§ Consideration of amendments on Report resumed.
§ Clause 72 [Power to publish guidance relating to avoidance of unjust or unfair treatment or interference with privacy]:
Lord Inglewood moved Amendment No. 181:
Page 61, line 14, leave out ("The BSC may draw up") and insert ("It shall be the duty of the BSC to draw up, and from time to time review,").
§ The noble Lord said: My Lords, in moving Amendment No. 181, I shall speak also to Amendments Nos. 183, 186, 187, 191, 193, 194, 197, 205 and 206. In the interests of saving time, and with your Lordships' 496 consent, I should like to speak to all of the government amendments now. I shall, of course, move them as we come to them. Your Lordships will recall that in Committee I undertook to consider further a number of amendments to this part of the Bill. Most of the Government's amendments are a result of that consideration.
§ Amendments Nos. 181, 183, 186 and 191 seek to address the anxieties expressed by the noble Lord, Lord Chalfont, and the noble and learned Lord, Lord Ackner; namely, whether the drawing up and review of the guidance should be mandatory. On further reflection the Government have come to the view that such guidance should indeed be mandatory. Similarly, the Government studied further the proposal of the noble Lord, Lord Donoughue, that the BSC, in drawing up its guidance on fairness, be required to consult broadcasting and regulatory bodies and any others it considered appropriate. Amendment No. 187 seeks to create such a requirement.
§ I turn now to Amendments Nos. 193 and 194. A short time ago the Secretary of State met the chairmen of the existing BSC and BCC. One point that emerged from the meeting was the question of whether the ring-fencing of the work of the fairness committee might be excessive. As I indicated in Committee, it was felt that the Bill as drafted might unnecessarily fetter the discretion of the commission in determining the allocation of responsibilities. These amendments, which remove subsections (2) and (3) of Clause 77 and amend subsection (1), are intended to create flexibility in the area.
§ Amendment No. 197 follows a proposal of the noble Lord, Lord Ashley. It is intended to allow the BSC, at its discretion, to consider complaints submitted in a form other than written thereby facilitating the submission of complaints from the sensory or otherwise impaired.
§ The noble Baroness, Lady Dean, introduced an amendment in Committee to prevent broadcasters making comment alongside any summary of a BSC finding which they were required to publish or broadcast. The noble Baroness, your Lordships will recall, offered the example of a finding by the Broadcasting Complaints Commission against the programme "The Cook Report" where the broadcaster, in broadcasting a summary of the finding, accompanied it with negative comment by the programme's presenter, Roger Cook. I understand that the ITC subsequently required that the summary be broadcast again, this time without additional comment, and that was done. Nevertheless, the point is a good one. Amendment No. 205 is intended to ensure that broadcasters may not comment alongside any published or broadcast summary of a BSC finding which they are required to make. That would not, of course, restrict the broadcasters' freedom to comment elsewhere on such a finding.
§ The noble Lord, Lord Chalfont, and my noble friend Lord Caldecote proposed an amendment requiring the BSC to publish reports monthly. As I said at the time, the Government believe that such a requirement would 497 fetter the discretion of the BSC to publish its reports more or less often where appropriate. However, the Government accept that reports should, in general, be published monthly. Amendment No. 206 makes the Government's intention clear while allowing the BSC the discretion to deviate from it where appropriate. I beg to move.
§ Lord Renton
My Lords, I wonder whether the noble Viscount on the Woolsack can give us some guidance. I hope this will not be regarded by your Lordships as my speech but I think we need guidance. If Amendment No. 181 is accepted by the House, does that mean that Amendment No. 182 may still be called or cannot be called?
§ Baroness Trumpington
My Lords, Amendment No. 182 comes after Amendment No. 181 and therefore we are not dealing with it at this stage.
The Earl of Halsbury
My Lords, before we adjourned, we were advised that, if Amendment No. 181 were passed, Amendment No. 182 could not be moved.
The Deputy Speaker
My Lords, perhaps I may apologise. It is my mistake. If Amendment No. 181 is agreed to, I cannot call Amendment No. 182. I thank noble Lords for calling my attention to that point.
§ Lord Chalfont
My Lords, I am grateful to the Minister for meeting at least one of the concerns which were expressed in the course of the Committee stage; that is, to make the mandatory "shall" or "has a duty to" take the place of the more permissive sense of "may" in the context of asking the BSC to draw up codes of behaviour—in other words, to make this an obligation on the BSC and not simply an option. I am grateful to the noble Lord for that.
But there was a second element to our concern. It was the anxiety about the somewhat woolly concept of guidelines. We hoped that the Government would agree to substitute for guidelines and guidance a clear requirement for a code, a code which would have to be observed on pain of punitive sanctions if it were broken. It may be worth reminding your Lordships that in the Scott Report we had a prime example of the dangers of giving people guidelines rather than clear and unambiguous rules or codes.
I am aware that the Government take the view that the present wording will achieve the required purpose. I am not convinced. I would have said this in speaking to my amendment, but, in the light of the advice that it cannot be called if Amendment No. 181 is accepted, I must say that we are still not requiring with enough clarity and lack of ambiguity the BSC to draft a code of practice and not just guidelines or guidance. I appreciate that the words in the Bill follow closely the words of the 1990 Act and therefore might be thought to be to some extent engraved in stone. But there is one important difference which may be more important than seems to be the case at first glance.
498 The 1990 Act requires the Independent Television Commission and the Radio Authority to draw up a code giving guidance as to the rules to he observed. That might be behind the Government's case that it will achieve what it is we want to achieve. But the present Bill does something different. It provides that the BSC may draw up guidance relating to principles to he observed. Principles are a very different thing from practice. I am not quite sure that the 1990 Act wording, if it were in place, would not meet our concern. But I think that the wording in the present Bill does not.
Although my amendment would have gone further than the wording of the 1990 Act I concede that the wording in the 1990 Act has resulted in the establishment in the long run of mandatory codes drawn up by the Independent Television Commission and the Radio Authority. If the Government would undertake to repeat that wording, that would go some way to meeting our concerns.
In the light of the fact that Amendment No. 181 has been called before my amendment—and to that extent the noble Lord the Minister has shot my fox, or at least severely wounded it—I would need to consider what it is that the new wording implies. It may he necessary to return to this subject at Third Reading unless the Minister can assure me that at least the wording of the 1990 Act will be repeated in this Bill so that we have some chance of a mandatory code being drawn up. Having said that, I am grateful to the noble Lord for meeting our requirements. But whatever code is drawn up should be obligatory on the BSC and not optional.
§ 8.15 p.m.
§ Lord Renton
My Lords, when my noble friend Lord Caldecote, who cannot be with us tonight, moved the amendments which now stand in the name of the noble Lord, Lord Chalfont—Amendment No. 182 and others grouped with it—my noble friend Lord Inglewood replied in this way. Before I quote what he said perhaps I may say how greatly I admire his handling of the Bill and everything else he has ever done since he reached the Front Bench. He is such a close friend that I am very reluctant indeed to express disagreement with him. But I have to point out that on 15th February he said: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"—I emphasise the word "rules"—relating to appropriate standards of broadcasting, and there must be proper enforcement of those rules, supported if necessary by appropriate disciplinary action".—[Official Report, 15/2/96; col. 812.]At the end of the debate on the amendment, he said: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".—[Official Report, 15/2/96; col. 813.]All I can say is that, in the light of what he said on that occasion, this is a very disappointing response.
I say that for this reason; first, because the word "guidance" gets us nowhere. It creates no legal obligation. The BBC would not he obliged to follow the 499 guidance even if the Broadcasting Standards Commission were obliged to give it, as it will be obliged to give it. On the other hand, a statutory code of practice, as recommended by the noble Lord, Lord Chalfont, and my by noble friend Lord Caldecote, creates an obligation—an obligation that has to be met. The BBC would then have to apply it faithfully and, if it failed to do so, those responsible would be penalised accordingly in order to fulfil what my noble friend Lord Inglewood said at col. 812 about,proper enforcement of those rules".Therefore, it is somewhat regrettable for us that we have to consider the government amendment first and independently and that, if that is carried, the amendment of the noble Lord, Lord Chalfont, cannot be moved. I hope that the noble Lord will come back to it at Third Reading, because it is a vital matter of principle. Although we are already at a late hour, I regard this as one of the most important matters raised in this long Bill.
§ Lord Cocks of Hartcliffe
My Lords, I think that the Government have this about right. When I was Chief Whip of a minority government—it really was a minority government—in another place—
§ Lord Cocks of Hartcliffe
My Lords, I am grateful to my noble friend. When I was Chief Whip of a minority government in another place, I was pressed very hard by one of my Whips to introduce a set of rules which could be applied in deciding whether someone should be granted a pair or leave of absence. I said, "You can't have this because you are trying to impose an absolutely rigid structure on a situation where there are a number of variables, including human variables. It is not possible to do this sort of thing". It may seem to be the counsel of perfection, but one is imposing a straitjacket which would stifle all enterprise and produce a worse result than what the Government are now suggesting.
§ Lord McNally
My Lords, at Committee stage I was reproved by the noble Lord, Lord Renton, for being illogical in my opposition to some of the ideas that he and the noble Lord, Lord Chalfont, were putting forward. As noble Lords can imagine, for a Liberal Democrat to be called illogical is almost as big an insult as saying that to Mr. Spock in "Star Trek". So, I had a sleepless night until I was able to get to Hansardand check the things that I had said, though the result may be more of a tribute to the skills of Hansard than anything else.
What I was trying to say at various stages in Committee is still what I and my party believe at this stage of the Bill; namely, that the Government's approach to matters of regulation has been broadly correct. The Minister has said on a number of occasions that he wants a light rein on regulation. Although I understand his reasons for listening to the experience and wise words of the noble Lord, Lord Chalfont, and his colleagues, I still believe that he is right to resist the 500 full logic of what they are pressing because even tonight we have heard of codes, punitive sanctions, disciplinary actions and obligations.
As the noble Lord, Lord Cocks, has just said, this is not the way things work in the real world and it is not the way they will work if we want to get the best out of our broadcasters and broadcasting systems. It seems to me that we have given rights and responsibilities to the governors, the broadcasting authority and to the ITC, which, if they were allowed to operate in a rational way, would give all the protection that any reasonable society would want. What I hear from some of the proponents who urge the Minister further and further on these matters is counsel which would over-regulate. They would not just protect the citizen, but stifle the cultural, artistic and other aspects of broadcasting.
At Committee I felt at some stages like the boy on the burning deck pointing out that there was another point of view. But, to mix my metaphors, the Minister in his summing up, came like Blücher at Waterloo with what I thought was a very rational approach to these matters. I urge him and the Government to resist temptation to proceed more strongly in these matters. We should keep the light regulation and we shall get the best from our broadcasters.
§ Lord Chalfont
My Lords, with the leave of the House, may I ask the noble Lord whether he is not being extremely illogical in what he has just said? He said that one cannot have codes, punishments or sanctions because they stifle the creative instinct. The Independent Television Commission and the Radio Authority both have such codes, which are in operation and which work. If they are broken by a broadcasting company, sanctions and punishments are available and are used.
If the noble Lord is saying that that is at variance with the creative instincts of broadcasters, then I wonder how the independent television companies and radio stations are doing so well and have been so creative and successful. I believe that we are back to where we were at Committee stage. The noble Lord is going much too far in his clear and perhaps admirable dislike of sanctions, punishment and obligations.
§ Lord McNally
My Lords, just very briefly, with the leave of the House—I thank the noble Baroness for keeping me on track—I suppose the bottom line is that I would rather be logically liberal than authoritarian right. That is a matter of choice. There is some contradiction in what the noble Lord has just said. If the regulators are doing so well and producing such good results, why do they go on this endless quest for yet another body with more sanctions in order to get the perfect system that they are constantly seeking?
§ Lord Beloff
My Lords, I do not know what the noble Lord was last time, but he is now totally illogical. The noble Lord, Lord Chalfont, was referring to the success of the regulating bodies with independent television and radio. We are discussing whether the current system, as regards the BBC, is adequate. That is quite a different issue. Many people believe that the governors, who occupy the post of regulating themselves, have not been efficient. When we come, as I hope we shall, at Third 501 Reading, to give instances of cases where, in the interests of the political views of individual producers, the BBC has flouted historical truth and other matters, the House may take a very different view.
My Lords, perhaps I may make one small comment on my noble friend's amendment. The advantage of the debate that we are having this evening is that it has shown to me with absolute clarity the disadvantages of having a Charter and Agreement for the BBC. When we had the debate in this House we were able to discuss these issues, but we were unable to amend the Charter and Agreement.
I am as guilty as anybody of being a supporter of the BBC having a Charter and Agreement, so I accept any criticism that anyone may make. This debate has shown the weakness of that, because we cannot amend the provisions. My noble friend has listened very carefully to the anxieties of your Lordships expressed at Committee stage and he has come forward with his Amendment No. 181. I accept that my noble friend Lord Renton believes that it may not go as far as he would like but I believe that it goes a very long way, because it ensures that a code, not may, but will, be drawn up, and that is a very important point.
§ Lord Dixon-Smith
My Lords, if we have a problem with the BBC's Charter and its codes, we should consider what the position is, because they are new. While the House may not have had the opportunity to amend these documents, their content is fairly specific. The Charter states at paragraph 7(f), among other things, that the governors are to:ensure that the Corporation and its employees and all programme makers engaged by the Corporation comply with the provisions of any code which the Corporation is required to draw up for the treatment of controversial subjects with due accuracy and impartiality and comply with any other code or guidelines applicable to programme content and standards".When one considers the Agreement between the Secretary of State for National Heritage and the BBC, there are further paragraphs which are relevant. I quote from paragraph 5.1(c), which states that the corporation shall:treat controversial subjects with due accuracy and impartiality, both in the Corporation's news services and in the more general field of programmes dealing with matters of public policy or of political or industrial controversy".Paragraph 5.1(d) states:do not include anything which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling".Those are very strict instructions and they form part of the BBC's Charter and Agreement with the Government. That happens to be a new Agreement. We may not have been able to amend the provisions—I accept that may have been a weakness—but I am not sure that I understand how those words could have been reinforced. However, there is a case at the very least for saying that the codes should be allowed to work before we try to impose something further upon the situation.
§ 8.30 p.m.
The Earl of Halsbury
My Lords, I tend to approach this as a student of organisational pathology. Last week, in the course of a very long and, for my part, amusing and entertaining debate, we examined the life-cycle of a cock-up from conception through gestation to birth, from childhood through infancy to adolescence, and from maturity through senility and finally to a post-mortem at the hands of the coroner, Sir Richard Scott. At the heart of all that lay the weasel word, "guidelines".
I suppose we are all agreed that you can delegate authority but not responsibility. You cannot make somebody else answerable for that for which you are answerable. However, we live in a hierarchy of delegated responsibility from the nation to its Parliament, from the Parliament to its Government, from the Government to their Civil Service and to such quangos as its buds off from time to time. In the middle level of that hierarchy, people at one level tend to accept as excuses from the lower level the reasons that they hope to employ themselves when excusing themselves to a still higher level. That connivance with one another's shortcomings is what characterises a hierarchical organisation.
I suggest that your Lordships accept the principle that the Ten Commandments are not guidelines to a relation with the Almighty to be interpreted as occasion requires in the light of the circumstances prevailing but are in some sense absolute. We want some kind of absolute direction that there is going to be right trouble if this is breached.
§ Lord Annan
My Lords, I rise on two points. The first is procedural. The noble Lord, Lord Chalfont, referred to his fox having been shot. I think a better metaphor came from the noble Lord, Lord McNally, when he referred to Blücher at Waterloo. What the Minister has done is to outflank and envelop the noble Lord, Lord Chalfont, so that he is totally encircled and unable to move anything.
Secondly, when I come to address the terribly difficult problem of impartiality and all that it concerns, my mind goes back to the 1970s and the many discussions we had in the Committee on the Future of Broadcasting. Having re-read the committee's report, I find myself much nearer the noble Lord, Lord McNally, than others in the sense that, as with the Scott Report, one can deduce almost anything from it both in favour of impartiality and in favour of really good, sound rules.
In the past 20 years things have moved somewhat further away from impartiality and consideration for the guidelines laid down. How many times have we heard the excuse given, "We have done nothing contrary to the guidelines; they are just guidelines"—in other words, they can be flouted just as much as is liked. That is a common thing for broadcasters to say. And they are bound to say it, because over the past 50 years there has been a great change in the nature of what is said and shown on television and in broadcasting generally. It is almost inconceivable to us now that the rigid rules which Lord Reith—Sir John Reith, as he was then—laid 503 down could be applied today. Let us not forget that when, during the General Strike, the then Archbishop of Canterbury wanted to broadcast to the nation his request was refused by Sir John Reith on the advice of the Prime Minister. There have been quite a number of similar examples. I am sure that the House would not want to return to that kind of rigidity.
At the same time, a great change came in the late 1950s and early 1960s when Mr. Greene was the director general. Younger broadcasters argued that the BBC in particular had a duty to represent the whole nation and not merely the governing part of the nation and to represent what younger people were feeling. That greatly changed notions of impartiality. It was no longer necessary for one programme in itself to be impartial. It could be as partial as it liked so long as there was at some time a programme of approximately the same nature which would state, as it were, the other side of the case, not necessarily on that issue but on general political problems. It is the failure—or the perceived failure—of the BBC sometimes to honour that obligation that has led to impasse. As I said, in the end I shall probably abstain from voting on the issue. I believe that it can be solved only by good will between the chairman of the governors and the director general. It is really the director general who is responsible for what goes on at the BBC. The governors have a limited role in their regulatory function.
It has been said that the governors took the extreme sanction of sacking the director general of the BBC some years ago, but they cannot go on doing that and they certainly cannot do it on every occasion a producer undoubtedly infringes the guidelines. What, then, is to be done? It depends on the hierarchy of the BBC—the director general at the top and the leaders of the various divisions in that heavily over-bureaucratised organisation. It depends on them. That alone is the way in which some change of heart can come about.
§ Baroness Dean of Thornton-le-Fylde
My Lords, I am reluctant to intervene at this stage because I fear that I may confuse matters more than is already the case. However, the position is not clear. And there is a consensus across the Chamber that we should get the matter right in order to protect the viewer and complainant.
The noble Lord, Lord Chalfont, says that the wording of the Broadcasting Act 1990 would, I paraphrase, "do" him. That Act refers to a code under the Broadcasting Standards Council. I refer to Section 152. We are dealing now with Clause 72 of the Bill. The provisions of the 1990 Act which relate to a code deal with practices to be followed in the portrayal of violence, sexual conduct and matters of taste and decency. The BSC was required by duty to draw up a code of practice. The broadcasting complaints section of the 1990 Act shows that there is no requirement to draw up a code of practice.
The amendment relates to Clause 72. I believe—I may have one or two words wrong—that the clause is a direct lift from the 1990 Act, which deals with broadcasting complaints. There was no code of practice 504 requirement for the BSC to draw up in the 1990 Act. With the wording that the Minister has proposed, the Bill introduces a requirement to draw up guidelines covering unjust or unfair treatment, or unwarranted infringement of privacy. That protection for the complainant is not in the 1990 Act.
I wonder whether the noble Lord, Lord Chalfont, or the Minister will respond to that point, because it seems to me that the Bill is great step forward from the 1990 Act, if I am reading it correctly. Certainly the BSC did not draw up a code of practice, and it was not required to do so under the 1990 Act. The Bill will require it to draw up guidelines. The Minister might be the person to answer that point. Am I correct in my understanding? If I am, it may be something upon which we should reflect because the Bill is a step forward for the complainant.
§ Lord Chalfont
My Lords, I realise that I may be looked at fiercely by the Prussian marshals on the Front Bench, but with the leave of the House I should like to enlighten the noble Baroness and the House. The sections to which I was referring are on page 8 of the Broadcasting Act 1990. It states:The Commission shall draw up"—that is, the Independent Television Commission—and, from time to time review, a code giving guidance as to the rules to be observed",and so on. That covers all the issues of standards, taste, decency, violence and so on. Under the section relating to radio broadcasting it states:The authority shall draw up and, from time to time review, a code",and so on. So both authorities set up under the 1990 Act were required to draw up and review a code giving guidance as to the rules to be observed, not the principles.
The difference between the 1990 Act and the Bill is precisely that—one required the two authorities to draw up a code of rules which were to be obeyed on risk of punishment if they were broken. The Bill does not do that. It is that that I am seeking to correct.
§ Baroness Dean of Thornton-le-Fylde
My Lords, I apologise to the House, but I do not understand the rules as to whether I can come back. That answer did not address the point that I was raising. The commission is the ITC. In the Bill we are talking about the Broadcasting Standards Commission.
§ Lord Inglewood
My Lords, with the leave of the House, I am advised that the noble Baroness was correct in what she said. I am also not sure that we are not at cross purposes.
§ Lord Chalfont
My Lords, I think we are at cross purposes. Perhaps I may beg the leave of the House; the noble Baroness was right in what she said. She was referring to the Broadcasting Standards Council and the Broadcasting Complaints Commission. I was referring to the regulatory bodies—the ITC and the Radio Authority. I am trying to find a way of making the ITC and Radio Authority rules applicable to the BBC. 505 The only way to do that is through the Broadcasting Standards Commission, and that is what I am seeking to do. I was not for one moment suggesting that the noble Baroness was wrong; she was absolutely right, but it was not the point that I was on.
§ 8.45 p.m.
§ Lord Inglewood
My Lords, with the leave of the House, first, I think that the noble Lord, Lord Chalfont, has been speaking to his Amendments Nos. 182 and 184 and my Amendment No. 183.
§ Lord Inglewood
My Lords, indeed, that is what I thought was happening. In the end of the debate on my amendment I wanted to address some remarks to the noble Lord, Lord Chalfont, in respect of his Amendments Nos. 182 and 184, because they tie together. I must begin by thanking the noble Lord, Lord Chalfont, for having shared with me some of thinking behind what he has proposed. That has been helpful.
As your Lordships will be aware, we have taken on board the point about making mandatory the drawing up and review of the BSC's guidance on fairness. I have just moved an amendment to that effect. The issue that we have been debating is whether the guidance in question should be renamed "codes". That is what is contained in Amendments Nos. 182 and 184, as I understand it. That is the nub of the issue.
Your Lordships will recall that we had a discussion about this in Committee. I explained that I had doubts about whether such a change would make a substantial difference. I said that it might cause difficulties. However, I agreed, as my noble friend Lord Renton correctly pointed out, to consider the point further. I may be ducking it, but I am not going to treat the noble Lord, Lord Chalfont, in a Prussian manner, because I request your Lordships' leave to bring back a response to that point on Third Reading.
I should like to make a couple of general points. First, we are anxious to ensure that the work of the BSC does not become a substitute for Parliament in creating the law of the land. Our starting point in analysing the matters must be the words of statute and the BBC Charter and Agreement. Further explanatory material, whoever draws it up, can explain the basic legal requirements which apply, but should not purport to define them. That is true even where there is a separate collateral and binding obligation on broadcasters, their employees and programme makers to abide by the provisions in question.
In that context, it is interesting to look at the BBC because in the case of the BBC the governors must ensure that the corporation treats controversial subjects accurately and impartially and does not include anything which offends against good taste and decency. At the same time, the governors are separately obliged to ensure that employees and programme makers comply with provisions relating to proper conduct, which are designed to stop those forms of mischief occurring.
506 It is important that we are clear here. In a number of cases where we look at regulatory systems for broadcasters, there are two parallel systems at work. First, there is a basic obligation to ensure that certain ways of broadcasting are carried out. To that effect, various "codes"—as I loosely describe them—are drawn up. Those codes are drawn up to assist the broadcasters to achieve the fundamentals, such as ensuring accuracy and impartiality and that there is no tastelessness or indecency.
At the same time, in parallel, there is, in a number of instances, an obligation on those involved in making the programmes to adhere to the codes. That obligation is entirely separate from the first obligation to which I referred. It is because of that inter-relationship between those two separate obligations that we sometimes get into a muddle with the nomenclature used.
The second point is that whatever form of words is used in that context it is important that there should be consistency and a sensible and coherent read across between the relevant legal provisions that pertain.
§ Lord Renton
My Lords, before my noble friend sits down, will he be so good as to answer the point I made, by reminding me of what he said in Committee, that there must be proper rules relating to appropriate standards of broadcasting. He says, in effect, that guidance and rules are synonymous. He used the word "codes" in the same way. Of course a statutory code has the force of law, but mere guidance does not. Then he went on to say that there must be proper enforcement of those rules, supported if necessary by appropriate disciplinary action. How is that achieved by his amendment?
§ Lord Inglewood
My Lords, my noble friend makes a good point. But, if he will forgive me for saying so, he has run ahead of the debate. Without wishing to expand on a point upon which I shall expand later, there are regulators for the broadcasters. It is for the regulators to regulate and impose sanctions where appropriate. The core of this system is the principle that we have regulators. In parallel with those regulators is the new BSC, which is a combination of the old BSC and the BCC. The first organisation benchmarks standards and the second is a "user friendly" means for a private individual to see whether he is being traduced by broadcasters. The old BSC, the old BCC and the new Broadcasting Standards Commission are not regulators.
On Question, amendment agreed to.
§ [Amendment No. 182 not moved.]
§ The Deputy Speaker (Lord Burnham)
My Lords, if Amendment No. 183 is agreed to, I cannot call Amendment No. 184.
Lord Inglewood moved Amendment No. 183:
Page 61, leave out line 21.
§ On Question, amendment agreed to.
§ [Amendment No. 184 not moved.]507
Lord Chalfont had given notice of his intention to move Amendment No. 185:
Page 61, line 22, leave out subsection (2) and insert—
("(2) The BSC shall publish the codes currently in force, monitor their implementation and report annually on their findings in their report made under section 84.").
§ The noble Lord said: My Lords, I could say that it is now my turn to do a bit of outflanking and encircling but I do not propose to do anything of the kind. I believe that the whole subject is so interlocked that I would prefer to bring the whole matter back on Third Reading. Obviously, it must be done in a certain form, recognising the fact that the Minister's amendment has been carried. I do not wish to move my amendment.
§ [Amendment No. 185 not moved.]
Lord Inglewood moved Amendment No. 186:
Page 61, line 22, leave out from beginning to ("the").
§ On Question, amendment agreed to.
Lord Inglewood moved Amendment No. 187:
Page 61, line 23, at end insert—
("() Before drawing up or revising the guidance, the BSC shall consult—
§ On Question, amendment agreed to.
§ Clause 73 [Preparation by BSC of code relating to broadcasting standards generally]:
§ [Amendments Nos. 188 and 189 not moved.]
§ Clause 75 [General functions of BSC in relation to complaints]:
Lord Chalfont moved Amendment No. 190:
Page 63, line 5, 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: My Lords, as the intervention from the flanks prevented me from speaking to my earlier amendments, I hope that the House will bear with me if I develop the arguments for this amendment at some length. They are connected with the amendments that I would have moved, although not relying upon them.
§ It is a matter of regret that, once again, one is rising to move substantial amendments at this hour of night on what is usually the last sitting day of the week. However, I must do my best. In moving the amendment I wish to speak also to Amendments Nos. 192 and 195, which are closely connected. By implication, I shall speak to a number of consequential amendments, which are Nos. 196, 198, 199, 200, 201, 202, 203 and 204.
§ When I withdrew the amendments at the end of the Committee stage, I did so, as I said at the time, on the understanding that the Government would look at the problem again and, if they did not like the amendments, try to find some way of meeting my anxieties and those of my colleagues. I am reintroducing the amendments at this stage because that has not happened.508
§ Experience of both the BBC Charter and Agreement passing through this House on a Take Note Motion, and experience of this Bill, has made it clear that in this particular respect the Government are determined to get this legislation through Parliament as far as possible unchanged. One cannot blame them for that but I hope that they will not blame me and my colleagues for returning repeatedly to the charge.
§ This Bill and the Charter and Agreement of the BBC will set the agenda well into the next century. Therefore, in my view it is important that the regulating broadcasting regime is, as far as possible, robust and effective. In Committee I explained the purpose of the amendments at some length but at this time of night I shall not weary the House by repeating them in full. I simply remind your Lordships that they are designed to correct a clear and persistent anomaly in the regulatory arrangements.
§ Perhaps I may begin by going back to the Broadcasting Act 1990. That recognised the important principle that broadcasters in both television and radio should be independently regulated in the public interest. In pursuit of that, it replaced the old Independent Broadcasting Authority, which was both a broadcaster and a regulator—I am speaking of the commercial broadcasting sector—with the Independent Television Commission and the Radio Authority, thus clearly and unequivocally separating the functions of the broadcaster and the regulator. However, the Government have not pursued the clear logic of that position in the case of the BBC.
§ The BBC's new Charter and its accompanying Agreement, which recently passed unchanged through this House and which the Minister has now told us is a closed chapter—in other words, we can do nothing about it until there is a new Charter and Agreement and even then we shall not be able to do much about it—perpetuate the system in which the governors of the BBC, who run the corporation and therefore are the broadcasters, are also supposed to be the regulators. In the country as a whole among viewers and listeners there is a widespread belief that that is an impossible situation. It creates a built-in conflict of interest and in the event of complaints from the public about programmes it makes the governors of the BBC judge and jury in their own case, to use the usual convenient cliché.
Perhaps I may quote from the Voice of the Listener and Viewer, which is an important pressure group. In a communication to me, it stated:
The Governors will be required to oversee both the BBC's public service activities and its growing range of commercial ventures, an impossible situation which will inevitably lead to conflicts of interest and is likely to penalise both areas".
It may be interesting to note that the patrons of the Voice of the Listener and Viewer include the noble Lords, Lord Eames and Lord Thomson of Monifieth, and the noble Viscount, Lord Whitelaw, which is a powerful and one might also say ecumenical group.
§ We are now faced with two options. The first is that we can live with that regime in which the BBC governors are both broadcasters and regulators, or are supposed to be. It may be that we shall have to live with 509 that for 10 years or more. Certainly on present thinking it will be well into the next millennium. The Government are asking us to give them a chance and to live with it. The noble Lord, Lord Dixon-Smith, has just asked us to do it: "Give them a chance". Yes, but for how long? We can either do that or we can ensure that the Bill gives us a last chance to establish a consistent regulatory regime in which the BBC, like every commercial broadcasting organisation, is independently regulated.
So far throughout the debates both on the Bill and on the Motion concerning the BBC Charter I have not heard a single convincing argument against the option of an independent regulator for the BBC. It might be appropriate to mention that last week I received a letter from the Consumers Association, which represents a substantial body of public opinion. I will read one brief passage:
We are aware of your support for the BBC to fall under the remit of an independent regulator, and hope that you will continue to argue the case. There are wide-ranging consumer concerns and it is important that these are dealt with now to ensure that the Bill looks to the future rather than requiring legislation at a later stage".
That represents a fairly broad spectrum of opinion. I repeat that I have heard no convincing argument against the concept.
§ However, perhaps we may consider the objections put forward by the Government and others to what I regard as a logical and practical proposal. One is that it increases the number of regulatory bodies. That buzz has been going round the Chamber for the past few weeks. But it is not so. The Bill wisely reduces the number of regulators by amalgamating the BCC with the BSC to make the new Broadcasting Standards Commission. As I have made clear on a number of occasions, and I shall bore the House with it again, my preferred solution would be a single regulatory authority to cover the entire broadcasting scene. Clearly, that is outside the scope of the Bill.
All my amendments do is to give the new regulatory body, the Broadcasting Standards Commission, teeth to do no more than the Secretary of State for National Heritage is already on record as wishing to do. She has said that she wishes to strengthen the role of the BSC. That is precisely what my amendments seek to do. On the other hand, as the "Today" programme on the BBC sometimes says, there has come into my possession a letter from the Secretary of State for National Heritage, addressing a Member of your Lordships' House. She states:
As you know, I do not believe that the new BSC should take on a regulatory function".
What is it then? What is the BSC for if it is not to consider complaints, adjudicate on them and ensure that if the complaint is upheld the cause of it is not repeated? What is that if it is not regulation? That is precisely what a regulator does. It is what the ITC does among other things. It is what the Radio Authority does.
§ Another objection is that the new strengthened role for the BSC implied by the amendments would require substantial extra resources and extra financial investment in the Broadcasting Standards Commission. To that I make three brief observations. First, I do not 510 believe that the cost needs to be prohibitive. The ITC and the Radio Authority already carry out the full panoply of regulatory duties with relatively small resources and in the case of the Radio Authority—of which I speak with personal experience—with a staff of 30 people who conduct the whole business of regulating the commercial radio broadcasting scene. Secondly, some of the extra cost might be met from savings in the BBC's internal complaints procedure. It must cost a little money and would not be necessary if we had effective independent regulation. Thirdly, a modest increase—and that is all it would be—in the resources required would be a small price to pay for a sensible, effective and independent regulatory system. I have already mentioned the other argument advanced by the Government that we ought to give them a chance.
§ I wish to clarify one point in case there should be doubt in the minds of any of my noble colleagues. My quarrel is not with the Chairman of the Governors of the BBC, nor his successor. Both I know as men of ability and integrity. My quarrel is not with the Governors themselves and not even with the powers they have been given in the Charter. My quarrel is with an inherently flawed system which has not worked in the past and is unlikely to work,in the future.
§ In a recent speech to the Television Society, the Secretary of State for National Heritage acknowledged that and said that it is time for the Governors of the BBC to step back from the management of the corporation and act more as regulators in the public interest. If, as that seems to suggest, it is the Government's policy to separate the broadcaster from the regulator in the BBC, as they have rightly done in the commercial sector, why are they so opposed to the amendments which seek to do precisely that? Since the Charter and the Agreement of the BBC are now to be considered a closed chapter, I can only identify the Broadcasting Standards Commission as the available instrument for doing so.
§ I conclude by reminding the House that the three amendments are interdependent. They are designed to empower the Broadcasting Standards Commission to adjudicate not only on complaints about standards of taste and decency, but also on complaints about fairness, objectivity and impartiality, including complaints on such matters in BBC programmes. I also seek to remove the curious provision which seems to me to be totally lacking in logic that, while complaints about taste and decency may be made by any listener or viewer, complaints about fairness and objectivity may be made only by people who are directly affected. I totally fail to see the logic of that position. I have been infinitely more offended, and I know others who have felt the same, by a programme which has been inaccurate and biased on a historical or political subject than by all the taste and decency arguments that one can advance.
§ In that context, noble Lords may have seen an excellent and very persuasive brief recently circulated by the BBC entitled, The BBC: A Responsible Broadcaster, which sets out a summary of the corporation's approach. In a covering note—much to my gratification—the corporation expresses the view that its producers' guidelines would make Lord Chalfont's amendments 511 unnecessary. However, I am afraid that that begs the whole central question. The concern of those who think as I do is not with the "Producers' Guidelines for Factual Programmes", to give it its full title. The guidelines are clear; they are comprehensive; and they are unambiguous on subjects of impartiality and taste and decency. They are models of precision, clarity and force. The problem is that no one who studies the guidelines, as I have with great care, could possibly argue that they have been consistently observed; on the contrary, they have been consistently ignored and flouted. If the governors have been unable or unwilling to enforce them in the past, what confidence can we have that they will do so in the future?
§ Will the Government at least concede that there is a real problem here? That would, I believe, be a start towards finding a solution. Do the Government agree that we have a real problem and one to which they are prepared to give serious attention? It may well be—and I have no pride of authorship—that my proposed solution is not the ideal one. There may be other ways to deal with the problem. The noble Lord, Lord Orr-Ewing, has considered the matter and I believe that he may move an amendment proposing an ombudsman.
§ Another possibility is one that seems to me to be eminently practical; namely, the establishment of some kind of independent panel separate from and outside the BBC bureaucracy to advise the governors on viewers' and listeners' complaints. At present, part of the problem is that, when a complaint comes to the BBC, the panel which has the remit to consider it and advise the governors consists of BBC officials. That seems to me to be a recipe for the kind of regime that we have now.
§ If the Minister cannot or does not wish to respond positively tonight to the amendments, I hope that he will undertake to examine the position between now and Third Reading and come back with some serious ideas for dealing with a problem which is—and I ask him to accept this—causing serious concern not only in your Lordships' House but in the broader constituency of the country as a whole.
§ Before I conclude, perhaps I may first echo what has been said in the House during the whole proceedings on the Bill. I congratulate the Minister on the style with which he has conducted the legislation. My admiration is not simply for the courtesy and the consideration which he has shown to everyone involved, but also for the extraordinary mastery that he has shown with what is an extremely complicated and difficult subject.
§ Finally, I should like to deal with the objection that the changes which I propose would have two undesirable consequences. The first is that I would be placing programme-makers in some form of double jeopardy; in other words, they would have two regulatory bodies over them. But that already happens in the commercial sector and, indeed, has been so since 1990. I do not see why the BBC should be uniquely protected from it. The second objection is that what I propose would open the floodgates to a torrent of 512 frivolous complaints. That has not happened in the commercial sector and, again, I see no reason why it should happen in this case. I beg to move.
§ Lord Orr-Ewing
My Lords, I want to follow the theme outlined by the noble Lord, Lord Chalfont, as regards the 1990 Act. Many people have praised that legislation but it has also been much abused. Indeed, everyone seems to say, "That ghastly 1990 Act". In fact, it has worked rather well. I remember being told by Liz Forgan in a room upstairs that, if we passed those regulations, we would be absolutely snowed under with court cases and no one would be producing programmes—they would be answering accusations in court that they had transgressed the rules. But none of that has happened. The level of penalties has been raised by the ITC which bite occasionally. In fact, they bit rather hard on Granada in the autumn when the company was fined £600,000. I know that that seems a great deal of money to us, but it is not very much in the television world.
I turn now to the complaints which are listed in the well-laid out complaints bulletin which I read every month. I have one criticism to make. The bulletin has been well summarised but those concerned invariably say, even when awful things have happened which have been described and objected to by complainants, that it is not "upheld". But, who ticks off whom? Are there any transgressions? One complaint in 10 is upheld, but we are never told what happens as a result. I am afraid that too often it is not a case of the first X1 at the BBC, nor the second X1, but the young third X1 who deal with these things. They do not have much idea of what is contained in the producers' guidelines. I agree with what the noble Lord, Lord Chalfont, said about the guidelines; namely, that they are extremely well worded. Every time I read the guidelines I admire the wording. I only wish that the relevant staff read those guidelines, signed a document stating they intended to observe them, and then put them into practice. However, that has never been done. I must confess that I would prefer the guidance to be made compulsory rather than remain voluntary. Then we might get somewhere.
The ITC has a code of conduct. It may be imperfect. I can recall occasions when the most awful material was broadcast. But that also happens with the BBC. Sometimes complaints are not upheld. I recall the famous programme about the last temptation of Jesus. It was considered not to be a religious programme as it did not fulfil the criteria established for religious programmes. Some 8,000 people wrote to complain about the programme. That shows a considerable strength of feeling on the part of the public. Nevertheless, their complaints were not upheld. There have been misdirections under the ITC. The matter should be considered.
The department has attempted to comfort us by stating that the BBC governors can look after their own internal administration and can supervise senior personnel, producers, editors and all other members of staff in the organisation. There are still 20,000 people in the organisation although it has cut its staff by nearly 5,000. I am not convinced that the organisation can 513 supervise all those members of staff and also seek to represent the public and make sure that it is in touch with the public. I am talking about supervising staff, maintaining programme standards and keeping in touch with the public. Surely it is wise therefore to have a second string to our bow. I believe that the BSC should have the capability not only to assess programmes but also to ensure that penalties are imposed for inappropriate material.
The whole picture is changing in this area; the technology is developing rapidly. If we leave the matter for 10 years, people may consider that we have misjudged the position, and the morality of our country may suffer as a result. After all, the BBC—God bless it—is fairly keen on attacking the centres of our organisation and the Government. Too often the police have been condemned for over-reacting and the Royal Family's behaviour has been criticised. Various other organisations which have evolved over centuries and which constitute the key to the morality of our country have been criticised.
After our previous discussion at Report stage, I returned home and watched a film on BBC 1 which started at 10.30 in the evening. In the film a young girl of 15 entered a pub and was then gang raped by three men. It was an American film. I have no idea why it was bought. Why do we buy that sort of programme rather than support our own film industry? Why do we spend money importing programmes which show a lack of taste, decency and morality and broadcast them into homes in this country? The programme started at 10.30 in the evening and finished at midnight. I do not take seriously the argument that it is all right to show programmes depicting certain material after a certain time at night. I have 14 grandchildren. I know that they can operate the television and record programmes. Some people suggest that one should not complain about the subject matter of programmes broadcast after nine o'clock at night as children will not see them because they are in bed. The people who say that obviously do not have grandchildren. They are up all sorts of hours and they can record these programmes so I would not take too lightly the excuse that it is all right.
I was rather encouraged on the 18th December last when the Secretary of State for National Heritage was answering questions first on the Order Paper in the Commons. She said:I am determined that the BSC' s work will be strengthened. There will be a requirement to keep a note of the steps that programme makers take as a result of complaints that have been upheld".Well, it is all right to analyse that and be glad we are going to do all that but then surely there must be some bite somewhere. Somebody should be named, if necessary on the television.
In anticipation that the Government would come under pressures from their staff and the BBC, I tabled an amendment to give the Minister the power—not laying down—to set up a broadcasting ombudsman. I am hopeful that we can strengthen the powers of the BSC, which is our first desire, and not allow the corporation to continue to act as judge and jury in its own case. I know the critics will say that the ombudsman process is slow. It is true that complicated cases may last a year. 514 But there are 18 ombudsmen already. We have a regulatory authority over almost every facet of our organisation: the banks and goodness knows what else.
On top of those, we have 47 consumer protection quangos, making a total of 58. Surely one more can be a saving—a long stop in cricket jargon. The Government are the wicket keepers.
If we do not strengthen the BSC he or his successor might need to take up the option of appointing a broadcasting ombudsman. We would be following the example of many other countries, particularly Scandinavia. We may gain by having that facility up our sleeve and therefore force the governors to be even firmer in their reactions.
I therefore support my noble friend in his amendments and hope he will decide whether we are going to vote on them tonight or leave it until Third Reading. This is the last chance that I can see anywhere for at least 10 years, well into the next century, so surely we ought to take this opportunity, or the Third Reading opportunity, to vote on this issue.
§ Lord Cocks of Hartcliffe
My Lords, I do not normally speak on broadcasting matters because of my position as the Vice-Chairman of the BBC but this is an important matter. The noble Lord, Lord Chalfont, said that he had never heard a case put against what he was saying, so I hope my limping efforts will perhaps go some way towards redressing the balance. The Government in their recent White Paper on the BBC recognised that throughout the world its diversity, its programme independence and its accuracy are bywords.
The governors look after the public interest. I never engage in hypothetical discussions about the public interest, but I know the public interest when I see it. Protecting the reputation of the BBC for truth and impartiality to me is a sacred trust. Those of us who were alive during the war know the contribution the BBC made to morale and the war effort and how people in occupied Europe actually risked their lives to listen to the BBC. Even today when parliamentarians travel abroad they hear everywhere of the excellence and reputation of the BBC.
There has been a lot of talk recently about quangos—even tonight it has crept into the discussions—and how unrepresentative and unaccountable they are. But many of the people who say this have fallen into the oldest and easiest political trap of starting to believe their own propaganda. The stereotyped nonsense which is talked about quangos and their personnel bears no resemblance to the governors that I know and work with at the BBC. What sort of people do they really think we are if we are going to crumple under pressure and allow people to bully the finest public broadcasting service in the world? The governors of the BBC are determined that our programmes are fair and accurate and our programme makers behave impartially.
Many years ago I used to train a junior rugby team and I had to referee the home fixtures, if your Lordships can imagine such a thing. My poor boys had to work very much harder to score points than the visitors because I was so keen, so insistent on showing that I was impartial. I probably went too far the other way.
515 The governors accept the challenge of the Annan Report that they should be seen to govern. As chairman, Marmaduke Hussey has given very effective leadership to the BBC. Nobody can fairly accuse Mr. Hussey of giving the management an easy ride. In An Accountable BBC we set out a clearly defined role for the governors as regulators in the public interest. The governors have established a Programme Complaints Unit, independent of the programme makers, to investigate and rule on serious complaints. The Head of Programme Complaints' findings are appealable to the governors.
The new agreement, which has only recently been considered by both Houses of Parliament, incorporates the clause in the Broadcasting Act 1990 relating to impartiality. An impartiality and accuracy code is being drawn up and will be enforced by the governors.
As your Lordships know, Sir Christopher Bland has been appointed chairman in succession to Marmaduke Hussey. Sir Christopher has wide experience, including a term as vice-chairman of the former IBA, so he is an experienced regulator. Yet before Sir Christopher had even taken up his appointment, before the new charter and agreement had come into effect and before the impartiality code has been published it is suggested that all those arrangements are swept aside and a second regulator is asked to second guess the governors.
Having two regulators is not doubly effective. It is a recipe for confusion and ineffectiveness. An example of that dichotomy is that recently the governors judged a "One o'clock News" report about a horrific massacre in Burundi to be unsuitable for broadcast before the watershed. Yet the Broadcasting Standards Council later ruled that the report was quite acceptable.
Attempts to mould public opinion are now legion. Your Lordships will know that only recently desperate efforts have been made to identify a common interest between Rupert Murdoch's financial empire and the interests of the ordinary viewing public.
We hear a great deal about broadcasters' inability to maintain political impartiality. However, that tells us less about the broadcasters' failings than about the increasingly desperate tactics of the parties to intimidate news editors into favouring their political cause. It is for the governors to distinguish between alleged complaints of that kind—the vast majority—and legitimate concerns. I hardly think that we can expect an inexperienced body such as the Broadcasting Standards Commission to make those distinctions, particularly in the frenetic atmosphere of the forthcoming general election.
It is common knowledge that party political staff are becoming more and more professional, so much so that they are now referred to as spin doctors. Often aggressive, sometimes abusive, one of the main weapons in their armoury is to allege political bias. Perhaps I may briefly weary the House with my experience as Chief Whip in the other place, not only dealing with complaints from colleagues about broadcasts but also running a simple programme monitoring scheme throughout the country. All that time virtually no bias was ever detected, either in the BBC 516 or the commercial channels, and every assistance was given by the broadcasters in investigations. The spin doctors are now so active, not only in attempts to manipulate the presentation of news items, but also in what seems to be intentional time wasting with protracted phone calls at inopportune times, that the BBC has had to recognise the extent of their activities.
We have to strike a balance between getting information and being manipulated. BBC programme editors have been instructed to assert their right to edit, and to put the phone down on the spin doctors if necessary. The Managing Director of News and Current Affairs has had to establish a weekly review of the state of attempts to influence BBC coverage.
Party advisers have had to be banned from the BBC news room at Millbank. It is now standard procedure in the BBC to run through all telephone calls, faxes and letters to see what is fair in the way of complaints and what is unfair, and where there are lessons to be learnt producers and staff are informed. As your Lordships may know, a great deal was learned from the "Brent Spar" episode, which was the first great exposé of pressure group activity.
Complaints have to be considered for patterns and signs of orchestration, because it has to be faced that while many complaints are genuine some are made deliberately in order to try to manipulate or are made with malice. To show a cloven hoof for a moment, I have already confessed to the House on a previous occasion that when I was Chief Whip in another place I would occasionally sit colleagues down with instructions to make repeated telephone calls to telephone poll numbers in order to distort the results. Lest I fall foul of the leadership, I hasten to add that this was very much Old Labour.
Under this Bill and in the new Charter and Agreement, the BBC is being asked to play a key role in the future of British broadcasting: setting programme standards for a growing and changing industry; taking a leading role in the development of digital terrestrial television; becoming a leading world broadcaster in television as well as radio; and developing commercial services. The governors of the BBC, like the Independent Television Commission and the Radio Authority, have a great responsibility to ensure that British broadcasting develops to the highest standards of impartiality, taste, decency and fair trading.
You have asked the governors to undertake a difficult task and you have given us a Charter, Agreement and Impartiality Code which give us the powers to ensure compliance. Please do not trip us up before we have even started to do the job that you have asked us to do.
§ 9.30 p.m.
§ Lord Renton
My Lords, having known the noble Lord, Lord Cocks of Hartcliffe, for many years in both Houses of Parliament, perhaps I may say that I have always respected him, and tonight I agreed with a great deal of what he said, but not with all of it.
I agree with him that the BBC is excellent in its news and sports programmes, those programmes dealing with the environment, and its World Service. It has great 517 qualities. I would say that about 85 per cent. of what the BBC does is splendid but it spoils its record by allowing things to happen, especially on so-called entertainment programmes, which, I hope on reflection, the noble Lord the vice-chairman of the governors would feel should be put right.
As my noble friend Lord On-Ewing pointed out, there is a serious situation with which, I suggest, we must deal in the Bill—and deal with it effectively. The most serious part is the continuing amount of violence and sex on television, not only after the magic hour of 9 o'clock but sometimes before it. As my noble friend pointed out, one has only to study the Broadcasting Standards Commission's present complaints bulletins, where they virtually have no power over the BBC, to realise that this matter is causing concern among the public. It causes concern especially among those families with young children and among all concerned with crime. In various capacities I had a good deal of experience of what happens in our criminal courts. There is no need for those events to be repeated on television.
The present system has failed to deal with the issue. The Independent Television Commission, the standards commission and the complaints commission do not have power to deal with the BBC on this matter. However, according to the noble Lord and to the Government, as well as being responsible for the BBC the governors are regulators of its programmes. I believe that that is a misconception. They are not regulators in law. There is no statute which refers to them as regulators. The BBC Charter does not refer to them as regulators; neither does the Agreement with the Government. Until now, if they are assumed to be regulators in fact, I say with respect to the vice-chairman and the remainder of governors, they have not succeeded in performing their function. That is why there is so much violence and sex on TV.
The noble Lord, Lord Chalfont, has produced an argument, with simple amendments, which I suggest is unanswerable. I shall be interested yet again to hear what my noble friend Lord Inglewood has to say in answer to it. I am rather anxious to have the attention of my noble friend on this matter. My noble friend Lord Chalfont produced an unanswerable case for giving the new British Standards Commission power to deal with this matter in a way that would cause the BBC to bring its entertainment programmes to the high standard that the rest of its programmes generally meet.
§ Lord Pilkington of Oxenford
My Lords, I want to show part of the foundation on which this great edifice is to be built. I happen to have been the chairman of the Broadcasting Complaints Commission for the past four years. I say humbly that at times in this debate, apart from the noble Baroness, I have felt that many noble Lords do not realise what actually happens on these bodies. Perhaps I may briefly tell the House something of what they do.
The commission is a quasi-judicial body fulfilling an ombudsman type role. That is, it is to provide moderate redress—I accept that its sanctions are limited—to people with legitimate grievances with regard to unfairness and infringement of privacy.
518 I point out that the area, the group, the constituency, is limited, because complainants have to have a direct interest in the programme concerned. They must either have appeared in it or it must have been about them. The courts, in a famous judicial review, have limited the right of so-called pressure groups to claim redress from the commission. The investigation takes an enormous amount of time, because the complaints are deeply felt. Last week, and a fortnight ago, there was a hearing that lasted seven hours. The complaints may seem piffling or eccentric at times. But I assure the House they are deeply felt, and justice has to be done—justice subject to the courts.
My Broadcasting Complaints Commission will be one part of the new body. I shall not enter into the ideology of the plans put forward by the noble Lord, Lord Chalfont. I have a certain sympathy; I see the problems that my noble friends face. But I have to say that the combination of my body with the Broadcasting Standards Council would produce a body totally and absolutely incapable as it stands at the moment of doing what is required by these amendments.
The second amendment, which abolishes direct interest, would mean, if we extended impartiality, that it is highly likely that after the "Today" programme, particularly in the months preceding an election, we should have about 1,000 people ringing us. We should need the wisdom of the Almighty in providing a solution to the problems that would come before us. I claim a certain sacramental grace, but I doubt if I should have that! Imagine "The World at One" on Ireland. The whole of Ulster would ring us.
At the moment my organisation has a staff of seven, and I believe the combined body would have a staff of 25. The noble Lord, Lord Chalfont, said that the Radio Authority managed on a staff of 30. I point out that it passes on all its complaints on unfairness and privacy to us, which we deal with very well.
If we are considering what is proposed by the noble Lord, he cannot merely be attached to the combination of these bodies. We are talking about another animal, something different. It may be that we need something different. We may need a national broadcasting commission. But I assure the House that the ideals would not be achieved by simply sticking it on to this combined body. It does not have the resources, or the skill—nor is it the right body to do what is needed.
§ Lord Renton
My Lords, before my noble friend sits down, perhaps he will allow me to intervene. He realises—does he not?—that the ITC has those very powers in relation to independent television companies which are licensed. Therefore why should not the same powers be used in relation to the British Broadcasting Corporation?
§ Lord Pilkington of Oxenford
My Lords, I cannot speak with great authority about the Independent Television Commission. The noble Lord opposite could say more. All I can say is that it has used its powers very sparingly. The noble Lord, Lord Chalfont, would say that it has not used them as effectively as he would 519 like. But we are assuming powers to be used effectively. I also point out that the ITC is much more heavily resourced than we are.
§ Baroness Park of Monmouth
My Lords, I was much moved by the powerful intervention of the noble Lord, Lord Pilkington, but I am in a difficulty because nevertheless I feel very strongly that I wish to support the noble Lord, Lord Chalfont, particularly on the question of direct interest. Incidentally, before I go further, I should say that, as a former governor of the BBC who served under "Duke" Hussey, I have the greatest admiration for him and, I hope, some understanding of the difficult problems of governors.
Reverting to the question of direct interest, I am very much concerned not about current events but about the presentation of history and misrepresentation in the presentation of history. I find it difficult to contemplate that if we had, say, a totally biased programme on Churchill, only Churchill returning from the grave would be empowered to protest about it. That does not seem to me to be reasonable. I am very concerned that something should be done—I do not know what or how—that will enable people to complain about such things and have their interests listened to properly.
The BBC itself in its Charter provides for the treatment of controversial subjects with accuracy and impartiality. Misrepresentation and bias in the presentation of history do not square with that. Somehow, something has to be done to enable that situation to be corrected.
§ Lord Dubs
My Lords, I should declare an interest as I am deputy chairman of the Broadcasting Standards Council. Therefore, I followed the debate this evening with particular interest. It would be quite improper for me to speak for the Broadcasting Standards Council. I can simply give my personal views on some of the issues that have been raised so far. I followed with interest and a great deal of sympathy the comments made by the noble Lord, Lord Pilkington. Perhaps I may apply to the question of dealing with matters of political controversy the kind of experience that I have had on the Broadcasting Standards Council. I hope it will be helpful.
Let me make one point first. Suppose the amendments were agreed and suppose that there was an argument as to whether there had been unfairness towards the Conservative Party or the Labour Party in the "Today" programme or "On the Record" or whatever. Would your Lordships trust me personally to be one of the members of that body which ought to examine whether the Conservative Party or the Labour Party have been fairly treated? I do not think that I would be qualified to do that. Frankly, I do not know where one would find people who would be qualified to do that on a body of that kind.
There is certainly another argument. Noble Lords talked about standards of taste and decency, excessive violence and the portrayal of sex on television. It is that which takes up a great deal of time—almost all the time—on the Broadcasting Standards Council. 520 If suddenly we were faced with a hot political issue where there was a bitter argument between one of the political parties and a broadcaster, I suggest that all our work would virtually come to a halt. The sheer pressure of a political party in the run-up to an election campaign would exert such an important influence on the Broadcasting Standards Commission (the new body) that that body could not deal with questions of sex or violence on television or the many complaints that it would receive from ordinary viewers.
So if one simply says that it is important to have a body which looks at taste and decency on television, the work of that body would be negated by throwing upon it the responsibility of dealing with political parties. I believe that it is neither practical nor sensible to impose those particular duties on a body which has not been designed for that purpose and which is very busy doing those other things that your Lordships say are so important that they need to come under scrutiny. I urge your Lordships not to throw such a new responsibility on the Broadcasting Standards Commission.
Let me say a few brief words about direct interest. I do not want to follow the argument about whether an historical figure has been well presented or not. Frankly, I do not see how one could find a body of people who could make a judgment. It would require Oxbridge historians to look into such matters. I do not see how people like me can possibly be qualified—I may have prejudices about Churchill, for or against him—to go into the historical balance of whether or not a programme had been portrayed properly.
One can put the issue into a more contemporary context. Suppose a body of that sort had to deal with the question of Nigeria and the Shell oil company; it is a mind boggling thought as to whether we should give a bunch of 15 people the responsibility for adjudicating on the way in which a specific television programme had been fair or unfair to the Shell oil company in its work in Nigeria. It is a daunting task to put before a body of that sort and would not work happily.
On a further aspect of direct interest, perhaps I can give, from personal experience of the Broadcasting Standards Council, an answer to the question as to why the Broadcasting Standards Council deals with complaints from people who may not have viewed the programme. We do not normally do that, but one obvious example will win support. A mother or father may complain that a programme shown early in the evening is unsuitable for children to watch. The child has been sent out of the room or off to bed so as not to be able to watch the programme. Sensibly, the parents will complain and say that it is not a proper programme to be shown at a time when children can be expected to watch without parental supervision or before the watershed. That is an example of where it is proper for the Broadcasting Standards Council to listen to a complaint made on behalf of somebody else. The mother or father may not have been offended, but they are concerned about the effect the programme could have on a young child. It is a reasonable proposition and we act accordingly.
521 It is also difficult for the Broadcasting Standards Council to be sure, when an adult writes a letter of complaint, that the adult actually saw the programme. The adult will say that there was a programme, quote the time and say that there was too much violence or bad language, or whatever. It is difficult for us to vet whether or not that individual actually saw the programme itself.
That is different from the situation of the Broadcasting Complaints Commission which, as the noble Lord, Lord Pilkington, said, deals with individuals whose privacy has been breached or about whom an unfair programme has been made. By dealing with people who have a complaint to make, one can obtain evidence from them and weigh up the extent to which that complaint about breaches of privacy or unfairness is valid. That is a different process and an easy to understand process compared with looking at whether or not a historical figure or a historical event has been portrayed fairly or properly.
Therefore, whereas I understand the feeling or the mood which wants a body independent of the broadcasters—the new Broadcasting Standards Commission will be just that; it will have no interest in industry and be totally independent of it, as are the two component bodies of the BCC and BSC—we should not ask that new body to take on those responsibilities. It would simply not be appropriate for it to do so.
§ 9.45 p.m.
My Lords, I was concerned when I heard the speech of the noble Lord, Lord Dubs, and that of my noble friend Lord Pilkington. They seem to suggest that the two bodies—the Broadcasting Standards Council and the Broadcasting Complaints Commission—are not suitable to take on the duties of the amendment. That is not a very good argument. Parliament should decide the law and those bodies should be made to carry it out. That is their purpose. At the moment, it seems to me that the cart is driving the horse.
The important point is that we are putting together two different bodies; one is concerned with complaints and the other with standards. They perform two very different functions. There is bound to be a certain tension when those two bodies are put together. The arguments of the noble Lord, Lord Chalfont, have some merit. However, I am concerned about the word "political" in his amendment, and I have various other worries. But we have an opportunity to get this right, and we must get it right. I have not heard the right answer tonight. I hope that my noble friend the Minister will consider what has been said this evening, because there are certainly anxieties which can be addressed.
§ Lord Donoughue
My Lords, I do not feel wholly confident in rising to speak partly because, during the previous discussion, I was never quite sure with which amendments we were dealing and partly because I am aware of the conflict between my liberal instincts and the feeling, having listened to the noble Lords, Lord Chalfont, Lord Renton and Lord Orr-Ewing, that they had some valid points.
522 On the political side I support what was said about the difficulties by my noble friend Lord Dubs. We on this side of the House are worried ahead of a general election about temptations to intimidate the BBC and to make it a political football on impartiality. We would support the Minister in resisting any attempts to do that.
Having said that, I still have sympathy with one or two points made on the other side of the House. I am worried by the BBC being judge and jury, as I said on Second Reading when discussing the BBC Charter. I note what my noble friend Lord Cocks said, but I believe that there are problems if the regulators are confused with the managers. Nothing has been done on the BBC Charter despite our long and interesting debate. It should be obvious to the House that I am a great supporter of the BBC and of public service broadcasting, but I do not believe that the present situation regarding accountability is perfect.
An interesting letter from the Secretary of State was read out saying that the BSC is not a regulatory body. If it is not, I am puzzled as to what it is and whether there is any point in spending all this money. We believe that it is a regulatory body. I have always sympathised—this is not necessarily my party's position—with the idea of having a single regulatory body because, as the broadcasting media merge and as the BBC gets, as it will, pay television and so on in the digital age, there is a case for a single overarching body. That is my personal view. I accept all of what was said by the noble Lord, Lord Pilkington, and also the nods of my noble friends, with their experience, about the present bodies not being set up to do what we require. But does that mean that no one should do it? As usual, the noble Viscount, Lord Astor, put his hammer on the nail, arguing that it is for us to say what they should do if they say they cannot do it now.
On the fairness and impartiality side, I sympathise with what was said by the noble Lord, Lord Chalfont, about complaints at the moment being made only by the people directly affected. That is quite unsatisfactory. I just do not understand it. That distinction as to who is affected in terms of the accountability of our broadcasting to the public is not adequate. I do not wish to get involved in the argument today about guidelines and codes. Anyone who has ever studied Marxist history will know that there are words where one cannot see the difference but one knows that it makes the difference between Stalin murdering people or bringing heaven on earth. However, I still do not see why we do not have codes. I just put it like that. It would certainly meet some of the concerns expressed.
The underlying problem is trust, and trust of journalists. There is a conflict between the managers and the regulators, whether they are judge and jury, the governors or some commission. In my experience the governors of the BBC agree with our concerns and understand them. The conflict is not between one kind and another or between them and us; it is between them and the modern, new model journalists. I speak as a former journalist. From my observation, not always but often, they have no concept of factuality, fairness or impartiality. That is the basic problem.
523 We are dealing with how we solve the problem, whether through codes or whatever. Somehow we have to strengthen the regulators—whether they are governors or old or new model broadcasting commissions of whatever name—to defend our standards. That is a very difficult problem and I sympathise with the Government. Perhaps the Government's proposals will achieve what is required by taking on board a number of very genuine people who are not totally convinced but who want the Government to get it right. I hope so.
I thought that the question of the ombudsman would arise much later; I am very relieved that it has come up now. It seems to me not a bad idea, if I may say that as an off the cuff—
§ Lord Orr-Ewing
My Lords, perhaps the noble Lord will allow me to point out that there is a misprint on the Marshalled List. It is meant to be the BBC and not the BSC with which the ombudsman is concerned.
§ Lord Donoughue
My Lords, I thank the noble Lord. Having watched him over the past 50 years, I instinctively assumed that it was a misprint, so we were not misled. I conclude by saying that if the Government can find some way ahead of Third Reading of meeting these genuine concerns without abandoning the basic liberal principles that one cannot put journalists totally into a harness it would be extremely helpful.
§ Lord Inglewood
My Lords, we have had an interesting and varied debate following the moving of Amendment No. 190 by the noble Lord, Lord Chalfont. As he said, the remainder of the amendments to which he spoke are really consequential. Given the lateness of the hour, I shall focus on what I believe, from listening to the helpful and clear remarks of the noble Lord, Lord Chalfont, to be the central issue he would like us to consider. It is—I hope I am being fair—that the governors of the BBC are insufficiently independent effectively to perform a regulatory function. The Government proposed in the White Paper, then in the draft Charter and Agreement, and Parliament concurred—albeit with some Members disagreeing—that the BBC should continue to be established along its traditional lines under Charter and Agreement. It follows that arrangements for the BBC cannot be exactly the same as those for independent broadcasters. They can, however, be equivalent. That is how we approached the new Charter and Agreement which are different in a number of important respects from the present ones.
The new Charter and Agreement set out how the BBC is to apply its obligations to observe impartiality in exactly the same terms as apply in the 1990 Act to the ITC, the Radio Authority and the Welsh Authority. Further, the governors are given a clear legal responsibility to ensure compliance with the impartiality code by all the BBC's employees and programme makers. All this is spelt out in the new Charter and Agreement which defines clear responsibilities for the governors.
524 Against such a background, it is obvious that sanctions cannot be exactly the same for the BBC as for the ITC. However, I believe that the sanctions available to the governors are sufficient for them to be able to meet their obligations. The governors may take disciplinary action against its employees, including severe reprimands, and ultimately dismissal if appropriate; they may issue new guidance to producers in the event of any failure to observe either the guidelines or the BBC's obligations under the Charter or Agreement; and they may terminate their relationship with presenters or freelance producers who have seriously breached the guidelines. The ITC cannot sack a broadcaster's chief executive as the BBC governors can. Those are all sanction which the governors have, I understand, applied in the past.
So we do not believe that the governors are inherently too close to the work of the BBC effectively to perform a regulatory role. They have established a programme complaints unit independent of their programme makers and with a route of appeal to the governors. They have already demonstrated a willingness to take strong action where it is required, and the new Charter and Agreement will, as I have explained, clarify their regulatory role and strengthen their authority to act.
We are most grateful to the noble Lord, Lord Cocks, for his contribution. As a governor in the front line in dealing with complaints, he has explained how the board of governors will implement the new provisions of the Charter and Agreement as they relate to the governors' regulatory functions.
The noble Lord made the important point, to which I shall return, that the new Charter and Agreement have not yet come into effect. I am sure that what he said must offer reassurance to the House on this aspect of the governors' functions.
I would stress that these are real legal obligations placed on the governors. They are equivalent to those set out in the 1990 Act and placed on the ITC and the Radio Authority. If anyone felt that the governors, or indeed any other regulatory body, were failing to fulfil their obligations, it would be open to them to seek leave for judicial review.
In considering the role of those with regulatory responsibility, it is important to make a distinction between their ability to do the work and their proper performance of this duty. We believe that those charged with regulatory responsibility are properly capable of doing it, and that the ITC and the BBC governors, strengthened in substance and in resolve by the new Charter and Agreement, will have no difficulty in carrying out those tasks and applying sanctions as appropriate.
I turn briefly to the new BSC. It has been suggested that that body should be a regulator. As I have explained earlier this evening and on other occasions in your Lordships' House, the new BSC has a role which is a combination of the roles of its two component bodies. It has two functions. The first is as a standard-setting, bench-marking body in respect of the standards which pertain to broadcasting. The second, as I have already explained, is to have what I term in shorthand a 525 "user-friendly mechanism" so that individuals can seek redress in respect of particular personal damage which they may have experienced from broadcasters. It is not a regulatory body. It is a complement to the regulatory bodies and it is not antagonistic towards them.
Reference has also been made to the remarks made by the Secretary of State and to her wish to strengthen that body. The Bill as submitted to Parliament contains a number of changes to the existing arrangements, perhaps the most significant of which comes in Clause 84(7)(c) which refers to the obligation newly placed on broadcasters to report to the BSC the actions taken by them in response to the BSC's findings, which in turn will be published in the bulletin. This very evening, for example, a number of changes have been introduced in respect of the BSC which have received general support around the House. We are strengthening the BSC both in form and by backing it by giving it increased political authority. It is not an unusual phenomenon in this country that much of the standing and effect which a body such as the BSC can exercise derives from the authority inherently within it.
Another point on which I should like your Lordships to focus is the consequence of the proposals which the noble Lord, Lord Chalfont, has brought forward for the BSC. As I understand it, he is suggesting that the BSC should become a kind of parallel regulator. In particular what would be the relationship of the new BSC with the ITC were his proposals to become law? How will the two relate in respect of, for example, an adjudication on the same complaint? That was a point made by the noble Lord, Lord Cocks. We shall find that the decisions of one body will be impugned by the decisions made by the other. We have here a recipe for regulatory anarchy, which is in no one's interests.
§ Lord Chalfont
My Lords, I am grateful to the Minister for so courteously giving way. I am sure he knows that that is the position at the moment: the BCC and the BSC are in a position to second-guess, to make a different adjudication on the same complaint from that of the two regulatory bodies. It exists at the moment. There is second-guessing, as the cliché has it, in existence now. What is new?
§ Lord Inglewood
My Lords, as I understand the proposal made by the noble Lord, Lord Chalfont, on occasions it can undoubtedly be an unsatisfactory state of affairs for the regulator if the regulator's decision is attacked via the mechanism of judicial review under the circumstances he described. That has occurred. That will be compounded in two regards. First, the scope of the new BSC will be widened, thereby increasing this problem; and, secondly, as I understand it, the aspiration is that the BSC will itself become some kind of regulatory body in respect of the broadcasters. If I have misunderstood him, I crave his forgiveness. But we cannot have two regulators in respect of one broadcaster.
I should like, if I may, to move on. As I said, as I understand it, and as I am sure the House understands it, the noble Lord's case is that the BBC governors have not properly carried out their regulatory job. As I have 526 explained, substantial changes have been made to the BBC Charter and Agreement in response to the kind of points that the noble Lord and his friends have raised.
I appreciate that the noble Lord disagrees with the conclusions that the Government and Parliament have so recently reached, but against that background he must explain, by reference to the arrangements in the new Charter and Agreement, why those substantial changes will fail. Much of the evidence that has been brought forward this evening is old. Indeed, it is inevitable. As I have explained on this and other occasions, we accept that in the past things have not gone right, but we have taken steps. We believe that those steps will help put matters right. The Secretary of State, the new Chairman of the BBC and the Government are all emphatic that those abuses of the past shall not continue.
The tools have been given to the chairman and governors to do that in the new Charter and Agreement which, I believe, will come into effect on 1st May this year. If I understand him correctly, the noble Lord says that he doubts their ability to deliver, which of course is a perfectly fair point to make. He points to past events to support that view, but we have made significant changes to deal with t1te deficiencies of the past. If the noble Lord can convince me that the new arrangements will fail, he makes the case for doing something beyond that which we have done already; but, equally, if he does not, surely he makes my case for me.
I apologise for making a rather lengthy speech at this late hour, but I am sure that your Lordships will agree that these are important issues which deserve close consideration. I hope that I have explained the Government's position as clearly as possible.
§ Lord Chalfont
My Lords, I suppose that I should follow the Minister in apologising for speaking again at this late hour. I shall not, however, do so because it is not by my choice that the debate is taking place at this time. I therefore beg the indulgence of the House to make one or two points on what has been a most interesting and to me enlightening exchange. I thank everyone who has spoken, not just those who spoke in support of my amendment but those who have shown a certain amount of doubt about it.
I shall make just one or two brief comments. The point has come up again and again—the noble Lord, Lord Cocks of Hartcliffe, made it first, but it has constantly come up—and it came up again in the Minister's remarks a moment ago: there seems to be—I am repeating myself, but it seems necessary to do so—that there already exists a situation in which two regulatory bodies (the ITC and the Radio Authority) have over them two other regulatory bodies (the BCC and the BSC). The Minister may say that those are not regulatory bodies, in which case I repeat my rhetorical question: what on earth are they? We ought to have it clear that, when people say that the new BSC would be a second-guessing organisation over and above the existing regulatory authorities, such an institution exists already but not in respect of the BBC. The BBC is the only body that it cannot second-guess and I have been trying in part to put that right.
527 The noble Lord, Lord Pilkington, brought out the floodgates argument again, saying that if we did this at election time there would be thousands of frivolous complaints. That has not happened in the past so why should it happen in the future? I do not understand that argument.
There are many other issues that I should like to mention but it is late at night. However, I wish to make a point in reply to the noble Viscount, Lord Astor. He said that he had some doubts about the word "political" appearing in my amendment. My amendment is a direct quotation from the Broadcasting Act 1990, which lays that duty upon the ITC and the Radio Authority. Therefore, why not upon the BSC?
It has been a most interesting and enlightening experience to listen to some of the arguments that have been put forward. I return to what the Minister said. At the beginning of his remarks he said something which appeared to me to go right to the heart of the matter. He said that the Charter means that the governors may do this, may do that and may require this. "May" is the key word. It places no obligation, duty or responsibility, legal or otherwise, upon the governors. It simply means that they may do it. What if they do not choose to do so? That is at the heart of my question.
The Minister spoke about the powers of the ITC and the Radio Authority not being as draconian as those of the governors under the Charter. Perhaps I may remind him that the ITC and the Radio Authority may not be able to sack the chief executive of a radio station but they can close down a station. That is somewhat more drastic than sacking the chief executive.
I was most interested to hear the Minister mention judicial review. It has clarified in my mind an issue that has been puzzling me for some time. I wondered whether the BBC could be taken to judicial review by viewers or listeners, as in the case of the independent authorities, which are subject to statute law and not to a Charter. I was interested to hear him say that that is the case. I suspect that tonight a number of people will be thinking very hard about the exciting possibilities of taking the BBC to judicial review.
I return to a comment that I made in my original remarks. I asked the Government to appreciate that there is a very real problem. It is not an imagined problem nor is it the figment of one person's fevered imagination. It exists and it is shared by a great number of people. I am sorry that the Government apparently do not entirely share that view. I wish they would. I hope that between now and Third Reading they will think of a better way of solving the problem if they do not like my way. This problem will not go away, whether there is judicial review or further legislation. I hope that between now and Third Reading the Government will come forward with a proposal that they believe to be practicable and will meet the anxieties of a great number of people; people who, as the Minister said tonight, are not of the same political persuasion. It is an anxiety that pervades the entire political spectrum and is widespread throughout the country.
528 I have a hope, perhaps not a strongly held hope but a faint hope, that the Government will come back with a suggestion as to how to solve the problem. I state my possible intention of returning to the matter on Third Reading if nothing happens. In the meantime, it may be, from what the noble Lord, Lord Donoughue, said, that I need to remind the House that at the moment we are discussing one amendment, Amendment No. 190. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 10.15 p.m.
Lord Inglewood moved Amendment No. 191:
Page 63, line 17, leave out second ("any") and insert ("the").
§ On Question, amendment agreed to.
§ Clause 76 [Complaints of unfair treatment etc.]:
§ [Amendment No. 192 not moved.]
§ Clause 77 [Committee to consider fairness complaints]:
Lord Inglewood moved Amendment No. 193:
Page 64, line 23, after second ("to") insert ("the consideration of").
§ On Question, amendment agreed to.
Lord Inglewood moved Amendment No. 194:
Page 64, line 25, leave out subsections (2) and (3).
§ On Question, amendment agreed to.
§ [Amendment No. 195 not moved.]
§ Clause 78 [Complaints relating to taste and decency, etc.]:
§ [Amendment No. 196 not moved.]
§ Clause 79 [Supplementary provisions as to making of complaints of either kind]:
Lord Inglewood moved Amendment No. 197:
Page 65, line 4, leave out ("and") and insert ("or in such other form as the BSC may allow and must").
§ On Question, amendment agreed to.
§ [Amendment No. 198 not moved.]
§ Clause 81 [Consideration of standards complaints]:
§ [Amendments Nos. 199 to 201 not moved.]
§ Clause 84 [Publication of BSC's findings]:
§ [Amendments Nos. 202 to 204 not moved.]
Lord Inglewood moved Amendment No. 205:
Page 69, line 2, at end insert—
("( ) References in subsection (2) to the publication of any matter are references to the publication of that matter without its being accompanied by any observations made by a person other than the BSC and relating to the complaint.").
§ On Question, amendment agreed to.
§ [Amendment No. 206 not moved.]529
Lord Inglewood moved in substitution for Amendment No. 206 a manuscript amendment:
Page 69, line 12, leave out ("at such intervals") and insert ("monthly or at such other intervals as they think fit").
§ On Question, amendment agreed to.
Viscount Astor moved Amendment No. 207:
Page 69, line 34, leave out ("absolute") and insert ("qualified").
§ The noble Viscount said: My Lords, due to the lateness of the hour at Committee stage I did not move the amendment but the Minister and I exchanged correspondence on it. However late the hour, I feel that I must move it now.
§ This is an issue that has been highlighted by a recent court case which, rather than explaining the issue, confused it. I am concerned that under the Bill the BSC would have absolute privilege which would enable it to make possibly libellous statements without risk of being sued. The provision of absolute privilege to the BSC's report would give that body a greater level of protection than that applied to equivalent bodies under the law of defamation.
§ Traditionally, absolute privilege attaches to Parliament and the courts, those bodies to whom it is afforded by statute, and those bodies which exercise the judicial power of the state. Absolute privilege attaches to fair, accurate and contemporaneous reports of the courts, provided they sit in public, but qualified privilege only attaches to reports of other absolutely privileged bodies. This position is reflected in the Defamation Bill.
§ The BSC will exercise a complaints function, usually having held a hearing, in private, and not a judicial or state function. Those bodies to which Parliament has afforded absolute privilege usually exercise one or other of those functions; for example, the Monopolies and Mergers Commission. If the BSC were to receive absolute privilege as a complaints body which holds hearings and receives evidence it would follow (on the analogy with the courts of justice) that statements of the parties and witnesses would also enjoy absolute privilege, which is surely unintended.
§ I fully accept that the new body must have teeth and must reasonably protect its members. This is an important issue on which I should be grateful for clarification from my noble friend. I beg to move.
§ Lord Donoughue
My Lords, perhaps I may express my support for the noble Viscount's amendment. I endorse the points that he made. I should also say that I object to absolute privilege in the Houses of Parliament; indeed, I should like that to be abolished too because it is abused. Should there ever be any scandals in another place or on Select Committees, I believe that the privilege would be abused. Absolute privilege is a very dangerous licence. It is possible only in a world where there are gentlemen, and we now know that the world is very short of them. I wholly support the views put forward by the noble Viscount. I believe that qualified privilege is quite enough.
§ Lord Thomson of Monifieth
My Lords, both the Government and the Minister ought to be aware that these Benches also support the amendments. We believe that the case was very clearly put by the noble Viscount, Lord Astor.
§ Lord Inglewood
My Lords, Parliament has entrusted members of the commission with a particularly difficult task in the case of fairness complaints. It was our intention to protect those members in the exercise of their functions. As a quasi-judicial body, at least in relation to fairness complaints, we believe that its proceedings and reports of its proceedings would attract absolute privilege in any case.
The purpose of granting the Broadcasting Standards Commission absolute privilege in the clause for reports of its proceedings is to define the matter beyond argument and to ensure that the commission may carry out its duties without fear of false allegations of defamation which could embroil its members in lengthy and costly court proceedings. However, I fully understand the anxieties of noble Lords. On reflection, we now believe that it would be more appropriate to remove the entirety of subsection (10).
My Lords, I am most grateful to my noble friend the Minister for his response. I believe that I am right in saying that, by stating that they will remove subsection (10), the Government believe they have absolute privilege but they are not entirely sure. Therefore, they do not want to say anything and will leave it to the courts to decide. I must admit that I am not a lawyer and that I am quite lost when it comes to such matters. But, in any event, I am grateful for my noble friend's reply. Of course, I shall have to study it because, as I said, I am not an expert on such matters. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 208 to 210 not moved.]
Lord Colwyn moved Amendment No. 211:
After Clause 94, insert the following new clause—
§ USE OF MUSICAL WORKS IN BROADCAST SOUND RECORDINGS
§ (2) After "recordings", in each place it occurs, insert "or musical works".").
§ The noble Lord said: My Lords, we come now to what is probably the final debate of our deliberations this evening. It is a new amendment which relates to a matter not raised in Committee. It is an amendment which I believe my noble friend the Minister will very easily be able to accept as it is very straightforward. I spoke about the matter at length during the passage of the previous broadcasting Bill.
§ Some noble Lords will know that I am a semi-professional musician and so the broadcasting of music, especially my own, and the rewards that it brings are close to my heart. Apart from that, I have no interest to declare other than the fact that I was a director at the 531 beginning of Jazz FM. I should also like to make it quite clear that I have had no interest in any other part of the Bill.
§ I am in favour of continual expansion in the a number of radio stations broadcasting music. I also believe that those who compose, perform and record the music which broadcasters use should obtain a fair reward for their work and creativity. Those who make music and those who broadcast share a mutual interest in each other's welfare.
§ The amendments to the Copyright, Designs and Patents Act 1988 in Section 175 of the Broadcasting Act 1990 have been of benefit to both parties. They introduced the "statutory licence" which has allowed new radio ventures to get to air without being impeded by the collective copyright agency which represents the British recording industry. That has been helpful to new broadcasters. On the other hand, the amendments also clarified the role of the Copyright Tribunal as arbitrator between the record companies' copyright collection agency and the broadcasters, leading to fairness, peace, understanding and proper payment and reward on both sides.
§ However, under the copyright Act, as amended by Section 175 of the Broadcasting Act 1990, only the copyright collecting agency working on behalf of record manufacturers—that is, Phonographic Performance Limited—is covered. Other important copyright societies also license radio companies to use their members' copyright. The Performing Rights Society represents composers and arrangers, for example.
§ No major disputes currently exist between the collecting societies and UK commercial radio broadcasters, but the amendment that I propose would ensure the same legal framework for the relationship between all agencies that issue collective copyright licences and the radio broadcasters with whom they negotiate.
§ Recently the MMC gave its view that a statutory licence with PRS is not necessary because it was not in the society's interests not to issue a licence. I beg to differ. As I see it, the very intention of the amendment to the copyright Act in Section 175 of the Broadcasting Act 1990—to enable broadcasters to begin broadcasting and have copyright disputes dealt with by the arbitration skills of the Copyright Tribunal—would be impaired if there were not a parallel entitlement to a statutory licence in respect of the composers' copyright in the works contained on the gramophone records which are already subject to a statutory licence with PPL.
§ My amendment is, if you like, insurance for the future to ensure proper reward—arbitrated if necessary—for all involved in the British music industry and a climate of confidence for those who wish to broadcast and increase the popularity of the music industry's wares. This is an amendment which would allow the Government to do something positive for the music industry; something more effective and productive than an appearance at the Brit Awards. I beg to move.532
§ Lord Lyell
My Lords, my noble friend the Minister was more than helpful in his response to a similar type of amendment to which I spoke on Second Reading. I made one or two suggestions on that occasion. My noble friend made helpful comments as regards a statutory licence. I believe that my noble friend's amendment is sympathetic to that issue. I hope that my noble friend the Minister and his department can offer some help on this matter. I thank him for everything he has done to help us in the past. If he could see his way to assist my noble friend on this occasion, I would be grateful.
§ Lord Birkett
My Lords, I speak briefly to support the noble Lord, Lord Colwyn. I do so for two simple reasons. First, his amendment seems to me to be entirely logical and sensible and, secondly, anything which protects the interests of composers is welcome. They are a body of people who receive little consideration in the world, except the very famous. They are often left out of consideration in matters such as this Broadcasting Bill. If the Government could see their way to accepting the sensible amendment of the noble Lord, Lord Colwyn, they would do well to do so.
§ Lord Inglewood
My Lords, I am grateful to the noble Lords for having raised this matter. I am grateful to my noble friend Lord Colwyn, whose expertise in the music field is renowned. I am also grateful for the comments of my noble friend Lord Lyell and the noble Lord, Lord Birkett. In moving this amendment, as the noble Lord explained, he is seeking to extend the statutory licence provisions in the Broadcasting Act 1990. One of the reasons for introducing the statutory licence in 1990 was to remove what I understand are known as the needletime constraints which had previously been imposed by the owners of copyright in sound recordings. The needletime constraints had been criticised in 1988 by the Monopolies and Mergers Commission report on the Collective Licensing of Public Performance and Broadcasting Rights in Sound Recordings. That meant that licences offered by the copyright owners for the use of sound recordings in broadcasts limited the number of hours of transmissions which could include sound recordings. The MMC report had additionally recommended that a statutory copyright licence in respect of the broadcasting of collectively licensed sound recordings be introduced. Delays in agreeing satisfactory licences were causing difficulties for some of the new broadcasters wishing to start transmissions at that time. The Government were keen to remove these obstacles which had been identified by the MMC and to this end introduced the statutory licence in 1990.
The statutory licence allows broadcasters and cable programme service providers to start transmissions before copyright royalty rates for the inclusion of sound recordings have been agreed. It also removes the possibility of any needletime constraints, so that licences can no longer specify a maximum amount of needletime. I remember that I indicated during the Committee stage of the Bill, when another possible variation to the statutory licence was under consideration, that the Government still support the 533 statutory licence, and I reiterate that support now. The Government are, though, currently considering whether some rather limited restrictions to the availability of the statutory licence may now be justified. Your Lordships may remember that they were then considering what is known as "muzak" and its delivery to supermarkets and that sort of establishment.
However, my noble friend's amendment is different because this seeks to broaden the statutory licence so that it covers musical works as well as sound recordings. It is quite true that broadcasters and cable programme services providers do need to obtain licences from the owners of copyright in any copyright musical works included in transmissions, as well as from the owners of copyright in sound recordings of musical works.
This is not the first time there have been suggestions that the statutory licence should therefore cover musical works as well as sound recordings. I do hope the noble Lords who have spoken to this amendment will not consider me unfair if I say that this is part of what has been an ongoing, long-running story.
The issue has been considered very recently by the Monopolies and Mergers Commission which published a report on 1st February this year on performing rights. This report concluded in relation to the extension of the statutory licence provisions to musical works. I can do no better than quote what is said in the Monopolies and Mergers Commission report:We do not see an overriding case for extending the provisions further".This conclusion of the Monopolies and Mergers Commission is one which is fully supported by the Government. As the MMC report makes absolutely clear, the special reasons relating to needletime constraints do not apply to musical works and the body, the Performing Rights Society, which the noble Lord, Lord Colwyn, referred to in his remarks, which collectively licences the rights relating to the inclusion of a musical work in a broadcast or cable programme service. It has a commercial imperative to reach an agreement on a licence. The Performing Rights Society informed the MMC inquiry that it had never refused to issue a licence given that to do so would obviously jeopardise its members' revenues.
It is, I suppose, possible that broadcasters and cable programme service providers may feel that they have been obliged to take licences from the Performing Rights Society on terms which they believe are unfavourable. However, copyright law already provides an appropriate remedy, if such is the case, in so far as a licensee or prospective licensee can refer the matter to the Copyright Tribunal for a decision. This seems to go some extent towards the mischief which my noble friend Lord Colwyn is concerned about.
The tribunal is an independent body. It is established under the Copyright, Designs and Patents Act 1988 specifically to adjudicate on matters such as this. The Government do not believe, therefore, that dissatisfaction with any licence terms offered by the Performing Rights Society provides the justification for a provision which would allow broadcasters to use musical works before the copyright royalties sought by the Performing Rights Society are paid.
534 I appreciate that this will be a disappointing response to my noble friend and the other noble Lords who spoke in support of this amendment. I have to say that it is not one that the Government can support.
The Earl of Stockton
My Lords, can my noble friend say whether the Government have considered the developments that will be taking place over the next few years in the multimedia area? There will be not only conventional recordings of musical works that have been conventionally composed; there will also be a new breed of what one might call computer-generated recordings. The protection given to that is covered by the copyright protection in the computer programme and not in the product of that programme. That was a confusion that arose during the passage of the Copyright and Patents Act. I should like once again to draw to the Government's attention the fact that we need to address this issue. It is an issue that will become more and more important as we go further down the amalgamation of electronic systems.
§ Lord Inglewood
My Lords, with the leave of the House, perhaps I may say that my noble friend Lord Stockton has drawn to the attention of the House what is clearly an important matter. As he will know probably better than the rest of us, developments in the multi-media world are such that the traditional way in which we as legislators and as citizens have looked at a number of these matters will inevitably he changed by these new technological advances.
The point that my noble friend has raised is of considerable significance to the industry and to Britain, bearing in mind our prowess in this field. I hope that your Lordships will agree with me that the appropriate response is that we should reflect carefully on the point that my noble friend Lord Stockton has drawn to my attention.
§ Lord Colwyn
My Lords, when my noble friend began his remarks I felt encouraged and thought that he might accept my amendment. As he continued it became obvious that that would not be the case.
British radio has expanded enormously since the passing of the 1990 Act. The statutory licence has worked well for PPL and for the radio industry. More radio means more revenue for PPL, and record sales have increased correspondingly. It is not clear to me why a similar statutory licence cannot be arranged for PRS. That would similarly benefit the composers and publishers.
However, I shall read my noble friend's long and complicated reply and decide whether I should raise the matter again at a later stage.
§ Lord Inglewood
My Lords, having heard the remarks of my noble friend Lord Colwyn, perhaps the best way forward would be for me to draw his remarks to the attention of my right honourable friend the President of the Board of Trade, who has principal responsibility for these matters.
§ Lord Colwyn
My Lords, I am very grateful for that additional help, and I thank the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 95 [Power of BBC to make transfer schemes relating to its transmission network]:
Lord Inglewood moved Amendment No. 212:
Page 74, line 29, leave out from ("services") to end of line 31.
§ The noble Lord said: My Lords, the amendment is straightforward. As your Lordships will be aware, Clause 95 of the Bill empowers the BBC to draw up a scheme to transfer certain property, rights and liabilities in order to facilitate the privatisation of its transmission network. The amendment removes the BBC's research and development work from the scope of any such transfer scheme.
§ The subsection was an enabling provision modelled on the similar provisions in the Broadcasting Act 1990 in relation to the Independent Broadcasting Authority's transmission services, which were successfully privatised in 1991. However, after further discussion with the BBC, we have concluded that it is unnecessary. We have agreed that the BBC needs to retain its research and development function in order to be a properly informed customer for privatised transmission services and to continue its vital contribution to the development of the BBC's services and to the wider broadcasting equipment industry in this country.
§ I hope that that explanation will give a clear picture of the reasons for bringing the amendment forward. I beg to move.
§ Lord Thomson of Monifieth
My Lords, will the Minister tell us as regards the amendment whether the reservation of the research and development work of the BBC from the privatisation of the remainder of the transmission network is paralleled by the arrangements made for the IBA following the 1990 Act? If I remember rightly, the main research and development of the IBA engineering division—it was a notable engineering division comparable to that of the BBC—went with the privatisation arrangements. Are the two arrangements in parallel? If not, why not? When the Minister responds, perhaps he can give me some information on that.
In doing so, perhaps he can say what proportion of the BBC's engineering transmission operations is reflected in the separation of the research and development work from the remainder of the transmission. It seems a somewhat odd proposition.
If I remember rightly, in the 1990 Act the IBA—now the Independent Television Commission—was entitled to retain an essential small corps of engineering experts who could look after the engineering transmission interests of the ITV network and deal on equal professional terms with the separately privatised IBA engineering system. If the position is different for the BBC, why is it different?
§ Lord Donoughue
My Lords, it is getting late. On the issue of transmitters we are in some difficulties. We oppose it but we cannot discover whether the BBC supports it or opposes it.
536 The ITV's 600 transmitters have been sold to NTL—an excellent small British technological firm. Can NTL also bid for the BBC's transmitters? If it can, is there any danger of a monopoly emerging in that area?
On the research and development facility, the Minister began to deal with the issue, but it is unclear to me what will occur if the transmitters with which it has been concerned have gone. Has he any views on that?
Does it also mean that the privatised transmitters will have no research and development facility? I do not quite understand. One has transmitters in one place and the research people in another. I am not sure of the logic.
Are there guarantees of employment for those people within the BBC now that the central objective of their work has moved elsewhere? Will their terms and conditions of employment be the same after the transmitters have been sold off?
§ Lord Inglewood
My Lords, a number of significant questions have been posed about the process of the sale of the BBC transmitters, in particular what will happen to those employed as research and development staff at the BBC.
The noble Lord, Lord Thomson, whose knowledge of these matters is of far longer standing than mine and, I suspect, rather deeper in respect of the 1990 Act, referred to the privatisation of the old IBA engineering division at the time that the IBA transmitters were sold. I understand that a significant number of people had positions transferred to the purchaser of the IBA transmitters at that time.
The clause to which we have been speaking was included in the Bill because it was supposed when the Bill was drafted that there might be a number of BBC staff whom one might describe as naturally belonging to the transmission side and who would appropriately be transferred to any possible acquirer of the transmission division of the BBC as and when it was sold. The power is included in order to make quite clear that that could happen if it were appropriate.
The vast bulk of the BBC's research and development deals with matters which I believe are not so inherently tied up with the transmission division that they would transfer with it. I understand that it is likely that few people from the BBC's research and development side would go with the transmitters and that they are to remain with the BBC. It is possible that a few people may leave from choice, but I do not believe we are likely to see any kind of exodus of personnel.
I hope that answers part of the point raised by the noble Lord, Lord Donoughue. So far as concerns NTL being a possible purchaser of the transmitters, that is a matter for competition policy. If it is deemed to be in breach of competition policy, clearly that company could not. But there is no precondition implicit in the terms of the Bill to stop it at least putting in a bid.
On Question, amendment agreed to.
Lord Inglewood moved Amendment No. 213:
Page 112, line 45, at end insert—
("(a) by section 42B(2), in relation to a licence to provide a restricted service,").
§ On Question, amendment agreed to.
§ Schedule 7 [Minor and consequential amendments]:
§ [Amendment No. 214 not moved.]
Lord Inglewood moved Amendments Nos. 215 and 216:
Page 115, line 15, after ("including") insert ("a restricted service (as defined by section 42A) or").
Page 115, line 19, leave out ("or (c)",") and insert ("(c) or (d)",").
§ On Question, amendments agreed to.
§ [Amendment No. 217 not moved.]
Lord Inglewood moved Amendments Nos. 218 to 220A:
Page 116, line 9, at end insert—
(". In section 2 of the 1990 Act (regulation by Commission of provision of television services), in subsection (4), in the definition of "television programme service", after paragraph (a) there is insertedߞ
(aa) a restricted service (as defined by section 42A);").
[Renumbered as Amendment 220A].
Page 116, line 12, at end insert—
(". In section 46 of the 1990 Act (licensable programme services), in subsection (2)(a), after "television broadcasting service" there is inserted ", a restricted service".
In section 71 of the 1990 Act (interpretation of Part I), after the definition of "regional Channel 3 service" there is inserted—
"restricted service" has the meaning given by section 42A;".
In section 72 of the 1990 Act (local delivery services), in subsection (2) after paragraph (a) there is inserted—
(aa) any restricted service (within the meaning of that Part);".").
Page 116, line 12, at end insert—
(". In Schedule 19 to the 1990 Act (the Gaelic Broadcasting Committee: supplementary provisions)—
§ On Question, amendments agreed to.
§ Schedule 8 [Repeals]:
Lord Inglewood moved Amendments Nos. 221 to 224:
Page 116, line 19, column 3, leave out ("and").
Page 116, line 21, column 3, at end insert—
("and Comataidh Telebhisein Gaidhlig")
Page 116, line 34, column 3, at end insert—
("Section 45 (8) and (9). Section 47 (11) and (12).")
Page 116, line 45, column 3, at end insert—
("Section 45 (8) and (9). Section 47 (11) and (12).")
("In Schedule 19, paragraph 3.")
§ On Question, amendments agreed to.
§ Clause 101 [Commencement and transitional provisions]:
Lord Inglewood moved Amendment No. 225:
Page 76, line 7, at end insert—
("( ) section (Renewal of licences to provide national radio services),").
§ On Question, amendment agreed to.
§ House adjourned at fourteen minutes before eleven o'clock.