HL Deb 13 December 2001 vol 629 cc1485-95

7.33 p.m.

Read a third time.

Clause 1 [The Office of Communications]:

Baroness Miller of Hendon moved Amendment No. 1: Page 1, line 11, at end insert— ( ) The appointment of chairman of OFCOM shall not be made until a bill to give effect to the proposals in section 2(3) to regulate communications is published. The noble Baroness said: My Lords, in moving Amendment No. 1, I shall also speak to Amendments Nos. 2 and 4, the second of which was tabled by the noble Lord, Lord Gordon of Strathblane, and myself.

I think that the amendments are self-explanatory, and Amendments Nos. 1 and 2 are a logical extension of Amendment. No. 4. The group consists of what could be called sunrise amendments which are designed to modify the amount of pre-emptive activities and expenditure that can be entered into by the embryonic Ofcom under this enabling legislation before Parliament has defined its powers and duties.

As the well-known saying goes, cometh the hour, cometh the man—or perhaps I should say person. But the Government have had more than five years—since they started drafting their 1997 general election manifesto—to formulate detailed proposals in this sphere. However, whatever their drafting problems, we cannot establish an elaborate and potentially powerful organisation, with an equally powerful chairman and chief executive, without knowing precisely what qualifications might be best suited to the performance of their duties, what the organisation is going to do, or even when it is going to do it. The only way of aligning Ofcom with the eventual substantive legislation that it will administer is to link them by ensuring that Ofcom starts to operate only when its brief and duties have been fully defined.

The amendments have two purposes. The first is to ensure that Ofcom does not go galloping off in using the fairly wide powers provided by Clause 2(3) to spend money, to set up its organisation and possibly to formulate policies that will then be presented to Parliament as a fait accompli while or—this is very important—even before the substantive legislation is being deliberated on. All we are asking is that before this legislation which the Government describe as enabling comes into effect, Parliament has the opportunity to see precisely what is being enabled in the long term.

In moving his amendment which I fully supported—on this topic in Committee, the noble Lord, Lord Gordon of Strathblane, accepted that the Government had a problem, and he accepted their assurance that they would consult as widely as possible. He also acknowledged, as I do, that the Government cannot tie themselves down to a particular form of consultation or to a legislative timetable, although we hope that they will manage to sort out their intentions and announce them very quickly. The uncertainty is not doing the communications industry any good at all. These amendments will ensure that Parliament knows what the organisation we seek to establish is all about before the Government are able to press the button starting its operation.

The second and possibly more important purpose of Amendment No. 1 is to remove uncertainty from the existing five regulators. Even before passage of this Bill, they have been working in a type of limbo, and so have their staff. Staff realise that merger of the five regulators will result in some redundancies, and it would not be surprising if some of them sought other employment before the arrival of their P45s. That type of slippage means that the regulators could find themselves short of key personnel during the interregnum, thereby reducing their efficiency. Even the individual regulators' usual commercial decisions are being inhibited. Purchase of new equipment and contracts for services, for example, may very well have to be put on hold.

The Minister's commitment to a six-monthly progress report from the Government is very welcome. However, no one knows whether or when the substantive legislation, still in the throes of drafting, will receive parliamentary time. We have all witnessed, particularly in the past few days, how sudden calls can be made on legislative time, thereby disrupting the Government's programme even when a drastic timetable curtailing discussion has been imposed.

The purpose of this group of amendments is only to concentrate the Government's mind on getting on with the main Bill, which, with all the constructive goodwill that exists, will inevitably require detailed scrutiny. If precedent is followed, the Bill will take from six to nine months from introduction in the other place to Royal Assent. We are not trying to limit the Government's powers or to inhibit the intended substantive legislation. On the contrary, we have made it absolutely clear that we support the general principle of having a single regulator to cover the industry entirely.

On 15th October the Minister stated that, the work in process now embarked on by the steering group of regulators and DTI/DCMS officials provides a satisfactory process for carrying on with the planning for the new body". So no time will be lost by accepting this series of amendments. At this time we want a simple assurance from the Government that Ofcom will remain a shadow organisation until the Government show us the substance. I beg to move.

Lord Gordon of Strathblane

My Lords, I do not go quite as far as the noble Baroness in that my sunrise simply requires the publication of the draft Bill for one week. It does not require discussion; it does not require scrutiny. I rely simply on the fact that if it is published, all those interested in Ofcom will respond quickly and the Government will obtain within a week a clear idea of the public reaction to the draft communications Bill.

However, I agree with the noble Baroness that it would be sensible for the Government to wait until they have tested the water with their proposals before making key appointments like the chairman and chief executive. I warn them that we will only get public consultation when people have seen the detail of legislation. That is the only way to gauge the impact of the full consultative process.

The Government have gone a long way in giving us pre-legislative scrutiny and we all welcome that—me more than anyone—but let us be clear. We hope that pre-legislative scrutiny will improve the quality of the communications Bill, and perhaps also smooth its passage through Parliament. We are not talking about the full communications Bill; we are talking about the creation of Ofcom and simply expressing the concern that if we make key appointments to Ofcom before the full Bill is even published, there is a danger that the right people may not have been chosen for the right jobs, or even that the right range of jobs were not had in mind.

I can give two possible scenarios. It is by no means impossible that the relationship between Ofcom and the BBC will be somewhat different by spring from that which exists now. Furthermore, a consultative exercise is taking place on cross-media ownership. A very tough regime will arise out of that or a very light one. Surely we need to know which before we decide how to staff up and resource that particular department of Ofcom.

All I am saying is that I started in Committee asking for 12 weeks. I dropped that to four weeks. I am now dropping it to one week. I simply say this: it would be silly to appoint the chairman of Ofcom and its chief executive before the draft communications Bill is published. I shall not press this amendment. But I give the Government this warning: if they do not wait, then on their heads be it if they get it wrong.

Viscount Falkland

My Lords, we on these Benches agree with a good deal of what has been said by both noble Lords, particularly the noble Lord, Lord Gordon of Strathblane. We feel that the Government should get on as quickly as possible to produce the main Bill. We look forward to seeing the draft Bill when it comes before us.

We on these Benches appreciate that this is extremely complicated legislation, perhaps the most complicated in this Parliament. There are obvious difficulties in drafting. Whether or not it is right to set up the structures as outlined by the noble Lord, Lord Gordon of Strathblane, we do not know. We feel that he has some good points and shall be interested to hear the Minister answer the anxieties expressed. By and large we are grateful to the Government and to both noble Lords on the Government Front Bench for dealing with the concerns expressed—many more than we expected—and we look forward to the assurance, which I am sure the noble Baroness is just about to give us, that a draft Bill will be with us as quickly as possible. We can then allay in short order many of the fears, as the noble Lord, Lord Gordon of Strathblane, and the noble Baroness, Lady Miller of Hendon, said, expressed within the industry and staff.

7.45 p.m.

Lord Brooke of Sutton Mandeville

My Lords, I was not in the House at Second Reading. I was not a Member of the House at that time, though I could and can read the debate. I was present in Committee, though I had not made my maiden speech at that stage. It is recommended that we make our maiden speech in a debate where there is a prepared list of speakers so that whoever has the misfortune to speak after us can in fact phrase in advance what they want to say about the maiden speech.

I felt in Committee that the subjects of these amendments were well worth discussing. I have two reasons for supporting the amendments, but I share with the noble Lord, Lord Gordon, the feeling that it is important that the principle should be established rather than that there should necessarily be a great delay.

My first reason is that I was the first head hunter in this land and one of the things that head hunters try to insist on with their clients is that there should be extremely rigorous specifications before an appointment is made. It is possible to rue in retrospect if somebody is appointed before there is a clear idea of what they are going to do.

My second reason is that, as I believe I mentioned on Report, I had service as the chairman of the Building Societies Ombudsman Council. One of the difficulties while building the ombudsman schemes was that the Financial Services and Markets Act took a long time to come to its conclusion—not in terms of its going through the House, but in terms of the dates of execution. Indeed, N2, which is what wound up the old ombudsman schemes, occurred only on 30th November—two weeks ago—long after the legislation had been passed. A great many people therefore were sitting around effectively taking pay but not doing much while the Financial Services Authority worked out the various codes and brought the various ombudsman schemes together. It seemed unfortunate to me that that contingency had not been foreseen, though it was necessary for us to remain in existence.

I can see the opposite happening in this scheme; that if there are considerable delays for the legislation, then the officers of the new organisation will, equally, be sitting around not doing much and drawing pay in a manner which is not necessarily the best way of running a railroad.

The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone)

My Lords, the noble Baroness, Lady Miller, said she wanted to concentrate our minds in relation to producing the communications Bill. I can say that no minds can be more concentrated than they are on making sure that this Bill is produced and ready for the pre-legislative scrutiny that we have guaranteed. That in itself requires a great deal of concentration of mind, so I hope I can give her that initial assurance. Everyone who is involved will be working extremely hard to get the Bill ready so that there can be the proper scrutiny of what the noble Viscount, Lord Falkland, described as a very complex Bill.

Any of these amendments could cause unfortunate delay in the preparation to create Ofcom and I see no advantage in delay of that kind. I hope that the firm commitment that we have given on pre-legislative scrutiny will assure all noble Lords who have taken part in the passage of this Bill that there will be the fullest possible opportunity to debate the substance of the new regime. There is therefore no need to delay the practical steps that need to be taken in relation to appointments.

I hope that the noble Baroness does not want to postpone appointments until the introduction of the Bill. That may be a year away. The drafting of her amendment is not entirely clear. But even if she would be content to see appointments made when the draft communications Bill is published, I see no benefit in linking the timing of these events. As I said, we want to publish the Bill as soon as we possibly can, and we also want to appoint the chairman without delay so that the complete Ofcom board can take charge of the practical steps as soon as possible after next summer.

Perhaps I may respond to a couple of points which the noble Baroness made. Ofcom will not be able to regulate until the main Bill receives Royal Assent. The White Paper sets out what OFCOM will do. We are clear about the kind of qualities required for the chairman and the other hoard members. In that sense delaying the appointments is also unnecessary. The Bill makes clear that OFCOM cannot interfere with existing regulators. In my view the way to reassure staff is to make early progress in creating OFCOM. That is the best possible reassurance they can be given. Let us get on with the appointments as soon as practicable.

I respond to a further point which the noble Baroness made. I believe she suggested that commercial decisions might be put on hold. There is no sensible reason why the existing regulators should cease to operate as normal. They are well aware that the intention is that transfer schemes, drafts of which are provided for in Clause 4(2) of the Bill, will ensure that all the current commercial relationships will continue unaffected after the transfer to Ofcom.

I turn now to the amendment of my noble friend Lord Gordon of Strathhlane. That would also delay appointments until the introduction of the communications Bill. Like the BBC and cross-media ownership, it will be fully debated during the pre-legislative scrutiny. There again, I see absolutely no reason to delay the appointment of the chair. The full board will appear several months later, after the chair is appointed.

Lord Gordon of Strathblane

My Lords, I ask the Minister to give way briefly. Would she not agree that the appointment of the chairman and chief executive would be better made after the debate rather than before?

Baroness Blackstone

My Lords, no. The whole purpose of appointing a chairman and subsequently other members of the board, is for them to start working with the existing regulators. I believe that that will provide reassurance to staff, as I have said. The dates on which the Government plan to make the appointments have now been agreed by the existing regulators. Therefore, we should get on with it.

I ask my noble friend and the noble Baroness, as I did at Committee stage, what they consider to be the benefit of delay. Some noble Lords have expressed concern that the details of the new regime have not yet been spelt out. But anyone who has read the White Paper has a pretty clear picture of the functions that the Government intend for OFCOM. There is now a consultation document on media ownership. Perhaps I may yet again reinforce that there will be a full opportunity for pre-legislative scrutiny of the draft Bill by a joint committee of both Houses.

In the light of those reassurances and the commitment I have made to get on with the matter, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Miller of Hendon

My Lords, I thank all noble Lords who have spoken supporting Amendments Nos. 1 and 2. I separate that from what I say about Amendment No. 4. I believe that the Minister has probably misunderstood. I suggest that we all take some blame for that but certainly not the Minister, because we want to make sure that when the chairman and the chief executive of Ofcom are appointed those making the appointments know exactly what the chairman and the chief executive are to do. We have not seen the Bill. In an organisation which I chair I have recently been through a lengthy process to choose a chief executive. There is no way in which I would have become deeply involved in choosing somebody unless the person chosen had seen the dots and crosses made so that they knew exactly what they were taking on and the skills required.

However, as the noble Lord, Lord Strathblane, said, there is no question of dividing on the issue. I believe he said something to the effect of "Be it on your head if something goes wrong". I emphasise that again. It is right to have it on the record that we believe it would be much more appropriate if those kinds of appointments were made at least after the draft Bill had been published. I say no more than that. The Minister said quite rightly that the Government's mind is really concentrated on this Bill. Presumably, therefore, the draft Bill will arrive when we believe it is due. It should not be too long after that that one can go ahead and appoint the chief executive and the chairman.

The Minister has made her points and we have made ours. For the record we hope that the noble Baroness is correct. If she is not, then it will not be good for the communications industry about which we are all concerned.

As regards Amendment No. 4, the noble Lord, Lord Strathblane, said that he would not go as far as I would. Indeed, I believe the noble Viscount suggested that he was more in tune. I would like to believe that he is because of what the noble Lord, Lord Gordon of Strathblane, said. I have looked again at my wording. I read it very carefully. I said, In other words, all we are asking is that before what the Government describes as this enabling Bill comes into effect, Parliament has the opportunity to see exactly what is being enabled". One can see very well what is being enabled in a draft Bill. Therefore, I am not suggesting anything different from that suggested by the noble Lord; only that my wording is slightly different. I shall not push the amendment. I beg leave to withdraw it.

Viscount Falkland

My Lords, before the noble Baroness sits down, for the record I said that I sympathised with what both she and the noble Lord said. But since the noble Baroness has spoken, on these Benches I am more in tune with her than I am with what the Government have said.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Baroness Anelay of St Johns

moved Amendment No. 3: After Clause 2, insert the following new clause— CONSIDERATION OF PROPOSALS

  1. (1) The Secretary of State shall ensure that any bill containing provisions relating to the implementation of any relevant proposals within the meaning of section 2(3) is—
    1. (a) published in draft; and
    2. (b) subject to consultation.
  2. (2) The period for consultation shall be such as to allow scrutiny of any draft bill by a joint committee of both Houses of Parliament.
  3. (3) The Secretary of State shall publish a report on the outcome of a consultation exercise concerning the rules governing media ownership in such a way as to permit its consideration by any joint committee referred to in subsection (2)."
The noble Baroness said: My Lords, this amendment picks up on points that the Minister has already made as regards the pre-legislative scrutiny. At Report stage the Government gave assurances about the pre-legislative scrutiny of the draft Bill which were most welcome. But just four days later the Government published their consultation document on new proposals on media ownership. These are policy issues which formed part of the White Paper, but which have not formed part of our debates on this Bill.

I have therefore tabled this particular amendment at this late stage simply because, first, this is the first time one could do so as the consultation paper has only just appeared; and, secondly, in order to follow the proper guidance under Third Reading rules and Standing Orders: that is, to give the Government the opportunity to clarify certain uncertainties which follow on from the assurances that they gave the House at Report stage on the matter of pre-legislative scrutiny.

The press release issued by the DCMS issued on 26th November states, The consultation will last two months—the deadline for responses is 25 January—and will inform the draft Bill on Communications". My question tonight is this: what does the Government mean by "inform"? Looking through the consultation document it appears that the Government are using two different approaches to different policy issues. On one occasion the consultation paper states that "views are invited", which looks a very green approach indeed. On another the paper states directly that, We will introduce a clause to the Communications Bill. In other words, it is done and dusted. For example, at paragraph 6.2.10 it states, We will retain the nominated news provider system for ITV but will introduce a clause to allow the Government on advice from OFCOM to revoke it". It is proper at this stage before we get to pre-legislative scrutiny—on which the Government have given a commitment—to ask what is meant by "inform". Will the new clauses be added to the draft Bill for consideration by the joint committee, or will there be a separate Bill? Tonight the Minister reassured us. I believe that she said that issues of media ownership would be fully debated in pre-legislative scrutiny. One assumes that they can be fully debated only if they form part of the draft Bill. I hope that the Minister will be able to reassure me on that matter.

The practical effect of my amendment would be to require the Secretary of State to publish a report of the consultation exercise in sufficient time and in a format which would enable the joint committee to take those responses properly into consideration during its scrutiny of the draft Bill. I hope that the Government will accept that that is a responsible way forward. I make it clear at this point—as I hope that I have already—that I shall not press the amendment to a Division. It is merely a probing amendment to enable the Government to put on the record their commitment with regard to the work carried out by the joint committee. I beg to move.

8 p.m.

Lord McIntosh of Haringey

My Lords, it is nice to consider this matter without the threat of a timetable in front of us. It is also nice to be able to say that, largely, we can meet the wishes of the noble Baroness, Lady Anelay, with regard to the amendment.

Subsections (1) and (2) of the proposed new clause would require the Secretary of State to publish the communications Bill in draft for consultation and consideration by a joint committee of both Houses of Parliament. Subsection (3) would require the Secretary of State to publish the outcome of the current consultation exercise which could be considered by the joint committee.

We announced in the Queen's Speech that the draft Bill would be published this Session. We shall consult widely on it, just as we have consulted widely on the White Paper. On Report we gave a clear commitment that we would invite Parliament to establish a joint committee for pre-legislative scrutiny. The noble Baroness, Lady Blackstone, has just confirmed that. I confirm it "doubly", if that is of any assistance. Therefore, there is no need for the first two subsections of the amendment.

As regards subsection (3), the noble Baroness, Lady Anelay, rightly reminded the House that the consultation exercise which is now in process is due to report by 25th January. As soon as possible after the receipt of the responses, we shall publish a summary of the responses to the consultation document. In addition, unless respondents have asked for them to be treated as confidential, the responses will be available through the DCMS and DTI websites. Of course, at that point the Bill will still be going through the House of Commons, so that will inevitably occur before the joint committee has been set up.

As regards what is meant by "inform", the answer is twofold. First, as I said, we shall publish a summary of as many responses as we are able to publish. Secondly, that will inform the draft Bill and the explanatory notes to the draft Bill. I believe that that is the right way to do it rather than put another piece of paper in the public domain. I hope that with those remarks the noble Baroness, Lady Anelay, will feel that all of the elements in her amendment are met. The consultation document is a combination of firm proposals and proposals which are less firm. We must include in the draft Bill actual media ownership proposals. There will not be two Bills. The conclusions we reach and the outcome of the consultation will be reflected in the wording of the draft Bill.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister for making clear the Government's plans with regard to media ownership. I am also grateful for his explanation of what the Government mean by "inform". I am relieved to hear that any such proposals will be part of the draft Bill. I appreciate that that puts an extra onus on the Government to get the drafting of the draft Bill completed in good time. Noble Lords will recall that at the various stages of the Bill we have been concerned about the timing of the draft Bill. The late consultation on media ownership and the Minister's response make it clear that we may wait even longer for the draft Bill than might otherwise have been the case. I give way to the Minister.

Lord McIntosh of Haringey

My Lords, the noble Baroness, Lady Anelay, should not draw that conclusion. As I said, the consultation period will end when the Bill is still in its early stages in the House of Commons. We shall need some time to analyse the results of the consultation, but that will be concurrent with the passage of the Bill through the House of Commons. Therefore, I do not believe that any time will be lost. I have a pocketful of euphemisms on timing ranging from "very shortly", to "shortly", to "in due course", but I do not think that I need to use them.

Baroness Anelay of St Johns

My Lords, I believe we sometimes feel that the term that should be used is "eventually", but never mind. I am grateful to the Minister for that explanation. As I made clear, this is a probing amendment. I am grateful that my honourable friends in another place will have the opportunity further to consider Ofcom's structure with regard to media ownership issues. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Short title, commencement and extent]:

[Amendment No. 4 not moved]

An amendment (privilege) made.

Baroness Blackstone

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Blackstone.)

On Question, Bill passed, and sent to the Commons.