others, subject to reasonable terms and conditions, from access to the system to transmit their programmes. As a result, the Government announced in their new framework for digital television in January this year that it was proposed that the regulation of conditional access would be by way of licence conditions issued by the DTI and enforced by Oftel. That was good news for all except the ITC which, having long called for that safeguard, found that it was not to be the ITC but Oftel which would be the proposed regulator.
I believe that my amendment is important because on closer inspection of the government proposals it became clear that the new rules affect only digital transmissions and not analogue transmissions. Earlier in the Committee stage, speaking to an amendment proposed by the noble Lord, Lord Thomson of Monifieth, my noble friend the Minister said that conditional access to analogue systems was a "transitional and temporary matter". That is why this protection was not included.
Nearly 25 per cent. of the homes in this country currently receive analogue services. As the noble Lord, Lord Donoughue, has said, the analogue system may be used by at least 50 per cent. of those with such systems for the next 15 years. That is also the industry's view. It cannot even suggest a start date for digital transmissions. In relation to an earlier amendment the Government would not give a firm switch-off date for analogue. Digital broadcasting involves a new set-top box. It takes time to change. Therefore, this is hardly a transitional or temporary problem.
My noble friend also said that conditional access was covered by general competition law and any amendment would impose unnecessary burdens. If that is true why do we need a whole new set of regulations for digital broadcasting? Why is that not also covered by existing competition law? It is the same issue and the same problem.
It is a problem now because the Office of Fair Trading, following complaints from some cable operators, announced in December that it was to conduct a review of the issues relating to the supply of programming. It is of particular importance because cable companies provide the access while BSkyB is not only provider of access but also a main provider of programmes. The Office of Fair Trading has said that it expects its review to take up to six months. That means that it could be completed after the Bill has gone through Parliament.
My noble friend also said that any shift in regulating the current market would undoubtedly damage investor confidence in the opportunities for digital terrestrial broadcasting. I do not believe that there is a shift, because the OFT demanded the same safeguards in informal undertakings by BSkyB. It is into those informal undertakings that it is now inquiring. Secondly, any investor in digital broadcasting will be subject to exactly the same conditions announced by the DTI and as proposed in the amendment before being granted a licence by Oftel.
My noble friend's final point was that the Bill was concerned with digital transmission in the future. I have to say to my noble friend that even a cursory glance at the Bill's explanatory and financial memorandum shows that it is also about ownership and the control of current analogue systems. We have heard a great deal about digital transmission both in Committee and at Second Reading. Digital broadcasting is undoubtedly the future. It is also in the future, and will not arrive for some time in the future.
My amendment has one other small advantage. It will encourage the use of a single satellite set-top box. The analogue market is far from being unimportant and transitory: quite the opposite. New channels are launched all the time.
Parliament must act now and put these safeguards in the Bill. If we wait for the outcome of the review it will be too late. My amendment follows and extends the Government's own policy. It protects those in the industry and it protects the consumer. I beg to move.
Lord Thomson of Monifieth: The noble Viscount puts a reasoned and reasonable case to the Minister on the question of conditional access in relation to analogue broadcasts. I await with optimism the Minister's response to the arguments.
I spoke at length on the general arguments in favour of conditional access to both digital and analogue broadcasts earlier in the Committee stage and I shall not repeat those arguments. However, I shall say a word about one matter the noble Viscount mentioned, namely, the position of the Director General of Telecommunications under the amendment as against the position of the ITC.
There is a problem which would still need to be examined if the Minister were prepared to accept the general thrust of the noble Viscount's amendment. It applies in particular to subsection (9)(b) of the proposed Section 191A of the amendment. The subsection includes the phrase,
"subscriber management services and services connected with them in particular television programme services".
There is a real issue of conflicting responsibilities between the ITC, which is the regulator of programme standards in this country, and the Director General of Telecommunications.
The noble Viscount raises the general issue of having a licensing system for analogue broadcasting. In Committee on 8th February, Hansard reports me as having said that I was "battered" by the Minister's refusal to do for analogue what he was ready to do for

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digital. The Minister would never use the verb "to batter" in his arguments. He is too courteous and reasonable. The word that I used was "baffled". I am bound to say that I shall remain baffled if he does not accede to the persuasive arguments put to him.
I am reinforced by a piece of evidence from the managing director of General Cable, who wrote to my noble friend Lord Ezra. Mr. Philippe Galteau said, and I quote him directly because I believe that it is relevant to the issue:
"Experience has shown that BSkyB has been able to create a de facto monopoly, which it abuses, by developing a proprietary encryption and conditional access system, called Videocrypt.
"Some 3 million Videocrypt decoders have been purchased by customers who can receive Direct to Home (DTH) satellite TV.
"Programmers attracted by the UK market have to deal either with BSkyB on BSkyB's conditions or sell their services to cable operators, who presently gather 1 million TV customers.
"This enables BSkyB to impose its conditions on both programmers and cable operators, and to customers ultimately. As an example, the price was increased by about 20% in October 1995, and customers have to buy the full basic package before they can access the pay channels of their choice, movies or sports".
I put that on the record as evidence that there is a problem to be dealt with.
I note that The Times reports—as the noble Viscount mentioned—that the OFT is investigating industry complaints that BSkyB is abusing its dominance of the pay TV market. I note the point that the noble Viscount made: that that investigation is almost bound to run for a longer period than the processes of the Bill in this House and another place. The argument for doing something about conditional access in relation to analogue is now very strong. The noble Viscount quoted the noble Lord, Lord Donoughue in saying that the system will last for another 10 or 15 years. It will last, I think, well into the next century. There is a real need to regulate now. Having had some opportunity to meditate on these matters since my earlier approach, I hope that the Minister will give us a favourable reply.
5 p.m.
Lord Donoughue: I believe—it is the view of this side in this House and in another place—that this is one of perhaps the three most important issues in the Bill. The issue will not go away for the Government; it will keep coming back unless the Minister feels able to do the sensible thing and move a little closer to our position.
It is absolutely crucial to regulate the control gateway—the black box decoding system. There are two aspects involved. First, the general need to fill what one might call the analogue gap until digital arrives; and, secondly, related to that issue, the more specific problem that Sky is both the black box controller and the programme provider. That gives scope for abuse which needs regulating now. The noble Lord, Lord Thomson, cited one example. We know that there are others.
That is the heart of our concern. It is a serious concern. There is a real problem. However, I am bewildered—I do not say that I am baffled as there are problems with that word—because the Government
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have provided us with an excellent solution for licensing digital which is attached to the Bill. We are all happy with the solution but it applies to the dim, distant and perhaps murky future. We do not ask the Government to make different provision. We ask them to make the same excellent provision for analogue now, when the real problems exist, that they have suggested for the future.
Having observed what an intelligent and flexible man the Minister is, I cannot believe that he is personally associated with this blind inflexibility to the suggestion of his noble friend his predecessor, who in his years in the job learned a great deal about the situation. That is why on this side we were happy to rally behind the noble Viscount although we did so less often when he was at the Dispatch Box.
I suspect that the Department of Industry is behind this aspect. It has all the "sniffy" waffle and lack of clarity that has characterised that department through history before the present Administration. I should like to give the Minister a little support, and a little nudge to strengthen him if he has to deal with those people. If so, all my sympathy is with him.
I shall not delay the Committee longer because we started the debate late and we have spoken on the matter previously. However, I believe that it is a most critical issue. There is a clear solution. The solution has been devised by the Government. All that is needed is for the Government to apply to analogue what they are doing for digital. I support totally what the noble Viscount, Lord Astor, suggested. As I said, the issue will not go away.
Lord Chalfont: I am sure that the Committee will agree with the description of the Minister. He has virtually acquired angelic status in the House since the Bill began. It is also true to say that we all realise that he is not entirely master in this context. However, the arguments that impressed me in favour of the amendment are those about the uncertainty of the development of a digital regime. Those have been well put. Digital will be expensive. It will suffer from the chicken-and-egg argument about whether the manufacturers will build the sets so that the broadcasters can broadcast to them or whether those people will delay the building of the sets until they see an effective broadcast system. That will lead to delay.
Other issues will lead to delay. We have only to consider what happened when the format of video cassettes changed, or when we moved from tapes to compact discs. Those technical changes take time. I am impressed by the argument that we do not know when the digital regime will be fully implemented. Therefore, as the noble Viscount, Lord Astor, and the noble Lord, Lord Donoughue, said, careful consideration must be given to what happens in the gap, so to speak. I hope very much that the Minister will persuade his right honourable friend and his colleagues that the matter needs to be considered seriously.
Viscount Caldecote: I regret having to speak against the amendment proposed by my noble friend Lord

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Astor, particularly since he has been extremely helpful and constructive in the discussions that some of us have had on other provisions in Part IV of the Bill.
While there may not be anything very bad or wrong about the amendment, there is no need for it. It is a good principle of legislation that one has the minimum of legislation. If we tried to pass laws that would cover all possible contingencies—all the nasty things that might happen in the future—we would be in an unhappy state.
Videocrypt was developed by BSkyB, which owns it. However, it has never refused any applicant who has asked to be allowed to use the system. Only 10 out of the 30 encrypted channels are owned by BSkyB. There is plenty of room for others. If a monopoly or unfair trading situation arose in the future, it could be dealt with by the legislation under the Monopolies and Mergers Commission and the Office of Fair Trading. There is nothing wrong with the amendment. It is just totally unnecessary and will produce more bureaucracy and red tape. It is also hardly in line with the Government's excellent policy of deregulation.
Lord Donoughue: Before the noble Viscount sits down, perhaps he will help me on one point. If the approach in the amendment is not necessary for the analogue system, why is it necessary for digital, as the Government propose? Will the noble Viscount assure the House that he will oppose the Government introducing it for digital?
Viscount Caldecote: I shall certainly not oppose that because it is in the future. As many noble Lords, including the noble Lord, Lord Chalfont, have said, a big new world has been brought about by digital technology. It is for the future and we need to be careful about it. The clauses dealing with it are fully justified because we are moving into an unknown area, with an enormous number of new channels available. In opposition to the amendment, we have experience of what has happened in the past few years. There has been no abuse and therefore the amendment is unnecessary.
Lord Donoughue: Before the noble Viscount sits clown, will he agree that the black box technology is technology-neutral between analogue and digital? Therefore, logically he should take the same approach to both. Either he opposes a statutory attempt to deal with it or he supports it in both cases. I cannot see the logic of taking one position for one and a different position for the other.
Viscount Caldecote: Perhaps the noble Lord will allow me to take my own view. He will not press me into changing my mind by telling me that it is illogical. I am telling him why I think that it is logical. We must agree to disagree.
5.15 p.m.
Lord Colwyn: I must also apologise to my noble friend Lord Astor for the fact that I shall speak against his amendment. It worries me that when the Government have succeeded in cutting huge swathes from the forests of regulatory red tape which surround our industries, he is seeking now to introduce new ones
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in their place; that is, restrictive regulatory frameworks which serve no other purpose than to stifle the very incentives needed to attract new risk capital and investment to ensure the success of this young and exciting industry.
The amendment, if accepted, will introduce new, burdensome licensing requirements for analogue conditional access systems when there is absolutely no reason for doing so. Furthermore, it would send a message to other new technology industries that investment and success will be penalised through more restriction and regulation.
It does not stop there either. It would also introduce even more licensing requirements for television subscriber management services. Such a cavalier and ill-conceived approach to new regulation is disturbing, particularly when one examines the levels of free and fair competition that already exist in the markets into which it has been introduced.
Perhaps I could deal with the new licensing requirements for analogue conditional access first. We have heard from the noble Lords, Lord Thomson and Lord Donoughue, that the requirements are necessary because BSkyB has monopoly control over Videocrypt, the dominant analogue conditional access system in the UK. They say that new competitors could be exploited or prevented from entering the market altogether. That is simply not true.
In the six years since BSkyB pioneered its conditional access system, no applicant for its use has ever been turned away. Indeed, we have heard that there are now more non-Sky channels than Sky channels which use Videocrypt in the UK. It is actually in BSkyB's interest to expand the number of UK satellite channels. Quite simply, the more channels there are, the more customers there are and the bigger the audience.
In fact, instead of restricting competition, it is my view that BSkyB has fostered competition. It has created a conditional access system available to all. The UK Gold, the Discovery channel, the Children's channel and TV Asia, to name but a few, have all been able to tap straight into an established market. Ironically, without Sky it is questionable whether those competitor channels would exist at all. Like Sky, they do not enjoy automatic access to every television home, as do the terrestrial TV services, nor guaranteed income from a compulsory TV licence.
BSkyB has had to build its distribution system and audience, home by home, without the terrestrial broadcasters' privileges. Thanks to its original investment and willingness to take risks, new channels are able to gain access to new audiences at low additional cost and at a fraction of the risk. In any case, any abuse that occurred would be adequately dealt with by existing regulators such as the OFT, the MMC and the European Commission Competition Directorate.
Viscount Astor: If that is the case, why do we need conditional access for digital? Why cannot that be done under the same OFT? Neither of my noble friends seems able to answer that question.
Lord Colwyn: We are attempting to answer that question and the reply will come out as we proceed.

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BSkyB has had to build its distribution system and audience, home by home, without the terrestrial broadcasters' privileges. Thanks to its original investment and willingness to take risks, new channels are available at a fraction of the cost.
So where is the logic of this new regulation? What is the point of introducing licensing controls when there is no market abuse? The noble Viscount, Lord Astor, suggested that there was a potential for abuse. But I fail to see how he has arrived at that conclusion. It is clearly in BSkyB's interest to let as many companies use the Videocrypt system as possible.
There is an equal, if not greater, case against the amendment with regard to the question of licences for television subscriber management systems; that is, the billing, payment and customer service aspects, apart from the encryption and decoding functions of conditional access. What is the reason, I ask the noble Viscount, for introducing new licences for those when there are identical unlicensed systems used by cable companies and other UK industries? Would he intend, for example, to introduce licences for subscriber management systems used by American Express, Lloyds Bank and other financial and credit card operations? Furthermore, there are already at least two other UK-based satellite television services which use subscriber management services separate from that used by BSkyB and numerous other European systems such as those used by the French CanalPlus and Premiere in Germany. In short, anyone can create their own subscriber management service. There is nothing particularly complicated or exclusive about it. Consequently, there can by definition be no gateway control and no need for burdensome regulations.
To sum up, I see no reason for new regulations in either the market for analogue conditional access systems or that for subscriber management services in analogue or digital television. The equitable and balanced status quo should remain.
The Earl of Stockton: I find myself in the happy position of being able to support my noble friend Lord Astor on this occasion. We are talking about ensuring that there is as prompt a transition as possible. His amendment is exactly in line with one that I tabled at an earlier stage in Committee to try to persuade the Government to put a finite date to the end of analogue transmissions. On that basis, I have to support him.
Lord Inglewood: Today, as last week, we have had an extensive and helpful debate on regulating conditional access and subscriber management. Perhaps I may begin by commenting to the noble Lord, Lord Thomson, that it is no part of my purpose either to baffle or batter him. If I had to do one or the other, I would rather baffle him.
I was pleased at the support that your Lordships gave to the proposals which the Government published on 15th January for regulating conditional access services for digital television, transposing the provisions of the EU Television Standards Directive of October last year into United Kingdom law. This amendment concerns the
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separate question of introducing a new regime for the existing conditional access services for analogue television which already fall within the scope of competition policy. As I said last week, the Government have considered this matter carefully but do not agree that a new system of regulation for analogue conditional access would be justified at this stage in the development of that market. I should like to repeat the case that I made last week and to do so in a concise way, not because I want to give the Committee short measure but because we have covered much of the ground already and I do not want to take up the Committee's time just for the sake of it. We take that view, as a deregulatory government, for three main reasons.
First, the analogue satellite market extends to only about 15 per cent. of UK households. We do not expect this market share to increase substantially because digital satellite is likely to be introduced within a couple of years and to replace analogue satellite equipment relatively quickly thereafter. Digital conditional access, by contrast, is likely to become important for virtually all UK households, and accordingly justifies a specific regulatory regime over and above normal competition law—as is clear from the EU directive, which quite specifically confines itself to digital conditional access. We have, as is only right, let potential investors in digital television know of the future regulatory arrangements in advance, before they commit themselves to substantial investments.
That brings me to my second point, which concerns fairness, investment confidence and regulatory stability. The amendment would change after the event the rules for operating in the time-limited analogue satellite conditional access market. The Government's reputation for promoting regulatory stability should not be jeopardised unless there is exceptional justification. The United Kingdom has been highly successful in attracting international investment precisely because the Government have earned the reputation over the years for not introducing new regulation unnecessarily and for not standing in the way of investors earning a return on successful projects. BSkyB's analogue satellite business has involved it taking very significant commercial risks, and it has continued to invest heavily in the business to promote its successful growth. We see the benefits of that investment around the UK, not least in employment in Scotland. If we move the regulatory goal posts now in the manner proposed, we also specifically risk jeopardising the investment confidence of prospective investors in digital television. They may well fear that if they start to earn profits on a risky investment in a few years' time, the Government will change the regulatory regime to their disadvantage. I therefore ask the Committee to consider most carefully the wider implications of this amendment.
The third reason is that competition policy offers proper safeguards. The Director General of Fair Trading is currently reviewing BSkyB's supply of programming to the analogue market, as mentioned by a number of noble Lords. I invite any noble Lords who are aware of evidence of such behaviour to ensure that it is brought to the attention of the Director General of Fair Trading in the context of his current investigation. The review is highly relevant to our debate. Any impact of BSkyB's

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conditional access market dominance on others affected by it can be assessed by that review. The Government believe that a proper process of inquiry by the competition authorities is the best way of responding to the concerns expressed today, which are entirely connected with the possible economic effects of an alleged abuse of a dominant position. Also, competition law has both domestic and European aspects. Where the operator of the only product abuses that monopoly position, those affected can make representations to the European Commission or challenge abuse in the courts, using European law.
I recognise the serious concerns which have been expressed during the debates on this subject in Committee. In restating that the Government, with their commitment to deregulation, do not regard the case for specific regulation as having been made, I am not seeking to deny those concerns. I am merely saying that the existing processes are adequate to deal with any mischiefs in the existing analogue market. For those reasons, the Government remain opposed to the amendment.
Viscount Astor: My Lords, I feared earlier that I would be unable to persuade my noble friend the Minister this afternoon. I listened with great care to what he said. I also listened with care to what others have said and I am very grateful for the support of the noble Lords, Lord Thomson of Monifieth, Lord Donoughue and Lord Chalfont. There is support for this amendment from all around the House and I hope that my noble friend recognises that fact.
A couple of points were raised by my noble friend Lord Caldecote who asked why a review was needed if these things were not happening. The simple answer is that there is a review taking place by the OFT. There have been complaints and it is looking at informal assurances made by BSkyB to OFT. That is one of the reasons that the review is needed. There are current complaints.
My noble friend Lord Colwyn said that it was new regulation and spoke of a "cavalier" approach. I am not making any new regulation. I am just taking the Government's own exact regulation and saying that it must cover analogue as well. My noble friend said that no one had been turned away, and that may be true. But if there is any market abuse—I do not say that there is at all—it is not a matter of people being turned away but of the terms and conditions on which they are allowed to join. That is what is important. My noble friend also said that the amendment might affect credit card operators and the like. That was suggested to me by BSkyB and I have to say that it is a little piece of mischief-making by that organisation. My amendment does nothing of the kind.
My noble friend Lord Colwyn said that there were European systems which could be used by anybody wishing to broadcast in this country. Of course there are European systems, but that means that anybody who wanted to see them would have to get a new black box. One of the purposes of the Bill is to look forward so that no one has to have stacks of black boxes on top of or below the television.
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The industry and the consumer need protection. My noble friend said that some could make a challenge in the courts. But consumers cannot do that. They do not have the ability. Parliament must protect those people. He also said that digital satellite broadcasting was likely to be introduced in a couple of years. But that is a claim that not even BSkyB makes. It is unable to say when it will start broadcasting satellite digital programmes and certainly it cannot say when it will cease broadcasting satellite analogue programmes.
I accept that I have been unable to persuade my noble friend. But I listened carefully to what he said and felt that there were some points between us that we might take forward between now and Report stage. I realise that this is an area where we transgress onto the DTI's policy. But if the DTI believes that analogue is yesterday's technology and if that is its understanding of broadcasting, perhaps, after all, I should have named the ITC as regulator—I see the noble Lord, Lord Thomson, nods his head—and not Oftel.
I shall not give up now. I shall not press my noble friend. I hope he will agree that between now and Report stage he will let me come and persuade him and his colleagues of the necessity of my amendment. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 188 and 189 had been withdrawn from the Marshalled List.]
[Amendment No. 190 not moved.]
5.30 p.m.
Lord Donoughue Lord Donoughue moved Amendment No. 191:
After Clause 66, insert the following new clause—
REGULATION OF TELEVISION PROGRAMME SERVICES
(" After section 194 of the 1990 Act there is inserted—
"Regulation of television programme services.
194A.—(1) The Secretary of State shall when it appears appropriate to him review the exercise by the Commission and the Authority of the duties placed on each of them under Parts-I, II and III of this Act with a view to determining the effectiveness of the regulation of television programme services, local delivery services and independent radio services.
(2) In carrying out the review under subsection (1) above the Secretary of State shall consult with such bodies or people as he considers appropriate.
(3) In carrying out the review under subsection (1) above the Secretary of State shall have regard to the duties and functions of the following in relation to the provision of programme services—

(a)the BBC;

(b)the Welsh Authority;

(c)the Director General of Fair Trading;

(d)the Director General of Telecommunications,

and shall have regard to technological changes in the methods of delivery of programme services.
(4) In subsection (3) above "programme services" has the same meaning as in section 201 of this Act but includes programme services provided by the BBC and the Welsh Authority.
(5) The Secretary of State shall lay a report on the outcome of the review undertaken under subsection (1) above before both Houses of Parliament.".").
The noble Lord said: This is a probing amendment. Our objective is to elicit the Government's views on the general future of regulation in broadcasting and telecommunications. The amendment would give the Secretary of State a duty to review the regulatory process when he considers it appropriate to do so and to lay a report of that review before both Houses of Parliament.
Perhaps I may tell the Committee the background against which we propose the amendment. There are very many organisations involved in the regulation of broadcasting and telecommunications—organisations such as Oftel, the ITC, the Radio Authority, the Office of Fair Trading and the Monopolies and Mergers Commission. With convergence of technologies—a feature often referred to in our discussions on the Bill—there is likely to arise confusion, contradictory decisions and overlapping responsibilities within the regulatory bodies.
The cable companies are such an example. The scope for confusion in that regard is considerable. The DTI licenses the telecommunications side of their business but Oftel manages the licences. The MMC can intervene if they are unwilling to accept changes to their licences; the ITC awards and regulates their franchises. Those same cable companies could under other hats deal with other regulators such as the Broadcasting Standards Commission, the Broadcasting Complaints Commission, the Advertising Standards Authority and the Independent Committee for Supervision of Telephone Information Services.
At worst it is a jungle, at best a network of regulatory bodies dealing with what is increasingly becoming a unitary technology. The existing regulatory structure was not designed to deal with the convergence of emerging technologies. The Bill does not consider the issue at all. We believe that there should be a review of the existing structure of regulation, and it is that point that the amendment seeks to put forward.
Against that emerges the question of whether there should be a single communications regulator—an issue I floated at Second Reading. I remind the Committee that the All-Party Select Committee on Trade and Industry, when looking at the matter in 1994, concluded and recommended that:
"the Government review the structure of telecommunications and broadcasting regulation in order to ensure consistent principles and clear responsibilities in all matters relevant to broadband regulation and development … that there may be an independent review of the powers of regulators and how they could be made more accountable".
The amendment seeks the Government's response and their thinking on the issue and provides the opportunity for debate. I beg to move.
Lord McNally: I support the noble Lord, Lord Donoughue, and the spirit in which he moved the amendment. I add a warning, however, which may differ from the emphasis he gave to his argument at the end of his remarks.
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There may be too many regulatory bodies in broadcasting, but there is a danger in moving towards a single body that that body will become more obsessed with the technology of broadcasting and less concerned with the content. In reviewing those matters, will the Minister keep in mind that the regulation of broadcasting is not just about the regulation of technologies? There need to be regulators who have sympathy for and understanding of programme-making. If that were lost in any consolidation, it would be a loss to broadcasting in general.
Lord Inglewood: I am grateful to the noble Lord, Lord Donoughue, for explaining the probing nature of this amendment.
In introducing this Broadcasting Bill the Government are presenting it, not as a cure for all the ills of the sector, but as an important interim response to the growing tendency in the market for convergence and to the major technological development which digital represents. We certainly think it is too early to present a fully-formed blueprint for the future regulation of the industry. Moreover, we feel that the new institutional structure introduced by the 1990 Act is working well. Radio has flourished under a separate Radio Authority. The ITC has successfully presided over the revised licensing arrangements for commercial television and operates effectively alongside Oftel in regulating cable services. And as we discussed earlier this week, we in the Government think it is wrong to start absorbing the specific regime of media ownership controls into general competition law.
As I have said, in some ways this Bill can be seen as an interim one. The noble Lord argues that by providing this new clause the Government will be able to undertake the review he urges whenever the time seems right. I think it more than likely that in due course the Government may well conduct a review very much along the lines he suggests—indeed I do not see any need for statutory authority to do that and so the amendment does not take the matter forward in that respect. It is also, of course, true that the debate on the means of regulating a very different future structure of information services has already been started, notably in the past year's Oftel consultation document and in the Government's own document, also published last year, about possible models for long-term media ownership controls.
The Government will continue to listen to the debate, and it is entirely right that the noble Lord should have taken the opportunity of ventilating those issues today. However, I should like to add a couple of points about the terms in which he urged his case. He referred to the need for a single independent regulator for broadcasting and invited the Secretary of State to review the regulation of television programmes by the various existing regulators. I rather wonder whether a single all-powerful regulator for broadcasting, or even one whose powers in a multimedia future range more widely, is what we want in a healthy democracy. I must also enter a caveat that I do not think it would be right for the Government to review the operational detail of the broadcasting regulators' individual decisions on a

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case-by-case basis, above all as regards programme content. Those are delicate matters which quite deliberately have been put at arm's length from government.
Nevertheless, I entirely accept that the structure of regulation and the regulators' respective responsibilities are very likely to be scrutinised further before too many more years have passed. I hope that that further exposition of the Government's position has served to answer some of the noble Lord's underlying concerns. I hope it has enabled him to achieve his purpose in moving the amendment.
Lord Donoughue: I thank the Minister for that reply which was a helpful response to my probing amendment. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendment No. 192:
After Clause 66, insert the following new clause—
RESTRICTED TELEVISION BROADCASTING SERVICES
(" .—(1) After section 2(1)(b) of the 1990 Act there is inserted—
"(c) restricted television broadcasting services within the United Kingdom."
(2) After section 2(4)(c) of the 1990 Act there is inserted—
"(d) a restricted television broadcasting service as defined by subsection (7)"
(3)After section 2(6) of the 1990 Act there is inserted—
"(7) In this and other Parts "restricted television broadcasting service" means (subject to subsection (6)) a service consisting in the broadcasting of television programmes for general reception in a "restricted area" of the United Kingdom (as defined by section 46(6)) by any person holding a licence issued under the terms of the Wireless Telegraphy Act 1949 for use of "unused broadcast spectrum" (as defined by subsection (8)).
(8) In this Part "unused broadcast spectrum" is any analogue or digital radio spectrum assigned to the Commission by the Secretary of State for television broadcasting services which is not in use to provide television broadcasting services for general reception."
(4)For section 46(1) of the 1990 Act there is substituted—
"(1) In this part "licensable programme service" means (subject to subsection (2)) a service consisting in the provision by any person of relevant programmes with a view to their being conveyed by means of a telecommunication system or as a restricted television broadcasting service where restricted television broadcasting service is defined by section 2(7)."
(5)After section 46(5) of the 1990 Act there is inserted—
"(6) A "restricted area" is—

(a)an area of the United Kingdom in which the population is not greater than 800,000 adult residents which includes only one centre of population with more than 350,000 adult residents, or

(b)an area of the United Kingdom in which the population is not greater than 500,000 adult residents which includes no individual centres of population with greater than 150,000 adult residents.".").

The noble Baroness said: In moving Amendment No. 192, I shall speak also to Amendments Nos. 193 and 194. This is a probing amendment, though perhaps a long one.
We have had a theme running through our discussions on the Bill in relation to the opportunities that the changes will provide in regard to local and regional
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services. At Second Reading (at col. 471 of Hansard) the Minister referred to regional and local television programming and the increased demand for that. Not dissimilar words were used by the Minister in another place when the 1990 Broadcasting Act was being debated, particularly in regard to cable. That was to be a whole new vision; it was to provide many and varied local services. As we are all aware, that did not happen.
Our concern is that, although the Bill may lay the ground for local services to take off, that will not happen. We are talking not only about local television services for entertainment. Local services will be useful in the field of education—university and local education courses—and local community activities. Those kinds of services should be developed.
It is possible to make local TV work. Work done by the Institute of Local Television suggests that small-scale television services can take off. They are popular in North America, Europe and Australia. A recent independent study carried out by Scottish Enterprise of Edinburgh City's plans for a local city TV service suggested that there would be an increase in advertising revenue and in the overall media and advertising employment within the city.
The amendments seek to lay down the groundwork which will enable the ITC to make life easier for small TV services to obtain licences. They are probing amendments. We want to hear what the Minister has to say because we cannot find much in the Bill that will encourage local services to get off the ground. I beg to move.
Lord Thomson of Monifieth: I am happy to support the noble Baroness, Lady Dean. It has always seemed rather a paradox that whereas one of the most popular aspects of television is the regional aspect, particularly with the special structure associated with ITV, there has never been the encouragement to move on from regional television to genuinely local television—city television and local voluntary channels of one kind or another, as the noble Baroness has just said. It was generally felt that the advent of cable was a great opportunity for that to develop. The Cable and Broadcasting Act 1984 did not make any of this mandatory, partly in the belief that those who took on cable would want in their own interests to explore this development. Section 7 of the Act deals with community obligation but not in a mandatory way.
What has happened in practice? By 1990 there were 135 cable proposals. All of them made fine promises about local services, especially the kind of community services to which the noble Baroness referred. What is the reality now? We are going backwards. In 1989 there were five distinct local channels on 11 franchises—very nearly half. By 1995 there were 11 out of 88—a fall from a half to one-eighth. It has been very disappointing.
When Channel 5 was originally conceived some imaginary proposals were put forward for city television. Perhaps digital multiplexes will offer new opportunities. In the meantime, as the noble Baroness has said, this is a probing amendment to try to introduce fair and equal access for small-scale broadcasters and

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community and educational providers to local cable where currently access is determined by the cable companies entirely on their own terms. I hope that we shall have a sympathetic response from the Minister to these ideas.
Lord Inglewood: I, too, shall take these amendments together. The Government agree with the intention of Amendment No. 192. In my opening remarks during the Second Reading debate, I explained that we would be bringing forward government amendments on a number of technical issues relating to the 1990 Act following representations we have received from the regulators. This is one such issue. I apologise to the Committee that the amendment is not yet in a fit state to lay before your Lordships in time for this debate. It is our intention to table a government amendment on this before Report. In the absence of our amendment, the Committee may find it helpful if I briefly outline our thinking on this topic.
The ITC has convincingly made to us, and we have therefore accepted, the case for a licensing system for television similar to the restricted service licences which the Radio Authority issues to great effect for both local community services and special event broadcasts. The amendment which is being prepared achieves the result at which the noble Baroness aims but in what we believe is a more straightforward manner. It is our intention to empower the ITC in almost exactly the same terms as apply to the Radio Authority for its restricted service licences set out in the 1990 Act. Unlike this amendment, we do not propose to set any strict definitions as to the size of the area to be served by a restricted licence but to leave that to the discretion of the ITC.
Your Lordships will be aware, as has often been mentioned during the Committee's consideration of the Bill, how quickly technology develops in the broadcasting sector. The Government do not, therefore, want to be too prescriptive in statute, when an effective regulator such as the ITC will be better placed to judge whether a particular applicant is best suited to be granted a television restricted service licence. The Government are keen to see the development of local television services both on free-to-air and cable and television services at special events. The amendment we shall bring forward will enable such services to develop. I hope, in the light of my assurances that the Government agree with the principles behind the noble Baroness's amendment and that we will bring forward a considered amendment, that she will agree to withdraw the amendment before us today.
I shall now move on to Amendments Nos. 193 and 194. I too shall begin with reference to the Broadcasting Act 1990 when the Government envisaged that the provision of local television services would develop on cable. While I appreciate that some may feel that the opportunities have been slow to materialise, this is a sector which is now growing more rapidly and there are signs that many of the cable operators are interested in providing local television services over their systems. Further opportunities for local programming suppliers
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will be offered by the advent of digital services and the proposed new class of licence for restricted services which we have just been debating.
Amendments Nos. 193 and 194 would impose financial burdens which are both unnecessary and damaging on the still developing cable companies at a time of expansion. We have already debated the "must carry, must offer" concept which is repeated in these amendments, and I have indicated to the Committee that I shall consider the matter further.
The Government do not believe in subsidising the independent broadcasting sector, which is thriving without our support. Both these amendments offer substantial interference to the broadcasters, who are best placed to judge the wants of the community and promote a subsidy financed in such a manner as to jeopardise the growth of the cable sector. My department is already aware of a number of expressions of interest in establishing local television services under the proposed television restricted service licence which are not seeking subsidy. The ITC may also be aware of some more. I am sure that many more will come forward once the Bill is enacted. The creation of the separate category of local and short-term licence will ensure that local television will blossom without, we believe, the need for either intervention by the ITC or subsidy from the cable sector. It is for those reasons that we oppose the amendments.
Baroness Dean of Thornton-le-Fylde: With regard to Amendment No. 192, the Minister's response was helpful and goes in the right direction. We look forward to seeing the amendment and we shall consider it when it is brought forward. At this point, and with the permission of the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193 and 194 not moved.]
5.45 p.m.
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendment No. 195:
After Clause 66, insert the following new clause—
PROMOTION OF EQUAL OPPORTUNITIES
(".—(1) After section 45(3) of the 1990 Act there is inserted—
"(3A) Section 38 shall apply in relation to any licence to provide a non-domestic satellite service granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(2)Any non-domestic satellite service licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 45(3A) of the 1990 Act.
(3)After section 47(8) of the 1990 Act there is inserted—
"(8A) Section 38 shall apply in relation to any licence to provide a licensable programme service granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(4)Any licensable programme service licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 47(8A) of the 1990 Act.
(5)After section 55 of the 1990 Act there is inserted—
"55A. Section 38 shall apply in relation to any licence to provide additional services under Part I of the 1990 Act granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service".
(6)Any additional services licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 55(A) of the 1990 Act.
(7)After section 73(7) of the 1990 Act there is inserted—
"(8) Section 38 shall apply in relation to any licence to provide a local delivery service granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(8)Any local delivery service licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 73(8) of the 1990 Act.
(9)After section 104(7) of the 1990 Act there is inserted—
"(8) Section 38 shall apply in relation to any licence to provide a local or satellite service under Part III of the 1990 Act granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(10)Any local or satellite licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 104(8) of the 1990 Act.
(11)After section 113(4) of the 1990 Act there is inserted—
"(5) Section 38 shall apply in relation to any licence to provide a licensable sound programme service granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(12)Any licensable sound programme service licence granted before the commencement of this section shall, as from that commencement, be taken to include the condition referred to in section 113(5) of the 1990 Act.
(13)After section 115(9) of the 1990 Act there is inserted—
"(10) Section 38 shall apply in relation to any licence to provide additional services under Part III of the 1990 Act granted after the commencement of this section as it applies in relation to a licence to provide a Channel 3 service."
(14)Any additional services licence granted before the commencement of this section shall, as from the commencement, be taken to include the condition referred to in section 115(10) of the 1990 Act.").
The noble Baroness said: In moving this amendment I give an assurance that I shall be briefer than are the words in the amendment on the Marshalled List. I was delighted this morning when I received the Marshalled List that we do not have a practice which existed in an organisation I belong to elsewhere where one is required to read out the amendment before one starts to speak to it.
Although the amendment is long, very legal and detailed what it does is to take the equal opportunities provisions of the 1990 Act and carry them forward into the Bill we have before us. That will enable both Acts to have a level playing field or equal opportunity entry and requirements relating to equal opportunities. Although it is a long amendment, its intention and application are simple. It extends the equal opportunities provisions from the 1990 Act into the Bill. I beg to move.
Lord Inglewood: The noble Baroness has explained clearly the purpose of her amendment and the Government would agree with much of her thinking. Indeed, her concerns are already addressed in the Sex
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Discrimination Act, the Race Relations Act and equal pay legislation. I therefore question the need to add a further regulatory measure to what we hope is a deregulatory Bill.
Sections 38 and 108 of the 1990 Act require the regulators to encourage the promotion of good practice by the principal broadcasters in the area of equal opportunities. As the Minister taking the 1990 Act through the other place made clear when this issue was debated there in May 1990, while the Government were content for the additional regulation by the ITC and the Radio Authority on this issue in relation to the principal broadcasters who are subject to a fair degree of positive regulation to ensure that they undertake certain functions, including programme content and training of staff, we do not believe now, any more than we did then, that the case is the same for those licensees which are subject to a lighter regulatory touch under the 1990 Act. Those broadcasters operating under licensable programme service licences, non-domestic satellite services and independent local radio licences are policed by having negative consumer protection requirements set out in their licences. This means that if they have misbehaved in that respect, they are appropriately punished for a breach of their licence.
The ITC and the Radio Authority do not monitor their performance to ensure that they are positively undertaking certain actions in the same manner as they do in relation to the principal broadcasters, neither do the regulators produce a detailed annual performance review in which equal opportunity assessments can be published.
We believe that this amendment will add a further costly and unnecessary layer of bureaucracy to the work of the ITC and the Radio Authority, the aim of which will be to ensure that the broadcasters are meeting the requirements of the existing legislation, for a breach of which there are quite separate sanctions. The equal opportunities legislation is working effectively without the need for additional positive promotion by the broadcasting regulators.
Baroness Dean of Thornton-le-Fylde: I thank the Minister for that reply. Disappointing though it is, it makes the Government's position very clear. It lacks logic, because Clause 26 of the Bill states quite specifically,
"Any multiplex licence [operator] or digital programme licence [holder] shall …make arrangements for promoting, in relation to employment by him, equality of opportunity between men and women and between persons of different racial groups".
Although the Minister went on to say that the ITC itself does not monitor, which I consider is regrettable—perhaps its terms of reference did not require it to do so—monitoring is quite common. The BBC itself was one of the first to sign up to Opportunity 2000, which requires an annual monitoring of equal opportunities. The Minister's reply is disappointing, but I do not wish to press the point at this stage in Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lyell Lord Lyell moved Amendment No. 195A:
After Clause 66, insert the following new clause—
LIMITATION ON AVAILABILITY OF STATUTORY LICENCE TO INCLUDE SOUND RECORDINGS IN BROADCASTS AND CABLE PROGRAMME SERVICES
(" . In section 175 of the 1990 Act (Use as of right of sound recordings in broadcasts and cable programme services), at the end of subsection (1) there is inserted—
" "Limitations on exercise of right.
135H.—(1) Section 135C shall not apply to the inclusion in a broadcast or cable programme service of any sound recording if and to the extent that the broadcast or cable programme service is—

(a)a controlled choice service;

(b)provided wholly or mainly for presentation to members of the public at a particular establishment or other defined locality, or a particular event, in the United Kingdom;

(c)a simultaneous, unaltered and unabridged retransmission for reception by the public of an initial transmission (whether by means of a broadcast or cable programme service) from another EEA state of television or radio programmes intended for reception by the public."

(1A) For the purposes of sections 135A to 135H—
"controlled choice service" means a service which consists wholly or mainly in conveying sounds or other information whether by broadcast or by cable programme service for reception by any member of the public and of which it is an essential feature that there will or may be sent from each place of reception information or signals for the control or partial control of the content of the service for reception by the person providing the service.".").
The noble Lord said: This is an entirely new clause. I shall be as brief and clear as I can. This is rather an esoteric point, taking us back two years, five years and six years. Section 175 of the 1990 Act, as Members of the Committee will see from the amendment, refers to Section 135 of the Copyright, Designs and Patents Act 1988, which was printed in fairly large measure in Section 175 of the Broadcasting Act.
Section 175 of the 1990 Act, introduced for the first time in this type of legislation a statutory licence for the benefit of broadcasters. That formed an integral and central part of the overall regulation of the licensing system which was set up under the 1990 Act.
The statutory licence came into being nearly six years ago. It entitles broadcasters to include sound recordings in a cable programme service if some conditions are met, paying what the broadcaster unilaterally considers to be a reasonable royalty for the use of music or other material. The Committee will be aware that it can take a lot of time, money and effort to establish in the copyright tribunal that the statutory licence fees paid by the broadcaster are entirely unreasonable. In the meantime there is a great deal of delay and expense and a substantial loss of revenue to the copyright holders.
As we understand it, the intention of the 1990 Act, when passing through both your Lordships' House and another place, was to provide the new broadcasters—I shall call them traditional broadcasters and radio stations—who we all hoped would be able to provide an increasingly broad range of public information services and local radio, with a head start and fewer problems and administrative difficulties in negotiating rights clearance for the use of material.
In 1990 your Lordships' House and another place were focusing on the so-called "needletime" restrictions. That will take all Members of the Committee back to dropping a needle on a disc when we used to listen to what were called "records". The restrictions then were to ensure that a broadcaster would not be delayed in commencing transmissions while he negotiated licence terms with the copyright owner of the sound recordings in that broadcast. As the Committee has been hearing, since 1990 needletime restrictions have virtually disappeared and we have moved on from that. As a result of measures in the 1990 Act, an entirely new phenomenon has emerged; namely, a new generation of non-traditional broadcasters whom one might call "narrowcasters".
These are service providers. When Members of the Committee go to large warehouse-type emporia where there are do-it-yourself chains or into a hypermarket, they are likely to hear music interspersed with announcements and the like. Apparently, that is a valuable marketing aid. I am not very aware of the background music since I concentrate on other things. I understand that since 1990 the narrowcasters have been able to take advantage of the statutory licence as set out in Section 175, to the disadvantage of the record companies and performers whose copyright they are in danger of infringing.
The particular types of broadcast which are covered in my amendment are commercial services intended for particular sites or retail chains. There are also the on-demand services which are likely to have a direct impact on, and substitute for, record sales—perhaps one might call it "home recording".
The amendment adds to the Act in Section 135H(b), which relates to broadcasts,
"provided wholly or mainly for presentation to members of the public at a particular establishment or other defined locality".
As I have just spelt out, that may be a retail shop or a large emporium. The service provider is attempting to produce an atmosphere which is conducive towards persuading people like Members of the Committee and myself to part with money. I hope my noble friend will have been able to understand part of what I am seeking to put forward. I beg to move.
Lord Inglewood: I agree with my noble friend that one of the reasons for introducing the statutory licence in 1990 was to enable new broadcasters to start transmissions quickly, where necessary before copyright royalty rates for the inclusion of sound recordings had been agreed. It is quite true that some important developments in broadcasting have emerged since 1990 and the effects of the statutory licence in these new areas would not have been easy to foresee. In some new areas it is possible that a statutory licence is difficult to justify, and limited changes to the provisions should now be considered. However, the Government believe that there is not a convincing case for any major alteration of the statutory licence provisions to exclude, for example, all digital broadcasts. These will, I believe, before long be the only type of broadcast and the previous arguments in favour of a statutory licence remain applicable.

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My noble friend's amendment is, though, much more limited, attempting to exclude three distinct categories of broadcaster or cable programme service provider from the statutory licence provisions. In the first category are the providers of on-demand transmissions; that is, transmissions where the person receiving a broadcast can send signals to the broadcaster and so control what is actually received. The DTI's recent response to the Multimedia Industry Advisory Group's report announced a willingness to consider removal of on-demand broadcasts from the statutory licence. I am therefore happy to agree that the Government should consider further the first element of my noble friend's amendment.
The second aspect of my noble friend's amendment seeks to exclude what may be called the providers of "muzak" from the statutory licence provisions. I accept that there are differences between broadcasters or cable programme service operators providing a transmission which members of the public can receive in their own homes and those whose transmission is received only by, say, retail stores to provide the background music played to customers. Although my noble friend did draw my attention to this issue at Second Reading, I must confess that I have not yet reached a firm view on the matter. However, like the first part of the amendment, I am prepared to agree that the Government should give further consideration to the issues raised. Before reaching any decision on either this or the first part of the amendment, though, I know that my colleagues at the DTI are anxious to hear the views of all interested parties.
The final element of my noble friend's amendment is, I understand, put forward as a change that is necessary in order to comply with the Satellite and Cable Directive. The Government are currently in the process of implementing this directive into UK law. Further consideration is being given to the issues raised here and any necessary changes to the statutory licence will be incorporated into the UK implementing regulations.
I am grateful to my noble friend for drawing the issues raised by this amendment to our attention. However, I trust that on the basis of my agreement to consider the first two parts of the amendment, my noble friend will agree to withdraw it. I hope that the Government will be in a position to respond to the issues raised in another place, and bring forward an amendment to the Bill if appropriate.
6 p.m.
Lord Lyell: I am grateful for everything that my noble friend has said, and particularly for the final part of his reply. Indeed, I must advise both my noble friend and the Committee that I am stunned and delighted by his response, particularly in view of the effort, clarity and excellence with which he has presented his case over long days in Committee. I thank my noble friend very much for that. I shall certainly take up his offer to pursue any further discussions in due course with both my noble friend and his officials. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran The Earl of Arran moved Amendment No. 195B:
After Clause 66, insert the following new clause
CHANGES 10 THE CONTRIBUTIONS OF REGIONAL ITV COMPANIES TO THE COST OF THE NETWORK BUDGET 10 BE SUBJECT 10 APPROVAL OF THE SECRETARY OF STATE
(".—(1) section 39 of the 1990 Act is amended as follows.
(2) For subsection (8) there is substituted—
"(8) Where any arrangements have been approved by the Commission under subsection (4) or (7)(b)—

(a)no modification of those arrangements shall be made by the holders of regional Channel 3 licences unless it too has been so approved; and

(b)the Commission shall not approve any such modification to the extent that such modification modifies the arrangements in respect of the contributions made by the holder of each regional Channel 3 licence to the cost of programmes acquired or commissioned pursuant to those arrangements unless such modification has been approved by the Secretary of State."."

The noble Earl said: This amendment is about money, quality and the preservation of real regional television. The objective is simple: to ensure that ITV's smallest regional companies continue to pay a fair price for programmes which they buy from the network. The ITC is already involved in that process. I am simply asking that the Secretary of State should be the final judge. That is hardly a dramatic suggestion, but it could be a vital lifeline for five vulnerable ITV operators.
I make no apology for returning to the importance of regional television, upon which significant matter very many of your Lordships have spoken at frequent intervals during this Committee stage. On Second Reading, I questioned the logic of "big is beautiful". Indeed, that doubt was forcefully voiced by the noble Lord, Lord Thomson, on Tuesday. I wondered how the growth of big companies into world markets could possibly be assisted by swallowing the minnows of ITV like plankton. I have since received an illuminating letter from Carlton Television which bears repetition. It comes from the head of corporate affairs, who puts it this way:
"You are quite right to say that a large ITV company taking over one of the smallest is not going to lead to global success".
Just as I thought. If a big ITV group ever seeks to buy up a small one, we know now that that will have nothing at all to do with world markets and digital television and everything to do with old-fashioned consolidation and economies of scale. I am indebted to Carlton for its candour.
Lest I be accused of special pleading for the sake of small ITV companies, perhaps I may remind the Committee that they are already considered to have a special case under broadcasting legislation. The 1990 Broadcasting Act recognised their regional responsibility when applications for franchise bids were originally invited.
My new clause addresses one fundamental aspect of that complicated process. I shall spell it out as straightforwardly as I can. The ITC issued invitations to apply for licences. Those invitations contained a sliding scale for the purchase of mainstream network programmes. The structure was designed to ensure that

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viewers could receive "Coronation Street" or "The Bill" in whichever region they happened to live, no matter how big or how small the ITV company delivering the signal. If necessary, that meant that the small five—Border, Channel, Grampian, Ulster and my own, West Country—would contribute proportionately less than their big brothers in London, Birmingham or Manchester for the same programmes. It was, and is, a thoroughly fair arrangement and of particular benefit to viewers in those oft-forgotten, far-flung corners of the United Kingdom.
It was also assumed to be a lasting arrangement. After all, the small five were obliged to calculate their cash bids partly on the basis of what it would cost to buy network programmes. It is a substantial part of any ITV company's budget. They were embarking on a commercial risk licensed to last into the new millennium—in fact, until the year 2002. I am a great believer in lasting arrangements actually lasting. For that reason I wholeheartedly support the resolve of my noble friend the Minister to adhere to the present arrangements for funding Channel 4. Any premature change on the Channel 4 question would be a breach of trust. Any radical change of network programme prices could be calamitous for the small companies. Their financial viability, not to mention the excellent local programmes in which they invest and which they produce, depend on the very survival of that simple equitable pricing mechanism.
My noble friend the Minister may think that none of this is any of his or the Government's business, but let us dally a while. It is quite true that the mechanism is controlled by ITV. Indeed, the Independent Television Association, to which all such companies belong, governs programme prices. Inevitably, the bigger companies have a bigger say, but at the moment the mechanism works and it works well.
However, we now come to the crunch. The Bill allows the big to get bigger. In the Independent Television Association all that it takes to alter the present pricing agreement is a simple majority vote. Think of it: are not the signs already on the wall? Scottish Television is said to be bracing itself for a takeover by the Daily Mirror and H'TV is reportedly in talks with Carlton. The biggest independent production house in the UK, Select TV, is being broken up and sold in parts to Carlton, Pearson and Meridian. The noble Lord, Lord Hollick, has lately come to the rescue of Beaverbrook's famous crusader. The big are already getting bigger, and we are still only at Committee stage.
It is no wild hypothesis to say that soon there may be just two huge corporate entities controlling over half of the ITV that we know now. Imagine it: two conglomerates with the power to alter programme prices and, in doing so, to drain the lifeblood from regional TV. Just suppose that those giants, acting purely in the interests of their shareholders, fancied a little more consolidation. In my doomsday scenario, the best way to get the small companies on the cheap would be to scrap the pricing mechanism altogether. The Bill could
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allow that to happen—unintentionally, needless to say, but too late to save some of the best local television in Great Britain.
The amendment should not be interpreted as a criticism of the regulator. It is quite true that the ITC already has the power of veto over changes in programme price. I simply seek to enhance that power. Nor will my amendment set a precedent for directly involving Ministers. My noble friend will be well aware that the Secretary of State is already expected to act as the court of last resort when ITV transmitter costs are proportioned. What I propose merely adds ministerial muscle to the regulatory arm. Why? Because the TV giants of tomorrow may not walk in sufficient dread of the ITC alone. The new clause puts the extra weight of the Secretary of State behind any dispute about programme pricing. It is very little to ask, but it is very important indeed, and for Border, Channel, Grampian, Ulster and West Country, not forgetting their loyal and appreciative audiences, it might mean the difference between a first-class local service and impersonal mogul vision. I know which I would prefer.
During our deliberations on Tuesday, my noble friend displayed some sympathy with the cause which I and many other noble Lords are now arguing. He said:
"there is need … to ensure that we entrench all the best qualities of regional broadcasting and, where we can, enhance them".—[official Report, 13/2/96; col. 568.]
On this issue my noble friend certainly can, and I most earnestly hope that he will. I beg to move.
Lord Thomson of Monifieth: The noble Earl has raised an important point. There is no doubt, as he has argued, that the present character and success of the smaller regional companies in the ITV system depend crucially upon the discounted price system of the ITV network arrangements. If that were to be changed radically against them, they could not go on providing the services that they do and the popular regional programmes that are in many ways the jewel in their crowns. It is an important matter. It is one of what I called earlier a jigsaw of a number of pieces where the financing arrangements for the ITV and BSkyB system—taking commercial broadcasting as a whole—need a fundamental reappraisal.
There is one point upon which I do not wish to take issue with the noble Earl but merely to put a different gloss on what he has said. Towards the end he said that of course at the moment, although the network payment system is one that is agreed among the ITV companies, to change it requires the consent of the ITC. The ITC has a veto on any changes in the system that are unacceptable to it.
It is fair to say that the present system, which out of the rather bad Broadcasting Act 1990 we managed to rescue as something that retained, above all, regional public service elements of the system, was the creation of the ITC. I speak with a certain amount of interest I suppose, which I shall declare at one remove, in the sense that the ITC is the successor commission, although with different responsibilities and powers, to the IBA of which I was chairman.

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Although I am tempted by the noble Earl's proposition that the ITC might feel reassured and reinforced by having the ultimate sanction of a Secretary of State behind it, as happens, as the noble Earl said, in the transmitter system, I pause in my more pessimistic mood to wonder whether the ITC and its power of veto, digging in, and being stubborn in defence of the system which is at the heart of its pride and what ITV does, will face up to what the noble Earl called the big battalions ganging up, rather more stubbornly than the Secretary of State might do. I do not wish to be discourteous, but I have not been over-encouraged by the willingness of the present relatively new Secretary of State to stand up to some of the pressures with which we are dealing in the Bill.
While I agree with the importance of what the noble Earl is suggesting and think that it should be part of a reconstituting, in some ways, of the financial relationship between the big boys and the small boys of ITV and BSkyB and the regulator, I am cautious about whether in this case the Secretary of State would be an added safeguard or perhaps even an added danger.
Baroness Dean of Thornton-le-Fylde: From these Benches we support the amendment. We do not see it as an attack on the large companies and that was not our intention when we put our name to the amendment. We see it rather as a protection for regional television provision. It is one that has existed since the 1950s. It is a pricing mechanism which was taken into account when the small companies put forward their licence bids. It is one that has a profound impact on their financial viability.
The amendment cannot be an attack upon the large companies: the scheme has been successful because the large companies have supported it. The network supply agreement has had their backing. Nevertheless, these heady days of takeovers and concentrations have concentrated the minds of the small companies: "What is our future? Shall we be able to maintain quality?" It is quality that is at the heart of the amendment. We cannot just take regional programming; we have to take the whole programming structure in the round.
We hope that the Minister will be able to respond positively to the amendment. The noble Lord, Lord Thomson of Monifieth, is very experienced in these matters. His counsel is one to which we should listen. He is absolutely right: it is sometimes easier to take an independent view as an independent regulator than perhaps a Secretary of State, who may be subject to political pressures.
This is a key and important amendment if the Bill is to achieve what we are led to understand from the Minister it is designed to achieve: variety, diversity, national programming and regional programming. The excellence of many of our small regional companies is due to the fact that they have had this network supply agreement in place.
It is unfortunate that the ITC has not taken the opportunity, or found it possible—perhaps it does not wish to—to confirm that the pricing mechanism which is in place will remain throughout the period of the regional companies' present licences; that is, until 2002.
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It seems a long way away but it is not. It would have helped considerably had the ITC been able to confirm that to the small companies which feel vulnerable at the moment. We support the amendment.
6.15 p.m.
Lord Lyell: I support what my noble friend Lord An-an said. The Committee will see that among the names on the list of those supporting the amendment is that of the noble Lord, Lord Kirkhill, who warned me that he had to get home to my area—which is familiar also to the noble Lord, Lord Thomson—which is served by one of the prime examples of what my noble friend spelled out. I would not call it a small company, and one is reminded that size is no guarantee of strength. Grampian Television provides an enormous service. Lest the Committee forget—the noble Lord, Lord Thomson, will be aware of this—it serves a colossal area of the UK.
Secondly, Grampian provides a special type of service. It is unique in that it provides a great deal of Gaelic. I must confess that when Gaelic programmes come on I sometimes change the channel or turn off the television. Sometimes I press another button and often—it is not the "Magic Roundabout"—it is the young man's "magic roundabout", shown on Grampian at 5.20 p.m. on a Saturday. I see that my noble friend Lord An-an is aware of that programme. Perhaps I may add my tiny weight to my noble friend's powerful remarks in support of reasonable costs for smaller companies which provide a unique service, often to large areas with small populations.
Lord Inglewood: I understand entirely the Committee's concern that greater consolidation within the Channel 3 network might mean that the position of the licence-holders for the smaller regions, and specifically the arrangements for the charges made to them for programming, might be altered in such a way as would threaten their independent viability and regional character.
I do not, however, think that it is at all desirable for the Government, albeit for different reasons from those advanced by the noble Lord, Lord Thomson, to be involved in approving something as detailed and operational as amendments to the Channel 3 networking agreements. That would be an undesirable intervention in any industry, and the more so in an industry where, quite properly, government are traditionally very loath to make any direct intervention. I feel that it would instead be a better way of meeting the concern raised by my noble friend to strengthen the ITC's duty. The ITC must already, by statute, approve the Channel 3 networking arrangements. By virtue of Section 39(10) of the 1990 Act it is forbidden to approve any arrangements which may operate to the detriment of Channel 3 as an effective national network. I suggest that it would be sensible also to prevent it from approving any arrangements which would in its opinion jeopardise the continuing effective fulfilment of regional licence-holders' regional programming obligations. As we have already discussed, Clause 63 seeks already to

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strengthen the ITC's hand as to specifying those regional programming requirements; such an amendment would mirror that clause.
I hope that in the light of my undertaking to bring forward an alternative government amendment to meet the concerns my noble friend has raised, he will not press his amendment.
The Earl of Arran: I am grateful to the Minister for his understanding and general support of the amendment. He said that he would be prepared to come forward at a later stage with an alternative government amendment. I am also grateful for the support of the Committee. I understand the point made by the noble Lord, Lord Thomson of Monifieth. As was mentioned by the noble Baroness, Lady Dean, this is a key amendment and protection is extremely important. My noble friend Lord Lyell mentioned the specialist expertise—
Lord Thomson of Monifieth: Before the noble Earl withdraws his amendment, perhaps I may congratulate him on obtaining the Minister's assurance. It was most helpful and answers the anxieties which I expressed while giving general support to what lies behind the amendment.
The Earl of Arran: I take the noble Lord's point. I am delighted at the possibility of beefing up the ITC. It is a good and sensible compromise and I hope that it works well in a determined effort to continue to protect the quality of regional television. On that understanding, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomson of Monifieth Lord Thomson of Monifieth moved Amendment No. 195BA:
After Clause 66, insert the following new clause—
LICENCES FOR NON-DOMESTIC SATELLITE DISHES
(" .—(1) Section 45 of the 1990 Act is amended as follows.
(2) After subsection (9) there shall be inserted—
"(10) A licence to provide a non-domestic satellite service shall include conditions requiring the licence holder to pay to the Commission (in addition to any fees required to be so paid by virtue of section 45(1)(b)) in respect of each accounting period of his falling within the period for which the licence is in force such amount as the Commission may determine representing a percentage of the qualifying revenue for that accounting period.".").
The noble Lord said: The amendment follows closely the previous amendment and is part of the jigsaw about which I spoke. It attempts to deal with fair taxation within the commercial broadcasting system in this country. I hope to persuade the Government that the time has now come when BSkyB in particular should pay its fair share of taxation together with the other commercial television companies.
I do not wish to labour the point as we have covered the ground many times. BSkyB may well have been entitled to a "tax holiday" in order to engage in such a high risk operation. However, it has been a successful operation and appears now to be running extremely well. I believe that the time has come to have a more
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fair arrangement between the ITV and BSkyB systems. I was trying hard not to use the awful phrase "a level playing field". I beg to move.
Lord Colwyn: If accepted, the amendment will mean that non-domestic satellite services, of which the ITC has licensed about 90, will have to pay a percentage of their qualifying revenue for their licences. I believe that that is unfair. To suggest that non-domestic satellite broadcasters should be brought into line or equalised with other domestic terrestrial broadcasters who already pay a percentage of their qualifying revenue is wholly disingenuous. It is also potentially damaging to the satellite broadcasting industry.
I say that it is disingenuous because it ignores the fundamental distinction between domestic terrestrial broadcasters and non-domestic satellite broadcasters; that is, that the former have guaranteed and exclusive access to the whole of the UK's regional or national populations while the latter do not. I wish to remind the Committee that the regulations on the non-domestic satellite channels are deliberately and rightly different from that in respect of domestic terrestrial broadcasters. Unlike domestic terrestrial operators, non-domestic satellite channels have no guaranteed access to scarce government-controlled domestic frequencies; nor do they have a licence fee income, subsidy or special protection. They have no automatic or monopoly access to regional and national audiences.
The qualifying revenue charge levied on terrestrial domestic licences is a recognition that terrestrial TV frequencies are a scarce yet highly sought after commodity for which the Government's grant of privileged access requires payment. Indeed, I am sure that many satellite broadcasters would welcome the opportunity to have access to such a wide distribution network. However, that option remains out of reach to many. In fact, due to restrictions proposed in this Bill, BSkyB will be the only satellite broadcaster prevented from owning any Channel 3 or Channel 5 licences.
Of course, terrestrial companies are also perfectly free to invest their money in non-domestic satellite broadcasting with no qualifying revenue payments, but no privileged access either. The BBC has stakes in two non-domestic satellite channels—UK Gold and UK Living—and Granada is linking up with BSkyB on several new channels. Beyond those relatively minor involvements, however, terrestrial broadcasters have chosen not to invest in the non-domestic satellite sector.
That is why I believe that talk of a level playing field or fairness on licence payments is disingenuous. The field is already tilted sharply in favour of terrestrial broadcasters which have first refusal on the purchase of licences which guarantee privileged access to the entire UK population.
I am also concerned that the amendment could threaten the existence of many non-domestic satellite companies. As transmission costs fall, the number of specialist, thematic and minority interest non-domestic satellite channels continues to grow rapidly. For such channels, which often work to tight budgets, additional payments will seriously affect their viability and discourage the emergence of new services. Furthermore,

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the UK is the international uplink base for non-domestic satellite broadcasters. New additional costs will inevitably discourage potential investors from abroad or will encourage those already established here to relocate.
Finally, I wish to point out that the amendment discriminates in favour of the cable operators. While programme services which distribute exclusively on cable do not pay a percentage of their qualifying revenue, those on non-domestic satellite would. In summary, I do not believe that it is right to place these additional financial burdens on to UK non-domestic satellite broadcasting companies. There is no credibility in the argument that they should be taxed in the same way as domestic terrestrial broadcasters for the key reason that they do not operate within the same privileged context.
Lord Donoughue: I wish to speak wholly in favour of the amendment tabled by the noble Lord, Lord Thomson of Monifieth. The basic problem is that the fiscal levy regime is patchy. In my view, it is unfair to the ITV/Channel 3 companies which carry such a huge burden of paying almost £400 million a year.
If the tax problem were resolved the problem of the Channel 4 funding formula and that in respect of Channel 3 would appear much less acute because I suspect that the Channel 3 companies would be more relaxed about losing the Channel 4 subsidy if they felt that the tax burden were more fairly distributed. We support bringing them all fairly into the net and the amendment brings in the non-domestic satellite broadcasters.
It is always helpful to hear the noble Lord, Lord Colwyn, speaking so fully from the Sky brief because it means that I do not have to do so. The issue is complex because there are problems in relation to whose spectra are being used by Astra, for instance. I am sure that the noble Lord, Lord Thomson, in moving the amendment accepts the complexity but we would like the Minister in answering to address the basic problem of the fairness of taxation in this field. A separate fiscal approach may be required.
I wish to point out to the Minister and to the Committee that other countries are finding a similar problem. Canada has the same difficulty of some companies being in the tax net and others not. Its Government are currently proposing what they call a "communications distribution tax" on all broadcasters; that is, on domestic satellite, non-domestic satellite, cable and some telephony services. That would generate considerable revenue and leave no one feeling, as I believe ITV feels, that there is unfair treatment. Therefore, I should very much like to support the amendment.
6.30 p.m.
Lord Inglewood: The noble Lord, Lord Thomson, set out clearly the purpose of his amendment and his reasoning for it. While I understand the arguments behind much of what the noble Lord said, I must respectfully disagree with his approach.
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I remind Members of the Committee that this amendment applies to those satellite services which operate on a frequency which is not allocated, by international agreement, to UK control. We have 10 such frequencies none of which is currently used; British Satellite Broadcasting Ltd. being the last such operator, prior to its merger with Sky to form BSkyB.
The 1990 Act's broadcast licensing system recognised that the broadcast spectrum was a scarce resource and that it was of significant commercial value. The Government therefore instituted the bidding system for both domestic terrestrial and satellite licences locked to a levy on successful applicants' television revenues. As my noble friend Lord Colwyn said, all these moneys go to the Exchequer not as taxation but in recognition of the worth of the scarce UK resource that the broadcast spectrum represents and which these broadcasters are using. That argument does not and cannot be extended to a foreign government's spectrum as it is for those countries to decide how they allocate what is allocated to them.
Mention has been made this afternoon of BSkyB. I note the concerns of those members of the Committee who have contrasted the payments made by Channel 3 licensees to the Exchequer with BSkyB's smaller payments to the ITC. As I have already indicated, the Exchequer payments are based on the use of the UK spectrum. Extending such payments to those broadcasters operating on non-UK frequencies would neither be rational nor fair. It should be remembered that those broadcasters operating on frequencies controlled by foreign governments may make payments to the government concerned for the use of that spectrum. I understand that the owners of the Astra satellite pay a significant fee for their franchise to the Luxembourg Government. The scale of BSkyB's payments for the use of the Astra satellite will, no doubt, reflect those franchise fees. The Government do not think it right to impose arbitrary and punitive levies to a broadcaster operating fairly within the rules of international law and the single market. Nor would it be in the UK's interests to take such action against broadcasters who can simply move operations to another European country to circumvent any payments to the Exchequer with the consequent loss of jobs, possibilities for creativity and opportunities for training in the broadcasting industry.
I have tried to explain that the Government are opposed to this amendment for the reasons I have outlined.
Lord Thomson of Monifieth: I cannot say that I am disappointed by the Minister's reply because I would have been surprised had he been more forthcoming. I moved the amendment because I thought it right that the case for it should be raised rather than in the hope that the Government were likely to accept it.
I am bound to say to the Minister that I found his defence of the present situation intellectually more persuasive than the defence put forward by the noble Lord, Lord Colwyn. I do not wish to prolong matters at this stage but the noble Lord used a number of propositions—I know from where they come—which are not very tenable. It is not true to say that the ITV

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companies have a privileged access in the sense that BSkyB does not. The ITV companies have had to compete very severely for the franchises that they have under the rather ridiculous bidding system to which the Minister referred.
In my view, the real difference now between BSkyB and comparable operators on the one side and ITV on the other is not really the premise on which the Minister has built his intellectual case; that is, the difference between domestic and non-domestic frequencies. That is a very fortunate accident of geography of which BSkyB and the Murdoch interests in particular have taken ingenious advantage; and I do not deny that at all. But I start from the other premise that we now have businesses which are entirely domestic businesses. ITV companies cater entirely for a domestic ITV audience and BSkyB caters entirely for a domestic British television audience. They are competitors in the same domestic economic field of providing a particular product. I believe that they should now be treated on the same basis.
Whether it is called taxation or a royalty from the use of frequencies is a secondary issue. The real distinction between domestic television companies and the non-domestic satellite companies is not to do with frequencies. It is just that one pays taxation and the other does not. That is extremely unfair and should be ended at some time by a government; but that will obviously not happen this evening and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Barnett Lord Barnett moved Amendment No. 195BB:
After Clause 66, insert the following new clause—
PROVISION OF NEWS PROGRAMMES BY CHANNEL 3 LICENCE HOLDERS
(" . For section 31 of the 1990 Act there is substituted—
"31. The Channel 3 licence holders shall appoint a single nominated news provider who shall be responsible for the broadcast on Channel 3 of news programmes which shall—

(a)be of high quality dealing with national and international matters; and

(b)be presented live at regular intervals; and

(c)be broadcast simultaneously in each region comprising the Channel 3 services.".").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 195BC. I recognise, as I am sure the Minister does, that when he has accepted these amendments, which I am sure he will do as I know he is a reasonable man, consequential amendments will be needed.
I support the Bill's continued commitment to the value of high quality broadcasting. I consider the news to be particularly important and I hope that other Members of the Committee agree with me about that. That philosophy was formalised by the Independent Television Commission in January 1991 when ITN was nominated as the news provider. The importance of ITN's role was highlighted in the Government's own White Paper with the proposal to impose a duty on the
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ITC to ensure at least one body would be effectively equipped and financed to provide news on its Channel 3 service.
The subsequent 1990 Act included those provisions in respect of news. The Act provides that, first, there shall be a requirement to broadcast news programmes of high quality national and international news; secondly, that each Channel 3 programme presenter in addition shall include conditions requiring news programmes to be provided by a nominated news provider to be presented live and simultaneously; and thirdly, the responsibility for nominating a news provider was conferred on the ITC by Section 32 of the 1990 Act. Under that Act, the ITC was required to conduct regular performance reviews. The first was completed last year and on 21st December it announced its review of the first three years. It concluded that ITN provided a well-resourced, authoritative and attractive news service meeting the requirements of the 1990 Act for high quality. In the review it confirmed ITN as the Channel 3 news provider nominated by the ITC.
ITN has delivered high quality programmes costing nearly £77 million below the levels predicted. That stems from ITN's drive for efficiency and increasingly multi-skilled staff which has enabled it to invest heavily in the latest digital news resources and news-gathering around the world.
The ITC was required to ensure that any further nominated news contractor to Channel 3 would not impair ITN's high quality service. The ITC itself, while welcoming ITN's efficiency and reduced costs to Channel 3 companies, attached great importance to not putting at risk the range and quality of service. That is crucial.
The present Bill may be interpreted as allowing two or more news services to operate within one ITV network. That could mean one part of the country having news services broadcast by one supplier at one time and other parts of the country having news from a different supplier at another time. In such circumstances it is impossible to see how Parliament's requirement for news on Channel 3 could be met. It seems to me that only by pooling the resources that Channel 3 has available for network news and investing them in a single news provider would Channel 3 be able to ensure the high quality that Parliament has always maintained it should have.
It is possible that the Bill as it stands could result in a fragmentation of ITV's national and international news services and that would have highly damaging consequences for quality news on ITV. Two or more Channel 3 news services, based on possible differing editorial standards and inadequate levels of resources, would not help to facilitate national understanding of news events.
It may seem strange that as a former vice-chairman of the BBC I should move such an amendment, but I care about the presentation of news, whether it comes from ITN, the ITV companies or, indeed, from the BBC. That is the important consideration. Apart from the fact that I have been got at by ITN—I should therefore declare an interest—I am also very fond of the people concerned.
As the Bill stands, there could be one united audience for a programme like "Gladiators" which, I hasten to add, I have never seen, but splitting for major news programmes cannot be sensible. I thought for a moment that the Government Whip was nodding her head in agreement with me, but it appears not. That is a pity because the noble Baroness always agrees with me.
Baroness Trumpington: Yes.
Lord Barnett: As I was saying, such a split surely would not meet the wishes of Parliament for high quality news. I cannot believe that that is the Government's intention. It looks like a drafting oversight. I hope that the amendment tabled in my name and the names of the noble Lord, Lord Thomson of Monifieth, and the noble Lord, Lord Peyton of Yeovil, who apologises through me for not being able to be present today, will be considered and that it will be acceptable to the Minister. As I said, he is a very reasonable man and I look forward to hearing his acceptance. I beg to move.
Lord Thomson of Monifieth: I am happy to support the noble Lord, Lord Barnett, in the amendment and to express my admiration of his selfless altruism, as a former vice-chairman of the BBC, in espousing the cause of ITN. I am only disappointed that as someone who has spent most of his life in one of the most gladiatorial situations in this country the noble Lord has actually never seen "Gladiators". He obviously does not have grandchildren; or, if he has, he has not been with them when the programme is transmitted.
I have a closer past link with ITN and the independent broadcasting system than the noble Lord. I must therefore try to be more detached. The issue before us is really one of principle as to whether the independent television system should have a single, nominated news provider. That is the significance of the proposed new Section 31. The origins go back to the rather ideological and doctrinaire way in which the Government in 1989–90 approached the Broadcasting Act. As happens so often, a sensible compromise emerged.
It was generally recognised, I believe, that ITN was a very notable, national news institution that should be preserved. Yet the competitive dogma indicated by Section 31 would allow the possibility, outlined by the noble Lord, Lord Barnett, of a fragmented news system. That would be disastrous. I am not speaking either from an anti-Sky News point of view or, indeed, from a pro-ITN point of view. I am speaking in support of the principle of independent television having a single, nominated high-quality news service.
Sky News has greatly enhanced television news over recent years with a 24-hour service that is not possible on any of the terrestrial channels. I keep saying that; and I shall continue to do so. Equally, ITN is a high-quality national news service. I am aware that a great national news service, whether it is provided by the BBC or UN, is rather a special institution. It rather reminds me of a university or a very good school. It grows organically in terms of quality and is rather a precious commodity which one could destroy or undermine pretty easily. It needs defending and supporting. Certainly, the public
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interest depends on having a single, nominated national news service of quality. It is on the basis of that principle that I support the amendment.
6.45 p.m.
Lord Donoughue: I express my support for my noble friend Lord Barnett and his amendment. It is certainly not anti-Sky News. At the end of last week when covering the IRA atrocity and the court case of Joan Collins in New York at the same time Sky was quite brilliant. However, that is not the issue. The purpose of the amendment was outlined by the two previous speakers. We support it.
Lord McNally: I do not want to prolong the debate and I would not claim to bring the same expertise to it as the noble Lord, Lord Barnett, or my noble friend Lord Thomson. We discussed a few days ago the triumph of regionalism in ITV. The other triumph is undoubtedly ITN. It is important to recall the impact of ITN on the quality of BBC news, its influence on how politics is covered and, indeed, the whole excitement and relevance it has brought to news gathering. I believe that the Minister should pause for thought when he receives advice from such sources.
If the BBC as a news service remained strong and yet somehow, because of changes, the ITV system became weaker, that would be a retrograde step. I do not have the experience of the noble Lords who have spoken but I do move in circles where I hear television executives talk. It is rather similar to what I said the other day about the regional commitment. The bean counters are within the walls and the talk is always of the pressure.
I am not suggesting that ITN should somehow be protected and therefore profligate. It must be a cost-effective organisation. But it is naïve to suppose that within ITV there are not voices urging that it should get by on a cheap, make-do news service, pushed to either end of the schedules, so that the rest of the time can be packed with popular programme-making. That would be the death-knell of the ITV system. I say that because Sky News gives more to the Sky system than simply the service of news; indeed, it gives a credibility to the whole system. The same applies to ITN within ITV. That has won it immense political loyalty and support.
Again, without giving ITN a guarantee for ever, it is important that the warnings of the noble Lord, Lord Barnett, are heeded. To encourage a weakening of the news service within ITV would have long-term implications for television news in this country, not just on ITV but also on the BBC.
Lord Inglewood: I have listened with interest and care to the explanation of the noble Lord, Lord Barnett, as to the purpose of his amendment—and to the contributions made by other members of the Committee—which draws a point into our debate which, so far as I know, we have not hitherto considered and which has important and possibly far-reaching implications.

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The current arrangements set out in the 1990 Act appear to have been working well. The ITC gave ITN—currently the only nominated news provider—a clean bill of health. The noble Lord, Lord Barnett, made his case as persuasively as he always does. I can give him the assurance that I wish to reflect carefully on what he and other Members of the Committee have said in this debate, and to state our position on this matter at Report stage. However, I should say at this stage that we do not see the merit of the provisions in Amendment No. 195BC. We are loath to attempt narrow definitions which the ITC must follow, such as the one in subsection (3)(a) of that amendment. The ITC is capable of assessing, under the broad terms of Sections 31 and 32 of the 1990 Act, what is required of a nominated news provider. Any definition in legislation is likely to have changed with the expanding technology of news gathering. Similarly, subsection (3)(b) of the same amendment does not appear attractive. To my mind, whether a news provider is subsidised by another company is neither here nor there, as the ITC polices the provision in the 1990 Act which requires news to be reported with due accuracy and impartiality. That said, I shall study carefully both these amendments and what the Committee has said about them, as these are important matters.
Lord Barnett: Knowing the Minister, when he tells me that he proposes to reflect carefully on the amendments and on what I have said, I am bound to accept that. He has always been reasonable. He will understand that I too shall reflect carefully on the matter. I propose to return to the amendments, or at least one of them, at Report stage to give ourselves a further opportunity to consider them. I hope that by then the Minister will have been able to take advice and will have recognised that it is sensible to accept my amendments, and we can then take the matter from there. On the basis of what he has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 195BC not moved.]
Clause 67 [TheBroadcastingStandards Commission]:
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 195ZC:
Page 59, line 17, leave out subsection (1) and insert—
("(1) There shall be a commission to be known as the Broadcasting Standards and Consumers Commission (in this Part referred to as "the BSCC")").
The noble Baroness said: In moving Amendment No. 195ZC, I wish to speak also to Amendments Nos. 195J and 196A, to which the name of my noble friend Lord Donoughue is added. I apologise to the Committee that I am not speaking to the grouping as it appears on the list, but I hope that the logical connection between these amendments will excuse the mechanical disruption of the groupings list.
The purpose of these three amendments is to expand the role and remit of the newly formed body with which this Bill seeks to replace the existing Broadcasting
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Standards Council and the Broadcasting Complaints Commission. Amendment No. 195ZC proposes to change the name of the newly created organisation to the broadcasting standards and consumers commission. This simple alteration encapsulates the wider and more general role that we should like that organisation to have.
As I said at Second Reading, I believe the Government have missed an opportunity in this legislation to develop the part that viewers and listeners—the consumers—should play in broadcasting policy. After all, as has been said many times during the course of our deliberations on this Bill, broadcasting is a uniquely influential industry but consumer choice—apart from the clichéd operation of using the on/off switch on a radio or television set—is still extremely limited. It is only as regards the subscription services that viewers and listeners can, in an economic sense, correctly be called customers. Although, of course, digital technology, which we are discussing in relation to this Bill, will greatly expand quantity and, we hope, variety, there will still—if the Bill is unamended—be few constraints on overall quality.
As has often been pointed out, the market for broadcasting services is, in qualitative terms, wholly different from, for example, the market for radio or television sets. In the absence of an economic market mechanism for feeding back viewer and listener preferences about quality and price, I argue that there is a need for a surrogate system which goes some way towards achieving a balance of power as between producers and consumers. An expanded broadcasting standards and consumers commission could achieve just that. Standards of accountability and transparency would automatically be improved.
If the title for the new body is accepted—that is the subject of Amendment No. 195ZC—the terms of reference of the new body would continue to include the particular areas already proposed in the Bill, but would also include the expanded terms of reference proposed in Amendment No. 196A. That amendment would extend the remit to include general broadcasting complaints, but the statutory adjudication role would still be limited to those complaints listed in Clause 71. The consideration of general complaints would be part of the more proactive role envisaged in Amendment No. 196A, which would also include additional research capacity and broader policy responsibilities. Provision is made in the amendment for the commission to pass on its findings to the relevant regulatory bodies when that is more appropriate as regards taking action on complaints.
But because, under these proposals, the consumer body would be able to investigate all broad questions of quality, as well as specific complaints, and to publish its own reports, it would become an informed source of advice on general policy topics. Some topics which have been suggested to me as ones which could be discussed and explored under the new research capacity are the implications of living in areas with no cable television or, perhaps, access to Channel 5; the future of the BBC licence; and the effects of subscription services on low income households. In time, if this sort of subject could be contained within its remit, the new broadcasting

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standards and consumers commission would become the primary source of informed audience opinion for both production companies and regulators. As such, it should be able to play an integral role in the future of broadcasting strategy.
As we have heard throughout the discussion on this Bill, the future of broadcasting is exciting, but it can also be somewhat daunting for those who watch and listen. They—perhaps I can say "we"—feel powerless in the face of bewildering technology and competing commercial interests. I argue that an expanded and totally independent consumers' commission would promote the interests of all of us as viewers and listeners. I beg to move.
Lord Elis-Thomas: I have a little difficulty with this series of amendments and indeed that whole part of the Bill which deals with the Broadcasting Standards Commission, because I am concerned about the over-regulation of cultural policy and the duplication of regulatory functions as between the ITC and the newly constituted body. This is a serious difficulty. I agree with all that has been said in support of the amendment as regards the position of viewers and listeners and the importance of being able to relate directly to media sources. However, I am not sure whether the creation of a further intermediary body—another regulatory quango; indeed an extended regulatory consumer quango—is the way to handle this issue.
The ITC, as established under the 1990 Act, has a broad remit of regulation in terms of its ability to deal with anxieties as they appear to that body, either directly or indirectly, through its monitoring systems, but it also has powers of regulation. It is able to penalise licensees who fail to meet requirements in terms of the maintenance of standards of taste and decency, impartiality and accuracy and all the issues that we shall discuss later this evening. I am worried that the ITC is already handling a wide range of complaints on matters of taste and decency, unfairness, privacy and impartiality; all the issues which are within the remit of the Broadcasting Standards Commission as proposed, and indeed of the broader consumers commission proposed in this amendment. The ITC received over 4,500 complaints about programme matters in 1995 and over 3,400 complaints about advertising. That indicates the extent to which the ITC is already perceived—because it is the regulator—as the body to which complaints are most directly and effectively directed. There are specialist complaints staff and monitoring staff. The ITC also has sanctions which it can use where there is failure to comply.
Compliance in broadcasting is a complicated and difficult field. It is important that it should be structured in terms of legislation and of the bodies involved in as direct a way as possible. In my view we should not create structures which duplicate the regulatory function of broadcasting culture.
I understand the argument about the complication of broadcasting and cultural production put forward by the noble Baroness, Lady Jay, in support of the amendments. However, I do not regard extending the
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role of the BSC as a means of dealing with that problem. I fail to see a role for the BSC as set out in this part of the Bill.
There is a track record for such bodies in the Broadcasting Standards Council and the Broadcasting Complaints Commission, but we must avoid the danger of overregulation and the creation of excessive bureaucratic structures in this field. In my view we should simplify the relationship between state and broadcasters in order to enable people within the whole area of cultural production to operate in that area of light regulation within broadly agreed moral standards which the ITC already provides. To extend those bodies yet further is an unwarranted interference in the creativity of the media we are discussing.
7 p.m.
Lord Renton: I have an open mind on this question of having some form of representation of consumers in the statute. However, I feel sure that it would be wrong to make arrangements for representation of consumer interests within the same body—the British Standards Commission—which will have a regulatory purpose which will be quite different from the representation of consumer interests.
The regulatory body will be quasi-judicial. If, as I hope, the views of my noble friend Lord Caldecote and the noble Lord, Lord Chalfont, set out in Amendment No. 197 and the amendments grouped with it are accepted, then the proposed complaints procedure and the independent powers given to the British Standards Commission would make it, if anything, even more judicial and inconsistent with the purposes of a consumer association.
I therefore hope that my noble friend Lord Inglewood will indicate with some certainty that what is proposed by the noble Baroness is not what is needed.
Lord Thomson of Monifieth: I apologise to the Committee that I shall have to leave before the proceedings end this evening. That may be a relief to noble Lords. Therefore, I hope that the Committee will forgive me if I say what I wish to say on the issue now and follow what the noble Lord, Lord Renton, said and agree with what the noble Lord, Lord Elis-Thomas, said.
I am sympathetic to those amendments which seek to make the membership of the Broadcasting Complaints Commission more representative. However, I have strong reservations about extending the remit of the Broadcasting Standards Commission for the reasons explained by the noble Lord, Lord Elis-Thomas. The Minister will be happy to know that in what will probably be my last contribution in the Committee stage I can agree with him. He said at Second Reading that the Government see no reason to extend the remit of the Broadcasting Standards Commission which should run parallel with the regulator and not be a substitute for it. I am content with that situation.
The regulation of standards in broadcasting is untidy. The Minister keeps saying that he is a deregulatory Minister. In the past I teased his predecessors that when I started as chairman of the Independent Broadcasting

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Authority there were only two regulators in broadcasting—the governors of the BBC and the board of the IBA. By the time the IBA was abolished by the present Government there were five or six regulators. That is a fair record for a deregulatory government. I used to complain greatly that the BSC was simply an unnecessary fifth wheel to the coach.
Life has moved on. Perhaps I am getting older, but I am rather in favour of untidiness and I do not wish to be too logical in these matters. As I said at Second Reading, under the experienced direction of Mr. Colin Shaw, who is about to retire, and the chairmanship of Lady Howe, the BSC has done a good job. In the field of research into broadcasting standards in particular there is a role to be played.
When it comes to some of the issues which will be raised later today and the proposals under which the BSC is to be given all kinds of duties in relation to due impartiality, taste and decency in particular programmes and dealing with objections to programmes even though the people concerned may not be directly involved, I am very much opposed to such a development in the role of the Broadcasting Standards Commission. If one wanted to be really tidy and logical—and I see that the noble Lord, Lord Barnett, has left so he will not feel too hurt by my remarks—there might be a case for giving the Broadcasting Standards Commission a regulatory role over the BBC, but not over the ITV companies, because there is a real difference between the ITC and the BBC. The governors of the BBC face the dilemma, which we discussed when we debated its charter, of looking both ways. On the one hand they are public trustees, which is their more important duty, but on the other they are fairly directly involved with those they employ as brilliant and creative programme makers. There is always a conflict when something goes wrong.
Under the present Broadcasting Act the ITC is at arm's length from those it regulates. It holds licences. As the noble Lord, Lord Elis-Thomas, said, the ITC has powerful sanctions. It has yellow cards and red cards, leading to being ordered off the scene entirely and not coming back.
I do not press that point. I press strongly the point that the membership of the Broadcasting Standards Commission should be as representative as possible. However, on these Benches we would be wholly opposed to seeking to increase its powers.
Lord Ashley of Stoke: I disagree with the noble Lords, Lord Elis-Thomas and Lord Thomson. However, I do not want to disagree too strongly with the noble Lord, Lord Elis-Thomas, because I am hoping for his support for the amendments that I shall move shortly in relation to disabled people. After the Second Reading debate I know how sympathetic he is.
It is wrong to speak of the overregulation of cultural policy. My noble friend is not seeking to overregulate cultural policy. She seeks to strengthen the hand of the consumer. There is no doubt that the consumer's hand needs to be strengthened. I have noticed that whenever any attempt is made to try to improve the interests of consumers, the automatic reaction is to speak of
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overregulation, as the noble Lords, Lord Elis-Thomas and Lord Thomson, did. I am not satisfied with the existing system, but my noble friend referred specifically to the system in the future. We shall see great monoliths developing, and that presents a very strong case in support of my noble friend's argument.
All I can say in response to the point relating to adding this proposal to existing quangos is that, if my noble friend had suggested a different organisation rather than adding this role to that of the BSC, she would have been accused of proposing yet another quango. She cannot win, although I believe that she has won the argument.
Lord McNally: I hesitate to speak now because I fear that I shall be at odds with the noble Lord, Lord Ashley, and the Official Opposition Front Bench. For much of this debate we have marched shoulder to shoulder. However, in introducing the amendment, the noble Baroness, Lady Jay, used much of the language of bureaucracy. That justified the warning by the noble Lord, Lord Elis-Thomas, about freedom of cultural broadcasting. Later today we shall have again to draw a line in the sand about that.
In some ways I believe that the Opposition has ceded too much ground. The bodies of the great and good who are guardians of public morality are a waste of time. As the noble Lord, Lord Thomson, said, we spent a decade inventing body after body which will protect us from this, that and the other. Members of the Committee will later suggest further protections. One cannot have it both ways. One cannot say that we have the best broadcasting system in the world with brilliant new services and wonderful documentary programmes when they are made by producers and programme makers who have to be shackled, bound, watched, guided and advised. It is time to say, "Enough of this nonsense" and to give the regulatory bodies the responsibility for regulating, leaving the producers and makers of programmes to accept proper responsibility for their product.
Lord Chalfont: I hesitate to intervene at this late stage, especially as we seem in part to be debating an amendment which has not yet been moved. I understand the reasons that the noble Lord, Lord Thomson, did that, but he has opened what is sometimes known as a can of worms—and some of them were wriggling furiously a moment ago.
I hope that the noble Lord, Lord McNally, is not suggesting the removal from broadcasting of regulatory bodies. That would indeed be a retrograde step of the worst kind. The noble Lord, Lord Elis-Thomas, spoke, as did many others, about cultural freedom and creativity. I hope that I shall not be accused of being too obscurantist when I say that we have a little too much cultural creativity, especially in the presentation of news, current affairs and factual programmes. For that reason, the consumer needs more protection than the listener and viewer have at present.
I have no quarrel with the amendment proposed by the noble Baroness. I believe that there are other ways of accomplishing it. Indeed other ways will be implicit in the amendments that I hope I shall have time to move

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later this evening. However, we should return to the question of regulating and be clear in our minds about what the regulators do. They do not stifle creativity. No one has suggested to me that the ITC or Radio Authority are stiflers of cultural creativity. The quality of programmes in many cases is quite high, as the noble Lord, Lord McNally, said. But the consumer has to be protected. In that sense, I believe, as does the noble Baroness, Lady Jay, that the strength of the BSC should be increased. The Secretary of State for National Heritage said that in a debate on this subject in another place.
I hope that we shall not be drawn too far along the libertarian path into believing that the ideal situation would be a totally deregulated and unregulated broadcasting system in this country.
7.15 p.m.
Lord Inglewood: I hope that I may begin on a slightly prosaic note. I believe that I am speaking to Amendments Nos. 195ZC, 195H, 196A and 195J, and no others.
Baroness Jay of Paddington: If the Minister will forgive me, we are not debating Amendment No. 195H. Despite the intervention of the noble Lord, Lord Thomson of Monifieth—we understand that it is his swansong at the Committee stage—I have not yet moved that amendment. It refers to membership of the committee.
Lord Inglewood: I am grateful. I had not much to say about it anyway. In proposing a change in title, the noble Baroness is by implication extending the remit of the new BSC into areas which are properly the concern of the regulators and broadcasters. The Government do not consider it necessary to extend the BSC's remit in the manner that this amendment suggests. The regulators already place considerable emphasis on the interests of consumers through the attention they pay, under the 1990 legislation, to setting licence conditions and promulgating codes. The Independent Television Commission, for example, has significant powers to penalise its licensees if they overstep the mark in maintaining standards of taste and decency, due impartiality, accuracy in programmes and advertising. Monitoring by ITC's own specialist staff and the resources it devotes to responding to complaints about programme matters demonstrate a considerable commitment to protecting the viewers' interests. More widely the ITC puts considerable effort into monitoring the range and quality of programme services of commercial terrestrial channels and undertakes annual reviews of performance in respect of programme output.
The ITC sponsors eleven viewer consultative councils, comprising members with a keen interest in television programmes and broadly representative of the UK population. The work of these councils is integral to ITC's monitoring role. At the same time the ITC undertakes a considerable programme of research. Equally, the BBC, under the provision of paragraphs 11, 12 and 13 of the draft Charter which is being debated in another place as we speak, is equally engaged in similar
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activities. Bearing in mind this commitment to and work on behalf of the interests of television consumers, the Government see no reason to extend the remit—even if only by implication in a proposed change of title—of the new Broadcasting Standards Commission which, as I have previously said in this Committee, should complement the regulator, not substitute for it.
I turn now to Amendment No. 196A. The amendment extends the remit of the BSC widely. It would give it more or less complete discretion to look into any matter concerned with domestic broadcasting services. The Government believe that this is an undesirable and unhelpful extension of the role of the new body. The intended role of the BSC is to be the sum of the roles performed by the two previously separate bodies—to act as an independent focus of public concern about matters of taste, decency, violence, privacy and unfairness in broadcasting and to provide individuals with a user-friendly easy mechanism to see whether their personal interests, including affronts to their sensibilities, may have been affected deleteriously. The two predecessor bodies built up considerable experience and expertise in these important fields and that is where their focus should continue to lie.
To extend the remit of the BSC after merger to investigate almost anything at all connected with broadcasting which the BSC might choose to investigate is more or less completely open ended, with all that that entails for its energy and resources. It must be almost certain that it will so dissipate its activities that it fails to perform effectively in those areas that we consider to be important, unless it is permitted vast amounts of staff and resources which are quite simply not justified by the noble Baroness in the context of the current calls on public expenditure. The amendment also places a duty on the BSC to ascertain the opinions and experiences of viewers and listeners and to offer advice to regulators, broadcasters, the Government and anyone else in very broad terms.
There is a further difficulty with all this. Much of the expertise of the two predecessor bodies has been built on their statutory functions of considering complaints. That process, which is inevitably reactive and deliberative, has been the basis of their more proactive work, which is extended by the powers contained in the Bill. I am, of course, referring to drawing up guidance, monitoring programmes and undertaking research. The Government believe that the priority attached to responding to complaints should not be diluted and that the amendment would in fact mean that the BSC would become a research body, with significant advisory functions. This would demote dealing with individual complaints to second place.
The Government believe that the extension of the BSC's powers proposed in the amendment is unnecessary because the broadcasting regulatory bodies—the BBC Governors, ITC, the Radio Authority and the Welsh Authority (a point made by a number of contributors to the debate)—all have powers, or will he given powers under the Bill, to deal with the full range of broadcasting matters. The amendment duplicates what can be done already and does not add value to the

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existing regulatory process. Indeed, it would be an extra financial burden on broadcasters, without achieving any materially wider benefit.
Finally, I wish briefly to speak to Amendment No. 195J. In it the BSC is to be entitled to consult broadcasting and regulatory bodies in the process of drawing up or reviewing its guidance on privacy and fair treatment and to take into account any views arising out of that consultation. I am aware that the BSC is already required to consult broadcasting and regulatory bodies for the purpose of drawing up or reviewing its guidance on standards. It was our intention, in omitting a similar requirement for its fairness guidance, that such guidance be built'upon the commission's jurisprudence, and it should therefore be structured according to the experience of the commission rather than that of broadcasters, regulators or other relevant bodies. However, I should like to take this opportunity, with your Lordships' indulgence, to think about the amendment further.
Baroness Jay of Paddington: I am grateful to the Minister for that reply, particularly for his encouraging words about the final amendment and the extension of the consultation remit. I am also grateful to other noble Lords who took part in the encouragingly vigorous debate, which has extended into the dinner hour, so I shall limit my remarks in reply.
I understand the points which were made about the possible extension of the role of the standards commission in the sense that the noble Lord, Lord Renton, suggested. However, I was specific in my remarks to ensure that the statutory role would be concerned only with complaints which occur already under Clause 71 of the proposed legislation and not with the broader tasks which I was suggesting.
In a sense, there is not so much a misunderstanding as a difference of theoretical principle about the role of the body which I suggested and which I noted in the course of the discussion. I do not see it as either extending the constraints on producers or improving the protection for consumers, but much more positively as extending the consumers' influence. Since tonight we are all precise in our declaration of interests, as a current producer and professional contributor to documentary programmes on many channels in this country, I have no wish to restrain my own or any other colleagues' creativity, as the noble Lord, Lord McNally, suggested I was trying to do. All I wish to achieve through the amendment is to ensure that in my more popular role, on which I spend more time at this point in my career—that is, being a viewer and listener—I and the millions of other people in the country who are viewers and listeners and who feel that they have no positive influence on broadcasting strategy as consumers should have that role extended.
However, in view of the encouraging response which the Minister gave to one part of the amendment and the general disagreement about the broader principle of consumer interest, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: My Lords, I beg to move that the House be now resumed. In moving the Motion, I suggest that the Committee stage should begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Bodmin Moor Commons Bill [H.L.]
7.23 p.m.
The Earl of Cranbrook: My Lords, I beg to move that the Bill be now read a third time. The Second Reading was a long time ago-20 months now—on 7th June 1994. Since then, it has passed through the hands of the committee, ably chaired by the noble Lord, Lord Wigoder. There were 11 sittings and the committee also visited Bodmin Moor.
Except in one important respect, to which I shall refer later, the Bill returns to us no different in general form. In the interim the deliberations of the committee have involved much discussion with the promoters, Cornwall County Council, associations representing commoners and landowners, the Countryside Commission and petitioners. The promoters and the other parties would, I am sure, wish to be associated with me in thanking all noble Lords who served on the committee and their chairman. I congratulate Cornwall County Council for its perseverance in pursuing the Bill. It underlines the Bill's importance for Cornwall and, I believe, its significance in the wider arena.
At Second Reading I introduced the Bill in the context of sustainable development to which the country adheres through Agenda 21 and the Biodiversity Action Plan to which the United Kingdom signed up through international conventions launched at Rio in 1992. I tried to highlight the duty that we in Parliament have as a legislature to enact laws that facilitate action by people and communities directed towards the objectives of sustainability. The importance of that consideration has not diminished.
I do not need to enlarge on the multiple values of Bodmin Moor. It is a large area over which the commons affected by the Bill are scattered and of which collectively the commons form a significant part. Perhaps I may remind the House that the area is important for its geology, its land form, its biological resources, its landscape and its archaeological and historic value.
The moorland habitat is fragile and suffers from over-grazing on large areas and in places under-grazing. Farming is not easy, but livestock farming is traditional on the commons. It is vital that that use should be managed in a sustainable manner with farming practices integrated so as to safeguard and enhance the inherent natural values of England's most south-westerly upland.
There are no changes in the structure of the Bill I described on Second Reading. The commoners' council, the management plan, the substantive powers

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of the commoners' council by regulation and otherwise, and the raft of precautions to ensure that the powers given are not abused are all as I described them on Second Reading. I need not go over them again.
There is no specific provision for judicial review, although the general law relating to such review will apply to the commoners' council as to any public authority. There is a new specific duty on the commoners' council to act fairly. That appears in what is now Clause 4. It replaces the specific provisions on judicial review. Other minor amendments of a drafting or technical nature do not affect issues of policy. So, except in an important respect to which I shall come, the Bill and the county council's reasons for promoting it are not substantially different from those outlined at Second Reading. It is still the aim of the Bill to establish a system of regulation on Bodmin Moor which will enable the commons, and indirectly the moor as a whole, to be managed in an environmentally sustainable way and in accordance with good husbandry. That, for the people who live there, will improve the viability of farms on the moor, encourage diversification and enhance the tourism potential. More directly, it will become possible to obtain environmentally sensitive area status, the associated grants to go with it and similar grants and facilities on the agricultural side. All that, the county council expects, will lead directly or indirectly to a substantial revival of the economy of the area.
When in June 1994 I agreed to sponsor the Bill in your Lordships' House I stipulated that it should have the agreement of the two statutory countryside agencies in England. As its chairman—which I still am—I was able to declare the support of English Nature, as recorded at col. 1153 of Hansard of 7th June 1994. I was also assured at the time by the Countryside Commission that I could say, as I did, that the commission had withdrawn its petition against the Bill in the face of assurances of modifications that would be forthcoming from the promoters. That created a somewhat difficult situation. The noble Baroness, Lady Nicol, and in particular the noble Baroness, Lady David, raised concerns that had been apparent in the withdrawn petition of the Countryside Commission. In giving me authority to speak on its behalf the commission also asked me to say, as I did, that it had residual concerns about the fencing of common land, the sources of advice on nature conservation and archaeology, the consulting of the public on the access strategy and the way in which trespassers would be dealt with.
Those issues occupied the period between Second Reading and today's Third Reading. The main difference between the Bill as it now stands and as it was then is that it no longer makes provision for a right of regulated access to the commons where, for the most part, there is at the moment no such access. There is de facto public access over many areas of the moor, as noble Lords will know if they have visited it. Those areas include both common land and land which is in sole private ownership. But that access is dependent on the decisions of individual landowners in respect of their own land, or, to a degree, the commoners on land which is common land. I am assured that in many instances
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the landowners and commoners actively encourage and support access rather than simply accept it. I am told that it is the understanding of the county council that those informal arrangements will continue in any event.
The major thrust of petitions against the Bill related to the way in which a right of public access was to be provided. In the end it proved impossible to reach an arrangement acceptable to the petitioners, the commoners and the landowners. The solution of the committee was to delete all reference to public access, leaving the Bill purely concerned with conservation and grazing measures. Clause 10, therefore, and the associated consultation processes have been withdrawn. The county council now feels that the question of access to open country generally, including access to commons, should be addressed nationally and not in the context of a piece of local legislation. I admit that I agree with that.
I referred to sustainability. The central plank in the structure envisaged by the Bill is the preparation and approval of a management plan which will provide the means for the commoner's council to exercise its functions. The commoners, with professional advice, are well advanced in the preparation of a draft of the kind of plan they envisage and will develop it when they have formal existence as a commoners' council after the Bill becomes law. That is the meat of the debate about sustainability. I said that at Second Reading and I have done so again today. The term "sustainability" has featured strongly in debates in this House on various occasions and in different contexts. We may not yet be able to define the concept for all purposes on every occasion. But at least we know what is not sustainable. At present the state of Bodmin Moor is not sustainable in environmental terms. The Bill can put the moors and commons on the road to sustainability. I fear that the problems that have been encountered in this one small legislative measure illustrate in microcosm the huge difficulties we shall face on a national scale as we try to devise practices and, where necessary, provide legislative backing to measures which integrate the fair aspirations of people across a wide range of interests so that together we can achieve sustainability.
Once again I commend the work of the committee and its members and chairman along with the promoters, the objectors, the petitioners and all those who became involved in the debate on having successfully found a way through the maze and in the end having produced a Bill which provides a grounding for sustainable management of what is a cherished corner of England's natural heritage. I beg to move.
Moved, That the Bill be now read a third time.—(The Earl of Cranbrook.)
Earl Peel: My Lords, I thank my noble friend for having brought the Bill to your Lordships' House for its Third Reading and for explaining so clearly how it has reached its present state. I too spoke at Second Reading and I have followed the Bill's progress with great interest ever since. At that time I felt that it was a very good Bill. It set about establishing a management structure which would bring together those with an active interest in Bodmin Moor. It would result in sensible management practice of benefit to both farming

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and conservation and would go some way towards achieving the sustainable objective to which my noble friend referred.
The law on commons is complex. Clearly, differences occur between owners and graziers. The Bill will go a long way towards addressing that difficulty. But what pleased me particularly about the Bill was that, although it was promoted by Cornwall County Council—I congratulate the council—it had the full support of those working on the ground. It was a Bill emanating from the people of Bodmin Moor. I appreciate that the carrot of ESA status acted as a helpful stimulus. Nonetheless, it is a useful step forward.
Sadly, matters did not develop, in the short term at least, quite as the promoters had expected. Certain organisations petitioned against the Bill in order to try to impose a right of open access over Bodmin Moor, which was quite against the wishes of the owners, the graziers and indeed the promoters of the Bill, Cornwall County Council. I appreciate that petitioning against a Bill is a perfectly legitimate and right thing to do. But it was particularly disturbing that in this instance there was quite blatant support for the access groups from the Countryside Commission. I should make clear that I do not include any of the local branches of the Countryside movement. My information is that it involved purely the head office at Cheltenham.
I appreciate that the Countryside Commission, as a government advisory agency, has statutory responsibilities on access matters and public enjoyment of the countryside. But to attempt to push through a policy which was opposed by all those promoting the Bill and which was contrary to government policy was, in my view, at the very least unhelpful and, I think, an underhand way to behave. It held up the Bill, caused considerable frustration to those involved with it and, although I have no evidence to prove it, I suspect that the additional costs have been considerable.
However, I am delighted that partly because of the determined efforts of those responsible for the Bill not to be moved and a most useful intervention by the then Minister for the countryside, my right honourable friend Mr. Robert Atkins, the matter now seems to have been resolved. Clause 16 has been amended and the public right of access removed, still leaving in place the very reasonable access provisions referred to by my noble friend in his opening remarks.
So I can say with confidence that we now have a thoroughly good Bill. Now that a proper management structure is in place, within the Bill at any rate, I hope that the Government in due course will seriously consider Bodmin Moor for ESA status or some such environmental scheme. I do not ask my noble friend on the Front Bench even to contemplate answering such a request because I realise that it is not in his power to do so. I just make the plea because of the importance of Bodmin Moor from an environmental point of view.
I am delighted to say that the prospect of the Bill being enacted has enabled the Cornwall Commoners' Association to be awarded a MAFF/EU 5B grant which will fund the expenses for the implementation of the
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new council and its workings. There are 300 commoners whose interests need looking after so it will be an expensive and complex operation.
It has been brought to my attention, in my capacity as Lord Warden of the Stannaries of the Duchy of Cornwall, that there is a minor difficulty still remaining within the wording of the Bill in relation to the exemption clause of the Duchy of Cornwall. I do not want to go into details now; my noble friend Lord Cranbrook is aware of it. However, I hope that the wording can be sorted out; otherwise, as the solicitor for the Duchy of Cornwall said,
"The point is purely a question of the grammatical drafting and not a matter of substance. The draft as prepared does not make sense in the light of the constitution of the Duchy and, if it ever came to be tested in court, might well be criticised".
Clearly, that point needs to be addressed. It cannot be dealt with now but I hope that when the Bill goes to another place it can be. I hope that there will be no further major delays and that the Bill has a speedy passage through the other place so that the owners and farmers of Bodmin Moor can, as we say, "do the business" for the benefit of farming, the environment and those who visit and love Bodmin Moor.
Baroness Hilton of Eggardon: My Lords, I congratulate all those involved in the successful progress of the Bill through its rather laborious stages. Unlike the noble Earl, Lord Peel, I regret the fact that the provisions for public access have been removed. The preamble originally contained provisions dealing with public access; they are no longer there. Although the Bill provides permitted use as a resort for open-air recreation, that is merely a power that the council possesses rather than a duty upon it. My understanding is that the present damage to Bodmin Moor is mostly caused by over-grazing and not by members of the public visiting the area.
If the provisions for regulated access that were at one stage in the Bill had been retained, it would have been possible not only to allow people to use larger areas of Bodmin Moor but also to regulate that access to the benefit of the environment by erecting fences around particularly sensitive areas and so forth. Therefore, not only have the public lost out because of the loss of provision for access to some parts of the moor, but also the environment and some species may have lost out because it is not possible to provide powers to regulate their access.
With those caveats, I wish the Bill well and congratulate all those involved on its production.
Lord Lucas: My Lords, we are delighted that the Bill is about to achieve its Third Reading. We believe that it will do a great deal of good. My noble friend Lord Peel raised a matter of concern about the activities which he says the Countryside Commission undertook. He will be aware that we do not share the view of the party opposite that the countryside should be regulated by bureaucrats for the benefit of town dwellers. My right honourable friend Mr. Atkins reacted speedily and with

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some force to the anxieties expressed by my noble friend and Cornwall County Council. We wish the Bill happy progress through another place.
The Earl of Cranbrook: My Lords, the issue of access has been properly dealt with. The noble Baroness is correct. Originally, Clause 10 applied both to access and to the regulation of it. However, the right decision has been made in allowing that to be debated at national level rather than trying to impose regulations piecemeal in a local way. I commend the Bill to the House.
On Question, Bill read a third time.
The Earl of Cranbrook: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Earl of Cranbrook.)
On Question, Bill passed, and sent to the Commons.

Criminal Offences and Alcohol
7.45 p.m.
The Viscount of Falkland The Viscount of Falkland rose to ask Her Majesty's Government what new action they are considering to deal with criminal offences committed by those under the influence of alcohol.
The noble Viscount said: My Lords, we are a small and select group this evening discussing an important problem. It is none the worse for being a small group and I do not expect this to be a debate in which there are political differences.
I was asked by several noble Lords in the corridors of this House, in the friendly and congenial way in which things happen here, what was behind my Question. I am sure they wished that they had not asked because I was able to give them a synopsis of my speech. However, it is interesting that I should be asked by two or three Peers about this. They were interested, certainly, in what I started to tell them. It indicates that there is a contact with the way the general public think. At best there is an underestimation of the problems of crime and its links with alcohol.
I am vice-chairman of the all-party group on alcohol misuse, whose function it is to keep parliamentarians aware of developments in matters concerned with alcohol. We placed strong emphasis on health. We have now moved to the aspects of alcohol consumption which affect crime and to that end we conducted an inquiry. We took written and oral evidence from a number of important bodies such as the police, voluntary agencies, prison authorities and so forth, to discover as much as we could about their views of the problem.
Statistics indicate that we in this country are generally modest consumers of alcohol per capita every year. I do not suppose we are any different in terms of the small percentage who become addicts or alcoholics; that seems to be a fairly general and sad fact. In most societies there is a small percentage of people who will become addicted to one substance or another, unhappily nowadays crossing over from alcohol to drugs and back again. Those statistics may not be of much cheer to the
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brewers and distillers. I find it comforting that we, among the European nations, are modest consumers of alcohol.
I am sure that the noble Baroness, when she replies, will have some interesting and constructive thoughts in relation to the problems—mainly connected with younger males and their propensity in certain circumstances to indulge in activities which can be criminal as a result of an immoderate consumption of alcohol. One only has to read the newspapers every day or to follow the media to find cases of crime or sad events which may or may not be criminal, connected with alcohol abuse. Those are clearly most publicised, and have been publicised in recent years, in connection with sporting events. My noble friend Lord Addington will deal with that point. We have heard of British tourists misbehaving on international flights and some noble Lords may have seen a recent television programme about violence and alcohol on our railways, particularly our underground system in London.
There are also deaths and injuries from drinking and driving, although there has been a quite remarkable cultural change over the past 15 years. There has been an enormous change from when I was a young man. Generally speaking, I do not think that young males drink and drive. In fact, if one had to point the finger anywhere, it would be at middle-aged drivers, who drink and drive more than young people because they have not changed with the culture. The Minister may have something to say to us about that. Because I feel that there has been such a change and because I believe that when people have behaved well they need a pat on the back rather than being further chastised, I am not necessarily a supporter of more random testing. But persistent offenders—people who persist in driving while under the influence of drink—should be dealt with seriously, and sometimes severely.
The incidents we hear of are probably only part of the problem, either because other incidents have not been detected or because the link has not been made between alcohol and the crime. The overriding view given to the all-party group from doctors, the nursing profession, the Probation Service and the Prison Service was that not only is there a link between alcohol and crime but that not enough has yet been done to address the link. Therefore, a serious attempt must be made to reduce the large number of crimes which are undoubtedly related to alcohol.
The Police Superintendents Association estimates that more than 50 per cent. of all crimes have some alcohol component. The British Medical Association told the inquiry that two in three homicides, three in four stabbings and half of all fights in domestic situations are associated with alcohol. A survey by the West Midlands police showed that alcohol was a factor in 82 per cent. of disorder cases and 43 per cent. of assaults in that area of the British Isles, with most of the offences happening—this will not surprise your Lordships—around weekends and around closing time near licensed premises.
Given the wide range of offences shown to be linked to alcohol there are a number of measures which the Government could take. What is needed as an initial step

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is a co-ordinated approach to government policy on this issue. Perhaps the Minister can say whether the Government will encourage local authorities to work more with their local partners such as the police, the Probation Service, magistrates and alcohol services, particularly voluntary services, to draw up specific strategies to deal with the problem of alcohol related crime.
I shall return to the subject of licensed premises. Given the number of cases of assault and disorder which take place outside licensed premises around closing time, considerable efforts have already been made by parts of the drinks industry to improve the situation. It is recognised by the drinks trade that a higher level of training is needed by staff working in licensed premises not only to prevent disturbances and to foresee them but indeed to learn how alcohol works. If one has to teach young people about drink and about its health aspect it is quite important to tell them, as indeed I have tried to tell my own children—happily, I have had no problems so far—that not only does alcohol cause health problems if one drinks too much of it but that one has to understand what in each particular case it does. Some people become very aggressive. Some people like me become giggly and stupid—more giggly and stupid than usual. It is necessary for young people to be taught about the dangers of this and other substances.
We heard interesting evidence from the Prison Service. Bearing in mind the number of people who are in prison with alcohol problems, prisons are often without even the most basic information about alcohol and offer little access to counselling and rehabilitation services. In an overcrowded prison system it should be possible to remove a number of people who are not professional criminals. Many of them are, unhappily, inadequate people with problems who find themselves in places of that kind where their problems can only be aggravated.
The impact of alcohol abuse on family life is devastating. The problem affects not only inner city poor areas but also middle class affluent areas. The result of one person—a parent or a partner—having an alcohol problem and persistently getting into trouble with the police who may be called in to deal with domestic violence can be that person going to prison with little or no access to the kind of help which is needed to deal with the alcohol problem.
The report of the all-party group was a step in the right direction and it has gone to the Minister's department. Alcohol studies are not always the most charismatic or attractive of studies to read but this report is full of interesting information. I hope that the Government will consider seriously the recommendations in the report because there is no doubt that they are a much needed basis on which to work for a national and co-ordinated strategy to deal with the problem.
7.58 p.m.
Lord Campbell of Alloways: My Lords, I thank the noble Viscount for introducing an interesting and
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important subject. What new action are the Government considering to deal with criminal offences committed by those under the influence of alcohol? I shall confine my short speech to that point.
This subject is clearly, from the point of view of new action by the Government in the criminal context, closely related to drugs and cannot be considered in isolation from them, the question being whether self-induced abuse of alcohol or of drugs or even clandestine administration—spiked food or drink—affects the mental capacity in such a way as to exculpate from the commission of a crime. The new action taken would be perhaps to introduce better laws because, as the former chairman of the Law Commission, Mr. Justice Brooke, said in his reflections at page 914 of the Criminal Law Review (1995),
"Concealed from view in this context of offences against the person are a whole host of complicated common law principles worked out by the judges over the years in an effort to make this ragbag of offences work. The more the judges try to make these provisions operate as rationally and fairly as is practicable, the more obvious it has become that the basic framework of the law is unprincipled and very seriously out of kilter with modern international standards".
That is the sort of basis on which I am approaching this very serious question.
The problem arises in its most acute form—in the interests of time I shall confine my observations to it—in relation to the charge of murder, which, at the moment, is under general review and which incurs the mandatory life sentence. That should be under review, but it is not. It could extend to rape if the proposals as to a mandatory life sentence on second conviction are to be implemented. The automatic mandatory life sentence for a second offence of rape committed under a substantial consumption of self-induced drinking, or even perhaps administered, without any judicial discretion to take that into account, is quite a serious matter. I only mention that as an illustration of the magnitude of this question.
There is the case of Kingston. He was a young man whose food and drink was surreptitiously laced with a powerful intoxicant. Under its influence he caused someone's death with the intention of causing him serious harm. He could not have formed that intention if his drink had not been spiked. He was guilty of murder.
I said that I would make a short speech and I meant it. This is a matter which warrants not only the attention of the Law Commission, which it is about to receive, but also in due course the attention of government in context with a simple proposition; namely, how does the consumption of alcohol to a certain degree which affects intent or the administration of drugs, exculpate from crime?
8.5 p.m.
Lord Addington: My Lords, when I started thinking about the question before us—that is to say, how alcohol and crime are related in our society—I found that it is very difficult to think of any general public disorder crimes which are not to some extent affected by alcohol. The simple reason is that alcohol is the drug of choice for virtually the whole of the Western world and is

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something which breaks down one's inhibitions. That is why we take it as a social activity. Alcohol breaks down inhibitions against doing harm and against certain other types of behaviour.
Alcohol also breaks down inhibitions at different rates. As my noble friend has just said, different people react to alcohol in different ways. It affects people at different ages in different ways. It depends on one's diet. It is a very variable substance. Also, different types of alcohol react differently in different people at different times. With that chemical variant working through the system, the only thing that we can say for sure about it is that it creates situations where one is not so much in control and there are not so many inbuilt natural or social inhibitions influencing one's actions. There is, then, the situation of people being more prepared to follow through instincts or feelings and thus one has the breakdown of normal rules and regulations, law and order.
The principal offender is, and has always been, the young male. Although I feel something of a veteran when I play rugby, in this Chamber I believe that I am one of those closest to that group. In this context, people who are genetically the most boisterous and most affected by machismo and who take on alcohol may turn towards acts of violence and disorder.
I believe that that is what, primarily, we are talking about here. We are not talking so much about premeditation. There may be cases, for example, where people are drinking to break down inhibitions and to give themselves Dutch courage; for instance, in organised football violence. The Government have made successful attempts towards curtailing that problem over the past few years. Often the reaction is off the cuff. That is when a person finds himself in a situation of stress where the inhibitions are broken down and there is over-reaction. The young male who is over-reacting goes from punching someone on the nose to trying to use a knife or he is socially geared to carry a knife or use a piece of broken glass. Many crimes take place in that way, leading to a level of violence involving the taking of life.
In order to try to break down that situation, the Government are placed in a very odd situation. One of the great problems which the British have is that they are renowned as speed drinkers. We drink very fast: we are renowned for that abroad. Indeed, our licensing hours restricting the amount of time that one can spend in bars have often been pointed to as a contributor to that situation. Someone goes home from work, gets changed and goes out. Possibly that person does not go out until nine o'clock. The bar he is socialising in will be shut by eleven. Often it is a case of, "We must drink something to relax ourselves". We are creating a situation which encourages the over-consumption of alcohol over a short period of time, possibly on an empty stomach.
It is very odd to think that one might be actually easing the situation and reducing the tension by extending the amount of drinking time. I suggest in some situations the breaking down of the licensing hours after lunch. If people are not forced into a bar to
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consume at a certain rate to create a certain effect and then forced out, one may, as my noble friend said, by changing the time of leaving bars, remove the conflict situation. Staggering the hours would allow people to choose their own time for drinking. That is something which should definitely take place.
As regards sporting occasions, if people involved in those activities are sent out at certain hours when they have reached a certain degree of intoxication, one is again creating a cauldron. The behaviour also depends on culture. For instance, soccer crowds are made up predominantly of young men and there has been most trouble with them in the past. If one cuts down the amount of alcohol drunk on trains travelling to and from games and at the grounds, the amount of violence is reduced. Scotland showed us the way forward and that it is possible to tackle and to deal with such situations. We now have to think hard about allowing the consumption of alcohol on journeys to and from soccer matches and other sporting events. Boxing has had a very bad press, with possibly the same tribal instincts being stirred up, leading to similar results when alcohol is involved.
We are talking about the drug of choice for the whole of our society. There are very few situations in which, traditionally, people do not drink alcohol. It is still unusual to find people who do not drink alcohol. The most intelligent way forward would be to teach people about consumption patterns and about what happens to them when they consume alcohol. We have already made a huge cultural step forward in terms of drinking and driving. My noble friend referred to that. Drinking and driving is now regarded as idiotic by many members of our society. We must try to get people to realise that they must act responsibly for the good of themselves and those around them. If consuming too much alcohol is no longer socially acceptable, people will probably try to restrict their consumption.
Ultimately, unless we try to ban the sale of alcohol altogether, which will not work—indeed, the only part of the Western world which tried to do that created vastly more crime and far more alcoholism than was the case previously—we must try first to change the way in which we regard alcohol and, secondly, we must change the way in which we encourage its consumption. That is the only way forward with this problem.
8.11 p.m.
Lord McIntosh of Haringey: My Lords, we must be grateful to the noble Viscount, Lord Falkland, for tabling this Unstarred Question and for bringing to the attention of the House the excellent all-party group report, of which he was the vice-chairman, which I have read with a great deal of interest. The speeches that we have heard have a common basis although they have all been very different in emphasis. That common basis is the well-established link between alcohol and crime. That was shown clearly in the all-party report and has been confirmed by all of the agencies which are concerned with this serious problem.
The noble Lord, Lord Campbell of Alloway, chose quite properly not to follow the social speech of the noble Viscount, but spoke about the legal implications

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of alcohol and crime. He referred to the work of the Law Commission. I read with great interest the Law Commission's paper No. 127 on the subject. I have also had the benefit of reading the Law Society's response to that consultation paper. The conclusion that I draw from it is that although it is difficult to decide in relation to which crimes the influence of alcohol should be recognised, the present law is not too far from the ideal.
As I understand it, the distinction between whether or not alcohol is a factor to be considered in judging a crime is whether the crime is one in which the state of mind of the accused—that is, the intention—is an essential part of the crime. Murder and causing grievous bodily harm with intent are such crimes, but manslaughter and other crimes which do not involve intent are not such crimes. This is difficult to define. I know that the definitions derive from a House of Lords judgment in 1977 in the Majewski case. The subtlety which I still find a little difficult to understand is the concept of "Caldwell recklessness". I am still not quite clear what that means.
Basically what the Law Commission was saying—the Law Society and others who have responded probably agree—was that although there will always be difficulties around the edges, if we stick to the concept of "intent" to cause a particular result, it is possible to rely on the intoxicated state as being evidence that the defendant had no such intention. However, a drunken intention is still an intention at law. Therefore, the law will never be entirely clear on this point. If, on the other hand, the allegation is only that the person realised that there was a risk that a particular result might occur, intoxication would not be a defence. The conclusion that one draws from that is that if there are changes to be made in the law—I believe that the Law Commission has a draft Bill—they will be relatively minor and therefore we should not expect too much change.
I move now without too much difficulty to the social issues raised by the noble Viscount. The conclusion that I draw from the all-party report is that a wide variety of people have to be responsible if any progress is to be made. I do not think that it is a matter of saying, "The Government must do this"—although perhaps one may wish that the ministerial group which existed between 1987 and 1991 could be revived—although the involvement of local authorities, magistrates, the police, the prison service and sporting authorities will be necessary. We shall have to chip away at the problem because we are never going to solve it.
Perhaps I may refer first to local authorities and, to a lesser extent, health authorities. Coventry and some other places have introduced a by-law prohibiting street drinking in certain areas. There is a lot to be said for that. I am sure that all of us find it personally offensive to see people (not only in shopping areas but elsehere, and particularly on public transport) going around even early in the morning with beer cans in their hands from which they take a glug from time to time. It appears from the Coventry experience—evidence was given to the all-party group—that there are things which can be done which have some effect in reducing certain kinds
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of alcohol-induced crime, such as crimes of disorder. Clearly, such by-laws will not have any effect on the incidence of murder or domestic crime.
Local authorities also have other responsibilities. In conjunction with health authorities they could set up day centres—if there is the funding. Clearly, that would be of value.
It is also important to be much fiercer than we are about requesting proof of age in pubs. I know that my sons all started drinking in pubs long before they were legally allowed to do so. I am sure that that is the experience of most Members of your Lordships' House and of most people generally. If there were an effective system of requiring proof of age, as there is in most of the United States, perhaps we could get rid of another aspect of alcohol-related crime. However, in order to do that local authorities have to have responsibility for crime prevention in conjunction with police authorities. We regretted very much the fact that the Police and Magistrates' Courts Act of a couple of years ago did not put crime prevention at the core of collaboration between local authorities and police authorities.
I turn briefly to the sporting events to which the noble Lord, Lord Addington, referred. I agree with what he said, but when he spoke about football violence I thought that he was being a little selective in class terms. Surely alcohol violence at Varsity matches and the Boat Race, if not at Test matches, shows that alcohol-related crime applies just as much to the upper classes as to the lower classes. I can see the noble Viscount, Lord Long, recalling his long past and no doubt raddled youth. I recall Evelyn Waugh in Decline and Fall describing the sound of the upper classes baying after broken glass. Perhaps that is what he is remembering.
Lord Addington: My Lords, I merely used football as the best example, and an example of tribal, confrontational violence. Shall we say that offences of disorder have long been a part of Rugby Union?
Lord McIntosh of Haringey: My Lords, I see tribalism, on the whole, more with the upper classes and the aristocracy than I do among the working class.
However, I turn rapidly to magistrates and the powers that they could have to impose non-custodial sentences which involve the use, for example, of day centres, to which I have already referred, and alcohol treatment centres. There is the important aspect of magistrates' responsibility for licensing. Licences to sell alcohol are cheap. Perhaps they could be made more expensive. Some of the controls, particularly on selling alcohol to young people, could perhaps be fiercer than they are.
We have not referred much to forms of drugs other than alcohol, and the two must be considered together. My honourable friend George Howarth, who is a member of the Front Bench Home Affairs team in the other place, has been doing a great deal of work recently

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on the control of door staff in clubs. That is important. The training and control of door staff in clubs in understanding—
Lord Graham of Edmonton: Bouncers!
Lord McIntosh of Haringey: Bouncers, my Lords, as my noble friend reminds me. The training of such people in understanding alcohol and drug abuse is enormously important. It could make a significant contribution to reducing alcohol-induced crime.
The responsibilities of the police are self-evident. I do not need to expand on that point. There is a great deal still to be learnt by the police about how to deal with drunks at police stations. There are police stations, certainly in my part of London, where the practice is severely below that which is desired.
Finally, I want to refer to what can be done in prisons to deal with alcohol rehabilitation. I have been reading with interest about the work of the Rehabilitation for Addicted Prisoners Trust in Her Majesty's Prisons at Downview and Coldingley, and, as of this year, also in Pentonville. It has been providing counselling, in the first instance by outside counsellors in those prisons, and consistent programmes to wean prisoners off alcohol abuse. It has now been able to build up a group of peer counsellors—nothing to do with the House of Lords, but fellow prisoners—who work effectively, as I understand it. I pay tribute to that work and I hope that it will be extended. Perhaps the Minister can say something about what more could be done.
There will never be a solution to the problem. It is riot a problem, it is a whole series of problems. As the noble Viscount said in his introduction, alcohol is the drug of choice for the western world, but if we involve all the agencies about which I have been talking we can chip away at the problem and perhaps make progress.
8.23 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I, too, join with other noble Lords in congratulating the noble Viscount, Lord Falkland, on raising an issue which is rightly foremost in the current debate about the improper use of alcohol. But before responding to the many and learned points which have been made I must say that at the Home Office we are often asked what are the causes of crime and what is being done to tackle crime and disorder. Alcohol misuse is often mentioned as a cause of criminality. Noble Lords will know that, quite simply, there is no single cause of crime. The reasons why people become offenders are complex and wide ranging. A variety of factors may encourage them towards or away from criminality. For some, alcohol will undoubtedly be an influential factor but it, too, may be part of a more complex picture.
The consumption of alcohol, in sensible quantities and in appropriate circumstances, provides a great many people with a great deal of enjoyment. I suspect that at this moment many of our colleagues are indulging innocently in that pastime.
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Clearly it is an important part in our social and cultural life. Equally, drinking the wrong amount or at the wrong time can lead to immeasurable harm—harm in health terms, as the noble Viscount said. And on those occasions where it reduces concentration and inhibition it can, and regrettably does, lead to accidents and anti-social behaviour.
The Government do not wish to discourage the sensible consumption of alcohol but are committed to reducing alcohol-related harm. Government policy is that schools, colleges and the Youth Service should encourage young people in developing responsible attitudes towards alcohol consumption. Young people need to learn to make sensible choices about whether, when and how much to drink and how to resist persuasion and pressure. That often happens in the context of more general health education programmes which emphasise the benefits of healthy living.
It is essential that we continue to get that message across, as heavy drinking often precedes violent and sexual crimes and disorderly behaviour, and many persistent offenders have a lifestyle which includes heavy drinking. Crime prevention efforts are therefore targeted on disorder and violence associated with licensed premises, and measures to encourage sensible drinking are seen as contributing to crime prevention generally. We know, for example, that almost half the incidents of disorderly behaviour dealt with by the police occur shortly after the end of permitted hours for licensed premises and are more likely to occur on Friday or Saturday nights and to involve young men. That said, it is important to remember that most drinking is not associated with crime.
Time prevents me from answering in detail the point made by the noble Lord, Lord Addington, about exit times from licensed premises, but it is a point well taken.
A great deal of progress has been made: alcohol related road traffic accidents are decreasing, attitudes have changed, as has been recognised by the debate, and drink drivers are increasingly being seen and treated as a criminal menace.
My noble friend Lord Campbell of Alloway mentioned the courts. There is no question about the important role that the courts have to play in dealing with alcohol-related crimes. In that regard, the Government's responsibility is to ensure that the courts have sufficient powers to deal adequately with the worst offences. Severe maximum penalties are available, particularly for offences of violence, and we have not hesitated to increase them where necessary; for example, the Criminal Justice Act 1993 doubled to 10 years' imprisonment the maximum penalty for causing death by careless driving while under the influence of drink.
Parliament has provided a sentencing framework, as my noble friend knows, which enables the courts to impose appropriate penalties on serious or persistent offenders. We believe that it is now up to the courts to make full use of those powers. I look forward with interest to the Law Commission's proposals on this matter.

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Alcohol-related crime is being tackled on a broad front by a great many agencies. Examples of recent action to reduce alcohol related disorder include the establishment of over 880 Pub Watch schemes right across England and Wales. As your Lordships will know, Pub Watch involves licensees working in co-operation with one another and the police and is an excellent example of the partnership approach to crime prevention. It can help licensees to deter potential trouble-makers and prevent the escalation of trouble.
Noble Lords will be familiar with the Safer Cities Programme which tackles crime in the inner cities through proactive, multi-agency projects in areas with high crime rates. Since it was launched in 1988 it has funded more than 40 schemes aimed at tackling alcohol-related crimes.
Many local authorities have already undertaken or participated in crime prevention or community safety partnerships which focus on alcohol-related problems. Those local partnerships aim to identify the scale of alcohol-related crime and deal with it, principally by persuading licensees and, where necessary, companies or brewers to improve the standard of supervision and management of their premises.
The work of the Probation Service in this area is well known. This service has a long history of helping offenders who misuse alcohol and has traditionally looked to the voluntary sector for help.
Many prisoners have a history of alcohol misuse and need help in tackling this problem. Programmes are run in most prisons and prisoners are encouraged to seek treatment. The programmes include education about the effects of alcohol and training in self-control techniques. Like the Probation Service, the Prison Service works closely with voluntary and other agencies in preparing prisoners for release and supporting them afterwards.
The noble Viscount referred to drinking and driving. As he knows, it is a serious and avoidable problem. The Government's message is aimed at the general public, not only at young people, and it is simply, "Don't drink and drive". From my involvement in observing young people I can say that they are more responsible. It is common nowadays for young people going out in a group to ask, "Who has elected not to drink?", in order that they can be driven home safely. That is extremely encouraging. Our policy is to try to change people's attitudes and we believe that we are making progress in deterring people from drinking and driving. In 1979 the proportion claiming never to drive and drink or to drink over the limit was 50 per cent. By 1990, it had risen to 79 per cent. We believe that progress is being made.
Much was said about encouraging local authorities to do more in a co-ordinated way. That activity is very lively at local authority level. Much is going on and the partnership approach to the matter is working and is the key. Perhaps I may refer to a partnership approach which goes back to Pub Watch. It is a multi-agency project involving brewers, licensees, the local authorities, the police and magistrates. The main objective of a scheme in Derby is to prevent or reduce drink-related disorder. A door-staff registration scheme
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was established by which door-staff have to attend a training course—a point made by the noble Lord, Lord McIntosh—and be approved by the Pub Watch group. Another campaign has involved the more vigorous application of exclusion orders under the Licensed Premises (Exclusion of Certain Persons) Act 1980.
Much was made of what more we can do at national level. A Cabinet sub-committee on health strategy is co-ordinating policies to deal with alcohol misuse and to ensure that measures to tackle alcohol-related crime and disorder are co-ordinated right across government departments.
The Prison Service was mentioned specifically. It recognises that the age and profile of clients presenting to community drug and alcohol services are no longer widely different and both groups have similar problems. Again, that point was made by the noble Lord, Lord McIntosh. Such people have problems with dependence and socio-economic factors and prisoners present with poly-substance misuse problems. For those reasons the Prison Service adopted a combined approach for the care, support and treatment of prisoners with alcohol and other substance misuse. In addition, the Prison Service health advisory committee, under the chairmanship of the former chief medical officer, Sir Donald Acheson, is now preparing a report on alcohol in prisons. Its recommendations will inform the development of future alcohol specific policy.
In schools in England and Wales education about alcohol misuse is a statutory requirement as part of the programmes of study covering aspects of drug education in the National Curriculum Science Order. Pupils aged seven to 11 are taught that alcohol can have harmful effects and effects on personal lifestyles. From age 11 to 16 pupils broaden and deepen their study of alcohol misuse by learning about the effects of alcohol on health and body functions, a point specifically made by the noble Viscount.
In May last year the Department for Education and Employment issued to all schools detailed guidance on teaching about drugs and dealing with drug-related incidents on school premises. The advice applies to all substances whose use or misuse may have harmful effects on the body, including alcohol. In addition, the advice contains a specific chapter on alcohol.
Much was made of the issue of by-laws and I agree with what was said by the noble Lord, Lord McIntosh. Local authorities can make by-laws under which it is an offence to drink intoxicating liquor in designated public places. I am happy to say that much is being made of that facility by local authorities. As regards proof of age, there is some read across to identity cards. No doubt we shall have much discussion about that aspect of identity cards when we debate the matter at a later date.
The noble Lord, Lord Addington, made an important point about public transport. We fully acknowledge the importance of making public transport safe for everyone. We have been involved in a number of successful initiatives to improve transport security. I would be happy to write to the noble Lord to inform him of some of those initiatives.

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We acknowledge the importance of door supervisors, a point made by the noble Lord, Lord McIntosh. There have been problems with violence by door supervisors in certain parts of the country. The police have reported that where this is the case, local registration schemes based on the attachment of conditions such as registration to public entertainment licences have proved effective in reducing incidents. The extent of the problem varies from district to district, with some areas experiencing little or no difficulties. However, it can be and should be a matter for local authorities to address.
We have had a wide-ranging debate, albeit a short one, which has been much informed by the recent report of the All-Party Group on Alcohol Misuse. Yes, crime is a most pressing social problem in this country today, but I do not accept that one of the most obvious social problems—that is, alcohol misuse—has been ignored. The Government are concerned to reduce crime and disorder associated with alcohol misuse and they welcome the many initiatives designed to encourage sensible drinking. In examining alcohol misuse, it is important that excuses are not sought for those who engage in crime. It is individuals who choose to commit crimes. Help is available to those requiring treatment for alcohol dependence. Other approaches have to be pursued too. The recent revised sensible drinking levels offer soundly based and credible advice on which people can base their own choices.
It has been said many times before that teamwork is important. In order to he really effective, action has to be taken at the local level where the problems of alcohol misuse actually occur. We will continue to encourage local agencies, statutory, voluntary and commercial, to work together in all parts of the country to promote the sensible drinking message, to discourage alcohol misuse and to provide help for people who have alcohol-related problems. Whatever noble Lords' nightcap, I wish them a safe journey home.

Broadcasting Bill [H.L.]
8.37 p.m.
House again in Committee on Clause 67.
Baroness Jay of Paddington Baroness Jay of Paddington moved Amendment No. 195C:
Page 59, line 23, at end insert ("taking into account the diverse interests of society, including women, different racial groups and disabled people,").
The noble Baroness said: In moving Amendment No.195C I shall speak also to Amendments Nos. 195D, 195F and 195H. Those amendments were previously grouped with Amendment No. 195ZC but, with the permission of the Committee, they form this later group. All the amendments deal with membership of the new Complaints and Standards Commission and the methods of appointing its members. Amendments Nos. 195C, 195D and 195F seek to ensure that the membership of the commission is representative of all the regions of the United Kingdom and of those with special cultural or community interests such as ethnic minority populations.
They also require the Secretary of State to include those with specific sensory disabilities whose particular needs have been so vigorously advocated by my noble friend Lord Ashley of Stoke throughout the deliberations on the Bill. There is also a requirement for the Secretary of State at least to listen to and take account of representations from general consumer organisations such as the National Consumer Council.
The Committee may fear that all that augurs for a hugely unwieldy body in which members may be interested only in being present to promote their individual cause. I do not think that need be so. With judicious selection and good management, an organisation can be broadly and fairly representative without every single concern being individually reflected in an individual member.
However, I am afraid, particularly in view of my past experience in the National Health Service, that unless some explicit directions are given about membership, the composition of influential statutory bodies such as this may be influenced by "cronyism" and political patronage. That possibility, that fear, lies behind Amendment No. 195H which simply requires the Secretary of State to implement the recommendations of the noble and learned Lord, Lord Nolan, in making appointments to public bodies.
The Committee will recall that in his first report on standards in public life the noble and learned Lord required the appointment of an independent commissioner for public appointments to oversee appointment procedures. Unfortunately, so far there has been no move by the Government to make such an appointment. But the noble and learned Lord recommended also that public appointments should be subject to the advice of a panel which should include a substantial independent element. He recommended further that candidates for appointment should declare any significant political activity which may have been undertaken in the previous five years. Those recommendations are the basis of Amendment No. 195H and the wording is taken directly from the report of the noble and learned Lord.
The spirit and, indeed, the practical implications of those amendments have already been accepted in other branches of public life. For example, I know that they are being implemented in making appointments to the new unitary health authorities which will take over the NHS on 1st April. I am sure that the Minister's right honourable friend the Secretary of State has been supportive of those changes in the health service.
It seems entirely appropriate, in the interests of accountability, high standards and, indeed, consistency throughout the public service, that the recommendations of the noble and learned Lord, Lord Nolan, should be adopted in this crucially important new body which the Broadcasting Standards Commission will be. I beg to move.
Lord Inglewood: I am grateful to the noble Baroness for comprehensively setting out the reasons behind this group of amendments. I shall deal first with Amendment No. 195C. I can well understand the noble Baroness's wish that the Secretary of State should take account of

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the full range of interests in society and the talent available to her in making appointments to the BSC. The amendment identifies some, but not all, important elements in that. Nonetheless, the Government do not believe it necessary or appropriate that the Secretary of State should be directed in this way: she would always as a matter of course wish to ensure the best possible appointments to an important body of this kind. It is also true to say that women, different racial groups and disabled people can advocate their own views and I am sure the BSC would receive and consider those views with care. Therefore, the Government would resist this amendment.
Amendment No. 195D would require the Secretary of State to appoint two members to the BSC who are sensorily impaired. The Government believe that it is undesirable to place such a requirement on the Secretary of State, as the Secretary of State gives the widest consideration to the qualities and experience required in appointees in order to achieve the right balance of quality and experience in the membership of the BSC. Placing a requirement in favour of only one particular group, however inherently attractive that may appear, raises the question as to whether other equally deserving groups should not be similarly favoured. We must not lose sight of the need to give the Secretary of State flexibility in arriving at the best possible combination of ability and experience, which in turn may change as membership changes. Therefore, the Government resist making explicit provision in the membership of the BSC for particular groups.
Amendment No. 195F is intended to require the Secretary of State to strive to ensure that appointees to the BSC are suitably qualified to represent the interests of a broad range of regional and social groups and, where appropriate, reflect the range of programmes on television and radio. As I explained a few moments ago, in any event the Secretary of State would wish to take into account the range of interests in society when making appointments to the BSC. However, such a requirement would fetter the discretion of the Secretary of State to ensure the best possible appointees to the commission.
Amendment No. 195H relates to the Nolan Committee. As the noble Baroness said, these are recommendations of the Nolan Committee on Standards in Public Life which the Government have already accepted in respect of all public appointees. The Government see no need to amend the legislation relating to each public body in order to incorporate that commitment. For that reason, the Government will resist this amendment as they did the others.
8.45 p.m.
Baroness Jay of Paddington: I am grateful to the Minister for that detailed reply. I am somewhat disappointed that, although, as the Minister says, the Government have accepted the principle of the recommendations made by the noble and learned Lord, Lord Nolan, they are not prepared, in the spirit of those recommendations, to make them explicit, as they refer in particular to new bodies of this kind.
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I draw the Minister's attention to the other more general recommendation of the Nolan Committee in which it is said in general terms, not relating to the specific requirements about appointments:
"The basis on which members are appointed and how they are expected to fulfil their role should be explicit. The range of skills and background which are sought should be clearly specified".
That seems to me to be much more precise than the rather more general understandings which the Minister and his Secretary of State seemed to be content to rely upon.
I find the Minister's reply very disappointing and I suspect that we shall need to return to this matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 195D not moved.]
[Amendment No. 195E had been withdrawn from the Marshalled List.]
[Amendment No. 195F not moved.]
[Amendment No. 195G had been withdrawn from the Marshalled List.]
[Amendment No. 195H not moved.]
[Amendment No. 196 had been withdrawn from the Marshalled List.]
[Amendment No. 196A not moved.]
Schedule3[TheBroadcastingStandards Commission: supplementary provisions]:
Lord Inglewood Lord Inglewood moved Amendment No. 196B:
Page 99, leave out lines 23 to 34 and insert—
("(2) The BSC shall send a copy of the statement of accounts to the Secretary of State and to the Comptroller and Auditor General within such period after the end of the financial year to which the statement relates as the Secretary of State may direct.
(3) The Comptroller and Auditor General shall—

(a) examine, certify and report on the statement of accounts, and

(b) slay a copy of the statement of accounts and of his report before each House of Parliament.").

The noble Lord said: As a result of brief discussions between the usual channels, it has been suggested that it may be for the convenience of the Committee if I speak together to all the government amendments, but obviously I shall move them as we come to them.
As regards Amendment No. 196B, the Government consider that the accounts of the BSC should be audited by the Comptroller and Auditor General and this amendment to Schedule 3 provides that the Comptroller and Auditor General be so empowered, in particular to examine the statement of accounts and to lay a copy of the statement and his report on the statement before your Lordships' House and in another place.
Amendment No. 200 is consequent upon a previous government amendment as a result of which the Welsh Authority will be able to provide a further service and arrange for that service to be broadcast in digital form. Therefore, the intention is that the BSC's duty shall extend to programmes included in that new digital service.
Amendment No. 202 is also consequent upon that amendment and its intention is that the BSC's duty should extend to programmes included in the new digital service.
As regards Amendment No. 208B, in the handling of fairness complaints, it is of course important that the complainant is advised of the outcome of the complaint. This amendment requires the BSC to send a statement of its findings to the complainant.
I turn now to Amendment No. 220A. While it is proper that the BSC be required to publish reports on those complaints which it considers or entertains, it would clearly he unnecessary for it to do so where, for whatever reason, it has neither considered nor entertained a complaint. Therefore, this amendment removes that requirement.
I move on now to Amendment No. 220B. The Government's intention in this part of the clause is to enable the BSC, where necessary, to omit from its report of a fairness complaint any information which might identify any person connected with the complaint. The broadcasting and regulatory bodies and providers of licensed services would, however, still be identified. Amendment No. 221A is a proposed new clause which will complement paragraph (c) of Clause 80(7). It will require the ITC the Radio Authority, the Welsh Authority and the BBC to report back to the BSC on any additional action taken by the body in question, or by a licence holder, or by the maker or provider of the relevant programme. Thus, where the BSC has issued a direction to the effect that its findings on a particular complaint must be publicised, the broadcasters and regulators will now have to make inquiries to find out whether any steps have been taken in response to such findings, beyond mere publicity. That will have the effect of demonstrating the seriousness with which the BSC's decisions are taken by broadcasters. Conversely, where broadcasters choose to ignore the BSC's decisions, this will be displayed, in the BSC's published reports, to the public. Broadcasters will, therefore, wish to consider the potentially damaging effect on public perception of ignoring the BSC's findings.
I turn now to Amendment No. 222A. In view of the wide recognition of the valuable contribution of the Broadcasting Standards Council's research to the debate on broadcasting standards, it is the Government's view that the new BSC should perform a similar role in the debate surrounding unfair treatment and infringement of privacy in broadcasting. It is hoped that the amendment will enable the BSC to commission research which will be of value to individuals and broadcasters alike.
Amendments Nos. 223A and 223B would provide that a copy of the BSC's statement of accounts for each financial year and of the report of the Comptroller and Auditor General on that statement is to be sent to the broadcasting and regulatory bodies and, on request, to licence holders.
With regard to Amendment No. 223C, under the terms of its agreement, the BBC is required to contribute towards the costs of the Broadcasting Complaints Commission and will be similarly required to contribute towards the Broadcasting Standards Council, as determined by the Secretary of State.
The clause as it stands effectively follows the wording of Section 149 of the Broadcasting Act 1990. However, because of the new formula for determining contributions, it would, as it is currently worded, require the broadcasting regulatory bodies, which do not technically include the BBC, and the Welsh Authority, to contribute 50 per cent. of the costs of the new BSC. The BBC's contribution would, therefore, be in addition to that 50 per cent.
Finally, I turn to Amendment No. 224. Members of the Committee may recall that a number of previous government amendments enable the Welsh Authority to provide a qualifying service in digital form and lay down certain content and scheduling requirements. The content and scheduling of qualifying services provided by the other terrestrial broadcasters are covered by the terms of their licences and are therefore defined here as a special kind of licensed service. In conclusion, I beg to move Amendment No. 196B.
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Clause 68 [Power to publish guidance relating to avoidance of unjust or unfair treatment or interference with privacy]:
Viscount Caldecote Viscount Caldecote moved Amendment No. 197:
Page 59, line 27, leave out ("may draw up guidance relating to") and insert ("shall draw up codes of").
The noble Viscount said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 198, 199 and 201. I strongly support the merger of the BCC and the BSC to form the new, more effective BSC. I welcome the provisions of the Bill such as those in Clause 80 which give greater powers to the new BSC and which will make it more effective. But some further strengthening is needed, particularly in the references as to what the BSC "may" rather than "shall" do, and to guidance and codes. Amendment No. 197 would lay a duty on BSC to draw up codes rather than guidelines. Any regulatory authority or regulatory arrangements must contain rules or laws laid down by Parliament, and also codes of best practice and guidance, where needed, on related matters in descending order of severity and precision.
Perhaps I may take an analogy from the use of vehicles on public roads. Signposts or police notices may give guidance as, for example, on a recommended diversion to avoid a low bridge or a flood. However, it is left to the driver's discretion as to whether or not such guidance is followed. The Highway Code is much stronger. It provides a code of good practice. In most cases, it is not in itself an offence to break the code, but, if an accident occurs, it will certainly be relevant in apportioning blame and in any resulting prosecution. Finally, the Road Traffic Act contains mandatory requirements, rules and laws the breach of which constitutes a criminal offence for which the offender risks prosecution.
The Bill contains many such rules, but they are not appropriate for regulating matters which are the remit of the BSC. Clear codes of practice are the best way and codes are already referred to in the Bill in many places.

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However, those references are confused and made less effective by the introduction of the concept of "guidance" which, in too many cases, programme makers feel is only guidance and may be ignored at their discretion. That is clearly unsatisfactory, even accepting—as I certainly do—the need to give adequate freedom to exercise creativity in programme content.
The amendment would replace the words "may draw up guidance" with "shall draw up codes". I submit that that is essential if the BSC is to carry out its task effectively. Similarly, Amendment No. 198 replaces the word "guidance" with the word "codes". Amendment No. 199 makes it mandatory for the BSC to publish the codes in force, to monitor them and to report on them. Again, "guidance" is replaced by the words "codes". The amendment is important also in that it would enable the public to judge whether the codes are sensible and whether they are being observed. Amendment No. 201 would move the unnecessary and weakening words "giving guidance" in Clause 69(1). The objective of all the amendments is to strengthen the hands of the BSC and to clarify the way in which programme makers must behave. I beg to move.
Lord Renton: I wish to support the amendments. My noble friend has raised an important matter. We all know that increasingly in recent years there has been too much invasion of privacy on television. I believe that it is right that there should be specific obligations such as would result from my noble friend's amendments in order to deal with the matter. Therefore, I hope that my noble friend the Minister will give the amendments a very sympathetic reception.
Lord Ackner: I, too, should like to support the amendments. It is, of course, axiomatic that no watch-dog should be toothless. That is the situation in regard to those clauses which it is sought to amend. Guidelines are a species of exhortation and a person who wishes to ignore them can simply say, "I had regard to them; but I didn't think that they applied to my particular case". In my submission, it seems to be obvious that, if regulation is to occur, then that which the regulation provides must be clear and unambiguous; and, indeed not the subject matter of a discretionary compliance according to the particular reaction of the person involved.
9 p.m.
Viscount Tenby: I rise briefly to express my support for the amendments tabled in the name of the noble Viscount, Lord Caldecote, and of my noble and learned friend Lord Ackner. The amendments are clear and straightforward, but I hope that the Minister will agree with me that they lie at the very heart of regulation. I am afraid that for once I cannot agree with the Duchess in Alice in Wonderland, who advised Alice to,
"Take care of the sense and the sounds will take care of themselves".
I prefer the recent comment of the ITC, which has an admirable record in this respect, that,
"the best and most effective regulation flows from clarity".
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In any walk of life—and broadcasters are no exception—uncertainty and lack of definition present untold opportunities for the skilful and unscrupulous operator to exploit. In the past the situation with regard to the BBC, for example, has been far from satisfactory in the matter of regulation. The fact is that there has not been parity with the independent sector. That fact has been classically acknowledged by the Government—and credit must be given to them for that—in the stronger provisions contained within the new Charter and Agreement. But the anomaly remains. The judge and jury are still to be the same under the proposals in this Bill. That is unsatisfactory enough in all conscience, but if one adds to that the fact that the new BSC will be entitled,
"to draw up guidance relating to principles to be observed"
an invitation is in effect being extended to unscrupulous broadcasters to get round such guidelines if they can in an unwelcome cat-and-mouse game. It will at the same time fill honest broadcasters with doubt about what can and cannot be done. Waffle never pays. People have the right to know unequivocally what the rules are, and they also need to know what will happen to them if they take a chance.
The Earl of Halsbury: I wish to support the amendment of the noble Viscount. I must warn the Government that if they do not accept it they will suffer from a progressive deterioration of standards. This creeping deterioration is already on us and we must bring a halt to it.
Lord Rix: I am happy to play a supporting role in relation to the amendments tabled by the noble Viscount, Lord Caldecote, and the noble and learned Lord, Lord Ackner. I must apologise if I speak for a moment longer than I should because I suspect that I shall not be present at the Report stage. Like the noble Viscount and the noble and learned Lord, I feel that it is wrong to give injustice or unfairness a much lower profile than sex and violence as issues of public concern. It might even be argued that while there are those who support the portrayal of sex and violence on freedom grounds, or because they enjoy that sort of thing, I have yet to hear anyone defend injustice or unfairness as being for the common good, or of personal benefit to those who like that sort of thing.
Nor am I persuaded that the definition of what is unjust and unfair is so much harder to agree on than that which is unacceptable in terms of sex and violence before the watershed, or at any time for that matter. What I think is true—here I come to my particular and perhaps predictable interest as chairman of MENCAP—is that sometimes it takes a certain amount of expertise, or at least long acquaintance with the subject matter, to recognise unfairness and injustice. For example, my hackles rise when people with learning disability are portrayed as dangerously antisocial, or prone to behaviour which will reduce the value of property. Those who have no personal knowledge of people with learning disability might assume that such portrayal was accurate. Therein lies the problem. If no one believed it, it would matter much less if someone said it.?

811
Similarly, if MENCAP or any other charity is unjustly portrayed in a poor light, that can do a great deal of damage when people assume the portrayal is accurate. I have no objection to just and fair criticism. That is a healthy check on accountable bodies. As an organisation, MENCAP has on the whole had—and, if I may say so, has deserved—quite good media coverage. I have sometimes at least found radio and TV willing to present positive images of people with learning disabilities. Sometimes, however, that has not been the case. In such cases I have found obtaining an apology and a correction a little like the proverbially frustrating gathering of grapes off thorns, or figs off thistles. Requiring the commission to write and publish codes of good practice and to monitor and report on their implementation could help considerably to avoid and, where necessary, make amends for the lapses from virtue to which even the best of broadcasting systems are sometimes prone. That would be to everyone's benefit. I am happy to support these amendments.
Lord McNally: I hope that the Minister will show a little courage in the face of this wave of political correctness that is washing over the Benches in this Chamber. There are, of course, dangers as regards irresponsible behaviour of broadcasters, but I warn the Committee that there are also dangers in the over-regulation of broadcasting. In this field, the artistic field and the political field, one is constantly chasing a will-o'-the-wisp in trying to draw up some tight code which will achieve perfection. When one talks about taste and decency, or the portrayal of sex, or due impartiality, one is talking about subjective matters, the perception of which often changes from generation to generation.
There comes a point when a free Parliament in a free society has to defend the rights and freedoms of its citizens in a culturally important sector such as broadcasting. Sometimes their freedom to make mistakes must also be defended. Tonight we are hearing the language of restriction which I believe could have dangerous implications for a broadcasting system which in other respects, as I said earlier, Members of the Committee frequently hold up to the rest of the world as an example of excellence. It is an example of excellence, but I am not sure it would remain so for long if some Members of the Committee had their way as regards the restrictions they propose.
Lord Renton: I wonder whether the noble Lord has borne in mind that in recent years there has been—as has been said in this debate—increasing invasion of privacy, too much sex and too much violence. That is largely because the broadcasters are entirely their own masters. There has not been enough regulation. Quite frankly, unless we do something about this, those abuses will get worse; they will not get better.
Lord Chalfont: Not for the first time, and possibly riot for the last, I must take issue with the noble Lord, Lord McNally. He used the term "political correctness". His speech was, in my view, a typical example of precisely that vice of political correctness. We heard the peddling of the idea that everything is subjective.
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However, everything is not subjective. For the benefit of the noble Lord and the Committee I shall recount something that the editor of The Times once said to me when I was writing leaders for that newspaper. The editor was Sir William Haley who had also been director-general of the BBC. At the time of the famous Profumo case a leader writer said to him—the argument was conducted on very much the same lines as that used by the noble Lord today—"But Sir William, all these things are subjective". Sir William looked at him for a moment and replied, "No, they are not. Some things are evil and cruel and ugly and no amount of fine writing on your part will make them good or kind or beautiful".
There are things which are said and done on television and spoken on radio which are not subjective. There is open obscenity; there are gratuitous displays of sex on television which are totally unnecessary to the creativity of any artist; there is unfairness to people, ideas, organisations and controversies which is not subjective but one-sided and biased, and everyone can see that it is. I beg the Committee not to fall into the kind of political correctness that the noble Lord advocates.
As the noble Lord said, there are already codes of conduct, such as the code of the ITC, which are clear codes governing behaviour on television. There is the code of the Radio Authority, which I was instrumental in drawing up and which lays down clear rules about what is and is not permissible on independent radio. That has not led to any kind of obscurantism, oppression or fascism. It is a perfectly liberal and necessary regime.
I have a strong feeling that what the noble Viscount suggests is very much needed. We do not want any more guidelines which people can skate around. We do not want any more advice. We want some codes of conduct which can be enforced and which are so clearly and unmistakably drawn that those who flout them can be punished.
Baroness Park of Monmouth: I should like to add my strong support for the amendment. The issue here is that we want clarity and clear guidance. No sensible, competent organisation suffers from having that. Most of the troubles that the BBC has had from time to time have resulted from vagueness and people being able to say "I didn't realise that that was what was meant".
The BBC is so highly respected that it is all the more important that it should not allow itself, as it sometimes has out of political correctness, to be swayed into a tendency to rewrite history, using the most biased sources and in a spirit of arrogance. The need here is not to say that one will not do this or that but to make it absolutely clear to the people within the BBC who are doing the work what is acceptable and what is not and that what is not acceptable will no longer be tolerated.
Lord Inglewood: We have had an interesting and worthwhile debate. Before turning to the four amendments, I should like to begin by making quite clear that the Government believe that there must be proper rules relating to appropriate standards of broadcasting, and there must be proper enforcement of those rules, supported if necessary by appropriate disciplinary action.

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On this occasion we are not talking about what those rules should be or their exact delineation. What we are talking about is the legal framework within which they will work. To use an analogy, it is rather like a piece of jewellery which comprises gems and a setting. The gems are the policies; what we are really talking about this evening is the setting. We must try to analyse how the system we have works and the interrelationship of the various elements of that system, which is part of the legal framework we are looking at.
My noble friend Lord Caldecote and the noble and learned Lord, Lord Ackner, in their Amendments Nos. 197 and 198, which relate to Clause 68, propose that the Broadcasting Standards Commission shall produce, and from time to time review, a code of principles to be observed and practices to be followed, as opposed to guidance relating to the principles to be observed and practices to be followed, in order to avoid unfair treatment and unwarranted invasions of privacy. I believe that the effect is much the same whether the requirement is described as a code or as guidance, because each formulation implies a similar if not identical compilation of principles to be observed and practices to be followed.
Since the purpose of the clause is to avoid a wrong—namely, unfair treatment and unwarranted invasion of privacy—I am doubtful whether a semantic distinction between the different verbal descriptions of the format in which identical principles to be observed are set has any material significance. In this context each of the words is, for practical purposes, a synonym for the other, in terms both of meaning and of overtone.
I was grateful to my noble friend Lord Caldecote for sharing with me the thinking behind the amendment. I continue to think, as I have explained to him, that there is no material difference in effect between use of the words "guidance" and "code" in this context. However, I believe it is useful to retain the term "guidance" in order to distinguish it from the BBC's "code" on the portrayal of violence and sexual conduct and standards of taste and decency.
The guidance relates to provisions which take direct effect on to the regulator, and through him to the broadcaster and the programme. The use of the word "code" in Clause 69 relates to matters which are directly applicable to the broadcast programmes. I should like to come back to that in connection with Amendment No. 201 which relates to Clause 69.
On the question of whether the guidance should be mandatory, in practice pressure from broadcasters and other interested groups might achieve this effect even if the provision remains discretionary. But, as with a number of the noble Lord's amendments, the Secretary of State has only recently been able properly to discuss their effects with the current chairmen of the BSC and BCC. I would ask my noble friend not to press this amendment at this stage because I should like to consider it further and the suggested form of words about review and bring the Government's response back at Report stage.
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I now turn to Amendment No. 199 which is in part complementary to the two earlier amendments. The Committee will recall that I have agreed to consider the amendments further, although I have indicated the nature of some of our concerns about them.
On Amendment No. 199, I can confirm that various codes or guidance are published which one might wish to relate to documents produced by the BSC. I also stress that, regardless of whether it is voluntary or mandatory, the BSC's guidance is intended to set standards and not to be a prescriptive test for regulations. It therefore seems inappropriate for the BSC to be required to monitor and report on the extent to which its guidance has been implemented by broadcasters and regulators. This would place the commission in the position of a regulator, albeit one without power to enforce compliance.
The broadcasting regulatory bodies, the Welsh Authority and the BBC already have in place guidelines on good practice with respect to the avoidance of unfair treatment and infringement of privacy in programmes which, as I have explained, derive their content from the BSC's work. The Government are satisfied that they have sufficient powers to ensure that the practice laid out in these guidelines is followed, and we have no intention of placing those regulatory responsibilities which are properly the concern of those bodies under the scrutiny of the BSC.
Amendment No. 201 relates to Clause 69. Clause 69 mandates the publication of a code which in turn is directly applicable to broadcast programmes. The amendment seems to suggest that the BSC draw up a more prescriptive code on broadcasting standards than "a code giving guidance" would in their view be. I should like to begin by saying that the Government's intention is that the BSC should play a standard setting and advisory role rather than a directly regulatory role in the maintenance of standards. A code which gives guidance relies on intelligent interpretation by producers and programme makers. It respects the fundamental right to freedom of expression. A rigid, all-embracing code trying to cover all eventualities would be vulnerable and more easily found wanting than one which gives guidance and allows flexibility for programme makers, broadcasters and regulators to engage in worthwhile debate in the light of developing perceptions of taste and decency.
In short, the key to understanding the relationship between the BSC and the ITC is that it is for the BSC to benchmark or identify the appropriate standards and it is for the ITC and the BBC governors to ensure that the broadcaster adheres to them by drawing up rules whose purpose is primarily to ensure that standards are adhered to and only secondarily to be a device to punish those who fail to do so.
In his helpful remarks the noble and learned Lord, Lord Ackner, said that he felt the BSC should be a watch-dog with teeth. With respect, I think that his analogy of watch-dogs is helpful. Perhaps I might compare them with guard dogs. The BSC is a watch-dog. The function of a watch-dog is to bark and to alert people to what is going on. That seems to me to

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contrast with a guard dog, whose function on occasion is to snap its jaws round some offender. That is the distinction which we see as central to the proper understanding of the relationship between the BSC and the regulators.
Lord Ackner: Will the noble Lord agree that the warning sign, "Beware of the watch-dog", does not mean, "Beware of a dog that only barks"?
Lord Inglewood: The sign "Beware of the watchdog" is an indication that the dog barks. "Beware of the guard dog" indicates that there are two dogs looking after the best interests of the person concerned. That seems to me to be the appropriate way of looking after the public's best interests in that context.
Lord Chalfont: The sign usually says, "Beware of the dog". That indicates an animal that barks but might also bite and that is what we want.
Lord Inglewoods: I understand that what the noble Lord, Lord Chalfont, seeks is a dog with a huge bark and vicious teeth.
We feel that the amendment takes away an important part of the regulator's function and transfers it to the BSC. As I explained, that is not a substitute regulator or a kind of court of appeal or an alternative regulator. It is for those reasons that we cannot support the amendments, although they contain a number of aspects on which we intend to reflect further.
The Earl of Stockton: Before my noble friend sits down, he said that the guidelines were intended to produce compliance. I ask him: whither leads the road of good intentions?
Lord Inglewood: My noble friend's point is a good one. The problem which I and a number of people have faced in examining the provisions of the Bill and the relevant sections of the Broadcasting Act 1990, to which they relate, is that the words are not set in the wider context of what we are discussing.
In my opening remarks I explained that in regard to the distinction in the first amendment between a code or guidance, the important words are neither one nor the other. The important words to which that part of the amendment applies are,
"principles to be observed, and practices to be followed",
in order to avoid unfair treatment and unwarranted invasion of privacy. The practical steps are the crucial part in ensuring that wrong does not occur, rather than the epithet attached to the provision.
Viscount Caldecote: I thank all noble Lords who have supported the amendment. There was strong support, with the only dissenting voice being that of the noble Lord, Lord McNally, in defence of freedom. However, he forgot that freedom must be used responsibly. Recent experience has indicated that too often freedom has been abused, as the noble Lord, Lord Chalfont, said. I wish in no way to denigrate the BBC, it is a fine organisation and probably one of the best in
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the world. The intention of the amendments is to help the BSC to prevent the BBC making mistakes which lower its standards.
The Minister mentioned dogs barking and biting. It is an interesting analogy, but he did not draw the right conclusion. If a burglar hears a dog barking, but knows that it will not Hite, it will not stop him doing wrong. My noble friend made the point that my friends and I have been trying to make. We need teeth as well as barking in regulating for higher standards. I am not happy about that point.
I am sorry that my noble friend feels that there is no, or hardly, any difference between guidelines and codes. Experience has shown that programme makers see a difference. When on occasions complaints have been made they have replied, "But those are only guidelines which we use at our discretion". There is not complete agreement between myself, my noble friends and the Minister. Nevertheless, he has given a very sympathetic response in many ways and has promised to consider further the points that we made.
In view of the Committee's almost total agreement to support these amendments, I urge my noble friend to give very careful consideration again to what we have said, even though he argued this evening against them. On the understanding that he will do so and has promised to bring back some further ideas at Report stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 197A:
Page 59, line 33, at end insert—
("( ) the unfair or negative portrayal of women, different racial groups and disabled people amongst the listeners and viewers").
The noble Lord said: In moving this amendment I believe that it will save the time of the Committee if, with the Committee's permission, I speak also to Amendments Nos. 197B, 200A, 207A, 214A, 214B and 214C. These amendments have a common theme related to disability and disadvantaged people and it would take a long time to cover them all separately.
I have been very disappointed with the Minister's response during the course of these debates and discussions to issues of disability. I hope that he will be more forthcoming in dealing with these amendments. They are matters of very great importance to people who are disabled and those who are disadvantaged in different ways.
With regard to Amendments Nos. 197A and 197B, it is absolutely necessary for the Broadcasting Standards Commission to consider the representation or the portrayal of women, racial groups, disabled people and those of differing sexual orientation. That is the purpose of the amendments. Those people, differing widely as they do, hold varying views about broadcasting. But the broadcasters tend to veer away from those people and certainly do not often portray them accurately. There are honourable exceptions but in the main those groups tend to be pushed aside.
A good example of the kind of false portrayal of those groups is the presentation of disabled people as rather pathetic, incapable creatures, and certainly they are extremely patronised. Broadcasters nearly always show disabled people who have obvious disabilities, such as those in a wheelchair. They never deal with the complexities of those particular groups. It is surprising to me that that should be the case. People can see through the failures of the broadcasters. As the broadcasting channels proliferate, it is inevitable that those groups will be covered more and more. But they need to be properly portrayed. That is the purpose of the amendments.
Amendment No. 200A provides for the satellite television and licensable programme services that are already provided in this Bill for digital programme services. Although that provision has weaknesses, nevertheless it is very important. It calls upon the ITC to give guidance on the extent to which those with a sensory disability understand and enjoy the programmes. It calls on the ITC to do all that it can to ensure that the code is observed and for the publication of the code. So far as I am concerned, that is the starting point for strengthening access to television for deaf and visually impaired people. It is a matter of vital importance to those people.
There are two very strong reasons why the provision for a code should be extended to satellite and other services. First, it should be done because those forms of broadcasting are bound to grow in importance over time. Disabled people will want and deserve access to them as much as to other television programmes. Secondly, it is extremely unfair to expect some companies to provide subtitling and signing and not others. If some people are allowed to be excluded from those services, then they do not have to pay the cost and the people who are fulfilling the moral and in some cases legal responsibility carry a heavier financial burden. That is why it is important that all companies have the same responsibility. It is of real importance to deaf and blind viewers. Unless all television providers observe the same code there will be reluctance and resentment on the part of those who are bound by the rules.
Amendment No. 207A relates to the provisions in the Bill which require complaints about fairness and standards to be in writing. It is unreasonable to require people to communicate in different ways from those that are usual to them, such as signing or Braille. If they cannot write in the normal way because of their disability, then they are barred from making a complaint. I cannot believe that the Minister intends that. The Government should accept the methods of communication of those who are sensorily impaired.
I want now to deal with Amendments Nos. 214A to 214C. As the Bill intends to give power to the Broadcasting Standards Commission to pay allowances to those attending meetings, it is only fair that allowances should also be paid to any auxiliary helper; for example, a signing interpreter. After all, they have to eat. It is a crucial point. There are some circumstances in which there may be no communication without such a helper. If no expenses are paid it may be impossible
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for the helper to attend. Sign language interpreting is a finely honed skill. It cannot be done by just any Tom, Dick or Harry—or Harriet, to be politically correct. This is a clear case of ensuring genuine fairness by ensuring that the means for it are made available. I hope that the Minister will be able to give not only sympathetic consideration, but also a positive response to the amendments. I beg to move.
9.30 p.m.
The Earl of Stockton: I support this group of amendments. They cover an important area of broadcasting especially aimed at those who are least able to fight their own battles. I would be happy to extend that support to other groups such as the elderly, the single, the married and those of ethnic, cultural, religious or social traditions which are in any way different. In other words, the code should be extended in the same way as the group of amendments moved recently by my noble friend Lord Caldecote.
I am surprised to find myself rising in support of the amendment of the noble Lord, Lord Ashley, when no one on his Benches supported the amendment moved by my noble friend which would have embraced all the groups of which he speaks without particularising them. However, I am happy to continue my support not only for these amendments, but also for the subsequent ones that I know the noble Lord will be moving.
Lord Inglewood: We are all grateful to the noble Lord, Lord Ashley, for bringing his well-known expertise to bear on the specific points we are discussing. I begin with Amendment No. 197A which proposes that the BSC should draw up guidance specifically to be followed in connection with the avoidance of the unfair or negative portrayal of women, different racial groups and disabled people among listeners and viewers. The Government wholeheartedly believe that such unfair portrayal should be discouraged but do not agree that it is necessary to single out specific groups for explicit consideration in the way proposed.
The predecessor bodies of the new BSC have taken a keen interest in such matters in the past—for example, by responding to complaints about racist jokes and by conducting research into the portrayal of disabled people. On matters of unjust or unfair treatment or unwarranted infringement of privacy, with which Clause 68 deals, I have no doubt that the guidance which the BSC will draw up will be of general application and thus embrace matters covered by the noble Lord's amendment. Similarly, where such portrayal falls into the area of taste, it will generally be dealt with in the code on broadcasting standards to be drawn up under Clause 69. For these reasons, the Government would resist explicit reference to any particular group.
I now move on to Amendment No. 197B. The amendment proposes that, when the BSC draws up guidance relating to the avoidance of unjust or unfair treatment of individuals or interference with their privacy, such guidance explicitly includes the avoidance of unjust or unfair treatment in the representation or portrayal of disabled people. Again, of course the Government wholeheartedly support the principle that

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disabled people should not be unjustly or unfairly portrayed by broadcasters, and in wider terms the Government have demonstrated their commitment to disabled people through the Disability Discrimination Act and the announcement of appointments to the National Disability Council. However, the Government believe that the BSC, in drawing up the guidance about the avoidance of unfair treatment, should do so in general terms which would be inclusive of the interests of disabled people and everyone else.
The research which its predecessor body, the current Broadcasting Standards Council, has conducted into the portrayal of disabled people demonstrates a track record of interest in this area and I have no doubt that the BSC too will pay attention to the portrayal of disabled people when drawing up and reviewing its code relating to broadcasting standards generally. The Government would resist explicit provision for any particular group.
In Amendment No. 200A, the noble Lord, Lord Ashley, proposes that the BSC should be required to draw up a further code giving guidance as to the extent to which understanding and enjoyment of programmes by the deaf and visually impaired might be promoted. The noble Lord's amendment also requires the BSC to do all it can to ensure observance of the provisions of such a further code. While the Government wholeheartedly believe that the interests of the deaf and visually impaired should be taken fully into consideration in matters of portrayal and treatment, they are concerned that the amendment takes the BSC into unexplored waters in two respects; first, in the direction of exercising a regulatory function in requiring the BSC to do all that it can to secure observance; and, secondly, in requiring the BSC to address the function of programmes and, arguably, choice in programming rather than their content, which is where the two predecessor bodies, the Broadcasting Complaints Commission and the Broadcasting Standards Council, built up their expertise.
In so far as the provisions of the amendment might bear on portrayal or unfair treatment, the Government believe that the BSC will take account of a diverse range of interests in drawing up its code on standards and guidance on treatment and do not believe it necessary to make explicit provision for particular groups. For that reason, the Government would oppose this amendment.
The noble Lord, Lord Ashley, proposes in Amendment No. 207A to make complaints available to BSC members and staff in forms accessible to sensorily impaired persons whereas the clause in question—Clause 75—currently refers only to complaints having to be in writing. The Government recognise that the consideration of complaints by sensorily impaired members of the BSC would be rendered more difficult if complaints could only be presented in writing, and they are therefore willing to consider the amendment.
Finally, I turn to Amendments Nos. 214A, 214B and 214C. In these amendments the noble Lord proposes an amendment to Clause 79 which would enable the BSC to make provision, either directly or through payment of an allowance, to enable full participation of people with impairments when they are attending the BSC in
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connection with a complaint. The Government recognise this real concern and would like to consider the point with a view to bringing forward an amendment at Report stage.
I have covered all the various amendments to which the noble Lord has spoken and I hope I have adequately responded to each and every one in a way—
Lord Renton: Before my noble friend sits down, I wonder whether I may presume to reinforce his argument by referring to a very important point of drafting and interpretation. It is recognised that, if we express one fact or refer to one group of people, we are excluding others. It is best expressed in the Latin tag, expressio unius est exclusio alterius. The courts interpret statutes very strictly in accordance with that well-established principle.
Lord Inglewood: I am most grateful to my noble friend Lord Renton for drawing to the Committee's attention that important drafting consideration.
Lord Ashley of Stoke: Dealing with the serious points raised by the Minister, it is obvious that he and his officials have gone to a great deal of trouble on these amendments and I appreciate that very much indeed. I also appreciate the agreement he has made as regards some of the points that I raised. I am very glad that something is being done about them. As regards the other issues on which he was unable to meet us, unless we protect those vulnerable people in this Bill they will go on having very serious problems. I am hoping that at a later stage of the Bill something can be worked out to help them. I thank the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 197B to 199 not moved.]
Lord Inglewood Lord Inglewood moved Amendment No. 200:
Page 59, line 39, after ("Authority") insert ("or included in the service referred to in section 57(1A) of the 1990 Act").
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Lyell): Amendment No. 195J was wrongly placed on the Marshalled List. It is in the name of the noble Lord, Lord Donoughue.
[Amendment No. 195J not moved.]
Clause 68, as amended, agreed to.
[Amendment No. 200A not moved.]
Clause 69 [Preparation by BSC of code relating to broadcasting standards generally]:
[Amendment No. 201 not moved.]
Lord Inglewood Lord Inglewood moved Amendment No. 202:
Page 60, line 21, at end insert ("or included in the service referred to in section 57(1A) of the 1990 Act,").
On Question, amendment agreed to.
Clause 69, as amended, agreed to.
Clause 70 agreed to.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton moved Amendment No. 202A:
After Clause 70, insert the following new clause—
EDUCATIONAL PROGRAMMES: BSC TO PROVIDE GUIDANCE ON STANDARDS AND PRACTICE
(". It shall be the duty of the BSC to draw up, and from time to time review, guidance as to standards and practices to be followed in connection with programmes which fulfil the obligation of the BBC to provide—

(a) education; and

(b) educational content.").

The noble Baroness said: I draw to the attention of the Committee that this amendment places a duty on the new BSC to draw up and review guidance on the contents and nature of broadcasting defined as "education" and broadcasting defined as having "educational content". It is a probing amendment which we recognise will require for completion at least the equivalent of Clause 69, subsections (5) and (6).
However, it is desirable that some provision should appear on the face of the Bill. The education broadcasting role was weakened by the decision in the Broadcasting Act 1990 to take away the obligation on ITV companies to include adult education programming.
Because ITV and BBC compete, that increases pressures on the BBC to squeeze one area of education programming, and that is adult education. The need for an amendment of this kind further arises from concern about recent changes during the past year. The BBC is seeking higher ratings by diluting its education mission. Evidence of that dilution is provided by the fact that, however entertaining, the chat-show "Esther" presented by Esther Rantzen and the antiques show "Going for a Song" are now defined as examples of programmes funded from the education budget.
The BBC's ring-fenced budget for adult education is now being transferred into general programming. The controllers of BBC 1 and BBC 2 have effectively been given the power to decide what programmes are educational and who should make them. Seventy per cent. of programmes will be made by independents or other BBC departments. The BBC justifies that by arguing and contending that any factual programme-maker can make education programmes.
Noble Lords on all sides of the Committee support the Government's stated support for the European "Year of Life-Long Learning", which is intended to be not merely the year itself but the beginning of an attempt to tackle the issue of education. Education broadcasting is an important part of attracting adults who may have failed at earlier stages of their educational careers to take advantage of opportunities. Education broadcasting is important.
I understand from listening carefully to the Minister's replies to earlier points that have been raised that it is possible that the Government will look with more favour on guidance as opposed to codes. In that context, I hope that the Minister will give a positive response. I beg to move.
9.45 p.m.
Lord Inglewood: The noble Baroness, Lady Farringt on, proposes an amendment focused entirely on the BBC which would be required to follow guidance to be prepared by the BSC on education or educational content in programmes. The Government are clear that the amendment is well beyond the intended remit of the new BSC and believes that the two predecessor bodies have had limited experience in this area. We are not prepared to accept this amendment because the imposition of such a duty would divert the energies of the new body from its principal functions of dealing with the treatment of individuals in respect of fairness and privacy and standards in relation to taste and decency. The amendment also seeks to treat the BBC on a different footing from that of other public service broadcasters and, in requiring the BBC to follow such guidance, may cut across the governors' own responsibilities for programme content.
It is of course the general object of the BBC in its Charter to provide sound and television programmes of information, education and entertainment. That provides the appropriate statement in law of the BBC's duties in respect of education. I should add that in its new Agreement the corporation will be required to contain in its home service programmes of an educational nature, including specialist factual, religious and social issues programmes as well as formal education and vocational programmes. I hope that what I have said enables the noble Baroness to understand our position and why we feel that we cannot accept the amendment.
Baroness Farrington of Ribbleton: It is disappointing that the Minister is not prepared to accept the need to strengthen the position of education programmes and of programmes with an educational content. However, I shall read carefully in Hansard what he said and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 71 [General functions of BSC in relation to complaints]:
Lord Chalfont Lord Chalfont moved Amendment No. 203:
Page 61, line 15, after ("treatment") insert ("of individuals, of bodies of individuals or of matters of political or industrial controversy or relating to current public policy").
The noble Lord said: I should like to speak also to Clauses 72 and 73 which the noble Viscount, Lord Caldecote, and I are seeking to remove from the Bill.
The collective effect of those three changes—I recognise at once that this runs counter to some of the things that the Minister has been saying this evening—would be to constitute the new BSC as an independent regulatory authority with powers to adjudicate on genuine complaints about taste, decency, fairness, and objectivity, including any such complaint from any listener or viewer made about problems within the independent sector or in BBC programmes. I believed—at least I did until this evening—that that was in line with the declared intention of the Secretary of State for National Heritage who recently said that it is the Government's intention to strengthen the BSC's role.

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I had assumed that strengthening it meant also giving it some teeth with which to enforce its adjudications. In all parts of the Chamber, with the possible exception of the powerful voice from the Liberal Democrat Benches, there seems to be a feeling that the BSC needs strengthening.
In one of the many excellent briefing papers which have been produced for the debate, one from the BBC put its finger precisely on one of the crucial issues. I quote from it:
"As we enter the digital age, it will be essential to develop the right regulatory regime".
The truth of that is obvious to most of us, especially to anyone who understands some of the implications of digital technology. The cliché "The camera cannot lie", has always been a somewhat dubious proposition, but it has no validity at all now when the editing of digitally generated pictures places enormous power in the hands of unscrupulous producers, presenters and editors who might wish to manipulate the views and reactions of their viewers.
The need for independent, responsible broadcasting legislation, especially of television, takes on a new dimension. The amendments which I propose, taken together, are designed to strengthen the regulatory system and to make it apply more widely.
I shall, by implication, be speaking also to a great number of other amendments in the Marshalled List as they are consequential to the three to which I am now speaking. For the sake of the record, they are Amendments Nos. 204, 205, 206, 207, 208, 209, 210, 211, 215, 216, 217, 221 and 223. I shall not of course speak individually to any of those amendments, but what I say will apply to them as consequential amendments to my substantial ones.
The main purpose of the amendment to Clause 71 is to clarify the significance of the concept of fairness in the context of complaints made to the BSC which is being established under the Bill's provisions. The amendment is directed specifically to the reference in the Bill to "unjust or unfair treatment". That wording does not adequately define the nature of the unfair or unjust treatment upon which the BSC is required to adjudicate. Unjust or unfair to whom or to what? It is possible of course to be unfair to a person. It is possible to be unfair to a group of people, to an organisation. But it is possible also—this seems to be a ground of some misunderstanding—to be unjust and unfair in the treatment of an issue or controversy; for example, by presenting only one side of an argument, mixing factual reporting with opinion and commenting in a misleading way. There are many ways in which an issue, a controversy, can be treated unjustly or unfairly.
That aspect is at present referred to in shorthand usually as "due impartiality", although "impartiality" seems to be an unpopular word nowadays. It is dealt with in the independent sector of broadcasting in the codes published by the ITC and the Radio Authority. I suspect that the Government will say that the new BBC Charter and Agreement establish a similar duty on the board of governors to ensure compliance with the producers' guidelines. But I remain unconvinced that those safeguards are adequate.
To use a much worn cliché—perhaps not as much worn as "the level playing field"—that approach perpetuates a situation in which the BBC is judge and jury in its own case.
Experience suggests that that has not been an effective regulatory mechanism in the past, when programme makers often persistently and openly disregarded the producers' guidelines. Furthermore, it may be worth mentioning that the governors of the BBC have no machinery for investigating complaints made against the BBC outside their own ranks. They have to ask officials of the very organisation being complained about to advise them on how they should respond to the complaint.
Perhaps I may give the Committee an example. It has been strongly argued by Mr. Norris McWhirter and others that the BBC's treatment of the bombing of Hiroshima and Nagasaki in two programmes which were broadcast in 1989 and 1995 was grossly unfair and unjust. As I shall be suggesting when I come to oppose the Motion that Clauses 72 and 73 stand part of the Bill, it is eminently reasonable that listeners and viewers should be able to complain to an independent regulatory body about this kind of unfairness, unjustness and lack of objectivity as well as about such things as matters of taste and decency.
As I have said, and as other Members have said on many occasions, there is a widespread belief that the governors of the BBC face an impossible task in trying to reconcile the role of corporate governance, the running of an organisation, with that of effective and independent regulation. Various suggestions about how we might resolve the dilemma were advanced in our debate on the Charter and Agreement. In the customary and accommodating way of the Minister, the Government undertook to consider them. But the Government subsequently decided that,
"Any concerns expressed are already effectively addressed by the draft Charter or they do not enjoy such a level of support as to warrant a change in the proposals".
That is a dusty answer if ever I heard one.
That issue runs through all the amendments to which I am speaking. The amendment to Clause 71 is designed simply to introduce a concept of objectivity or impartiality into the complaints procedure of the BSC so that there is, as in the commercial broadcasting sector, an independent regulatory body to which complaints can be addressed about alleged lack of objectivity, impartiality or fairness in any programmes, including those of the BBC, which, as I have suggested, does not have an independent regulatory body.
I concede at the outset that my amendment, if accepted, would have one incidental consequence of which much has already been made in what was a slightly premature debate on my amendment. It would perpetuate, perhaps even aggravate, a situation in which the two existing independent regulatory bodies—the Independent Television Commission and the Radio Authority—would be subject to a form of second guessing by the Broadcasting Standards Commission, which might come to different decisions on a complaint from those arrived at by the ITC and the Radio Authority.
Of course, that is likely to happen, but it happens already and it is bound to happen so long as there are a number of separate organisations charged with the regulation of broadcasting. Furthermore, it is not an entirely undesirable arrangement. I believe that the existence of a Broadcasting Standards Commission as a regulatory body with some real teeth would wonderfully concentrate the minds of the BBC governors and perhaps even on occasions members of the independent regulatory authorities.
As I have said on many other occasions, I should like to see a single regulatory authority comprehending the whole spectrum of broadcasting and concerned solely with regulation and with no responsibility for broadcasting. That lesson was learnt in the Broadcasting Act 1990, when the old Independent Broadcasting Authority, which tried to be a broadcaster as well as a regulator, was abolished. The ITC and the Radio Authority were set up not simply and solely but predominantly to remove that anomaly; in other words, to separate the regulator from the broadcaster. It is almost an axiom of broadcasting that you cannot be a broadcaster and a regulator of broadcasting at the same time.
In the absence of a single, over-arching regulator—and the Government do not seem disposed to contemplate that—there is an argument that the BBC governors should cease one or other of their activities. They should cease to be involved in managing the corporation. In other words, rather than being broadcasters they should become regulators in the public interest or vice versa, but they cannot do both. Indeed, when the Secretary of State made her splendid speech to the Television Society last autumn, I thought that that was what she had in mind. I paraphrase but she thought that the time had come for the BBC governors to stand back from managing the BBC and become regulators in the public interest. That is also called for by the National Consumer Council but it seems that the Government are now ruling it out.
Failing that separation of powers, it is important that the governors of the BBC, like broadcasters in the commercially-funded sector, have the safeguard and support of an independent regulator. Given the nature of the BBC Charter and Agreement, which is now, to some extent water over the down, the Broadcasting Standards Commission is the only body equipped to fill that role. That could require the BSC becoming larger and perhaps more costly than is envisaged at present but the whole transition to a digital environment will be an expensive business in any event. As the BBC has rightly said, regulation is one of the most important elements in the process. Unless the Minister has something new to say this evening, I have not heard any argument against that concept other than a financial and administrative one. I have heard no conceptual or logical argument against setting up BSC in the role of a really effective independent regulator. Although this amendment to Clause 71 is relevant to the others to which I am speaking, it is a useful amendment on its own irrespective of the success or otherwise of later amendments.
I wish to have Clauses 72 and 73 removed from the Bill. They go right to the heart of my concern about the BSC. As the Bill is drafted, any viewer or listener is entitled to complain to the commission about standards. In other words, anyone may complain to the commission about matters concerning taste and decency. But complaints about fairness, however defined, may be made only by someone affected directly by the programme complained of or by someone authorised to make a complaint for him. That distinction seems to be based upon a curious system of values. It implies that if someone is offended by explicit sexual activity or obscene language in a programme it is quite right that he should complain to a regulator and that the regulator should adjudicate on the complaint. But if you, I or any other listener or viewer is offended by grossly unfair treatment of an important political or social issue which may have a direct impact on all our lives we may not complain unless we are personally targets of the alleged unfairness. That seems to me to represent a curious system of values.
The removal of Clause 72, taken together with the consequential amendments I mentioned, is designed to remove the distinction. Clause 73 is largely consequential. The ultimate purpose of the amendments—and I do not seek in any way to conceal it—is to make the BBC, like the commercial broadcasting sector, subject to the regulation of an independent authority. The present situation is clearly totally unsatisfactory and neither the draft charter, the agreement, nor the Bill in its present form, do anything to change it. I recognise that the amendments, if accepted, would have some administrative and financial side-effects. That is clear.
It is possible that the Government will be able to propose other means of achieving the same purpose as my amendments. Perhaps they will be able to propose some other machinery to bring the BBC under the aegis of an independent regulator and thereby remove the conflict of interest which is at present obvious in the dual role of the governors of the BBC. If so, I should be most happy to listen to such proposals. I very much hope that the Minister will be able to say in his reply that the Government will consider the amendments and that, even if they are not able to accept them in their present form, they will at least bring forward something which will have the same effect. I beg to move.
Viscount Caldecote: I should like to express my support for the amendments proposed by the noble Lord, Lord Chalfont. The noble Lord put forward the arguments most clearly and cogently and there is little to add. However, I should like to emphasise one or two points in a few comments. As the noble Lord indicated, the problem arises from the dual responsibilities of the governors of the BBC as regulators and in their corporate role, which is akin to that of directors of a plc.
When complaints are received, the governors naturally—and maybe rightly as leaders of a big organisation—are inclined to support their staff. Therefore, no proper adjudication is possible. The new BSC is strengthened compared to the old BSC and BCC

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and that will provide a partial solution to the problem, but, as the noble Lord, Lord Chalfont, made clear, not on issues of impartiality.
The amendments aim to fill that gap and to bring impartiality into the remit of the new BSC as is the case with the ITC. Of course, that could have been done by amending the new BBC Charter and Agreement. However, when we made that case, it was not accepted by Her Majesty's Government. Therefore, some duplication will still remain in the complaints procedure as it has in the past. As the noble Lord, Lord Thomson of Monifieth, suggested, the problem could be tackled in a more logical way. The fact is that we must start from where we are and not from an ideal position where we would like to be. In fact, no serious problems have arisen as between the BSC and the BCC on the one hand and, on the other, the ITC, nor in respect of the BBC, except on some occasions where the governors have not accepted a complaint upheld by the BSC or BCC and have said so.
On a slightly different point, it has been represented to me that Amendment No. 203, which relates to Clause 71, would be further improved by including the word "religious" after the word "political" so as to make clear that the BSC would have a duty to ensure impartiality in programmes relating to religious issues, for example, as regards the customs of food preparation in some faiths. I believe that such controversies would be covered by the words "bodies of individuals" which are included in the amendment. However, no doubt the Minister will clarify that point when, as I hope, he accepts at least the principle of the amendments. This group of amendments would fill a serious gap in the present proposals of the Bill. They would further strengthen and make more valuable the work of the new BSC. I strongly support the amendments.
Lord McNally: Given the pattern of this evening's discussion, I do not think that the noble Lord, Lord Chalfont, will be amazed to know that I hope that the Minister will resist these amendments, especially as they introduce the matter of political adjudication by the BSC. We are now—
Lord Chalfont: I said nothing at all about political adjudication. I have spoken of impartiality and objectivity in matters of political controversy. That is a very different thing from making political judgments and decisions. It is important to make that point.
Lord McNally: I am reading the noble Lord's amendment. I read many of his speeches. I am what one might call a news addict. I watch news programmes on BBC, ITV, Sky, CNN or any other channel. Quite honestly, I do not recognise the coverage of news and public affairs as recounted in some of the remarks of the noble Lord, Lord Chalfont, and some of his noble friends. I believe that on the whole the coverage of news and current affairs on British television represents a strengthening of our democracy. When one hears some of the arguments that are put forward, one imagines that we have serried ranks of politically motivated broadcasters pushing out their propaganda to political innocents. Would it amaze the noble Lord to know that
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in the political headquarters there are skilled spin doctors who use their professionalism to intimidate broadcasters, who encourage complaints and who try to set the framework in which newscasters do their job?
What we have to understand, particularly in discussing political coverage by broadcasters, is that there will constantly be tension between broadcasters and politicians. I have worked for political parties in government and in opposition. Certainly when I have worked for parties in government I have rarely known a time when those in No. 10 thought they were getting an absolutely fair deal from broadcasters. That to me is remarkably reassuring in a free society. We are living in a different age. The noble Lord, Lord Chalfont, said that Sir William Haley recognised only constants. I wonder what Sir William would think of The Times today. He would have noticed a few constants wobbling about there.
In a liberal democracy one has to allow one's broadcasters freedom to criticise and the freedom to be partial occasionally. As we said in an earlier debate, what we need are many sources of information and opinion. That is why I want a strong ITN. I do not want market forces to water down ITN into news bulletins. I want a strong ITN and a strong BBC news service. That is why I welcome the strength of Sky News. It is that which strengthens one's democracy, not layer upon layer of watchdogs with teeth and extended powers. That is not the voice of a liberal democracy. It amazes me that some of the characters who so often talk about deregulation in almost every other aspect of our life want to pile regulation upon regulation on our broadcasters. That is not good enough. The noble Lord, Lord Chalfont, talked about the strong voice from the Liberal Benches. If it was only one small voice, it would still be there because I believe that what he and his noble friends are proposing is basically illiberal and would endanger our democracy.
Viscount Caldecote: Before the noble Lord sits down, will he say whether he really believes that it would be quite in order for a broadcaster to portray, in a matter of controversy, only one side of the picture and not ensure that the other side was also given prominence so as to ensure impartiality of discussion and opinion forming?
Lord McNally: No, of course not, but there are many safeguards to prevent that already. The noble Lord, Lord Chalfont, said that I wanted no regulation at all. That is not true. The noble Lord discussed how the Radio Authority had used regulation. I want the BBC governors and the ITC to take responsibility in that matter. I swear to the Committee that within a few years of a BSC with teeth wandering around biting at will, noble Lords will probably still be complaining that some programme or other has offended them. It is not what the programme-makers do that is the problem; it is that Members of the Committee have opinions and prejudices. Out of thousands and thousands of hours of broadcasting by the news services they pluck out one programme from 1988 and another in 1989. That is ridiculous.

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We have to ensure that our broadcasters are given as much freedom as possible in which to operate. If you put too many regulations on them, as we have seen with the broadcasting system in France, you get cowed broadcasters anticipating the will of their political masters. That is not the way forward.
10.15 p.m.
The Earl of Stockton: After 14 years as a journalist and broadcaster and 25 years in publishing, and having worked for four-and-a-half years in France, I can speak with some of the authority that the noble Lord, Lord McNally, has addressed. I too would defend to the death the freedom of broadcasters and journalists to report and to comment, to create and to develop and to expand frontiers in broadcasting. I will not defend their freedom to use sloppy or partial thinking or corrupt intellectual practices, or to distort the truth, because that is a far greater corruption of freedom. Worse, it is the destruction of freedom itself.
I believe very strongly that the proposals put forward by the noble Lord, Lord Chalfont, which put the BBC on to the same footing as the independent television companies should be supported. That is not out of any sense of wishing to get back at my old employer, the BBC (I was very happy in my days there), but in the sense that I think that it is only right that if we are going to have that dreaded level playing field we should have it for all broadcasters, whether domestic or foreign, terrestrial or satellite, digital or analogue. It is totally unreasonable and unfair that one of the competing channels—competing not in a commercial sense but for our minds, our opinions and values—should not be subjected to the same rigorous defence of that fundamental freedom as the other.
The Earl of Halsbury: The basic distinction is between liberal democracy on the one hand and liberal anarchy on the other. My noble friend Lord Chalfont has many more years practical experience of distinguishing the two than anybody else who has taken part in the debate or is likely to.
Lord Renton: With respect to the noble Lord, Lord McNally, I think that if he reads carefully in Hansard tomorrow the speeches that he has made this evening he will find that he has contradicted himself more than once.
This is a very important group of amendments. I warmly support them. The most important point is that in our free society, where we believe in freedom of speech, normally people are answerable to the public, with or without a trial in the courts, and to the bodies which have statutory responsibility for overseeing them. However, we have to be very careful that when we give such immense power to those who broadcast, especially on television, we ensure that they are answerable in a responsible way and are not merely judges in their own courts. For them to be answerable to an independent body established by statute is absolutely right.
In order for that body's work to be effective it must not merely have the power to draw attention to mistakes that have been made; it should have the power to correct
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those mistakes or to take some action which will lead to a correction. That goes a little further than the amendment of the noble Lord, Lord Chalfont. It is in respect of that last point that the amendments are of great importance. I hope that they receive careful consideration by my noble friend on the Front Bench.
Viscount Tenby: I support the amendments. Perhaps I may throw myself on the mercy of the Minister. If, as I suspect, this debate will run and run, I hope that he will excuse me if I depart before it ends because I have to catch a last train. I apologise.
As my noble friend Lord Chalfont said, we are today teetering on the brink of a digital revolution. As anyone who recently attended the very useful course on digital broadcasting run by the BBC will confirm, the future ability to amaze and, it has to be said, to deceive through new technology is awe inspiring. Those of us who have been at the receiving end of programmes compiled under the old technology will ruefully acknowledge how a bit of judicious splicing and transposing can give a quite different emphasis and interpretation. But all that will seem like the Ark once digital techniques come on stream.
It is therefore absolutely essential to have a workable and enforceable regulatory regime in place both in respect of matters of taste and of fairness. I say to the noble Lord, Lord McNally, that the point is to make it possible for people to complain, not just about sexual matters and matters of taste and decency, but also about matters of fairness. The two areas should surely be indivisible in the rights accorded to the viewer or listener.
I have always personally felt—I wish to make the point quite strongly and I know that my noble friend has made it too—that there should be one regulatory body covering all forms of broadcasting. Offair is how some wags would describe it. After all, the second report of the National Heritage Committee made just such a recommendation as long ago as December 1993. But the Government have resolutely refused to take that eminently suitable step and an opportunity has been sadly lost.
It is true that bringing the BBC within the new BSC's audit would not be particularly attractive to the ITC whose own procedures in that respect are undoubtedly effective as anyone who has studied its annual report, as I have, will confirm. But such a course of action might encourage the Government to place the governors of the BBC on the same footing as the ITC, leaving the running of the BBC to its own management team. What has not worked in the past, however, and is unlikely to work in the future is the BBC governors wearing two hats as regulators and as the ultimate management team in the corporation.
Individuals who feel that a programme is biased should have the right to complain to the BSC just as they will be able to do in matters of taste. To those who argue that such a step would be an open invitation to every crank in the country, the fact is that the number of such complaints received by the ITC in 1995 was 65, or 1 per cent. of the total, and of those only 16 were upheld—hardly an opening of the floodgates.

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Experience has shown that the Broadcasting Act 1990 was seriously flawed in certain areas. Six years later we have a chance to put in place a regulatory regime which will be effective, stand the test of time and benefit not only the public but also the broadcasters because they will know where they stand.
Baroness Park of Monmouth: I wish briefly to add my voice. The noble Lord, Lord McNally, believes that when we talk about fairness in programmes we are talking about the presentation of the Government. I absolutely agree that the BBC has always proudly said that it is absolutely even-handedly anti-Establishment and that whichever government are in power they are liable to receive stick from the BBC. That is as it should be. I have no quarrel with that. The quarrel is with those programmes where improper methods are used to present situations as truth which are not.
I can give one example; I know that there are plenty more. A famous programme on Solidarity in Poland was totally destroyed in its value because the Polish Government were able to prove that the programmers had purported to interview Lech Walesa in some secret area and it had not occurred. They had used a technique that we, as governors, were told at the time was "wallpapering"—matching two pictures together. They had taken a photograph of the place and a photograph of Walesa and married them. That has happened on several occasions and it is the dishonesty in presentation that I am worried about, as we have a right to be. It will affect relatively few people, but the important tiny minority can discredit the BBC and its otherwise splendid reputation for good documentaries and history. I mind about history being tampered with and so do many others. It is proper for there to be provision for that kind of programme and unfairness to be identified and acknowledged. It is not unreasonable to expect that of an organisation with high standards.
I entirely accept the noble Lord's point that it is difficult for the governors, and always has been, to combine being managers of a large business with being regulators. Generally we have properly delegated that to the director-general. Nevertheless, that situation must continue and be made to work. It will work much better if we all ensure that there is a proper mechanism for catching the rogues—because we must face the fact that there are some rogues.
Lord Inglewood: My noble friend Lord Caldecote and the noble Lord, Lord Chalfont, have been fair in proposing the amendment and explaining the thinking that lies behind it. They propose that the Broadcasting Standards Commission should consider whether the treatment of issues in programmes—whether ITC-licensed or not—is fair. That means that it would have to consider complaints of general impartiality by individuals and representative bodies.
That is a large extension in the new body of powers for the two component bodies. In that context, the existing functions are twofold: first, to act as a standard-setter; to set a benchmark for the standards for the regulators to administer and for those involved in broadcasting to adhere to. Secondly, the functions are to
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provide what I described earlier this evening as a user-friendly mechanism so that individuals could have some judgment on whether they personally had been treated to their detriment by actions taken by broadcasters.
Decisions about programme content and scheduling must be a matter for the broadcasters themselves. It is for them to decide how to meet their obligations to observe due impartiality in the treatment of controversial issues. I might have been forgiven at some point in the debate this evening for supposing that there were no regulators. There are those who are entrusted with the job of regulating matters: the ITC and the governors of the BBC. I shall come to the governors of the BBC in a moment. Inherent in the arguments promoting the amendment is that broadcasters should be subject not to one regulator but to two. It cannot be right that broadcasters should be subject to double jeopardy. A regulator is fine, but to have two bodies which might punish people for the same offence is not appropriate.
I wish to turn to the BBC. In the way in which the BBC is arranged it is for the governors to secure its compliance with its obligations on programme standards and on treating controversial subjects with due impartiality. We have heard considerable debate this evening and I know that the way in which the task has been carried out in the past has been controversial. The Committee may recall our debate last month on the new Charter and Agreement. I explained in detail the specific responsibilities being placed on the governors to ensure compliance with the BBC's impartiality code in order to ensure that their activities as regulators would not be subject to the kind of criticism to which they have been subject in the past, because the arrangements of the BBC would work more effectively.
I understand those who argue that the way in which the BBC is set up is inherently unsatisfactory. That was a matter which this Chamber considered on several occasions when debating the White Paper and the Charter. That is a matter which has been debated and, if I may be allowed to say so with respect, that chapter is now closed. Surely the right thing to do now is to give the new arrangements that are coming forward a chance to work. They are different.
The Earl of Stockton: When my noble friend says that that chapter is closed, is he in effect saying that the supremacy of Parliament in a parliamentary Bill has been overriden by a charter?
Lord Inglewood: In politics there is a debate about an issue, policy decisions are taken and then, in order for the system that one is endeavouring to change to work and for the rest of society to work, one cannot come back in every Bill and tinker with it. In this case, after long debate, the Government have concluded—I believe they are supported by Parliament— that the current arrangements for the BBC, whereby the governors are both the regulator and the trustees for the public and the corporation itself, provide the way in which this matter should proceed. We ought to give them a chance.

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The noble Viscount, Lord Tenby, made one point referring to the role of the BBC in the digital future. It is important to be clear that the BBC's commercial services—and much of the BBC's activities in the new digital future almost certainly will be concerned with commercial services—will in fact be regulated by the ITC.
I should like to move on and come back later to the question of the BSC itself and its scope. Under the Broadcasting Act 1990, the ITC and the Radio Authority each have a statutory duty to draw up and enforce a code of practice on impartiality and other programme matters. The programme codes produced by the ITC and Radio Authority lay down detailed requirements for programme makers on maintaining balance in programmes and have worked well in practice. As the Committee knows, the regulators, in the case of things not going as they should, have various sanctions at their disposal including, ultimately, removal of the licence. The real concern, which has been expressed this evening—it lies behind these amendments and I touched on it earlier in my remarks—is that those responsible for regulating in the public interest are not exercising their statutory obligations as they ought. The proper response to that, I believe, is either to go to the courts if the law has been broken or to exert political pressure generally, and in Parliament in particular, if it is felt that those who lawfully exercise their judgment have been doing so in an inappropriate manner.
It may be of some help to the Committee to know that my right honourable friend the Secretary of State has recently spoken to the new chairman of the BBC, expressing the sentiments which were contained in her August speech and told him that her hope is that he will keep that tougher vigilance in mind. She will meet him regularly and keep that wish on her agenda.
As I hoped to explain this evening, I do not believe that introducing the BSC as a kind of intermediary between, on the one hand, the regulators—i.e., the ITC, the BBC governors and the Radio Authority—and, on the other, the courts and Parliament in respect of these general impartiality issues is either desirable in policy terms or helpful in practical terms. For those reasons, we cannot support the amendment.
Lord Renton: Before my noble friend sits down, he said several times that the governors are regulators as well as being responsible for the BBC. But surely there is a conflict of interest if they are in that dual position. Is it correct to say that they are regulators, because they cannot be totally impartial?
Lord Inglewood: My noble friend touches the nub of the problem. This is one of the aspects inherent in the debate about the appropriate form which the BBC should take. On the one hand there are advantages in having a system with the BBC established under Royal Charter and governors who have a regulatory role, who are the trustees of the public interest in respect of the BBC and who are also the embodiment of the corporation itself. On the other hand, there are also disadvantages.
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In deciding which way one should go with the BBC it was necessary to weigh those matters in the balance. It was the Government's view—a view that I believe was shared by Parliament as a whole—that the former course of action was the appropriate one. A great deal of what we have been talking about this evening flows from that decision. What I am anxious to emphasise in respect of this amendment is that what I understand to be being proposed is the establishment of the BSC as a kind of alternative regulator to the regulatory system that is currently in place. I do not believe that that is desirable, for the reasons I have endeavoured to explain to your Lordships.
Members of the Committee suggested in opposing Clause 72 that the Broadcasting Standards Commission should no longer consider privacy and unfairness complaints only from individuals and their representatives, but that anybody should be able to make a privacy or unfairness complaint, whether or not they are affected by the matter that is the subject of the complaint, and whether or not they have any agreement from those who are affected.
As I explained earlier, that runs contrary to the original purpose of the establishment of the Broadcasting Complaints Commission, which was to consider issues of unfairness and invasion of privacy in television programmes as they affected individuals, and to provide a relatively simple and user-friendly consideration of their concerns so that they could assess whether or not they had been wrongly treated.
The continuing need for the protection of individuals in this area is evident in the increasing number of complaints received and dealt with by the present Broadcasting Complaints Commission. To remove the restriction on complainants, thus enabling any single person or group of people who felt moved to complain but who were not personally affected by the subject of the complaint, would, in our view—I recall the remarks of the noble Viscount, Lord Tenby, in this regard—be likely to expose the Broadcasting Standards Commission to a considerable increase in the number of complaints by interest groups about issues contained in programmes. That might well lead to gross infringements of an individual's privacy where an issue was taken up without either the consent or the knowledge of the person concerned.
People who are concerned about these matters have a direction in which they can go if they wish to take steps about it; that is, they may go to the relevant regulator in respect of the specific programme in question—the BBC in the shape of its governors, the ITC or, if appropriate, the Welsh Authority. It is not the case that we are arguing about this in vacuo. There exists a perfectly good line of action which people who are concerned about these points can go down if that is what they wish to do. What is being argued for is not the intended role of the Broadcasting Complaints Commission. Just as it was not the intended role of the Broadcasting Complaints Commission, it is not the intention of the Government that the Broadcasting Standards Commission should go in that direction.

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Finally, I turn to the proposal in respect of Clause 73, where my noble friend Lord Caldecote and the noble Lord, Lord Chalfont, wish to remove the BSC's obligation to set up a separate committee to consider fairness complaints and the concomitant requirement that members of that committee be prevented from involvement with standards complaints.
It is proper that fairness complaints, which are of a different character from standards complaints—the consideration of which require different processes—be handled separately and in a manner appropriate to this kind of issue. The intention of this clause is to ensure that the work of the fairness committee is not vulnerable to possible accusations of impropriety in case of judicial review. It was originally felt that members of the fairness committee should dedicate themselves to working on such complaints so that they developed an expertise on that topic. However, after further reflection, the Government are now considering whether such ring-fencing may be unnecessary or even unduly restrictive. In the light of the meeting of my right honourable friend the Secretary of State earlier this week with the chairmen of the existing BSC and BCC, we are currently considering an amendment of our own to be introduced at Report stage which would effectively remove all but the first subsection. This would be amended to allow the commission as a whole to determine the method of publication of the findings of the fairness committee.
That concludes the remarks I wish to make about the three principal amendments. My understanding of the other amendments to which the noble Lord, Lord Chalfont, is speaking is that they are all consequential and therefore I do not see any need to say more about them.
10.45 p.m.
Viscount Caldecote: Before the noble Lord sits down, can he explain why it is all right for matters of taste and decency in BBC programmes to come within the remit of the BSC but not matters of impartiality?
Lord Inglewood: My noble friend makes a good and fair point. The reason is that the impact of matters of taste and decency affect individuals' sensibilities as individuals in a way that matters relating to impartiality do not.
Lord Chalfont: I shall not delay the Committee overlong but I feel that a few comments are in order. I assume that the noble Lord, Lord McNally, was speaking for his party. I must confess that that has given me a new view of the Liberal Democrats' attitude towards regulation. He may be aware that the language of my amendment is taken directly from the Broadcasting Act 1990. There is nothing new in it at all. It had been my understanding that the Broadcasting Act 1990 had in this respect cross-party agreement. I am somewhat surprised to find that there is a new radical and polemical approach in the Liberal Democrat Party towards the whole concept of regulation. But that is what we have heard tonight.
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The noble Lord said that he thought that because it was evident that broadcasting authorities were attacking No. 10, whoever was in it, they must be doing something right. But there is a fairly good argument on the other side that they are probably doing everything wrong. I think the noble Lord is relying upon a somewhat old-fashioned interpretation of bias or impartiality. No one is talking about Left and Right impartiality; no one is talking about whether people are in favour of the Conservative Party or the Labour Party, in or out of power; what we are talking about is the fair and objective treatment of matters of controversy. That has always been my complaint about a number of broadcasters—that they do not seek after the truth; they seek merely after those selective facts which will serve to buttress their own arguments. That is why the impartiality clauses, with the very wording contained in my amendment, were built into the codes of the ITC and the Radio Authority. All I am seeking to do now, through this amendment, is to bring the BBC within the ambit of those requirements.
Freedom is a dangerous concept to start discussing at this time of night, but the noble Lord thought that the freedom of the broadcaster was a matter of predominant and primordial importance. I can only remind him that in the more classic analysis of liberal democracy freedom is defined as being the freedom to do what you wish provided that it does not limit or damage the freedom of others. It is manipulating the facts and corrupting the truth that limit the freedom of the people who listen to radio and watch television. If the noble Lord, Lord McNally, wishes to place our broadcasting system in relation to that of the French, I can only say that, like those who are constantly denigrating American television, there are things in French television and in American television from which the BBC and indeed our independent broadcasters could learn some lessons.
Perhaps I may now return to the very elegantly phrased, as always, and cogent reply of the Minister. He spoke about the existing concept of the functions of the BSC and the BCC as though they were engraved in tablets of stone. This Bill takes us into the next millennium and it is supposed to set out the regulation of digital broadcasting well into the next millennium. It is no good trying to take lessons from what the BSC and the BCC do now. The Government have already had the good sense to amalgamate those two bodies. Let them now have the good sense to make sure that the body they form is effective and has some teeth with which to do its job. I am sorry to keep returning to the canine image. We really want a body that is effective.
The noble Lord said that it was for the broadcasters to decide on scheduling and programming—and it is—but when it comes to a matter of scheduling and programming being the subject of complaint about decency, impartiality, standards and objectivity, then it is not for the broadcaster to decide. The Government conceded that in 1990 when they abolished the IBA, which was a broadcaster, and set up independent regulatory bodies. At that moment they accepted and agreed that it was not for the broadcaster to make these decisions but for an independent regulator. That is all I am asking for now.

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The noble Lord spoke of double jeopardy or second guessing. As I said in my earlier comments, that is already the case. The BSC adjudicates on complaints made to it which are also made to the ITC and the Radio Authority, and very often they come to different conclusions. That will always be so for as long as one has this proliferation of regulating bodies. I do not believe that there is anything particularly evil about that. If someone complains to the BSC that, for example, they have made a complaint to the ITC or to the governors of the BBC and it has not been upheld, is it not then fair that there should be an independent body to go to and say, "I believe that I have been badly done by. My complaint has been turned down when it should not have been"? I do not believe that this matter of double jeopardy is quite the bogeyman that the noble Lord has set it out to be.
The noble Earl commented on the "chapter closed" and that struck me, too. The Minister said that the chapter was now closed and that we must give the new arrangements a chance to work. For how long? To the next review of the BBC's charter or the next Broadcasting Bill? It seems odd to me that we should now be saying that we have a system which is based on the old system, as the noble Lord suggested when he mentioned the remit of the BSC and the BCC, and that we are now prepared, in his exhortation, to give it a chance. Give it a chance for how long? It could be another eight or 10 years and we could still be suffering from the paralysis of regulations, especially in the BBC, caused by the fact that the broadcasters are also the regulators. This is the time to do something about it and not wait until we have further mini-disasters of the kind we have been accustomed to in the past.
There is a good deal more that I could say. I shall make one final comment. Again, it is a fallacy; that of the opening of the floodgates. The suggestion is that if one allows the Broadcasting Standards Commission to take complaints from people about programmes in which they are not directly involved it will open the floodgates to a great mass of nutcases who will be sending in frivolous complaints and subjecting the BSC to mounds and mounds of unnecessary work. There are two things I say to that. One is this: it has not happened in the ITC and the Radio Authority. They have the right to take complaints about impartiality to anybody. It does not have to be anybody directly affected by the programme. Any complaint about impartiality may be made by any listener or viewer in independent television or independent radio. It is only in this instance that we are trying to make a distinction between them. The other is that the BSC would always in any case have the right to decide that the complaint was frivolous and throw it out. On both counts, the great nightmare about opening the floodgates simply does not stand up.
The Minister said that everybody has a perfectly good line of complaint already. They can go to the ITC, the Radio Authority or the governors of the BBC. I would only ask the Minister rhetorically whether he has ever been to the governors of the BBC with a complaint. I have, and the result has always been the same. The BBC closes ranks, as you would fully expect it to do.
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I would be surprised and disappointed if it did not. It is behaving like a corporate body normally behaves, and that is what is wrong with it; it should not be a corporate body. It should be a body which has an independent regulator over its activities and somebody else to run the organisation.
So I come to my concluding remarks. Clause 73, as the Minister said, is largely consequential. It does not begin to hold up unless some of the other amendments are accepted. The Minister said that the amendments cannot be accepted by the Government. Clearly it would be irresponsible, to say the very least, to divide the Committee at this stage, although with the single exception of the noble Lord, Lord McNally, every speech has been a ringing endorsement of my amendment. However, on the understanding that the Minister will undertake to look at the problem again and assure us that he will try to find some way of meeting the concerns of myself and my colleagues, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 71 agreed to.
Clause 72 [Complaints of unfair treatment etc.]:
Baroness Dean of Thornton-le-Fylde Baroness Dean of Thornton-le-Fylde moved Amendment No. 203A:
Page 61, line 38, at end insert ("or organisation").
The noble Baroness said: In moving this amendment, I should like to speak also to Amendments Nos. 208A, 208C, 216A and 216B.
I must first declare an interest. Until just over a year ago I was a member of the Broadcasting Complaints Commission. I have tabled these amendments following my experience as a member of the BCC, participating in and observing the process which takes place under the 1990 Act. The BCC is seriously underfunded and complainants have to wait far too long to have their cases dealt with.
When one considers the thousands of hours of broadcasting time over a year and also the very small number of complaints that are received, one has to accept that, by and large, our broadcasting is of good standard and good quality and is fair and accurate on balance. However, when we received complaints at the BCC, I was appalled at some of the programmes which were made by supposedly professional journalists and programme-makers. That small number of complaints gets the whole industry a bad name. I was appalled too at the sloppiness of some of the journalism and at the way in which some programmes seem to set the agenda for the outcome before they carry out the investigation. That affects just a small number of programmes.
We must remember that the BCC and the BSC are merging. We welcome that merger. We believe it is a step forward. It provides for members of the public an opportunity to complain where otherwise they would have to go to the courts. Referring a complaint to the courts cannot be the right way to deal with it. The complaints system that exists is important if we are looking at fairness and balance and at a broadcasting system which is there for members of the public.
Amendment No.203A refers to direct interest which is a difficult area to define. Of that there is no doubt. We had hoped that the Bill would be clearer about direct interest. It is not. We understand the problems; nevertheless we think that a better shot could perhaps have been made of it. For instance, there can be a programme that looks at a narrowly defined area. It may be one for which there is a national body generally and publicly recognised as being an organisation where the subject matter of the programme is the essential main element or the raison d'être itself of the organisation.
Under the Bill as it stands, and indeed under the 1990 Act, there is no automatic right of complaint. What we have seen is broadcasters objecting to any complaint coming from an organisation. It has to come from an individual. I shall give one example. There was a programme made some two years ago—distant enough for it not to he controversial today—about single parents. It focused on single women parents. The National Council for One-Parent Families made a complaint about the programme. The broadcaster objected and said that there was no direct interest there. Yet the Government consult that body on matters affecting that group in our community.
Defining a direct interest, as I said, is difficult, but there are occasions when organisations do have a direct interest. We are not talking about party political broadcasts or similar programmes. There will not be a long queue of people in that category and, if there are, what happens to them under the new body will be what happened to them under the BCC. We refused to accept their complaints, and we did receive a number. The area of direct interest is a key element.
Amendment No. 208A deals with the provision of unedited recordings at the request of the BSC in respect of unfairness complaints. Again, that does not apply to all broadcasters. My experience is that there were a number of broadcasters who, when asked for the full unedited tape—the rushes, as they are called—handed them over voluntarily. One might wonder why they are important. There is an individual complainant who says, "This programme has not been fair to me." The BCC looks at the programme. The complainant will say, "Ah yes, but that is one little part of my interview. If you look at the whole interview, you will see that they have extracted out of context the points I was making." If the broadcasters are not required to hand over the full unedited tapes, the complainant does not receive a fair hearing. The BCC is put in a difficult position.
Amendment No. 208C requires that when a complaint has been accepted by the BSC as a legitimate one, that programme will not be rebroadcast until the complaint has been adjudicated upon. Where the adjudication finds in favour of the complainant, the part complained about will be edited out. There have been instances of a serious complaint being made by an individual, the company rebroadcasting the very programme, and the complaint being ultimately upheld. Where the complaint is not upheld, no damage is done. In some respects it negates the matter; it is like double jeopardy for the complainant.
I do not intend to pursue the amendment tonight. I am not a parliamentary draftsman and I understand that in drafting the amendment I have included not only the programmes but the advertisements. The 1990 Act and Clause 89 of the Bill provides that the definition of "programme" is the content of the programme including the advertisements. Clearly, the Broadcasting Standards Commission does not cover advertisements. They are rightly covered by the ITC. It was never my intention to provide for that. The word "programme" is a lay person's term and appears in Clauses 69, 70 and 71. In the light of that legal difficulty, it is not my intention to pursue the amendment tonight but I have raised the issue and would welcome the Minister's comments.
Amendments Nos. 216A and 216B amend the Bill to provide that, where a complaint has been made, heard, adjudicated upon and found in favour of the complainant, the Broadcasting Complaints Commission will in most instances require its adjudication to be broadcast. In the past that has not happened and the balance has not been redressed as regards the complainant. For instance, the case relating to the one-parent families resulted in the BBC making a statement after the broadcast of the adjudication to the effect that it did not agree with the adjudication decision, and why. That negated the impact of the commission's decision.
Recently, Central Television broadcast an adjudication relating to one of "The Cook Report" programmes. Before the adjudication was broadcast, Mr. Cook appeared on the screen and stated that the company was required by law to broadcast the adjudication. He stated that it found the adjudication perverse. The adjudication was then broadcast and back on screen came Mr. Cook, who made a long statement in which he chose selectively to put his case. He concluded—and I paraphrase—that the company stood by every word it broadcast in the programme against which the adjudication had been found. The complainant was not invited on screen to make a comment, nor was the chairman of the Broadcasting Complaints Commission. That incident completely negated the impact of that adjudication and, I suggest, the integrity of the complaints system.
Fortunately, the story does not end there. About an hour ago, on the instructions of the ITC, Central Television rebroadcast that adjudication. It is to be hoped that the balance will be redressed. But such events should not occur and that is why I have tabled the two amendments. I apologise for taking 10 minutes but these amendments are important for individuals and for the viewers. They are tabled as a result of my observations during my membership of the Broadcasting Complaints Commission, which, despite lack of resources, does a worthwhile job. I beg to move.
Lord Inglewood: I am sure that all of us found the remarks of the noble Baroness, Lady Dean, most helpful, bearing in mind her wide experience in these matters. Amendment No. 203A relates to fairness complaints and to the fact that a person affected in this regard is already allowed to instruct another person to complain on his behalf to the Broadcasting Standards

841
Commission. That other person could, of course, be a member of an organisation such as a representative body.
As has been explained, what is not allowed is an organisation to make a complaint without the authorisation of the person affected. The Government would oppose such a proposal for the reasons that I gave tonight in respect of earlier amendments. The noble Baroness makes an important point about the problems relating to the definition of "direct interest". If she has any suggested improvements to the form of words which may help to deal with a difficult definitional problem, we should be very pleased to know about them.
In her remarks the noble Baroness referred to the "Panorama" programme entitled "Babies on Benefit." My understanding is that the National Council for One Parent Families did not represent an individual in that respect. The judicial review which arose from the complaint that it made found that the BCC acted beyond its powers in entertaining the complaint without a named individual. Therefore, it seems to me that that was not a matter of an individual who was affected by the programme not being able to bring a complaint. In fact, it was a complaint brought by an organisation which was outside the remit of the BCC because it was not brought by an individual who was affected.
I have explained some of our anxieties about the noble Baroness's amendment and, as a result, we cannot support it.
Amendment No. 208A seeks to require broadcasters, regulatory bodies and production companies to make available to the Broadcasting Standards Commission all unedited as well as edited material such as transcripts and recordings that had been gathered in the process of making a programme which is subject to an unfairness complaint. Already broadcasters and regulatory bodies are required to retain recordings and transcripts of all programmes broadcast in the event of a complaint. To require them to retain, in addition, all unedited recordings and transcripts that have gone into the making of a programme is in practice an almost completely open-ended obligation and the volume of material would be many times greater than that used in the actual recording. It seems to us that this is a disproportionate requirement because that would impose, in turn, an unreasonable demand on broadcasters, regulatory bodies and their production companies in both administrative and financial terms. That is our concern and that is why we resist that amendment.
Amendment No. 208C is concerned to extend effectively the role of the BSC to that of a censor and regulator by giving it the power to prevent the retransmission of a programme under investigation or a part of a programme on which the BSC has made an adverse ruling.
The BSC exists as a forum for public concerns in broadcasting and the airing of personal grievances, as I have already mentioned. To enable the BSC to prevent the retransmission of the whole or part of a programme would be to give it powers of censorship which do not
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at present exist in the broadcasting regulatory framework. If this amendment were accepted it seems to us that there would be a possibility that pressure groups may go beyond the spirit of the amendment and take advantage by making a hardly genuine complaint to the BSC in the hope that it will be entertained in order to prevent, thereby, the retransmission of a programme which they disliked or with which they disagreed.
We believe that it would be wrong to extend the powers of the BSC beyond its present remit. It seems to us that the potential abuses with which this amendment is concerned are best left to the person who is responsible for the regulation of the broadcaster concerned. We believe that is the way to deal with that problem and that is why we oppose that amendment.
Finally, the noble Baroness spoke to Amendments Nos. 216A and 216B in which she proposes that broadcasting bodies and licence holders be prevented from adding their own comments alongside any published summary that they are required to make of the BSC's findings. The proposal is one with which the Government have considerable sympathy. With the agreement of the Committee, we would like to consider most carefully the implications of what is being proposed and to consult with the broadcasting and regulatory bodies and the Broadcasting Complaints Commission before making the Government's position clear in due course. I hope that we may be able to return to the matter on Report with some proposals in the area.
Baroness Dean of Thornton-le-Fylde: I thank the Minister for responding to all the amendments. I only moved Amendment No. 203A, but spoke to the others. The noble Lord gave me quite an interesting invitation as regards our bringing forward some further words on direct interest. If the Government would see their way to funding the Front Bench of the Opposition with researchers and secretarial support even to a minimal degree compared to that enjoyed by them, we would have some further words available in time for the Report stage. If the Minister would like to take up that counter invitation, we would be delighted to comply.
I accept that it is difficult to define the concept of direct interest. I also take the point about not representing an organisation. I believe that the Minister has been somewhat misled on the matter as regards the "Panorama" programme. I chaired that complaint, but I left the commission before the court case took place. There were two young women who actually went to the National Council for One Parent Families with their complaints. It is indeed a difficult area, and we will consider the Minister's response. Perhaps we could hire a lawyer who does not charge the normal fees and ask him to look into the matter. I invite the Government to do likewise. If it is just the question of words that is keeping us apart, I am sure that we can find a way to resolve the matter.
As regards pressure groups, my experience in life has been that those who get away with pressurising are those who are pretty well looked after; indeed, it is those in the vulnerable, small groups who do not know where to go, and do not even know that the system exists, who need help. Therefore, I was disappointed with that reply.

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As regards Amendments Nos. 216A and 216B, clearly I am pleased with that response. We await to hear the Minister's further comments on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 72 agreed to.
Clause 73 agreed to.
Clause 74 [Complaints relating to taste and decency, etc.]:
[Amendments Nos. 204 to 207 not moved.]
Clause 74 agreed to.
Clause 75 [Supplementary provisions as to making of complaints of either kind]:
[Amendments Nos. 207A and 208 not moved.]
Clause 75 agreed to.
Clause 76 [Consideration of fairness complaints]:
[Amendment No. 208A not moved.]
Lord Inglewood moved Lord Inglewood moved Amendment No. 208B:
Page 65, line 17, at end insert—
("( ) Where the BSC have adjudicated on a fairness complaint, they shall send a statement of their findings to the complainant.").
On Question, amendment agreed to.
Clause 76, as amended, agreed to.
[Amendment No. 208C not moved.]
Clause 77 [Consideration of standards complaints]: [Amendments Nos. 209 to 211 not moved.]
Lord Chalfont Lord Chalfont had given notice of his intention to move Amendments Nos. 212 to 214:
Page 66, line 6, after ("BSC") insert (" and the complainant").
Page 66, line 9, after ("BSC") insert (" and the complainant").
Page 66, line 12, after ("BSC") insert (" and the complainant").
The noble Lord said: The above amendments do in fact contain a new element which is not entirely consequential to the original amendment. However, as I shall be returning to the whole matter on Report, I do not propose to move the amendments tonight.
[Amendments Nos. 212 to 214 not moved.]
Clause 77 agreed to.
Clause 78 agreed to.
Clause 79 [Power to pay allowances to persons attending hearings]:
11.15 p.m.
[Amendments Nos. 214A to 214C not moved.]
Clause 79 agreed to.
Clause 80 [Publication of BSC's findings]:
[Amendments Nos. 215 to 217 not moved.]
Viscount Caldecote Viscount Caldecote moved Amendment No. 217A:
Page 67, line 9, at end insert—
("(d) a correction or an apology (or both).").
The noble Viscount said: The noble and learned Lord, Lord Ackner, has asked me to apologise to the Committee on his behalf as he has had to leave. He asked me to move this simple amendment on his behalf.
It seems a sensible and logical proposal that if a complaint is upheld it is reasonable that a correction or apology should be made. I beg to move.
Lord Inglewood: This amendment requires the Broadcasting Standards Commission to publish an apology or correction that it has directed the broadcaster or regulatory body to make, after a complaint has been upheld. The Broadcasting Standards Commission, however, can only direct a broadcaster or regulatory body to publish a summary of its findings. It cannot direct them to make an apology or correction.
The mechanism for the broadcasting of apologies is contained in Section 40 of the 1990 Act in respect of licensed services, and in Section 109 in respect of licensed radio services. In the case of the BBC it would be incumbent upon the governors to determine where an apology or correction is appropriate. It is right that the responsibility for these matters should rest with the broadcasting or regulatory bodies. Where an apology or correction has been made, however, this would be reported to the BSC and included in the BSC's report through the requirement contained in government Amendment No. 221A. The Government will therefore resist this amendment.
Viscount Caldecote: I am not quite clear why. My noble friend says that the BSC could not have the power to do this, but surely the whole of Clause 80 gives the BSC power to issue directions, and this is simply an additional direction that it could issue if it so wished. Perhaps my noble friend will consider that point.
Lord Inglewood: Were there a power to compel a form of apology, the apology itself would ring entirely hollow. A self-regulating way of determining how a broadcaster responds to a finding of the BSC is to see whether or not he apologises, because the mechanisms we have put in place are intended to draw clearly to the wider public's attention whether or not any response has been given by the broadcaster. We believe that that is the best way to ensure that broadcasters will take seriously the findings of the BSC, because it will be made apparent to the wider world when a description of the upheld complaint is made public that the broadcaster has done nothing about it. That will lead to pressure from the press, the public and politicians. If, however, the broadcaster were simply compelled to issue a form of words which carried none of his sentiments, we believe that would provide the broadcaster with a way out.
Viscount Caldecote: My noble friend has made a logical case although I cannot commit the noble and learned Lord, Lord Ackner, to it, as he may want to raise the matter again on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Chalfont Lord Chalfont moved Amendment No. 218:
Page 67, line 11, at end insert—
("provided that in the case of a summary as provided for in subsection (3)(b) above a clear statement is included as to whether each separate part of a complaint has been upheld or not upheld").
The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 220. These are simple amendments which I hope will commend themselves to the Government. They are merely designed to correct a situation where at the moment an adjudication can be made on a complaint without telling the complainant whether or not any part of his complaint has been upheld. Sometimes this can cause confusion and indeed dismay to the complainant if he has made a complaint in several parts and it is not made absolutely clear to him in the adjudication whether or not each part has been upheld. It is a simple amendment and I hope that the Government can accept it. I beg to move.
Lord Inglewood: The purpose of Amendments Nos. 218, 220 and 221 is to require the BSC to state for each part of a complaint that has been considered whether it has been upheld. In the case of complaints about fairness, Clause 80(11) as it stands already requires the Broadcasting Standards Commission to do just that. The BSC is required to make findings which state whether a fairness complaint is upheld, and those findings are to be made on each part of the complaint.
With respect to complaints about standards, we feel it is inappropriate to expect the BSC to consider and give findings on each part of a complaint. There are proper reasons why part of a complaint may not be considered. Those are laid out in Clause 75. Last year the Broadcasting Standards Council received a total of 2,838 complaints, of which it gave findings on 1,492. Those numbers can be expected to grow considerably with the advent of the merger. It would be a considerable drain on the resources of the BSC if it were required to state its findings on every part of each complaint.
I hope that the noble Lord will understand why I say that the Government consider that the amendments as drafted would place unnecessary burdens on the BSC and will resist them.
Lord Chalfont: The purpose of Amendment No. 221 is to remove a clause which would have become unnecessary if the other two amendments had been accepted.
This is largely a matter of wording. I was not entirely happy that the existing wording made it clear that an adjudication had to be made on each part. If that is the intention of the current wording in the Bill, and if it has the effect which I sought to achieve in Amendments Nos. 218 and 220, I am happy to beg leave to withdraw the amendment and to examine the position between now and Report stage.
Amendment, by leave, withdrawn.
Viscount Caldecote Viscount Caldecote moved Amendment No. 219:
Page 67, line 19, leave out ("at such intervals") and insert ("monthly").
The noble Viscount said: At present the Broadcasting Standards Council publishes monthly bulletins setting out complaints received and whether they were upheld. As drafted, Clause 80(7) gives the BSC discretion as to how often it publishes such reports. No doubt the
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intention is to continue to publish monthly reports, but in future that policy might be discontinued. Reports issued at half-yearly intervals would be of little value. The amendment seeks to place a duty on the BSC to continue to issue monthly reports.
The reason for my anxiety about the way the Bill is presently drafted is that from time to time pressure is put on departments to reduce expenditure. It would be simple for the BSC to save a few tens of thousands of pounds or more by issuing the report only once a year. Therefore, it is important that this simple and logical amendment should be approved so as to ensure that we continue to have the excellent monthly reports. I beg to move.
Lord Inglewood: My noble friend's amendment requires the Broadcasting Standards Commission to publish reports, giving details of its findings, on a strictly monthly basis. This would allow no flexibility or discretion for the new organisation in the management of its resources according to demands. It may be that there are so many findings in any one month that the Broadcasting Standards Commission decides that it should publish two reports within that month. On the other hand, it might be that the BSC wishes to miss a month due to there being an insufficient number of findings to justify publishing or to difficulties caused by staff absence or a holiday period. The amendment does not give the BSC the flexibility to do either.
The Government are willing to consider introducing at Report stage an amendment of their own requiring the BSC to publish its reports monthly or at such intervals as it sees fit. I hope that that will reassure my noble friend and that he will agree to withdraw his amendment.
Viscount Caldecote: I am most grateful to my noble friend for that very sympathetic and encouraging reply. On that basis I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 220 not moved.]
Lord Inglewood Lord Inglewood moved Amendment No. 220A:
Page 67, line 33, leave out ("or 74(1)") and insert (" 74(1) or 75(2)").
On Question, amendment agreed to.
Lord Inglewood moved Amendment No. 220B:
Page 67, line 38, leave out ("complainant") and insert ("complaint in question").
On Question, amendment agreed to.
[Amendments Nos. 220C to 221 not moved.]
Clause 80, as amended, agreed to.
Lord Inglewood Lord Inglewood moved Amendment No. 221A:
After Clause 80, insert the following new clause—
REPORTS ON ACTION TAKEN VOLUNTARILY IN RESPONSE TO FINDINGS ON COMPLAINTS
(".—(1) This section applies where the BSC have given a direction under section 80(1) in relation to a fairness complaint or a standards complaint.
(2) Where the relevant programme was included in a licensed service, the appropriate regulatory body shall send to the BSC a report of any supplementary action taken by—

(a) the regulatory body,

(b) the licence holder, or

(c) any other person appearing to the regulatory body to be responsible for the making or provision of the relevant programme.

(3) Where the relevant programme was broadcast by a broadcasting body, that body shall send to the BSC a report of any supplementary action taken by—

(a) the broadcasting body, or

(b) any other person appearing to that body to be responsible for the making or provision of the relevant programme.

(4) The BSC may include, in any report under section 80(7), a summary of any report received by them under subsection (2) or (3) in relation to the complaint.
(5) In this section "supplementary action", in relation to a complaint, means action which, although not taken in pursuance of a direction under section 80(1), is taken in consequence of the findings of the BSC on the complaint.").
On Question, amendment agreed to.
The Earl of Northesk The Earl of Northesk moved Amendment No. 222:
Before Clause 81, insert the following new clause—
REGISTER OF BROADCASTERS' INTERESTS
(".—(1) It shall be the duty of the BSC to draw up and maintain a register of broadcasters' interests.
(2) The register shall contain details of—

(a) consultancies, or any similar arrangements, whereby broadcasters accept payment or other incentive or reward for providing broadcast services;

(b) any financial interests of broadcasters in businesses involved in providing broadcast services on behalf of clients;

(c) broadcasters' membership of or affiliation to any political party or organisation; and

(d) any other particulars which the BSC considers may affect the public perception of the way in which broadcasters provide broadcast services.

(3) Any person who is engaged in the production of current affairs or news programmes or who is the holder of a licence under the 1990 Act or Part I or II shall register any details under subsection (2) above.
(4) The BSC may make arrangements to enable any other person employed by a broadcasting body or by any holder of a licence under the 1990 Act or Part I or II to register any details under subsection (2) above.
(5) The BSC shall make arrangements for the public inspection of the register.").
The noble Earl said: The amendment requires the BSC to draw up and maintain a register of the interests, as elaborated in subsection (2), of certain categories of broadcaster as defined in subsection (3).
It is important to recognise that what has motivated me in this has little to do with impartiality per se. I am entirely comfortable to maintain that UK broadcasting continues to be the best in the world so far as concerns quality, integrity and impartiality. As a nation, we should count ourselves extremely fortunate that we continue to enjoy that considerable privilege.
Therefore, I could at a pinch be persuaded to accept that principles of impartiality are adequately buttressed by existing systems—the more so had the Minister been more receptive to the amendments of the noble Lord,
848
Lord Chalfont, and my noble friend Lord Caldecote. However, what should concern us is our responsibility, with the onset of digital, to sustain this reputation for pre-eminence combined with a recognition that the people need to be able to recognise in a tangible and concrete way that their interests are being properly protected and looked after.
In effect, my primary purpose with the amendment is to enhance the principle of accountability within the broadcast media. No one disputes the immense power of the broadcast media. I am spoilt for choice in finding quotations to support this supposition. For example, the paper of the Department of National Heritage, Media Ownership: the Government's Proposals, published in May of last year states that the Government recognise,
"that broadcasters in particular use a powerful and instant form of mass communication, delivered through a limited number of outlets, which are in a strong position to inform and influence public opinion and to help set the agenda for public debate, and may also have an effect (for good or ill) on the outlook and behaviour of individuals".
This is serious stuff—"influence public opinion"; "set the agenda for public debate"! To my mind, it is arguable that we, as a nation, should be comfortable with the concept that an intellectual medium, with access to an essentially malleable constituency of quite literally millions, should be free to operate outside the remit of transparency and public scrutiny. Of course, I concede that the various regulatory bodies and practices within the industry exist as a check and balance in this regard. However, they do not address the core problem here of democratic accountability: that of the public being afforded the opportunity to see for themselves that the regulatory framework is operating effectively and adequately. It is my belief that this amendment would achieve that objective.
The other point I wish to make is that the primary purpose of the Bill before us is to establish a framework for digital for the future. Inevitably, this involves a degree of crystal ball gazing, but the one thing that can definitely be said is that digital will create considerably more capacity than currently exists in UK broadcasting. It does not stretch the bounds of possibility to suggest that there will be a proliferation of new channels and new broadcasters as and when digital comes on stream. A potential and undesirable by-product of such a proliferation could be a diminution in the high standards under which the UK broadcasting industry currently operates.
Thus, in holding to my belief that we in the UK still enjoy the best broadcasting in the world, I am keen to ensure that the situation can be maintained into the digital age and that new players in the field are left in no doubt as to the standards to be achieved, particularly with respect to accountability. Again, it is my view that my amendment would achieve that. I beg to move.
11.30 p.m.
Lord Chalfont: I support the noble Earl's amendment. There is a delicious irony about the proposal. As I was reading the first draft of the amendment, I was checking my own entry in the House of Lords register of interests. It seemed to me that as

849
soon as the amendment made its appearance we would hear a loud uproar about infringement of freedom. There is an irony about considering the proposal this evening.
One area in which I am led to agree fully with what the noble Earl said and with the content of his amendment is this. I often wish to know when watching a television programme or listening to a radio broadcast—to use a trendy modern idiom—where the broadcaster is coming from. In other words, what emotional, political or ideological baggage has he carried with him into the studio. It is an important point. If one speaks to presenters, interviewers and programme-makers among the broadcasters, they will say in the idiom of their profession that they leave their political opinions at the studio door. However, I do not believe that that is always the case. It was the case in the old days when legendary figures in the BBC such as Grace Wyndham-Goldie and Huw Wheldon were running affairs. It would have been a brave BBC person who would take his own opinions into the studio, whether radio or television. However, it sometimes now happens. The concept of transparency and knowing where people are coming from deserves attention.
Like the noble Earl, I have no great confidence that the proposal will be met with universal approbation. I doubt whether the Government will be prepared to do much about it. However, the amendment is worth considering because it does something to cut across the feeling that we all have sometimes that we are listening to someone peddling a political line on radio or television under the guise of an objective comment.
Lord Inglewood: The amendment of my noble friend Lord Northesk would place a duty on the BSC to create a register of interests to which broadcasters would supply details of their consultancies or similar arrangements in return for payment or other reward; any financial interests of broadcasters in businesses providing broadcasting services on behalf of clients; their membership of or affiliation to any political party or organisation; and any other particulars that the BSC considers may affect the public perception as to the way in which broadcasters provide broadcasting services. My noble friend's amendment also requires any person involved in producing current affairs or news programmes or holding a licence under the 1990 Act or Part I or Part II of the Bill to register the same kind of details. The BSC is required to make the necessary arrangements, including those for public inspection of the register.
The BBC and those broadcasters licensed by the ITC are subject to strict requirements as to impartiality. In particular, the ITC is required to do all that it can to secure that every licensed broadcaster applies the requirement that any news given, in whatever form, in its programmes is presented with due accuracy and impartiality and that due impartiality is preserved in respect of matters of political or industrial controversy or relating to current public policy. The ITC is required to draw up appropriate codes to give effect to those requirements. In respect
850
of services licensed by the ITC, the commission must also satisfy itself that each prospective licensee is a fit and proper person to hold a broadcasting licence. The ITC is further required to ensure that the broadcasting licence holder is not disqualified by a number of criteria set out in Schedule 2 to the 1990 Act including political connections and circumstances where a prospective licensee is open to have influence exerted over him by another body giving financial assistance. The disqualification also extends to advertising agencies and those associated with such agencies.
As I previously said in respect of the BBC, we have made express provision in paragraph 7 of the draft Charter that the governors are under an express obligation to ensure that the corporation, its employees and all its programme-makers comply with codes and guidelines covering programme standards. The draft Charter specifies that all activities of the BBC should be carried out to the highest standards of probity and propriety. The Agreement between the Secretary of State and the BBC being considered in another place this evening contains a clear requirement that the BBC draw up a code relating to due accuracy and impartiality of treatment in paragraph 5.3 referring to paragraph 5.1(c). The BBC is required to do,
"all it can to ensure that the provisions of the Code are observed".
There are many other activities where these kinds of standards are properly demanded. Yet doctors, lawyers and judges, to name but three, do not have to complete such a declaration. Indeed, it is only in the field of politics where an obligation to complete such registers may be required because politicians take decisions as decision-makers of government.
The general provisions of the 1990 Act applicable to the ITC's duties and the framework set out in the BBC draft Charter and Agreement are, in the Government's view, a sufficient safeguard against breaches of impartiality arising from potential conflicts of interests of broadcasters. It is a matter for the broadcasters themselves to secure that their employees and programme-makers act in accordance with obligations placed on the broadcasters. For example, the BBC's standard contract of employment expressly deals with those matters.
I refer the Committee to paragraph 19 of the monthly standard contract where it is specified that,
"You [the employee] will devote your whole time ability and attention during your working hours to the BBC and the performance of your duties. You will not allow your outside or private activities to interfere with your BBC work or your ability to carry out your duties effectively or permit any conflict actual or potential to arise between your BBC duties and your outside or private interests. You will not allow any outside or private interests to place the BBC in a position whereby it is brought or is likely to be brought into disrepute or its reputation for impartiality is likely to be affected irrespective of whether or not its reputation is actually affected".
It goes on to say that,
"in case of doubt you should seek the prior written consent of your manager before entering into or commencing any additional employment or appointment whether voluntary or otherwise".

851
It seems to me that an unwillingness to comply with that criterion is more or less a guarantee that the register will be improperly filled in. I am far from convinced that that approach will deliver the benefits that its proposers maintain.
In addition, the amendment would take the work of the BSC into areas considerably beyond its intended remit and into an area which is properly the responsibility of the regulators and the governors. The fact that broadcasting is subject to the regulatory regime of the BBC governors, the Welsh Authority, or in receipt of an ITC licence, should of itself be the guarantee of impartiality. It goes back to a great deal of what we have been talking about this evening. If that is not the case, it is a matter for those who have the job of exercising a regulatory function. It is not a matter which we believe should or could be well done by the BSC whose function, as I have explained, is different.
For those reasons, if my noble friend seeks to press his amendment, we shall oppose it.
The Earl of Northesk: I am grateful to the noble Lord, Lord Chalfont, and to the Minister for his lucid explanation of the situation. The noble Lord, Lord Chalfont, was absolutely right in foreseeing that my noble friend the Minister would not be wholly sympathetic to the amendment.
I am conscious of the lateness of the hour and have no wish to detain the Committee any longer than is necessary. I believe, as the noble Lord, Lord Chalfont, intimated, that there may be room to seek out a more useful airing of the subject when more people are around to discuss it. With that reservation and with the Committee's leave, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 [Power of BSC to commission research]:
Lord Inglewood Lord Inglewood moved Amendment No. 222A:
Page 68, line 6, at end insert—
("( ) the avoidance of unjust or unfair treatment in programmes to which section 68 applies and of unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes,").
On Question, amendment agreed to.
Clause 81, as amended, agreed to.
Clause 82 agreed to.
Clause 83 [Duty to publicise BSC]:
Lord Chalfont Lord Chalfont had given notice of his intention to move Amendment No. 223:
Page 68, line 26, leave out subsection (2).
The noble Lord said: As this will be, to my relief and probably to everyone else's, my last intervention in the Committee stage, I wish to express my appreciation to the Minister, not only for the constructive and helpful way in which he responded to the debate, taking us so carefully and effectively through it, but also for the co-operation that he and his officials have given to us all—certainly to me—
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throughout the preparation of these amendments. I look forward to returning to the fray at Report stage, when I know that the Minister will come with great armfuls of government concessions. The amendment is not moved.
[Amendment No. 223 not moved.]
Clause 83 agreed to.
Clause 84 [Annual reports]:
Lord Inglewood moved Amendment No. 223A:
Page 68, line 41, leave out from beginning to end of line 2 on page 69.
On Question, amendment agreed to.
Lord Inglewood Lord Inglewood moved Amendment No. 223B:
Page 69, line 7, at end insert ("together with a copy of the statement of accounts for the year and of the report of the Comptroller and Auditor General on that statement").
On Question, amendment agreed to.
Clause 84, as amended, agreed to.
Clause 85 agreed to.
Clause 86 [Contributions towards cost of BSC]:
Lord Inglewood Lord Inglewood moved Amendment No. 223C:
Page 69, line 27, leave out from ("must") to end of line and insert ("be such that the aggregate of—

(a) that total, and

(b) the amount of any contribution towards the expenses of the BSC for that year which is received, or to be received, by the Secretary of State from the BBC, represents one half of those expenses.").

On Question, amendment agreed to.
Clause 86, as amended, agreed to.
Clause 87 agreed to.
Schedule 4 agreed to.
Clause 88 agreed to.
Clause 89 [Interpretation of Part IV]:
Lord Inglewood Lord Inglewood moved Amendment No. 224:
Page 70, line 45, at end insert—
("( ) any qualifying service (within the meaning of Part 1 of this Act) provided by a person other than the Welsh Authority,").
On Question, amendment agreed to.
Clause 89, as amended, agreed to.
Clause 90 agreed to.
Schedule 5 agreed to.
Clauses 91 to 93 agreed to.
11.45 p.m.
Schedule 6 [Amendments of Broadcasting Act 1990 relating to services provided by BBC companies]:
[Amendments Nos. 225 and 226 not moved.]
Schedule 6 agreed to.
Clauses 94 and 95 agreed to.
Schedule 7 [Minor and consequential amendments]:
[Amendments Nos. 227 and 228 not moved.]
Schedule 7 agreed to.
Schedule 8 [Repeals]:
[Amendment No. 229 not moved.]
Schedule 8 agreed to.
Clause 96 [Commencement and transitional provisions]:
[Amendments Nos. 230 to 233 not moved.]
Clause 96 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported with amendments.
House adjourned at thirteen minutes before midnight.