Lords Sitting of 29 October 2001

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bath and Wells.

London Underground
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What prospects they see of an early improvement in the state of London Underground.
The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton): My Lords, London Underground has vigorously addressed the underlying causes of poor performance, producing significant improvements already. The Government are pressing for further swift improvements, including early measures to enhance customer service. Modernising the Underground to achieve higher quality services with greater capacity and improved reliability is a long-term job. Our modernisation plans will deliver more than £13 billion over 15 years and we expect passengers to see real improvements in the next few years.
Lord Peyton of Yeovil: My Lords, is the noble and learned Lord aware that I still cherish a hope that one of these days he will be the bearer of good news to the millions of people who day by day endure the torture of travelling on London Underground at the behest of an inept management? Does the Minister agree that, in circumstances where literally nothing is being done, to have got rid summarily of Mr Kiley, who knew how to run a railway, without any available alternative was plain foolish?
Lord Falconer of Thoroton: My Lords, I agree that improvements are required to the Tube. Those improvements require long-term investment and good management. We have decided that the PPP is the right way to put in the investment. Mr Kiley is a good manager and everybody speaks highly of him. Surely the way to produce the improvements that everybody who uses the Tube regularly earnestly wishes is to work together. That is what we wish. At the end of last week we set out the benefits from the PPP over the coming years. Yes, it will take years to make a difference, but I believe that most sensible people recognise that.
Baroness Hamwee: My Lords, is it true that, as the press has indicated, the Government have engaged the consultants Ernst & Young to advise on value for money of the PPP proposal, in addition to the engagement of PricewaterhouseCooper by London Underground for that purpose? I shall forgo a supplementary question on whether it is value for
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money to engage a plethora of consultants. If that is the case, do the Government still have an open mind about whether or not to proceed with the PPP? If so, what is their alternative, or plan B?
Lord Falconer of Thoroton: My Lords, it is true that the Department for Transport, Local Government and the Regions has engaged Ernst & Young to ensure that once the final bids are in from the Infraco companies a proper independent and objective assessment can be made of the value for money of those bids. The position that my right honourable friend in another place has always held, and continues to hold, is that value for money must be checked. We believe that it will be the right way to proceed, but it is absolutely vital that a proper and independent check is made. We believe that that is the right way forward for the Tube.
Lord Faulkner of Worcester: My Lords, can my noble and learned friend reassure me that the plans for the PPP for London Underground will not in any respect recreate the problems that have been found with the old Railtrack? Is the Minister also able to confirm that the trains, signals, track and stations will all remain in public control and ownership?
Lord Falconer of Thoroton: My Lords, I can give that reassurance. Implicit in the question is: what is the difference between the Railtrack arrangements and the PPP with London Underground? The whole of the infrastructure, plant and operation of London Underground remains in public hands under the PPP. That is quite different from the arrangements made for Railtrack where the infrastructure went into private hands with the consequences that we know.
Viscount Goschen: My Lords, can the noble and learned Lord advise the House how long the PPP bidding process has taken to date and how that compares with the origin al timetable?
Lord Falconer of Thoroton: My Lords, I cannot give the precise period of time, but it has taken a number of years. I shall write to the noble Viscount about the original timetable. But it is incredibly important that we get it right. The noble Viscount will be aware that some of the delays were brought about because there were court proceedings in the middle.
Baroness Turner of Camden: My Lords, is it possible to have some interim improvements while we wail for the modernisation to take place? The Jubilee Line would be marvellous if it always worked, but it is beset with signalling difficulties which means that often passengers are forced to get off at Baker Street.
Lord Falconer of Thoroton: My Lords, we are very keen to see improvements. Over the coming months we shall introduce better ticketing systems, in particular new queue-buster machines at nearly 50 stations which will make it easier to obtain tickets, and provide better information and more customer care staff. We want to

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help people to make changes at various crossings. The particular structural upgrades will take time and will come on stream as quickly as possible. I cannot pretend that that will not be other than a period of years.
Lord Vivian: My Lords, the Government wish to bring Railtrack into public ownership, while allowing the private sector to run the trains, whereas in the case of the Tube, they wish to give the train operators the responsibilities of a public body, but confer responsibility for the tracks to the private sector. Can the Minister explain how the Government can justify such totally contradictory approaches? Furthermore, why is Mr Kiley leaving?
Lord Falconer of Thoroton: My Lords, first, so far as concerns the difference between the arrangements for Railtrack and those for the London Underground, the present Railtrack arrangements mean that railway tracks and the associated infrastructure are in private hands, whereas in the case of London Underground, all the infrastructure will remain in public hands. What has been said by the Secretary of State as regards the future of Railtrack is that it will be a company limited by guarantee, with the stakeholders in that company being representatives of the industry. As regards the noble Lord's question about Mr Kiley, I understand that he is to stay.
Lord Ezra: My Lords, given the long period leading up to the PPP, can the noble and learned Lord give an assurance that the Government have made available to London Underground sufficient resources to carry out essential maintenance works and investment, in particular in the area of signalling? In that regard, is the noble and learned Lord aware that, over the past 12 months, there have been no fewer than 3,500 signal failures on the Underground system?
Lord Falconer of Thoroton: My Lords, the purpose of the PPP is to ensure that the means of making sufficient investment in London Underground required to bring it up to the standard of a modern system are put in place. That is the reason why, in principle, the Government support the PPP. The PPP means that money will be identified to address exactly the kinds of problems outlined by the noble Lord. We believe that the process will bring in the required investment.

Foreign Language Learning
2.44 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
In the current European Year of Languages, whether they are developing new initiatives to promote the learning of foreign languages.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Government are supporting a wide range of initiatives to promote
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language learning. This year we announced further funding of £200,000 to support schools offering languages to primary pupils. Growing numbers of specialist languages colleges mean that more schools can benefit from languages expertise. Investment of £970,000 will fund regional language networks to support the growing need for languages in the business sector. Furthermore, the promotion of programmes such as Socrates ensures that schools and colleges take advantage of the opportunities offered.
Lord Quirk: My Lords, the Minister's response is encouraging. However, would she not agree that, by reason of their language deficiencies, our young people are missing attractive and career-enhancing opportunities? To take the European Erasmus programme alone, is the Minister aware that, over the past seven years, British participation in that programme has dropped steadily from 12,000 to a wretched 9,000 while, on the continent of Europe, figures from Germany, France, Spain and others have virtually doubled? What will the Government do to address this imbalance?
Baroness Ashton of Upholland: My Lords, noble Lords will know that the Erasmus programme is the higher education element of the European Union Socrates programme. It is true to say that there is an imbalance of approximately two to one of UK students studying overseas. We have looked at a range of ways to encourage students in this, not least that those students who decide to take up the full year option do not pay tuition fees. Furthermore, the Higher Education Funding Council gives an additional £1,000 per student to the universities in order further to support those students. Those are some of the ways in which we are trying to support this programme.
Baroness Sharples: My Lords, at what stage do children begin to learn foreign languages?
Baroness Ashton of Upholland: My Lords, I have visited nurseries where children are already learning foreign languages. Recently I visited a nursery in Islington. The bilingual and trilingual nursery nurses are strongly encouraged to converse with the children in their languages. Indeed, the children too are encouraged to speak in languages other than English. I believe that those children are being given an enhanced opportunity.
Within the primary education sector, some 20 per cent of schools now offer a foreign language, usually a European language and most commonly French. Thus language education provision begins at the outset of education.
Baroness Sharp of Guildford: My Lords, there is a chronic shortage in our schools of teachers of modern foreign languages. How will it be possible to expand the teaching of foreign languages without providing more teachers? How successful have the initiatives been over the past year in attracting more teachers into this sector?
Baroness Ashton of Upholland: My Lords, currently 250 vacancies are recorded for full-time teachers of modern foreign languages. Almost all newly qualified teachers of modern foreign languages qualify through the PGC E. We know that applications and acceptances fell this year. Such students qualify for a £6,000 bursary during their course, as well as a £4,000 "golden hello" following their induction. In primary education, we have earmarked 100 teacher training places for French teachers who wish specifically to teach in that sector. The course includes time spent in a French institution. I have outlined some of the ways in which we are trying to enhance the teaching of modern foreign languages, but we recognise that the issue of shortages must be addressed.
Lord Wright of Richmond: My Lords, does the Minister agree that, in spite of the increasingly widespread use of English, learning a foreign language is a vital component of understanding other cultures. Language is not purely a means of communicating with others or, indeed, of doing business with others? Now, perhaps more than at any other time, it is important to ensure that different cultures understand each other.
Baroness Ashton of Upholland: My Lords, I do not believe that I could express those sentiments any better from the Dispatch Box. I agree entirely with the words of the noble Lord. It is extremely important that language is used to celebrate the diversity and multiculturalism of our nation. We must take the time and opportunity to celebrate that with our children, who often come into school speaking two or even three languages but do not then have an opportunity to speak other languages within the school. This matter should be looked at in the broadest possible manner.
Lord Harrison: My Lords, does my noble friend agree that the acquisition of languages opens closed minds, closed markets and closed cultures? Should we not promote English abroad and modern languages at home in order to double Britain's opportunity to be successful financially, commercially, culturally and diplomatically?
Baroness Ashton of Upholland: My Lords, most of our European partners have good track records in the promotion of English speaking within their own countries. Certainly in terms of promotion on a business level, we believe that the network of languages being set up in each English region, Scotland, Wales and Northern Ireland will link learning to business needs, which is an important aspect of what the noble Lord suggests.
Viscount Falkland: My Lords, is the Minister aware that the Lyeée Francais Charles de Gaulle school—which was set up initially to encourage joint learning by anglophone and francophone students—because of the large influx of French people into London, has had to close its doors virtually to anglophones in order to, quite understandably, meet the French Government's
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need to satisfy their own taxpayers? That is a great shame. Could approaches be made to the French Government, through the French Embassy, to find some way of returning to the original aims?
Baroness Ashton of Upholland: My Lords, part of my work in chairing the working group and steering group that have come from the Nuffield inquiry is to work with embassies from European nations to find ways in which we can support each other. I shall be happy to look at this matter in that context.
Lord Rotherwick: My Lords, each year, hundreds of thousands of people come into this country from abroad, some of whom have little or no command of English. What are the Government doing to ensure that such people can learn English and communicate with the rest of us within the UK?
Baroness Ashton of Upholland: My Lords, there are a number of different ways. However, I shall need to write to the noble Lord to be explicit as this issue does not fall specifically within my remit.
Lord Taylor of Blackburn: My Lords, is my noble friend aware that some years ago, when there was an even greater shortage of language teachers than there is today, a scheme was started under which peripatetic teachers went round to various schools? Is that scheme still in operation today?
Baroness Ashton of Upholland: My Lords, the scheme to which the noble Lord refers is probably based upon the language assistance scheme, which noble Lords may remember. The scheme involves working with 30 partner countries. There has been a decline in the number of UK students participating. We are considering ways in which we can increase participation. There are currently 1,732 English language assistants abroad through reciprocal arrangements.
Baroness Carnegy of Lour: My Lords, is it not rat her shocking that there are so many vacancies for language teachers? What are the Government doing to make being a language teacher more attractive to potential teachers?
Baroness Ashton of Upholland: My Lords, I mentioned that we consider this to be an area of serious shortage. We offer bursaries, "golden hellos" and other incentives to enhance language teaching for those who wish to come into it. As noble Lords will know, we are looking at the writing-off of student loans, and people in this group will qualify for that. 'We are looking at financial incentives for those who wish to come into the profession. We are also ensuring that we make it an attractive way for people to be involved in teaching.

Afghanistan: Air Attacks
2.53 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
What steps they are taking to avoid further noncombatant casualties from air attacks in Afghanistan.
Lord Grocott: My Lords, we very much regret any non-combatant casualties. We fully understand worries about possible injury to civilians, but while bin Laden remains at large the risk to innocent people throughout the world continues. Military action inevitably carries risks. It is impossible to eradicate these totally, but I can assure your Lordships that every possible care is taken to minimise civilian casualties by the most rigorous selection of military and terrorist targets.
Lord Jenkins of Putney: My Lords, is it not the case that the American air force has probably killed more women and children than any other force in the world? Our association with this policy is in itself to be regretted. Is it not the case that the more noncombatants killed or injured, the stronger becomes the case for abandoning the current policy and returning to one of negotiation?
Lord Grocott: My Lords, when my noble friend refers to the slaughter of women and children, my mind—and I suspect the minds of most noble Lords—returns to the events of 11th September when any number of women and children, and other groups of innocent people, were slaughtered without mercy. Throughout the whole of this operation, that is the simple fact that needs to be remembered by everyone.
Lord Vivian: My Lords, while we on these Benches support the Government's objectives in Afghanistan, will they ensure that they continue to give great clarity to them? While I very much regret the horrors of war and the inevitable casualties that it brings, does the Minister agree that wars are not won without the appropriate weapons? To adopt any other measures would place our own Armed Forces in jeopardy and danger.
Lord Grocott: My Lords, I agree with the thrust of the question of the noble Lord, Lord Vivian. I should like to restate how important it is at this time that there is such support from the opposition parties in both Houses of Parliament. The noble Lord asked about the clarity of objectives. I can do no better than to remind the House of what the Secretary of State said at the press conference this morning, which many will have seen live. He said:
"Our objectives are to bring the chief suspects behind the 11th September atrocities to account; to dismantle the terrorist infrastructure in Afghanistan; and to prevent that country ever being used as a base for global terrorism again".
We can all say "Amen" to that.
Lord Wallace of Saltaire: Does the Minister accept that those of us who support the proportionate use of force and recognise that it is not possible to negotiate with the current Taliban regime nevertheless feel that the use of cluster bombs in Afghanistan is not a proportionate use of force?
Lord Grocott: My Lords, as the noble Lord will know, this point was raised by his honourable friend the Liberal Democrat spokesman in another place during the Statement on Friday. Cluster bombs have been used, but only in a limited number and against carefully selected and legitimate targets. Five such targets have been attacked. One was a terrorist training camp and the others were Taliban military positions. The cluster bombs used are armed with bomblets designed primarily for use against vehicles and buildings, which explode on impact. I reiterate—I am sure the noble Lord will agree—that the difference between the coalition against terrorism and the terrorists is that the coalition against terrorism takes every possible step to avoid civilian casualties of any kind, whereas the objective of the terrorists, as we saw on 11th September, is to maximise the number of innocent victims.

Sexual Health and HIV Strategy
2.58 p.m.
Baroness Massey of Darwen Baroness Massey of Darwen asked Her Majesty's Government:
How they have implemented consultation on the document Draft National Strategy for Sexual Health and HIV.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the sexual health and HIV strategy was widely distributed and is on our website. Consultation runs until 21st December. A number of consultation events for health and social care professionals, people living with HIV/AIDS and young people are being held this autumn.
Baroness Massey of Darwen: My Lords, I thank the Minister for that helpful Answer. The range of people being consulted is impressive, but are young people being consulted in the strategy? Will their views on sexual health, education and services be taken into account?
Lord Hunt of Kings Heath: My Lords, the strategy clearly goes beyond the needs of young people. I agree that it is important that we get their views if we are to develop services to which they will respond. We are funding the voluntary organisation Brook to undertake a consultation with young people. This will help us to form views about the outcome of the consultation on the strategy. In order to inform the development of the strategy, in 1999 the Health Development Agency set up a sexual health forum for

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young people aged between 14 and 25, which was very helpful in terms of writing the strategy in the first place.
Baroness Gardner of Parkes: My Lords, having sat on the two parliamentary inquiries on AIDS, among other things I visited the George House Trust in Manchester, which does a great deal to make people aware of the need for prevention and of the situation in regard to HIV. It made a very clear point and I should like to ask the Minister whether it has been taken into consideration in these consultations—namely, that sub-cultures within the community use a language that is quite different from that of a normal Department of Health document. To get the message through and enable consultation to take place, attention to language is important. Some of the pamphlets published by the George House Trust were not entirely clear, because the terminology was so specific. Does the consultation document take this important factor into account?
Lord Hunt of Kings Heath: Yes, my Lords. I am aware that not every member of the population of this country reads Department of Health consultation documents with great joy. The noble Baroness raises an important point. It is clear from our experience over the past 10 to 15 years that messages about sexual health will not make an impact unless they are targeted at specific groups in the population. We are undertaking research in relation to the Safer Sex Campaign work to make sure that we pick up that point.
Baroness Barker: My Lords, the Minister will be painfully aware that the report is just one among thousands of consultation documents with which primary care trusts are having to deal as they are being established. Does he agree that, in order to implement the strategy, properly ring-fenced funding for HIV prevention should be maintained until 2003?
Lord Hunt of Kings Heath: My Lords, I agree that primary care trusts face many challenges in taking on what is expected of them. However, it is absolutely right to push decision-making as far down as we can, particularly to the primary care level. I understand that there is concern about the mainstreaming of the £54.7 million for local HIV prevention. I assure the noble Baroness that it is our intention to performance-manage the situation. It is right that after a period of time we should mainstream special funding if it is still required to fund services, as in this case. We shall monitor and performance-manage primary care trusts to ensure that the money is spent effectively. I am confident that primary care trusts will be able to rise to this challenge.
Baroness Gould of Potternewton: My Lords, my noble friend Lady Massey referred to young people. What specific investigations took place into the provision for minority groups? What consultation took place with such groups; and how will they be
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involved in the implementation of the report's many recommendations? Finally, perhaps I may offer congratulations to the department and to Professor Adler and his team on this important report.
Lord Hunt of Kings Heath: My Lords, I am grateful to my noble friend and I shall pass on her congratulations. Perhaps I may congratulate my noble friend on the fact that today is her birthday. She is right to point to the need for the preparation of a strategy for consultation, and to the need to engage with various social groups. I can confirm that the strategy development included separate consultation with members of black and minority ethnic groups. Membership of the steering group and working group included such representatives. We have also invited members of such groups to take part in national consultation that will take place between November and December. I am clear that in order to make the strategy work we must target the messages that need to come through from the strategy. That means a wide engagement with all stakeholders.
Lord Glentoran: My Lords, apropos an item that I heard on the "Today" programme this morning, what is Her Majesty's Government's view on legalising prostitution?
Lord Hunt of Kings Heath: My Lords, the Government are not in favour of such a move.
Lord Clement-Jones: My Lords, the report will have the support of many sides of this House. However, in view of the fact that chlamydia infection is rising at an alarming rate, as was pointed out both by Professor Adler and by Ministers when the report was published, does the Minister believe that the proposed action on screening for chlamydia will take place rapidly enough? At what date will full national screening for chlamydia be available?
Lord Hunt of Kings Heath: My Lords, we do not have a date for full national screening. We are committed to a phased roll-out, which will begin in 2002; as that continues, we shall be in a better position to give a completion date for this important project.
The pilot studies in Portsmouth and the Wirral were very successful in terms of testing. However, in general practice, the prevalence of women in the target age range found to have chlamydia was 8.5 per cent in Portsmouth and 8.7 per cent in the Wirral. That underpins the seriousness of the problem and the reason why screening is important. We must wait to see how the roll-out goes before we can give a definite date for coverage of the country as a whole.
Earl Howe: My Lords, is the Minister satisfied that the sum of £47.5 million pounds will be sufficient to implement what is a diverse and wide-ranging strategy? What will the money buy in terms of infrastructure and staff?
Lord Hunt of Kings Heath: My Lords, the figure of £47.5 million is the funding that we wish to use to

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support initiatives and strategy over the next two and a half years. It will cover general sexual health activities, our work in relation to hepatitis B, and the Safer Sex Campaign. It will also cover work in relation to reducing injecting.
Clearly, the total amount of money is important in making sure that the strategy is successful. We shall consider the issue further in the light of the consultation process. Discussions will take place in the next spending round review. Overall, I believe that the figure of £47.5 million is a good start.

Privy Council Silver Collection
3.7 p.m.
Lord Ackner: My Lords, I beg leave to ask a Question of which I have given private notice; namely:
Whether Her Majesty's Government still intend to sell by auction tomorrow, 30th October, through Bonhams & Brooks, certain items of Privy Council silver.
Lord McIntosh of Haringey: My Lords, the Government adhere to the principle that they should hold assets only where the costs of doing so are outweighed by the benefits. As a result of resource accounting and budgeting, a number of departments, including Her Majesty's Treasury, are reducing their asset holdings. That wider programme will continue.
So far as concerns the four lots of silver items originally made for the Privy Council, the Government remain of the view that the Treasury is not the right owner. However, we recognise the case that has been made for ensuring that they are available to be seen by the UK public. I am glad to say that the representations that we have received suggest a number of ways in which this could be achieved. These would, I am sure, address the concerns which noble Lords and others have raised. We are making further inquiries about those alternatives. To allow those inquiries to proceed, while the other items will continue to be sold and the programme of asset sales will go ahead, the items originally made for the Privy Council have been withdrawn from tomorrow's sale.
Lord Ackner: My Lords, I thank the noble and learned Lord the Leader of the House for giving me leave to ask my timid and deferential Question. I also thank the noble Lord, Lord McIntosh, for revealing just how pig-headed a government department can be. Is he aware that the description in the Bonhams & Brooks catalogue—itself extensive—underlies and supports the proposition that these are articles of strong historic importance?
Is the noble Lord aware that his invitation created concern over the weekend? Will he tell the House who responded to the Treasury invitation? I know that my Inn of Court, the Middle Temple, did so, concerned to see whether the silver would add sensibly to its collection.
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Finally, why has it taken so long to reach this conclusion? I was in touch with the Chief Secretary's private office over the weekend and earlier today, shortly before asking this Question. It said that it could not give me the slightest indication of which way the cat was going to jump.
Lord McIntosh of Haringey: My Lords, on the noble and learned Lord's last point, surely it is proper that any decision should be announced to Parliament rather than to anyone else. I am sure that my noble and learned friend the Leader of the House is grateful for the comments of the noble and learned Lord, Lord Ackner. I should immediately say that the noble Lord, Lord Strathclyde, was the first to respond, expressing—correctly, I believe—the view of the House that the items should be withdrawn from sale. No list of representations has been compiled and the information may not necessarily become public, because some of those who made representations may not wish their intervention to be made public.
Lord Strathclyde: My Lords, it is greatly to the credit of noble Lords on all sides of the House, including the Minister and the Leader of the House, that this deplorable decision has, at the last moment, finally been reversed. Is it not clear that the Treasury cannot be trusted to look after such assets of great beauty and historical integrity? Will the Minister now publish a list of national heritage items in the Treasury's keeping, spelling out which are still regarded as open for sale?
Lord McIntosh of Haringey: My Lords, the Treasury has done a great deal more than that. As a result of government resource accounting, the Treasury has published a National Assets Register, which covers items of historical and artistic importance and all other government assets held not just by the Treasury, but by all other departments.
Lord Mackie of Benshie: My Lords, when were the objects in question last on display to the public—or, indeed, to members of the Treasury?
Lord McIntosh of Haringey: My Lords, the items were last displayed in 1957 in an exhibition by the Victoria and Albert Museum, which travelled to a number of countries.
Lord Acton: My Lords, I congratulate my noble friend on the excellent decision that he has relayed to the House. How much was the Treasury expecting to raise from the auction? I do not think that we were told last Thursday.
Lord McIntosh of Haringey: My Lords, if we add up the estimates for the four lots, it comes to something over £100,000, but of course the estimates are in ranges, as auctioneers are always cautious about these matters.
Viscount Falkland: My Lords, we on these Benches also congratulate the Minister on the work that he has

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clearly done behind the scenes. The outcome is very satisfactory. Surely one of the worrying aspects of the affair is that it was sprung on so many people as a surprise. I do not know whether the Department for Culture, Media and Sport was aware of what was likely to happen—probably not. After the salutary lesson that has been given to the Treasury on this occasion, will procedures be laid down to ensure that whenever a body intends to divest itself of such heritage items, all those concerned, including primarily the department of state itself—in this case the Department for Culture, Media and Sport—are informed and the public are made aware of the issue without having to wait to hear of it as a result of a Question in your Lordships' House on a Thursday afternoon?
Lord McIntosh of Haringey: My Lords, if the Government do anything wrong it is the fault of the Minister, but if the Government do anything right the credit has to go to the department and the Government as a whole rather than to any individual. It is fair to say that we did not consult as widely as we should have done on the items. We ought to take that lesson and see that we have procedures for consultation in the future. One of the ways of finding out how much things are worth and who is interested is to put them up for auction. We have taken seriously the concerns expressed in the House last Thursday that there was a risk of the items going to private buyers and therefore not being available to the public. That has resulted in the decision that I have announced today.
Lord Waddington: My Lords, on what basis was it decided that the Chancellor could dispose of the silver? Is it said that all silver in the hands of every other department can be sold by the Chancellor if he says that it is desirable to do so?
Lord McIntosh of Haringey: My Lords, I answered that question last Thursday. I said that six or seven years ago, under a Conservative administration, assets of that sort were assigned to individual departments rather than being held by Property Holdings. That is the basis on which they are the property of the Treasury.
Lord Peston: My Lords, did I mishear my noble friend? Did he say that the stuff has not been seen by the public for 40 or so years, or did he add something that I missed'? I assume that it must have been seen by the civil servants who have checked that it is still there and we have not lost any of it. What is the flow of benefit if it is not available to be seen by the public? Have we become misers who are happy because we know that it is there, even though no one else does?
Lord McIntosh of Haringey: My Lords, I think that for most of the time the silver has been held in a locked cupboard, or a series of locked cupboards. Of course, it has been available to be seen at Bonhams & Brooks since last Friday.
Lord Ackner: My Lords, the Minister has generously conceded that his department may not have consulted as widely as it should have done. As a matter of interest, who was consulted?
Lord McIntosh of Haringey: My Lords, I have attempted to answer that question. We do not have a list of those who were consulted. Some of those who were consulted take it to have been done in private, so it is not necessarily the case that we would be able to release a list.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Rooker will, with the leave of the House, repeat a Statement which is being made in another place on asylum, migration and citizenship.

Office of Communications Bill [H.L.]
3.17 p.m.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Blackstone.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE CHAIRMAN OF COMMITTEES in the Chair.]
Clause I [The Office of Communications]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 1:
Page 1, line 3, at end insert "which shall be constituted in accordance with and have functions conferred by this Act"
The noble Baroness said: This is a probing amendment that raises two issues. One is technical—I shall come to that in a little while—but the other is a matter of principle that underlies the whole Bill. The question, quite simply, is whether it is right to have a single, overarching model of regulator for both broadcast and telecom sectors. What other models did the Government consider and why were they rejected? I am asking the Government to put on the record their reasons for choosing this model for Ofcom. I agree with the Government that this model should be the right way forward, but on these occasions I always have regard to the Bassingthaighte principle that the more that the Opposition agree with the Government, the more careful we have to be that we are agreeing for the right reasons, not the wrong ones. That means that we have to scrutinise properly any legislation before us. As it was not obvious from the amendment that I would ask the Minister that question, I gave prior warning to her office earlier today.
If we accept this model for the regulator in this paving Bill, we are pre-empting the scope of action by Parliament when it comes to debate the provisions of the communications Bill itself. We ought to be aware of that before we consider the Bill and this amendment.
When I discussed the Bill briefly with the noble Baroness, Lady Blackstone, earlier this summer, I said that I believed that it would be necessary for me to put down several probing amendments. One of those is the technical amendment before the Committee today.
Will the Minister confirm that Ofcom will be a statutory corporation, an entity separate from the Government; in other words, an individual? The Bill does not state that clearly despite the reference at page one, line two to Ofcom as "a body corporate". I agree with the Government that it would be appropriate for Ofcom to be constituted as a statutory corporation. As I understand it, all existing regulators, save for the Radio Authority, are bodies corporate. In many ways the structure of Ofcom proposed in the Bill resembles a company with a board made up of executive and non-executive members with objectives and aims to pursue. It is intriguing to note that in drafting the Bill the Government have used another phrase for non-executive directors; that is, "non-staff members". Further amendments seek to elicit the reason for that.
Ofcom will not resemble anything like the existing regulators; nor is it a government department. With a changing communications industry the regulator needs of all things to be up-to-date, efficient and perhaps even revolutionary in the way it is organised. We need to come to it afresh, not just simply absorb the old regulators into Ofcom as pieces of a jigsaw. Ofcom must be more than the sum of its component parts.
If Ofcom resembles a modern day company, should it be set up as a company and established in accordance with the Companies Act? That is a technical question to which I seek a government response on the record. Of course, I appreciate that Ofcom will not have share capital and its liabilities should remain with the Government in the event of its dissolution. The danger is that it may resemble an old-style nationalised company which is indirectly controlled by the Government, or, indeed, perhaps even a quango. There are implications here for the perceived independence of Ofcom as a powerful regulator.
The industry has repeatedly pointed out to myself and my noble friends that it is concerned that the new body should not operate as a quango with the great and the good running it but should be very much a business-like body. That is the industry's perception of quangos. There is something worrying about the way in which we use non-departmental government bodies.
We should keep in mind the point that statutory corporations, by virtue of their legal status, have limited capacity. They can only do what their governing legislation authorises them to do. That places greater emphasis on the need to ensure that this particular regulator has the necessary flexibility that is
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intended for it while at the same time avoiding the adoption of functions, and later of powers, under the terms of the communications Bill, that may be so sweeping as to alarm the sectors which Ofcom is intended to regulate.
The amendment seeks to ensure simply that Ofcom is properly constituted in accordance with the Bill and will only have functions that relate to the regulatory powers it will receive when the main communications Bill becomes law. I beg to move.
Lord Crickhowell: At the outset I declare an interest as I am chairman of HTV, a wholly owned subsidiary of Carlton Television. I wish to take the matter slightly further than my noble friend and consider the approach of the Government to the setting up of this important organisation. I speak with a certain amount of experience in that for about eight years I had ministerial responsibility for a number of quangos and, indeed, set up at least one. For the following eight years as the only chairman of the National Rivers Authority advisory committee and then of the National Rivers Authority, I had the job of advising the Government on how to set up that important regulatory organisation and then chaired the organisation through its entire life before its functions were absorbed by the newly created Environment Agency. I had a role in making certain fairly strong comments about the way in which the Environment Agency should be structured, although I do not think that that advice was accepted and later I shall mention the consequences of that.
We are at the beginning of a rather extraordinary process. The Bill will not become an Act for some considerable time. The board we shall appoint will not be fully in place until about this time next year. At Second Reading the Minister told us that it was hoped that the first chairman would be appointed in the spring and that the non-staff members—I am not allowed to call them non-executive members—would be in place in the autumn. A number of people are involved in the process. I hope that I may be forgiven for describing them as warlords as they are all engaged in a battle for their own interests or the interests of the organisations they represent.
I turn to the departments, of which two are involved on this occasion, not just one. No one has a greater respect for civil servants, their skills and the impartiality with which they provide advice, but in the course of my experience I have learnt one or two lessons about the attitudes of civil servants. Ministers and civil servants always talk about having strong and independent regulators but they are often uncomfortable if those regulators prove to be strong and independent. If departments are able to do so, they try to make sure right from the outset that that independence is curtailed. If they do not entirely succeed, they have a number of mechanisms they can use such as mechanisms of financial control and financial regulation. Certainly, they like to attempt to curtail that independence. If a regulator proves to be very independent, they are often anxious to claw back authority.

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Therefore, I believe that I know what the department will want to do at this stage; namely, to set up an organisation, with perhaps at the back of its mind the thought that it needs to make sure that that powerful body will not get totally out of control. There is a further, perhaps even stronger, set of opinions among senior civil servants; namely, if there is one thing they dislike more than anything else in the world it is being criticised by the Auditor General and, worse, being torn apart by the Public Accounts Committee.
One immediate reaction, therefore, is to appoint consultants. When things go wrong at least if you are a civil servant you are able to say, "We appointed experienced consultants and we took their advice". I have a great many successful friends who have been distinguished consultants. Many of their firms carry out important work. But there is one characteristic of all firms of consultants that we always have to bear in mind; that is, they produce their splendid reports and recommendations but are never responsible for implementing them. By the time they are implemented they have moved on to other things. If anything goes wrong, they are in the happy position of hoping that no one will remember exactly what they recommended.
I turn to a further group. I believe that I am fair in describing them as warlords as they will fight for each of their organisations with great force and with the worthiest of motives. The five existing regulators will all want to make sure that they have a key role—perhaps the key role—in the new organisation and that their senior staff will play the major management role in running that organisation. Equally, they will want to defend all their employees to ensure that their positions are adequately secure. Indeed, as Towers Perrin emphasised in its report, one of the most important jobs to be done in the coming weeks and months will be to consider key issues. Those include developing a co-ordinated communications strategy, progressing the key human resource management issues, clarifying the issues that bear on the size of Ofcom and developing the transitional management structure. It states that all those matters should be tidied up and dealt with as soon as a chairman and chief executive are in place. However, they cannot really be dealt with until a board is in place.
Therefore, we now have the extraordinary situation of a process being started in which the body that will eventually be responsible does not exist. Again, Towers Perrin has some wise things to say about what should be done. Among them is working out the major policy objectives and setting the whole tone under which the organisation will operate. It is very difficult to see how, under the present arrangements, a group of people who will not eventually have responsibility will be able to do that.
When the National Rivers Authority was being planned, our former, much lamented colleague, Lord (Nick) Ridley, took two very wise decisions. One was taken before the general election during which I retired from the other place and from government. His first decision was to take the original proposals put forward
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by my noble friend Lord Baker and to say that the regulatory functions must be separated from the other functions of the water authority.
The second decision that he made soon after that election was to set up an advisory committee. Whether he was quite so wise in deciding to appoint me as the chairman was for others to judge. However, that is what he did. The advisory committee was in place by the spring—or certainly by the early summer—of 1988. It would probably have been in place two or three months earlier if it had not been for a strange but characteristic intervention by the Treasury, which was prepared to spend approximately three months on an absurd little argument about the exact number of minutes or hours to which I should be committed. That was the type of issue that in the private sector would have been settled in an hour or two or, at the most, in a couple of days.
By the spring, I had taken up my responsibilities and proceeded to interview prospective board members. The Secretary of State appointed members to the committee in the knowledge that they would comprise the first board of the National Rivers Authority, as it came to be known. In other words, all the discussions that were under way, out of the control of the people who eventually would be responsible, were directed, spearheaded and organised by the advisory committee which would be responsible when it had emerged as a butterfly, as the National Rivers Authority might be described, from the original chrysalis.
That method appears to have enormous advantages over what is proposed in this case. It is hard to see how the people—the warlords—who at present are fighting the battles can get very far; rather, perhaps I should say that there is a danger that they can get all too far and that the board, when eventually appointed, will not in practical terms be able to reverse many of the decisions that have been taken.
Towers Perrin, perfectly fairly, points out that none of those decisions can be turned into concrete facts until the board has approved them. But, of course, time will be moving on and one hopes—my goodness, one hopes—that by November next year we shall begin to have an idea as to what this body will do. The fact that the Government have not yet decided what it should do presents a further difficulty for those who are preparing the plans at the moment. We are setting up an organisation whose eventual role has not yet been decided. I want to say one more word about that before I conclude.
Towers Perrin rightly says that a number of those issues—for example, some of the management issues—cannot be decided until the chief executive is in place and able to take decisions. In the chart contained in its report, Towers Perrin rather optimistically suggests that the appointment of the chief executive, which it apparently believes will be made by the chairman alone, will take place in the early summer. Of course, that is not possible because Clause 5 of the schedule makes clear that the appointment—I do not criticise this at all; it is absolutely appropriate—must be made by the chairman and the other non-staff members.

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The Minister was right to tell the House at Second Reading that the non-staff members would not be in place until the autumn of next year. It also follows that the chief executive cannot be in place until the autumn of next year. Therefore, there is a whole year to go in which a totally unmanaged, uncontrolled operation will be in place and in which the warlords will secure their ground and ensure that others will not later be able to regain it.
I can hardly think of a more bizarre and unsatisfactory way in which to set up an important organisation of this kind—one more fraught with hazard or one that is more unnecessary. We have precedents for such a situation. We know that in the case of the National Rivers Authority the then Secretary of State found it perfectly possible to establish an advisory committee. Indeed, the Government are always appointing committees for one task or another. If they can appoint a whole raft of special advisers, surely they must be able to appoint an advisory committee and indicate to its members that they will eventually have responsibility for running the organisation that they set up. Therefore, there is a good precedent to guide them.
There is also a precedent that should give them warning. When the time came to set up the Environment Agency, I suggested to the then Secretary of State, John Gummer, that it would be sensible to make the process as speedy as possible. I suggested that it would be sensible to take the large, already established and rather successful organisation—the National Rivers Authority—to make such changes as were necessary and to bring in the other bodies as quickly as possible. I suggested avoiding the employment of a raft of consultants and engaging in a prolonged negotiation in which the then warlords could do battle.
I am not surprised that my advice was rejected. I had already won one major battle with the Secretary of State when he was Minister of Agriculture about what the Environment Agency should do. I did not believe that he would take my advice on this matter when he became Secretary of State for the Environment. By then, I was tired of the whole matter and rather fed up with engaging in battles of that kind. Therefore, what I suggested did not happen.
However, what did happen was something rather like the process contained in this Bill. A prolonged negotiation took place in which all employees of the existing bodies were able to put in their bids and make their claim. I believe that the consequence was that for at least two years the Environment Agency, when it came into being, suffered. I believe that I can claim with some reason that the National Rivers Authority was very effective in making its powers and authority known when it was first set up. Indeed, if no one else had discovered it, the Shell oil company certainly did when it was fined £1 million as a result of action taken about six weeks after we came into being.
I believe that it is also fair to say that, for a couple of years, the Environment Agency was much less well known and was not seen to be so effective. I believe
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that that was because it had to spend a quite unnecessary amount of management time in sorting out the conflicts that had arisen because of the methods that had been adopted.
Lord McIntosh of Haringey: I hope that the noble Lord will allow me to intervene. I apologise for not being here at the beginning of his remarks. I believe that he has been speaking for more than 15 minutes. I know that we do not have quite the same rules in Committee, but I hope that the noble Lord can bring his remarks to a close.
Lord Crickhowell: I am happy to do so because I have almost concluded what I want to say. I have one further remark to make. Apart from getting the structure right, there is a great deal of urgency about the task. In a sense the Environment Agency was dealing with a situation which was not going to change all that much. But in the world of broadcasting and communications things are changing at a terrifying speed. They are changing for the broadcasting industry. As regards broadband, the Government have set ambitious targets to be world leaders whereas we are already dropping to the bottom of the league table and doing very badly. We need decisions to be taken and an effective organisation to be put in place very quickly. We also need to know what eventually it will do. I believe that the Government are setting about it in the wrong way. I have not moved an amendment because if I did so it would not become effective until the Bill was implemented. I want to avoid a statutory body of this kind. I want the Government to think about it. I beg them to consider the precedent that has been set, appoint an advisory committee and let it get on with the job of leading this organisation into a strong and effective future rather than one established by the warlords.
Viscount Astor: My noble friend Lord Crickhowell has made some important points about the structure and definition of Ofcom. I shall restrict myself to two questions. But before doing so, perhaps I may say that I declared an interest at Second Reading. I hope that that will suffice for the rest of the Bill. Secondly, I thank the noble Lord, Lord McIntosh, for kindly writing to me after the Second Reading and answering some points with which he did not have time to deal.
My first question concerns the setting up of a body corporate. If the noble Baroness is to answer this amendment, can she confirm whether this body will have a similar structure to the normal regulatory bodies which we have come to recognise so often in Government—whether it be Oflot, or whatever—or will it be something different? I apologise to the noble Baroness; if I had had time this morning I would have looked it up myself. I would welcome a brief comment from her on that point.
My second question relates to the letter which the noble Lord, Lord McIntosh of Haringey, wrote after the Second Reading as regards Ofcom. In this Bill we are setting up a body corporate and if that is the right way to go I shall accept the Government's

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recommendation on it, depending on the noble Baroness's answer. However, the noble Lord said that its revenue will consist of fees charged on those whom it regulates,
"for which provision will be made in the main communications Bill".
That is rather strange. We are here setting up a body corporate, which is a perfectly reasonable thing to do. However, according to the noble Lord, Lord McIntosh, its revenue stream will not be set up until we have the main communications Bill. I may have got that wrong but, as I understand it, it is the Government's intention to set up this body before the main communications Bill comes into effect. Therefore, how will it sustain or rely on any revenue when its revenue, which we know it will receive from the industry, will not be validated until we have the next Bill? Will it be necessary to borrow the money from the Treasury or send a statement to the industry in lieu of an invoice which is to follow later? I do not understand and I find the situation somewhat contradictory. The noble Lord may offer me a simple answer. He is nodding his head. I shall be grateful for that. It seems to me that we should not be setting up a body corporate at this stage unless we state in this Bill how the revenue is to be derived. We know that the provision is to come into effect before the next communications Bill is looked at by your Lordships, let alone passed by this House.
3.45 p.m.
Lord Dubs: Perhaps I may repeat the interest that I declared at Second Reading. I am chairman of the Broadcasting Standards Commission. I wish to comment very briefly on the remarks made by the noble Lord, Lord Crickhowell. If I understood him correctly, I am one of the warlords to which he referred. He suggested in, I think, a flight of fancy to the Committee that we were all at loggerheads, fighting it out in some medieval battle. That is absolutely not the case. The five regulatory bodies identified in the Bill have been co-operating through the chief executives for many months, if not years. We have been working closely together. There will be a smooth transition when the day comes, from the five bodies to the new Ofcom. I assure the noble Lord that battles are not taking place. We are all co-operating happily. If he does not believe that, I invite the noble Lord to have a chat with me when I shall convince him of what I am saying.
The Earl of Northesk: For reasons beyond my control, I was unable to participate in the Second Reading of the Bill and I apologise for that. That being so, perhaps I may say for the record that, like so many who have contributed to this debate over recent months, I have long nurtured the hope that the fact of convergence between the communications and broadcasting sectors would be reflected in Government policy. To that extent I welcome the principle on which the Bill before us is based.
But, like my noble friend Lord Crickhowell, I have serious reservations as regards the approach being adopted by the Government. To my untutored eye, it
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has about it a whiff of contrivance. I therefore hope that, with the leave of your Lordships, and as regards the first amendment by my two noble friends on the Front Bench concerned with the overall shape of Ofcom, it might be for the convenience of the Committee if I make a contribution at this time.
I confine myself to asking the Minister a few questions, all of which I am sure she will be able to field with consummate ease, given her command of her brief. Does the noble Baroness concede that in terms this Bill is concerned with the regulation of communication? If yes—and I shall be extremely surprised if the answer were to be no—does she further concede that, of necessity, the Bill is also concerned with the regulation of information society services? To put it in a slightly different way: is it the Government's intention that the setting up of Ofcom is a requirement of a general nature relating to the taking up and pursuit of information service activities? To the extent that it may be, is the justification, content and purpose of the Bill devoted in whole or in part to controlling information society services?
Lord Peyton of Yeovil: I only made acquaintance with this Bill today. I was interested to read the first amendment tabled in the name of my noble friend, which states,
"which shall be constituted in accordance with and have functions conferred by this Act".
At the moment it has no functions and it is not ruled by this Bill. It may be a flippant thing to say, and I do not wish to be unkind or to revive painful memories, but it seems to me that it runs very much in parallel with the Dome. There we had a vast edifice and no one had any clear idea about what was to go into it for a very long time. Without being unduly unpleasant, there were then only very poor and inadequate thoughts. Are we doing the same thing here? It is a very simple question. Are we setting up an organisation which will have nothing at all to do but which, one suspects, will be getting into mischief?
Baroness Blackstone: I begin by saying how much I appreciate the fact that the noble Baroness, Lady Anelay, let my department know exactly what lay behind the amendment. I have to admit that we were not altogether clear that it was a probing amendment with a particular purpose. Although I appreciate that, I make it absolutely clear that we do not think that the proposed wording is needed—I suspect that the noble Baroness will agree, because it is not her purpose to do anything other than probe.
The noble Baroness's first question was about the nature of Ofcom. In answering her question I can also respond to the noble Viscount, Lord Astor. Ofcom will be like a normal regulator; it will be a statutory corporation such as, for example, the Office of Gas and Electricity Markets. I hope that that is clear to all Members of the Committee. Ofcom will not be like the FSA, which is a company limited by guarantee and established under private law, and upon which statutory functions were subsequently conferred by the Financial Services and Markets Act. The FSA is

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somewhat different from other regulators. Ofcom will be similar to most other regulators rather than similar to the FSA. As a statutory corporation, it will be wholly incapable of doing anything that is not set out in the Bill or in any subsequent legislation that is passed by Parliament. I say to the noble Lord, Lord Peyton, that it will not be able to get up to mischief in the way in which he suggested.
Lord Peyton of Yeovil: The noble Baroness will be aware of the old adage that the devil finds work for idle hands. That is the basis of my suspicions.
Baroness Blackstone: I am sure that the noble Lord is right to suggest that the devil can find work for idle hands. However, I assure him that the Bill, in setting out the embryonic Ofcom, will not create a body with idle hands. It will have one simple function, which is conferred on it in Clause 2(1); namely, that of preparing itself to take on later its other regulatory functions. That is well understood by all those who are involved in the regulation of the functions; in other words, the existing regulators. As my noble friend Lord Dubs said, they operate—I say this to the noble Lord, Lord Crickhowell—not like warlords but like a group of highly co-operative people, who work together and with the Government to plan for a more sensible, more flexible and more efficient system of regulation that is consistent with the changes that have been taking place.
I make it absolutely clear that the White Paper, A New Future for Communications, explained why the Government believe that we need a single regulator to cover the increasingly converging markets of the communications industry. I say to the noble Baroness, Lady Anelay, that that is set out pretty clearly in chapter 8 of the White Paper. However, I am sure that I do not need to draw her attention to that chapter because she will be as familiar with it as I am; perhaps more so.
As technologies converge, consumers neither know nor care whether the services that they use involve the telecoms or broadcasting services, or a combination of the two. There is a need for one regulator to take a strategic approach to the regulation of the whole sector. All of that will be covered in the main communications Bill, which will be published, as Members of the Committee are fully aware, in draft in the spring of next year. It will set out the details of Ofcom's regulatory functions and it may cover other consequential matters, such as the way in which Ofcom will be constituted as a result. As I keep saying, Parliament will have ample opportunity to discuss all of those issues when the communications Bill is before it. We accept that that is the case. I make a plea to noble Lords not to waste a lot of time today and during our second Committee day discussing issues that are irrelevant to this Bill.
I say to the noble Viscount, Lord Astor, that a later amendment—I believe that it is Amendment No. 28—deals with the noble Viscount's second question, which
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was about revenue streams. Perhaps it would be better if we dealt with his question when we reach that amendment.
The noble Lord, Lord Crickhowell, made a range of very interesting points, although, to be frank, I wondered what many of them had to do with the amendment. However, I assure him that we chose the statutory corporation model—the same as that associated with the ITC—because it enjoys rather more independence than some other models in relation to such matters as staff pay. It is not the case that the Government want a weak and dependent body; we are keen to have a strong and independent Ofcom.
On the other hand, we of course want a proper degree of accountability. The majority of board members will be appointed by the Secretary of State. Ofcom will of course be subject to the National Audit Office. It would be irresponsible to set up a body that was not responsible and accountable in that sense. That is not to suggest that when Ofcom undertakes its regulatory duties it should not do so with strength, commitment and independence.
Viscount Astor: The noble Baroness said that she would deal with my points in relation to Amendment No. 28. With respect, I am not sure that that amendment is relevant. It relates to Clause 3(3), which is about the duties that are under the direction of the Secretary of State and which relate to this Bill. My point was somewhat different. It derived entirely from the letter from the noble Lord, Lord McIntosh, in which he said that provision for the charging of fees,
"will be made in the main Communications Bill".
That point is entirely different from that which was alluded to by the noble Baroness. Amendment No. 28 is to do with directions that the Secretary of State may make under this Bill. I hope that the noble Baroness will clarify the situation. When Ofcom gets its revenue, will it do so because of the contents of this Bill or will we have to wait for the main communications Bill? The latter was implied in the letter that I received from the Government, and from which I have quoted. I hope that I am not being pedantic. The relevant power comes either from Clause 3 or from a clause that will be enacted in the communications Bill. It is important for the noble Baroness to clarify the situation if she can.
The Earl of Northesk: Perhaps I should invite the noble Baroness to write to me in reply to my question, which she has singularly failed to address.
Baroness Blackstone: I shall respond first to the noble Viscount, Lord Astor. I think that we shall come to his point on Amendment No. 58. It would help the Committee if we were to raise questions under the appropriate clauses and the appropriate group of amendments that we are discussing. Otherwise we shall get into a dreadful muddle and will spend all afternoon dealing with Clause 1.
Revenues will be drawn from those who will be regulated. Meanwhile, the paving Bill will enable borrowing from the Secretary of State to be paid back later. Those who are regulated will eventually bear the cost of that regulation.

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I am sorry if the noble Earl, Lord Northesk, did not think that I had responded to his question. Perhaps it was partly because I could not see what it had to do with Amendment No. 1. On information services, the White Paper sets out clearly what Ofcom should cover. Broadly speaking, coverage is the same as that for existing legislation on broadcasting, telecommunications and the management of the spectrum, so there is no change.
Viscount Astor: I do not wish to delay the Committee. The noble Baroness has finally answered my question, which she could perhaps have answered earlier. It is clear that this Bill does not provide powers to charge those who will be regulated. There will be a borrowing requirement, in effect, and the power to charge those who are regulated will be part of the main communications Bill. That is where the confusion arose. I hope that I have got it right and I am grateful to the noble Baroness for confirming that.
Baroness Anelay of St Johns: I am grateful to all noble Lords who have taken part in the discussion on Amendment No. 1. It forms a back-cloth for our debates on the remainder of the Bill. I always admire the contributions of my noble friend Lord Peyton of Yeovil, but even more so today, as he managed again to introduce the Dome in a way that is relevant to our debate. One day I shall escape from discussions on the Dome, but riot quite yet.
I was intrigued by some of the points made by my noble friend Lord Crickhowell about the deficiencies in the way in which this model will work. I need to consider carefully what he has said with regard to the setting up of the National Rivers Authority.
I was interested to hear some of the Minister's answers, and I am sure that we shall explore later some of the points. I was particularly intrigued by the questions posed by my noble friend Lord Northesk. I know that his questions usually have a particular technical content, and I shall have to consider them carefully.
I said from the start that it was a probing amendment, and in that spirit, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: I beg to move that the House do now resume.
Moved, accordingly, and, on Question, Motion agreed to.
House resumed.

Asylum
4.02 p.m.
The Minister of State, Home Office (Lord Rooker): My Lords, with the leave of the House, I shall now repeat a Statement made in the other place by my right honourable friend the Home Secretary. The Statement is as follows:
"With permission, I wish to make a Statement on asylum, migration and nationality".
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"This year is the 50th anniversary of the Geneva Convention on refugees. The UK is proud to be a signatory to the convention. We will uphold our fundamental moral obligation to protect those fleeing persecution, while protecting our national boundaries and integrity.
"The world is a very different place from that of 50 years ago. At the beginning of this year there were 12 million refugees worldwide.
"Such global movements are a challenge to all nations. Alongside our European partners, we must establish an asylum and immigration system which can respond effectively to the pressures that we face.
"Steps have already been taken, which I intend to extend, to root out the organised criminal gangs who are responsible for the barbaric trade of trafficking in people. The gross exploitation of those in greatest need is unacceptable.
"It is crucial that our approach leads to radical change at home, creating trust by the people of our country and a message that is clearly understood in the rest of the world. The message at home and abroad must be crystal clear, but tough. It must send a signal to people throughout the world that the United Kingdom is not a soft touch.
"Significant improvements have been made in recent years. Staff in the Immigration and Nationality Directorate have worked tirelessly to deal with the backlog of claims. In the past financial year, 132,000 decisions were made, surpassing the 79,000 applications received.
"The new civil penalties and carriers' liability have already cut back illegal entry into the United Kingdom. The substantial investment in new equipment for surveillance and border controls, which I announced last month, will reinforce this work.
"I wish to pay a warm tribute to my predecessor, my right honourable friend the Foreign Secretary and his former ministerial team. They inherited a terrible mess and made huge improvements, but there is much more still to be done.
"That is why today I do not intend to tinker with the existing system but to bring about radical and fundamental reform.
"The reviews of voucher and dispersal policy which I am publishing today, and which are placed in the Vote Office and the Library, have demonstrated that the current system has suffered from real problems. It is too slow, vulnerable to fraud, and felt to be unfair by asylum seekers and local communities alike.
"There are many people who are working illegally, while claiming support or sub-letting their accommodation. There is accommodation which is paid for but unused.
"As the House is aware, there have been social tensions in neighbourhoods across the country and considerable pressure on local education, social and GP services.

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"We need a seamless asylum service from initial decision through to appeal, integration or removal. It must be clear, fast and well administered.
"It is my intention to publish a White Paper and subsequent legislation which will provide a comprehensive approach to asylum, nationality and immigration.
"At the heart of my asylum proposal is the presumption that from the moment someone presents himself or herself, he or she will be tracked as well as supported. There will be three key elements to the structure: induction, accommodation and reporting, and fast-track removal or integration.
"The application process will be streamlined and integrated. We shall develop a small network of induction centres in which people will be accommodated after application to facilitate screening, health checks and identification processes.
"After induction, asylum seekers, whether or not they are receiving support, will have to make themselves regularly available at new style reporting centres. We shall phase in this process. Crucially, by the end of next year, a proportion of first-time asylum seekers will be offered a place in new accommodation centres, which are being trialled. We shall establish 3,000 places, offering full board, education and health facilities. Those in accommodation centres will receive a small cash allowance. Those refusing to take up such a place will disqualify themselves from support.
"Decisions about the long-term mix of facilities will be taken in the light of emerging evidence here and abroad about what works. Subject to that, our aim is to phase out the current system of support and dispersal.
"While the trial is being evaluated, those receiving support will be subject to a robust new regime. Instead of the standard acknowledgement letter that is used for identification, smart cards will be phased in from January to ensure entitlement. That will guarantee identification and tackle fraud. Using new biometric techniques, including fingerprinting and photographs, we shall provide both security and certainty.
"Further steps will be taken to improve the current voucher system. The value of voucher support will be uprated as soon as possible in line with the April 2001 income support increases for adults and the increase announced for children last week. Within the total of support available, the cash allowance will be increased from £10 to £14.
"We recognise that in revising the existing voucher system, we need to establish a long-term robust solution. Induction, accommodation and removal centres clearly remove the need for vouchers for those who are assigned a place.
"I can tell the House that once the new smart cards are introduced, the voucher system will be superseded. By the early autumn of next year we will
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have established a more robust but less socially divisive scheme. I am exploring with colleagues the potential for automatic credit transfer and other mechanisms to provide financial support for asylum seekers.
"While we are not reversing the principle of dispersal away from London and the South East, we will improve consultation with, and the involvement of, local authorities and others. It is crucial that private providers of housing give proper notice to local authorities when asylum seekers are due to be housed in an area. We will develop a stronger regional structure as part of a more devolved and decentralised process, and greater co-ordination with voluntary organisations.
"But none of those changes will work effectively unless we drastically speed up the system. I therefore intend to tackle head on the backlog, including those waiting for appeals. The Lord Chancellor and I therefore intend substantially to improve the throughput of appeals.
"First, we will cut out multiple opportunities for delay. Secondly, we will streamline any further right of appeal limited to a point of law. Thirdly, we will increase the capacity of the adjudication service by 50 per cent—from the current 4,000 to 6,000 cases a month. From next month the capacity will increase to 4,500 and by next November to 6,000.
"Where a claim to asylum is granted, we will improve the integration procedures. Where an appeal has failed, my intention is to streamline the process for removal. Those who have no right to stay must leave the country immediately.
"We currently have 1,900 detention places. By the spring of next year we will have increased that to 2,800. I intend that we should now expand the capacity by a further 40 per cent to 4,000 places. Those will become secure removal centres.
"But asylum seekers will no longer be held in mainstream prison places. I can confirm that from January next year that practice will cease.
"I announced earlier this month my proposals for sensible, controlled legal migration into this country. This will enable those with skills to enter our country legitimately to work. In addition, we will explore with the European Union and the United Nations High Commissioner for Refugees the establishment of agreed gateways to take nominated refugees from outside the country. This has been an anomaly for many years, leading to the scenes at ports and Eurotunnel facilities.
"We will also take action to root out illegal working. Those working in our country illegally are being exploited by unscrupulous gangmasters and employers, in conditions that undermine the minimum wage, fair conditions and, at the same time, defraud the tax and national insurance system.
"The Prime Minister recently announced a cross-departmental working group under the chairmanship of my right honourable friend Lord Rooker. He will bring forward proposals for

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stamping out illegal employment, which will be combined with wider policies to remove the incentive to traffickers and the pull factor created by the opportunity of employment.
"I believe we can also do more to give practical help to those seeking to settle here, in addition to the men and women seeking refugee status. The White Paper will address their language needs together with education for citizenship. I will also be looking to announce the importance of naturalisation.
"Finally, I can also announce that a discussion paper on the review of family visitor appeals has been published today. A copy of this paper will be placed in the Vote Office and the Library.
"This is a substantial package of measures that will fundamentally overhaul our asylum and immigration policy. It is a rational approach to a rapidly changing situation. I believe that it will send a message to the rest of the world that this country is not open to abuse, but nor is it to be a fortress Britain. We are not rejecting economic migrants, refugees from persecution or those seeking to visit our shores.
"Implementation of my policies will take time; but in time they will work in the interests of us all".
My Lords, that concludes the Statement.
4.14 p.m.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for repeating the Statement made by his right honourable friend in another place. It would be remarkable if every Member in this House did not have within their circle of acquaintances a relative or past beneficiary of the proper asylum policies run by this country. This country has benefited enormously from some of those fortunate accruals to our society. Therefore we all have a common ambition and purpose; that is, to assist the innocent victims of persecution. That is the mark of a civilised society.
However, at the same time, asylum should not work in such a way that it interferes with or cuts across the normal and proper systems of immigration which a country chooses to operate. We have been in some danger that in recent times our asylum system has done just that. Therefore I welcome the fact that in the near future we are to have a White Paper covering the whole of this field, with legislation to follow. Perhaps the Minister could be a little more precise than the Statement as to when that White Paper will arrive.
Today's Statement is welcome all the more so for its inconsistency with statements made by the Prime Minister and others; that is, that the asylum system was working and that the problems had been solved. That situation pertained until the present Home Secretary came to office and that was extremely welcome. However, it is a fact that numbers of asylum seekers rose from 26,000 in 1996 to 100,000 last year.
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We welcome the principle of the introduction of accommodation centres. They are supposed to be voluntary, but those offered a place will not receive assistance unless they accept. The Statement mentions that in time there will be 3,000 such places. That is all very well. But at the moment the only such centre in existence is Oakington, which has nowhere near that number of places. Therefore what is to be done about the planning process to create those centres elsewhere in the country? In particular, what will be the public consultation process before the centres are introduced? If they are to be open centres situated in some of the more remote parts of the country, there will be anxiety among those who live in the immediate environment if there is no means of keeping the asylum seekers close to the centres.
We already have too much experience of asylum seekers coming to this country as economic migrants, who are not particularly worried about the support systems we wish to introduce. They disappear into the community and work.
Another aspect of the Statement which I welcome is the introduction of identity cards. They are being introduced for asylum seekers. The Statement talks about "biometric information", including photographs and fingerprints. But photographs and fingerprints do not provide sufficient information to ensure security. Any system which requires more detailed information to be put on the cards will mean that the card cannot be issued at the port of entry. If it cannot be issued at the port of entry immediately asylum is claimed, it leaves the gate open for an asylum seeker subsequently to disappear. That is potentially a considerable problem.
As a result of the Statement it appears that the country will be running three separate systems. One is the illicit system I have already described. The second system is that of accommodation centres. I ask the Minister to assure us that, where those are in place, they will be adequately resourced, particularly in relation to medical, advice, legal and language services. Without such services, the accommodation centres will not work. More importantly, they will not clear their customers through the centres rapidly. In addition, we are to have a system of reporting centres. We do not know how many there will be. We know that there are six at present. People who have their identity cards will be able to use them to receive support from the State and will have to report on a regular basis.
Can the Minister say anything further about the number of reporting centres, and give the same assurance with regard to resources? If such centres are to work and be useful to asylum seekers, all the facilities that I mentioned as regards accommodation centres will be required within them. Can the Minister tell the House at what point someone will try to make a judgment about which of the systems—two official and one unofficial—works? For the third system to be eliminated, the two official systems will need to work much better than anything so far put in place. The Statement may provide a route to a solution but I do not think that it provides a solution.
4.22 p.m.
Lord McNally: My Lords, for my liking, the Statement contains the word "robust" too many times. It refers to a robust new regime; a robust long-term solution and a robust but less socially-divisive scheme. Words such as that usually get into Ministerial statements as a substitute for detailed policy.
However, I say at once that we on these Benches welcome the Statement and the number of proposals and approaches contained in it. Like the noble Lord, Lord Dixon-Smith, I believe that we are at the beginning of a process, not at the end. Following his comments, perhaps I may say that the McNallys certainly came to England 150 years ago as "economic refugees". My father could remember a phrase still used at the turn of the century; that is, "No Irish need apply". Therefore, some of the things we find now are not entirely new. Yet, I believe that this country has continued to retain a reputation for tolerance which at times has surprised our popular press and some politicians who thought that there were cheap votes to be had in exploiting fear and ignorance.
As I have said, we give a broad welcome to the Statement, not least because it has the marks and fingerprints of the present Home Secretary and the noble Lord, Lord Rooker. I suspect that both show a gut instinct for dealing with such problems, which was absent from either of their two predecessors. I was late coming into the Chamber because I was watching the performance in another place. I hope that the Statement marks a watershed in dealing with these problems, at least at this end of the Palace, as shown by the noble Lord, Lord Dixon-Smith.
There are no "flip" answers or easy solutions to the issues. It is no good taking up parliamentary time reminding each other of past Statements when one side was on one set of the Benches and the other side on another. The problem is like a Rubik's cube: we seem to have one part solved but, when we look round the corner, there is another difficulty.
I hope that the point-scoring lesson has been learnt. I also hope that this is the end of using bureaucracy as a hidden regulator. Building up long waiting lists will only increase and exacerbate the problem. We have learnt that neither dispersal nor vouchers prove to be easy solutions. Making things nastier and more uncomfortable will not dissuade people from seeking asylum. Such people come from places which are much worse.
With that general welcome for the Statement, I have a few questions. Are there any special measures for abandoned or non-supported children who have got into the system? There were disturbing reports recently about such children and concern about whether their needs are being adequately handled. Is this an end of the dispersal policy or will it still play some part in overall schemes?
We welcome the internationalisation of the problem. Can the Minister tell the House whether discussions are taking place with the French to ease problems which are specifically Franco-British? I have one anecdote. During the general election campaign I
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attended a meeting on asylum in the North East with the then Home Secretary and Miss Ann Widdecombe. A member of the audience, who was an asylum seeker, was a civil engineer. He was stuck in accommodation in Sunderland, unable to work but in no doubt that he could do productive work if allowed. Will there be the flexibility—there has been talk of a green card scheme—to enable well-qualified asylum seekers into our economy where they are needed?
In the past the Minister has been a little tetchy about lawyers and, in particular, solicitors. There is ample evidence of crooked solicitors exploiting the asylum system. Why are not the Government in discussion with the Law Society to root out the bad eggs in the profession and bar them from practising? Let us have sanctions against them. Likewise, I refer to employers who illegally employ people. Why are there not hefty fines for such people? We need to implement sanctions, as we are trying to do in connection with drugs and terrorism. Let us bite into the system at the financial end where people are profiting.
The Minister is the acknowledged expert on this matter. Therefore, unlike the noble Lord, Lord Dixon-Smith, I cannot resist asking whether we are seeing the first pilot scheme for an identity card in this country. I believe we would all like to know that. In general, we welcome the approach and the acceptance that in the past things may not have worked well. Within the terms of wanting to see the detail, we are able to promise the Minister co-operation in trying to put in place a genuinely civilised asylum and immigration system for this country.
4.28 p.m.
Lord Rooker: My Lords, I am grateful for the tone of the responses by the noble Lords, Lord Dixon-Smith, and Lord McNally. I shall try to run through as many of the issues raised as possible. We clearly agree with the first point made by the noble Lord, Lord Dixon-Smith, as I believe everyone would. In the past this country has benefited enormously from people who have come here as refugees. There is no question about that. Recent Home Office research indicated that those who had come to live and work in this country made a net contribution to the economy of £2.5 billion per year. There is no question of the positive impact made. However, there are those who seek to cheat and undermine the system to the disadvantage of genuine asylum seekers.
Much of the detail will be dealt with in the White Paper. I turn to the question of when that will be issued. If I say the turn of the year, I cannot be tied down to just before or just after Christmas. Legislation will then follow, with an asylum and immigration Bill. I cannot say when that will be but my guess would be this Session, round about springtime. One can see the pattern of consultation now to get right the details of the White Paper, which will be followed by the Bill.
Accommodation centres will not work unless they are properly resourced. We shall trial accommodation centres with a capacity of about 3,000, which may mean four to five centres. We know roughly the

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capacity that is needed. We do not have a list. As a Minister, I have not seen a list of possible locations, but there will be full consultation. Some locations may require planning consent and some may not, but there will be consultation with the relevant people: the communities, the elected representatives, the local authorities and the voluntary sector.
The centres will be open in the sense that there will be a gate through which people can come and go. The people will be required to live at the centres on a full-board-and-lodging basis, but they will be open. We must also consider the security of those living in the centres. As the centres will be open, we must ensure that the wrong people do not walk in. They will not be detention centres, but there will have to be security.
Such centres will not be like Oakington. Oakington will remain a central plank of our fast-track system, subject to the results of the forthcoming appeal. None of these proposals will overturn Oakington. Oakington is a much smaller place with a capacity of 250 to 300.
Thirty per cent of asylum seekers, a substantial number, do not ask for any support in the form of housing or finance. Under this robust system of tracking, they will be tracked. We shall need more regular contact with such people as we shall have no need to contact them in order to send them vouchers. We would not necessarily know where they are living, as they may move around, and sometimes they may miss appointments for interviews and so on.
It will not be possible to introduce ID cards at the point of entry, as suggested by the noble Lord, Lord Dixon-Smith, because more than half asylum seekers do not appear at a point of entry. As people make "in-country" applications, and we do not know how they entered the country, it will not be possible to construct a system at the port of entry. The situation changes from month to month, but at the moment more people are turning up at Croydon making "in-country" applications than at Heathrow or Dover or Gatwick.
We shall have three systems running, but they will not be as suggested by the noble Lord, Lord Dixon-Smith. There will be a pre-1999 system, a 1999–2001 system and a 2001 system. We shall have to decide whether to integrate them or to manage them separately so that the trials are a success and we do not get them confused.
The dispersal policy will remain. What has been announced today cannot happen overnight. Even if we could fast-track and speed up decisions, as indicated in the Statement, the accommodation centres with 3,000 places will deal with only about 10 per cent of the inflow, so the present system must remain while we carry out the trials. There will be dispersal. We shall not continue the pressure on London and the South East, as before, but we shall manage the situation better, as noble Lords will see in the report on the review of dispersal which has been published today, with suggestions for improving the management of the dispersal system.
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On vouchers—the means of delivering financial support—we have indicated that by this time next year—I believe we said early autumn—we shall have a different system of delivering the financial support, probably by a "smart card" arrangement.
On lawyers and commissions I have said some hard words. There is money to be made and lawyers benefit from the sloppiness in the system that we have managed unsuccessfully. They benefit from the repeated claims, delays and other such matters. Through the legislation and the flow of changed policies, we shall remove such opportunities for delay as far as we can. We shall riot reduce people's right of appeal, but as the Statement makes clear, we shall curtail some of the rights that have been exploited by others.
A ministerial group is dealing with illegal employment and it is hoped that before Christmas it will bring forward proposals that we can put into legislation early next year. We have no overall plans to introduce ID cards, but that remains under constant discussion by Ministers. It is not done and dusted; nevertheless, we shall return to that issue in due course.
4.35 p.m.
Lord Alton of Liverpool: My Lords, while the Minister is right in saying that this is not an issue that should result in recrimination between political parties or other Members of your Lordships' House, does he recognise that in the past decade there have been four attempts at legislation? Looking at the debates in this House in 1998 will have some virtue and be of some benefit to Ministers. At that time Members of your Lordships' House moved amendments against the dispersal system and against the voucher system, pointing out that the voucher system would not be effective as a disincentive and that it would stigmatise people.
Perhaps the Minister would also look at a debate held in February of this year and at the remarks made by the noble Lord, Lord Renton of Mount Harry, who called for a "green card" system, with support from all sides of your Lordships.' House. Does that not underline the need for a bipartisan approach, rather than this matter becoming a political punchbag? Before putative legislation is introduced, perhaps there should be a Select Committee of the House, through which we can proceed with some agreement, not least on the issue of citizenship, to which the Minister referred? Is it reasonable to expect that those who want to live in the United Kingdom should have a sense of loyalty to our institutions and to our shared values? Perhaps that should be a prerequisite of citizenship, as in the United States.
Lord Rooker: My Lords, yes. It is not my function, as it was not in the other place, to decide whether there should be a Select Committee of your Lordships' House. That is a matter for the House itself. I can assure the House that I shall explore the issues raised in previous debates. I know that contentious issues were raised and I know that there were difficulties in respect of the points made regarding citizenship, vouchers and dispersal.

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Over the past couple of years, enormous extra resources have been put into the immigration and nationality department by the previous Home Secretary—some 4,000 extra staff and 1,000 extra immigration officers. That was done to meet the backlog and to make 132,000 decisions, whereas in the previous year only 58,000 decisions were made. We are now making decisions faster, including over the summer months, than there are people entering the country. We are biting into the backlog so we can now look at and alleviate the pressures on the South East and London. We cannot reverse the dispersal. We shall not return to maintaining all these people in the South East and London with the consequential pressures on the services.
Baroness Trumpington: My Lords, the noble Lord, Lord McNally, asked about young people. I share his worries, particularly when I see young people, who barely speak a word of English, begging from people in cars at traffic lights, during school hours when they should be doing something else. Added to that is my concern about women in national costume, with babies in their arms, begging at traffic junctions, as they were last winter. I thought that was absolutely monstrous. Surely that is illegal. Why was it allowed to take place? If such people intend, as I believe they do, to stay in this country permanently, is there any need for them to beg?
Lord Rooker: My Lords, from anecdotal evidence there is much less aggressive begging than there was. In respect of the young people—a point made by the noble Lord, Lord McNally—and particularly unaccompanied children, I have been at airports when they have arrived on their own at the immigration officer's desk. They are then asked where they have come from and they say that they got off a certain plane. There is no adult accompanying them and there are no papers, when in order to board the plane in the first place there must have been some papers. In most cases it is quite clear that the child has been accompanied by an adult—a trafficker, or a family member or whoever—and that the papers have subsequently been destroyed. There is often a big delay—perhaps three or four hours—between the child getting off the plane and turning up at the immigration desk, so there is confusion as to which plane he or she has arrived on.
This is a serious matter. There are far more unaccompanied children arriving now—I do not have the figure in my head—than in the past. It is a major problem for social services, but they take it seriously. Accommodation is provided. There is sometimes a difficulty when people arrive claiming to be a child when clearly and visibly they are not. That can be a serious problem. We have to be very careful that they do not go into children's accommodation.
With regard to dispersal, we have had discussions with the Department of Health and the social services departments in the country regarding children who reach 18 and go into the NASS system. I believe that we have now arrived at a satisfactory conclusion.
Lord Dubs: My Lords, when, under the new scheme, asylum seekers first arrive in this country and are put into the category of accommodation described, who will run that accommodation? Will such people have access to legal and other advice, and will those centres be so located that members of local communities who wish to give help and support are able to get to them?
Lord Rooker: My Lords, the answer to all of my noble friend's questions is yes. As to who will run the accommodation centres, it will be the national asylum support service. It will still be an asylum support system run on a national basis.
As I have said and as will be indicated in the documents we have published today, we are beefing up the management of NASS considerably. Essentially it has been involved in running dispersal at the present time, but it will have an involvement in the new system.
There will be access to the centres. However, as I said in answer to a previous question, we have to be very careful about the security of the people living in the centres. While they are free to come and go, we have to be careful regarding those who go into the centres. There will be no barriers at all to the local community offering help and support to people in those centres: far from it.
Lord Dholakia: My Lords, may I follow up the question asked earlier by the noble Lord, Lord Alton? We were told in 1993, 1996 and 1999 that we had a firm but fair system. The Minister now talks about a similar system which is clear, fast and well administered. What confidence can we have when we have said all along that the system in the past was not capable of working?
My first question relates to the cost of the accommodation centres. In answer to a question I put to the previous Minister in this place I was told that it would cost millions of pounds to set up and to run such accommodation centres. Do we have the resources needed to provide such centres?
Secondly, does what the Minister is advocating meet the provisions of the Human Rights Act, and has any consultation taken place with the United Nations High Commissioner for Refugees?
Finally, at present there are what are commonly called "snatch squads" of immigration officers whose powers in many instances exceed those of police officers. Are there any moves to establish some independent complaints machinery so that complaints against them can be dealt with properly and adequately?
Lord Rooker: My Lords, being new to your Lordships' house, I understand the feeling possibly being expressed that chickens are coming home to roost and the sentiment, "We were right at the time; you did not listen; and now you have had to come back and do it a different way". In terms of confidence, however, one has to make a comparison with the situation which existed before we obtained the extra resources in order to manage the Immigration and Nationality Directorate much more sensibly—the

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huge backlog of tens of thousands of applications, that had to be reduced, the letters unanswered and the postbags unopened, and the recruitment of staff from all walks of life. To have put huge extra resources into the system—some £300 million—shows commitment.
We obviously want value for money, but if we run the operation on the cheap and in a scrimping way we will never have a fairly managed system. I understand that, and I believe that the point has been taken on board.
The centres will be expensive. We have secured the resources to set up the induction centres and for a trial of the accommodation centres. We shall probably go out with contracts into the commercial world. I am therefore not in a position to indicate the amount of money involved. It will cost several million pounds to set up such centres and, indeed, run them. Overall, however, if we can have faster decisions, better integration of those who succeed and faster removals, that will bring enormous value for money from the investment put into the system.
There are no indications whatever that anything that we are planning breaches anyone's human rights. In fact, the exact opposite is the case. It could be argued that we are planning something similar to that which operates in four or five other EU countries, and they have no problems at all with human rights legislation. We are not taking away anyone's human rights.
We are running a system, however, and we are not running it as a soft touch. It will be visibly tough, transparently fair and crystal clear, so that people understand, when they arrive and make a claim, exactly what are their duties and rights. They have to make their claim in that knowledge.
As to the last question of the noble Lord, Lord Dholakia, I am not sure whether he was referring to the powers of the immigration service itself. There is no shortage of people complaining, but I am not aware of any complaints procedure of the sort he mentioned. I was not sure to which group of people he was referring. Perhaps he can to write to me on that matter.
Lord Marlesford: My Lords, can the Minister be clearer regarding his description of entrants who are already in Britain outnumbering those who are not? What proportion of the 79,000 applicants in the last financial year were applicants at the border and what proportion were in-country applicants? Of the 79,000, what proportion came in originally by air, by sea, or by land, namely via the Channel Tunnel?
Finally, is there any advantage or disadvantage to being an in-country applicant for asylum rather than being an applicant at the border?
Lord Rooker: My Lords, whether they are in-country or port applicants, the number varies from month to month, as indeed does the nationality. The figures are about 60 per cent in-country applicants and 40 per cent applicants at the port. The majority are therefore in-country applicants.
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The noble Lord asked whether there was an advantage. In one way, there is an advantage for an in-country applicant, namely, that we do not know when they arrived. It may be that they have been working illegally, knowing that they cannot work as an applicant for asylum. They are then perhaps picked up for some other reason—a traffic offence, an inspector's visit to a factory, or whatever—and then make the claim for asylum. It is difficult in those cicumstances to know precisely when they arrived in the country. To the extent that there is an advantage, it is in coming in clandestinely and working illegally, because if they come to the port and claim asylum they cannot work. That is the point to which I alluded in the Statement and which I have mentioned previously.
It is easier to work illegally in this country than in any other country in the European Union. Blocking off access to illegal working will reduce the pulling factor of the traffickers. If that could be balanced with managed migration, people coming in under quotas to some industries or under other schemes, based on their skills, would know in advance that if they want: to come to the UK to work there are schemes and programmes to which they should apply. They are then less likely to pay out thousands of pounds in bondage to traffickers to get them here to work illegally in the first place. In that way, we help to put the traffickers out of business.
Tackling illegal working is crucial. In a way, illegal working is the answer to the noble Lord's question, because that is where an advantage does lie.
Lord Campbell-Savours: My Lords, my noble friend's comments on introducing a properly regulated system of economic migration is to be positively welcomed. My noble friend will know that for many years many of us argued for such a system in the face of great opposition in the other place.
I welcome the Government's decision to introduce a national identity card pilot scheme in this area. That is what it is and we should not recoil from using such language. Why are DNA data not to be included on the card?
Lord Rooker: My Lords, we are still working on the card. Last week I visited the forensic science laboratory and saw what is available in terms of biometrics. That was not available 10 years ago and it is amazing what information can now be measured and included on such cards. However, this is a separate issue: we are replacing the standard acknowledgement letter which is open to fraud. Recently, a foreign national—I shall not say which one because it would be unfair—was stopped in his car. He had with him a price list of items from my department. It included the price of an immigration stamp, an entry clearance stamp and a standard acknowledgement letter. Those can be bought at a price. They are open to forgery and we want to eliminate that.
They are not proof of identity and we want to ensure that those seeking asylum are issued with a document which proves their identity. Perhaps the biometrics could enable a combination of fingerprints, which are

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digitally held, and signatures to be shown on the card either in chip form or in a two-dimensional bar code so that they cannot be read or forged by anyone. Perhaps it could also include a code for the reader, together with a photograph.
As I said to my noble friend and other noble Lords, the issue of identity is under active consideration.
Earl Russell: My Lords, I am grateful to the Minister for making it clear that the reception centres will not be detention centres. In that context, will he make it clear that asylum seekers will no longer be held in prison? He has made it clear that those who do not attend the centres will receive no financial support. Does that not sound a little like Hobson's choice?
Without regaling the Minister with the misfortunes of the original Hobson, am I right in saying that he is putting before us a proposal in respect of which there is no room for discretion? Is he aware that many people from refugee-producing countries have relatives here already and there are strong principles of family solidarity? If someone should be entirely deprived of financial support for visiting a dying father, would that not risk appearing unjust and worsen the problems raised by the noble Baroness, Lady Trumpington?
Finally, will the Government think a little more before going ahead with legislation to restrict judicial review? The relationship between the powers of a sovereign Act of Parliament and the principles of natural justice have not been clarified in 800 years. In the past 800 years this country has been governed by some imprudent politicians. If all of those had been too prudent to raise the question, ought not the Home Secretary to think at least once more before wandering into this minefield? And when he does, will he consider the judgment of the noble and learned Lord, Lord Woolfe, in Home Secretary v. Fayed in 1996? If Parliament wishes to take a power to act unfairly, it must say so in express words. Is the Home Secretary ready to grasp that nettle?
Lord Rooker: My Lords, nothing in what I said in repeating my right honourable friend's Statement indicates that the Government are seeking to act unfairly. The rules will be crystal clear and transparent but visibly tough. The system will be more humane and fair for those in the country, but we will remove at a faster rate those who have no right to be here.
As regards prison, we will have all those concerned out of prison by the end of January. We have made a commitment to Cardiff prison to do so before Christmas and we will honour that. It relates only to immigration rules; sometimes other factors are involved and I do not want to mislead the House. We will not be using ordinary prisons, in the normal sense of the word, from the end of January. We will have a greater detention capacity in any event.
It might be Hobson's choice but as regards those who seek support we are changing the nature of support to that of accommodation centres only. As I
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indicated, some 30 per cent do not seek support and go to live with relatives. They will still receive their smart card and they will be tracked. They will be required to attend at the reporting centres more frequently than at present. That is not onerous or unfair: it is us keeping in touch with them. They are making a claim but they are not requiring support. Therefore, they would not be offered places at accommodation centres.
In any event, we would have no contact with them other than to inform them when their interviews are or when decisions are being made. Sometimes such people move address and do not tell us but they have a responsibility to tell us where they are living if they are not in state-sponsored support. That is part of the purpose of the faster tracking. It will not interfere with families giving support—far from it.
As regards judicial review, I do not believe that we have been unfair. We will bring legislation before the House and we can have longer debates on it.

Office of Communications Bill [H.L.]
4.56 p.m.
House again in Committee on Clause 1.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 2:
Page 1, leave out line 6 and insert "six or more than twelve"
The noble Baroness said: I have tabled the amendment in order to ask why the Government have settled on three to six as being the right number of people to sit on the board. One could address two issues when discussing the number of members on the board. The first is the one to which I wish to speak: that is, whether it is the right number of people to do the work effectively. Does it make it a competent Ofcom?
The second question is: should there be members appointed in a representational capacity? That issue is covered by ensuing amendments and I shall not address it. It will be covered by my noble friend Lady Miller at the proper stage in the list.
Why choose three to six for this Bill and is it right for the work which the regulations are required to cover? When discussing Amendment No. 1, the noble Baroness said that we do not know what the regulator is to do until the communications Bill comes before us. How have the Government plucked the figure of three to six out of the air, not yet knowing what the board will have to do?
During the Second Reading debate, the Government put forward the view in a winding-up speech made by the noble Lord, Lord McIntosh of Haringey, that the board needed to start small and have a chance to grow. Later the Bill introduces a statutory instrument giving the Government the opportunity to increase the number on the board. The difficulty is that by bringing forward a paving Bill before we know what the organisation will have to do, the Government appear to have boxed themselves in to providing a number on the board which has been

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plucked out of the air and without a proper substantive reason for it. Therefore, when we come to increase the number by way of statutory instrument, whether by affirmative or negative resolution, it will be more difficult for Parliament then to give proper scrutiny to the size of the board. Do the Government foresee that it will be necessary to increase the board's size before the communications Bill goes through Parliament?
As I mentioned briefly at Second Reading, I recognise that there is a proper tension between having, on the one hand, a board which is small enough to be able to act swiftly in matters of economic regulation and, on the other, having a board which is large enough to possess the individual expertise necessary to cover all the responsibilities of Ofcom. I hasten to add that I am not referring to members having expertise in the sense of representing a particular area of the country or client group but to the fact that they should have the expertise properly to carry out the duties of any regulator of any kind.
Paragraph 8.2.2 of the White Paper states that the regulator will need to act independently in response to fast-changing circumstances. The briefing from ITV, for which thank it, believes that three to six is the right figure which,
"reflects the need for a body capable of swift and effective decision-making in this fast-moving industry".
NTL backs up that view:
"The number of appointees should not become unmanageable. Six board members in total seem to be quite sufficient to provide the necessary skills mix and balance of views".
'The difficulty is that the Government appear to have chosen six at the moment as only a starting point maximum—a terminus a quo or terminus ad quem. The Government need to place on record today when they believe that the number will be required to increase beyond six. If the starting figure is three to six, for example, one will be in a position where three of the members will act in an official capacity: there will be a chairman, deputy chairman and chief executive. At most, that leaves three other members who act in a non-official executive capacity. It could be argued by some—I am sure that later on it will be—that this is far too few a number to run such an important organisation. I beg to move.
5 p.m.
Lord Borrie: At Second Reading the noble Baroness on the Opposition Front Bench and other noble Lords on all sides of the House said that, unfortunately or otherwise, one did not know what would be the full range of Ofcom's functions in due course. The logic of those remarks, which I fully accept, appears to be that until one knows what those functions are one should leave the exact size of Ofcom for a period of years. I refer the noble Baroness to Clause 1(7) which makes provision for a statutory instrument to do just that. In the meantime, we have the very limited function of Ofcom to facilitate the implementation of the paving Bill. For that only a very small number is needed and I believe that between three and six is reasonable. I do not believe that the noble Baroness has said that for
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that limited function three to six is unreasonable. Therefore, I am not sure that I understand the value of the amendment moved by the noble Baroness.
Lord Roberts of Conwy: Of course one welcomes the reduction in the number of regulatory bodies from five to one and this compact body consisting of between three and six members, certainly at its initial stages. But the immediate question that arises is whether a body of this kind can perform such functions as we know it will have. For example, I note from page 80 of the White Paper that the Government will expect Ofcom to develop good links with the devolved assemblies and representatives of the English regions, but it is by no means clear just how that is to be achieved.
I am glad to see the noble Lord, Lord McIntosh of Haringey, in his place. In his closing speech at Second Reading he said that the Government realised that there was a problem with the national and regional aspect, which is obviously the point on which I wish to dwell. He said,
"I say that ways will have to be found of dealing with the interests of regions and countries, because they. of course, are essential elements of public service broadcasting".—[Official Report, 1 5/10/01: col. 466.]
One cannot really represent those regional and national interests with a board of this size. It may well be that, as the noble Lord, Lord McIntosh, said, ways will have to be found and that the Government already have some ideas to deal with the interests of regions and countries. Perhaps the Government will share those ideas with the Committee.
I have looked at the Towers Perrin report and the template offered as a possible framework for Ofcom. Of the five operating areas, the "audience interests" unit described on page 29 appears to be the most promising as far as concerns the nations and regions. That description reads:
"This area"—
audience interests—
would be responsible for content regulation issues relating to TV licensing, enforcement and sanctions … The unit would also be responsible for encouraging media literacy among citizens and outreach activities to audiences in the UK's nations and regions. Further work will clearly need to be done on the location of such activities. Audience interests would need to work very closely with networks/service and spectrum planning, communications strategy and planning, and the Radio Group".
That is virtually the entire template as put forward by Towers Perrin. If that is so and the national and regional dimension can be dealt with only in this way—"this way" clearly spans the entire spectrum of the Towers Perrin template—surely such representation requires to be at Ofcom board level. I can find no other substantial reference in the report to the "nations and regions" point of which so much was made in the White Paper.
Television and broadcasting are not devolved matters in Wales. I am not sure about the position in Scotland. The role of the National Assembly in this area is very limited. It is, nevertheless, traditionally a very important area, not just in relation to the Welsh

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language but in relation to social, sporting and cultural life as a whole in Wales. Television and broadcasting have been very formative influences on many aspects of national life in Wales, and I am sure that the same is true of Scotland, Northern Ireland and the English regions.
The responses to the White Paper indicated that,
"Numerous respondents believed membership of Ofcom and advisory panels should reflect the cultural diversity of nations, regions and communities".
At that point there is a footnote which indicates who those respondents are. I mention only the Scottish Advisory Committee on Telecommunications, the National Assembly for Wales, S4C and the Scottish Consumer Council. Therefore, there is a substantial desire on the part of many bodies to ensure that Ofcom represents the nations and regions of the United Kingdom.
Several respondents argued that Ofcom should maintain local offices in the nations and regions of the UK and that regulatory functions should be devolved to such offices as far as possible. Again, a footnote indicates that among the supporters of that particular statement are the Welsh Language Board, the Welsh Advisory Committee on Telecommunications and others.
It is clear that as yet the national and regional dimension has not been properly grasped. That I regard as a defect of the Bill. I must tell Ministers that concern is growing over the threat to national and regional output posed by company amalgamations, in particular in television. It is vitally important that such programme output should be safeguarded. To ensure that, the national and regional dimension must be represented at the very top of the new organisation by people who are truly sensitive to those needs. In brief, I do not think that that can be achieved, even at this stage, with a body that is to be limited to six members. National and regional interests cannot properly be represented other than at board level.
Baroness Blackstone: Perhaps I may begin by responding to the noble Baroness, Lady Anelay. The figure of three to six members has not simply been plucked out of the air. Careful thought has gone into the decision. Indeed, I believe that the noble Baroness quoted industry support for the initial small numbers. At this stage we want the board to be small and flexible so that it carries out its work in a cost-effective manner. Again I should remind the Committee that, at the outset, Ofcom will have a single function; that is, to prepare itself to assume its other regulatory functions at a later date. I believe that that is also relevant to the comments made by the noble Lord, Lord Roberts of Conwy. During the initial phase, it will not be necessary for the board to contain the full range of expertise that it will eventually require once it assumes its full regulatory responsibilities. Perhaps I may also mention that during the preparatory period the number of staff within Ofcom will be small and therefore the possibility of appointing further members from that staff would be constrained.
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A board membership of between three and six, as set out in the Bill, will provide Ofcom with sufficient expertise to oversee its preparatory work. Clause 1(7) of the Bill provides the Secretary of State with the power to modify the minimum and maximum number of members of the board, a point which my noble friend Lord Borrie has made absolutely clear.
In response to a further point made by the noble Baroness, it is anticipated that this provision might be used once Ofcom is ready to assume the regulatory functions which will be conferred on it by the main communications Bill. Not until that legislation has been debated in Parliament and granted Royal Assent will the board need to be expanded. At that point, of course the board will require a wider span of skills and expertise.
Perhaps I may turn to the comments of the noble Lord, Lord Roberts of Conwy. Of course we want to ensure that legitimate interests, including those of the devolved administrations, are represented in the sense that those interests are taken into account within Ofcom. However, the main communications Bill will set out proposals designed to ensure that such interests are properly reflected. If I may say so, I think that the noble Lord is somewhat jumping the gun here in wishing to go into detail at this stage.
I agree with the noble Lord that there will be certain interests which Ofcom will have to take into account, but again, it is not important that it does so at this stage; that is, when it is only preparing to take on its regulatory functions. The noble Lord implied that the national and regional dimension has been ignored. I do not believe it is true to say that; the dimension has been grasped. It is correct that consumer interests in the provision both of telecommunications networks and services are similar wherever they are located in the country. However, on the cultural side, the Government accept entirely that the media play an important part in the articulation of regional issues and in creating a local cultural identity. We accept the need for such interests to be reflected in areas relating to issues of content, as is currently the case in the work of the existing regulators.
Perhaps I may end by saying that the main communications Bill will set out how we propose to put into practice ways of dealing with the issue of the regulatory functions of Ofcom.
5.15 p.m.
The Duke of Montrose: Before the noble Baroness sits down, have I understood her to say that, when the time comes to expand the number of members of the board, we shall then have a further chance to debate the matter? However, if that decision is brought in by statutory instrument, how much debate will we have?
Baroness Blackstone: It is always open to noble Lords to hold a debate on a statutory instrument. Let me make it absolutely clear that an opportunity will be provided to debate these issues.
Lord Roberts of Conwy: I must press the noble Baroness on the issue I have raised. How are the

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promises of the White Paper to be fulfilled other than through the membership of the Ofcom board? I need hardly remind the Minister of what is contained in the White Paper:
"We will expect Ofcom to develop good links with the relevant policy committees and executives of the devolved assemblies and with representatives of the English regions".
A subsequent paragraph gives the detail of that statement. How will what was promised in the White Paper be addressed by Ofcom unless a key member of the board represents the regions?
Baroness Blackstone: When the White Paper was published, the then Secretary of State for Culture, Media and Sport made the position absolutely clear; namely, that Ofcom would maintain a presence in each of the devolved nations. That is how it will be addressed.
Baroness Anelay of St Johns: I am grateful to all noble Lords who have contributed to the debate on Amendment No. 2. The noble Lord, Lord Borrie, began his remarks by wondering what value lay in the amendment. That is a perfectly proper observation and I shall respond to it. The value lies in the fact that all probing amendments seek to persuade the Government to put on the record points which were not made quite clear at Second Reading. We have received further clarification from the Minister, for which I am grateful.
However, that clarity has caused me some alarm, in that the noble Baroness stated that the industry supports the proposal initially to appoint three to six members to the board. I understand from industry representations made to me that they envisage three to six members being the final number after the Government have allotted to Ofcom its regulatory powers. The noble Baroness shakes her head in response. If the written representations and meetings I have held have not properly reflected those views, then between now and the Report stage, and beyond, I shall meet again with those who have made representations and check whether their views have changed or whether I may have misunderstood what they said.
I was grateful for the intervention of my noble friend the Duke of Montrose. Today the noble Baroness has put on the record that a board comprising three to six members is intended to provide only competence for the preparatory work of Ofcom. That work may well shape the whole future of the body. Furthermore, when the time comes to decide on the nature of the fully fledged Ofcom, on which powers will be conferred by the provisions of the communications Bill, Parliament will be restricted to debate only a statutory instrument. I think that the responses made today by the Minister will be interesting to reflect on when eventually we come to debate such an instrument.
I began my remarks by stating that this is a probing amendment. I shall keep to my word and thus I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Viscount Falkland Viscount Falkland moved Amendment No. 3:
Page 1, line 6, at end insert ", at least one of whom shall represent the interests of the public and sit on the Consumer Panel"
The noble Viscount said: In moving Amendment No. 3 I shall speak also to Amendment No. 5. I am mindful of the Minister's strictures—I believe that she used the metaphor "jumping the gun"—but it is inevitable with legislation of this kind. We have seen before in the House with paving Bills that one has difficulty dealing with matters which are strictly in the paving Bill before one and dealing with matters which are of extreme concern but may or may not have relevance to the Bill. However, I shall try not to drift off into Second Reading speeches on these two amendments.
The first amendment deals with the overall importance of consumers in the Bill. If I understood the Minister's Second Reading speech, she agrees that it will be absolutely fundamental in the communications Bill that the interests of consumers are paramount, whether in the areas of competition, telephones, internet or broadcasting. We have talked about broadcasting perhaps more than the other aspects—even though they take up more of the Bill—and we will do so, I fancy, in the debate on the communications Bill proper.
We on these Benches believe that the importance of the consumer is such that, for the important issues of competition and, when it comes to broadcasting, the quality of content, there will need to be a member of the board of the regulatory body to be set up by the Government, Ofcom, who will sit on the consumer committee and represent: these manifold interests of consumers. These will become more and more evidently important as the Bill proceeds.
The second amendment again relates to the composition of the new regulatory body. General concern has been expressed from all quarters—in your Lordships' House at Second Reading and, indeed, today—about the numerical limitation on the members of Ofcom. The amendment seeks to deal with the issue without placing any limitation, either a minimum or maximum, on the composition of the body.
The BBC, the ITC, the Radio Authority and the Broadcasting Standards Commission have members representing a wide range of interests—broadcasters, educationalists, industrialists, churches and so on—and the stakeholders in the media are, in a sense, those who use it every day. Ofcom needs to have a strong role representing the public interest. It needs to have a wide range of experience—again this will become evident as we go through the legislation—which will bear particularly on the public interest in broadcasting. Diversity of viewpoint is a route to better decision making, but it is doubtful whether the currently proposed board of six members is likely to achieve that.
The amendment seeks to direct the Secretary of State towards some considerations that she needs to bear in mind when constituting Ofcom. We do not

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intend to be prescriptive in any sense. The words used in our amendment allow for the maximum discretion on the part of the Secretary of State in pursuing the goal of getting onto the board the wide range of people whose very status and breadth of knowledge will instil confidence in the institution from the outset. We suggest that this needs to be established in the Bill from its commencement. I beg to move.
Baroness Miller of Hendon: We have some concerns about these amendments, primarily from the point of view of practicality. Amendment No. 3 proposes that one member should represent the interests of the public. The question is: what interests? They are so many and diverse that I can foresee endless litigation by special interest groups who believe, somehow or other, that because their interest is not represented they have been disenfranchised.
The same criticism applies to Amendment No. 5. That amendment lists four different kinds of interests, but what is a "fair representation"? Are Scottish Nationalists, for example, to be balanced by Unionist representatives? Are the various religions to be individually represented? Are the numerous differing groups of our multicultural society each to be represented? Is each of the regions to have a representative? If so, which political group will he or she represent?
If the amendments were to be carried to their logical conclusion—especially Amendment No. 5, where it is proposed that the sky is the limit as to the size of the membership of Ofcom—then Ofcom would need to hire the Albert Hall for its meetings, which would take days, not hours, and which would make Prime Minister's Questions in the other place look like a meeting of a mutual admiration society.
Shortly, we shall be debating an amendment tabled by the noble Lord, Lord Corbett of Castle Vale, which also touches on this subject, but in a far less prescriptive and far more practical manner. However, I do have some concerns, similar to the ones I have mentioned, because we do not want to enforce amendments that, somehow or other, will make it impossible for the board to work. I shall listen with interest to what the Minister has to say about the representative nature of Ofcom.
I feel some sympathy for the Minister. She keeps telling us that we should restrict ourselves to this little paving Bill. However, the reality is that we need to know how members of Ofcom will cope and what they will ultimately have to do.
Lord Borrie: The noble Baroness, Lady Miller, will be surprised to know that I share her views on these two amendments. Like her, I feel that the interests of the public are inevitably much too diverse for any Minister, no matter how brilliant, to find one person to represent them.
As to the amendment relating to a fair representation of a whole range of different interests, as has been indicated by the withdrawal of the previous
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amendment, we have agreed that at the beginning there shall be a minimum of three and a maximum of six members of Ofcom. Again, it will be extremely difficult. We will be looking for a wonderman or wonderwoman to represent all the social, cultural, national and regional interests in one person. That is not feasible.
I bear in mind the opening remarks of the noble Viscount, Lord Falkland, that this is not so much an amendment to the Bill but a probing of the ultimate intentions of the Minister. That is perfectly fair.
I end with a question to the noble Viscount. Perhaps he will answer it when he comes to speak again. In Amendment No. 3 there is a point—to which the noble Baroness, Lady Miller, did not advert—that one of the members of Ofcom,
"shall represent the interests of the public and sit on the Consumer Panel".
I have doubts about that. I wonder what is the noble Viscount's view as to whether we should mix up the two and have an individual who is both on the panel and a member of Ofcom. It would be rather more difficult for the consumer panel to be completely independent, advisory and all the rest of it if one of its number is, as it were, parti pris and committed to the decisions made by Ofcom itself.
5.30 p.m.
The Duke of Montrose: Perhaps I may be allowed to touch again on the question of the regions. I had thought that it would arise in relation to this group of amendments rather than the previous one. The scope of the amendments takes me back to the heady days of July 1998, when we spent a great deal of time debating the Scotland Bill. There was considerable debate about whether broadcasting should be shunted off into the wonderful world of cross-Border public authorities. In the end, that did not happen. Various arrangements were put in place to give Scottish Ministers a say in the appointment of Scottish representatives on the governing board of the BBC and the Independent Television Commission. They were also given the opportunity to see the annual reports of the various bodies and to discuss them.
Little was said at the time about the several regulating authorities that are the subject of the Bill. As we are now talking about the amalgamation of five bodies into one, the question of ensuring that those charged with the authority of a full comprehension of the issues becomes even more important.
As has been pointed out, the way in which the Bill has been presented causes some difficulty. If we accept the activities of the body it proposes, it will have little scope or authority. It has merely to see that the amalgamation process goes forward with as few complications as possible. However, the Bill contains other powers. The regulatory body, Ofcom, is an integral part of the new communications organisational framework envisaged in the government White Paper, A New Future for Communications. All the powers and structures required for that function will be added to the authority by the Secretary of State, and others acting for him, through statutory instruments.

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I return to my earlier point. There may be scope to pass amendments to this Bill when we debate the proposed communications Bill; however, it is very unlikely that we shall be asked to consider the whole framework of this Bill in the shape into which it will, by that time, have developed.
During debate on the Scotland Bill, Lord Mackay of Ardbrecknish touched on a matter that will almost certainly fall within the ambit of the proposed body. He recounted his experience in dealing with the regulatory authority on the question of a lack of television reception for those living in some of the Scottish glens. He referred to the ingenuity of some of those affected, who had arranged for what they called an "active deflector" to be sited on the top of a nearby hill to bounce signals down on to those who wanted to receive them. It apparently took an intensive campaign by Lord Mackay, aided and abetted by a former commanding officer in the Scots Guards, to get the authority to accept that such a mechanism was necessary.
At that time, Lord Mackay was talking about the expectation that multiplexes would reach between only 66 and 90 per cent of the UK population. Perhaps the expectation is different now. But it is not hard to imagine where those who do not readily receive these services will be. Therefore, having members on the board of Ofcom who understand such issues will be important.
Lord Dubs: I assume that these are probing amendments. I doubt whether they would stand the test of logic if the noble Viscount were to push them further. Nevertheless, they represent certain strands of thinking about which I should like to express my concerns.
Perhaps I may deal first with Amendment No. 3. It refers to representing the interests of the public. If members of Ofcom are to represent specific interests, that will detract from what I believe to be their overall responsibility; namely, to be concerned about the needs of the public. If we delegate the responsibility of representing the public to only one individual, the concept of Ofcom will be significantly weakened. I do not like the word "represent"; it is misleading—the more so in Amendment No. 5, which refers to representation of a whole range of interests. Does that mean that if an individual is selected for Ofcom because he or she happens to represent a particular interest, that is why the person is there? Or is it the case, as I should prefer, that the overall responsibility of Ofborn is to take account of diversity, regional interests, the disabled and so on? I should much prefer that members of Ofcom were collectively charged with a wide range of responsibilities, as indicated in the amendment, rather than their having a representative function.
I am one of 10 members of the Broadcasting Standards Commission. I welcome the fact that Ofcom will be smaller—although I trust that it will have other committees to deal with more specialised areas. The Broadcasting Standards Commission has members from Scotland and Wales and from the ethnic
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communities. But they do not sit there saying that they represent Wales, or Scotland, or the black Afro-Caribbean community. They act collectively with others, but they bring their particular background and experience to bear. That is the benefit, rather than having a sense of "representation". Frankly, even if Ofcom had 12 members, it would not be large enough to encompass all the diverse elements that ought to be its responsibility.
Lord Lipsey: I agree with the argument that has just been advanced. But I would put the case even more strongly. Most of Ofcom's work will relate to commercial and economic regulation, as the work of Oftel presently does. So it needs people who can do a job of work and who have a certain expertise, not people who fit certain characteristics. If the Secretary of State can find a disabled Welsh woman who is also a top-class regulatory economist, by all means let her be appointed to Ofcom. It is much more important that the person appointed should be a top-class regulatory economist than that he or she should be disabled, Welsh or a woman.
Baroness Howe of Idlicote: I have a certain sympathy with the remark of the noble Lord, Lord Dubs, about representation. Clearly, we do not want people appointed who will "represent" a particular interest. But in this debate, and in the previous one, I have listened to the unease that is felt about the lack of clarity throughout the Bill. There is also a feeling that the major concern of the consumer interest will not be properly represented when there as few as between three and six people sitting on the transitional or the permanent board. There is lack of clarity about that too. It is important, therefore, to give more consideration to the idea not of "representatives", but of having enough people on the board for people throughout the country—in the regions, in Scotland and in Wales—to feel happy about it.
To digress, when I was first appointed to the board of a major company, the chief executive told me in total amazement that lie had been talking to the women on his staff and they had said, "Thank goodness there is somebody to represent us". That is the point that needs to be made. Members of Ofcom will not be "representing" any particular interest, but it is important that they should have a few different interests. I fear that everyone is thinking that, during the lengthy period when Ofcom is in existence, a great deal will be "stitched up" which will not necessarily be in the interests of the public, the consumer, the citizen. If the Minister who is to reply will give attention to that side of the matter, we shall all be relieved and reassured.
Baroness Blackstone: I am grateful to the noble Baroness, Lady Miller, and to my noble friends Lord Borrie, Lord Dubs and Lord Lipsey. They said everything that I needed to say.

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It is simply not possible for the board of Ofcom to contain a representative of every constituency or stakeholder who might have an interest in Ofcom's work. I do not think that it would even be a board of 20. We could end up with a board of 50 or perhaps even 100—because there are huge numbers of interests that are likely to be concerned with what Ofcom does. An attempt to make it representative in that way would make the size of the board wholly unmanageable. Nor is it our intention to designate specific responsibility to particular board members. That would be entirely wrong and inconsistent with the way in which existing regulators work. I reiterate that we shall keep the board as small as possible, commensurate with its effective operation. However, it will be possible for various interests to be represented on the committees that Ofcom will be able to establish to undertake some of its functions or to provide advice once it has regulatory powers.
The interests of the public, as consumers or as citizens, have to be at the heart of Ofcom's work. That is why the comment of my noble friend Lord Dubs was so pertinent. The board as a whole should be concerned with the interests of consumers. That is the job of a regulator. Of course, I strongly agree with my noble friend Lord Lipsey that they must have the right expertise. In that sense, they have to have two sets of qualifications: they have to know something about how to regulate and they have to represent the interests of consumers generally and take those interests into account in their work.
The communications Bill will set out in more detail the correct relationship between the Ofcom board and the consumer panel. I want to reassure the noble Baroness, Lady Howe, that there is no intention of a stitch-up. A small board will be appropriate in the preparatory transitional phase, when it will have no regulatory function.
We shall need to move as quickly as possible to make the initial appointments to Ofcom, but I am not at all certain that undertaking public consultation on what would constitute appropriate representation, as proposed in Amendment No. 5, would provide any clear answer to the question. Again, I strongly agree with the noble Baroness, Lady Miller. I share her reservations about that amendment, too.
The noble Duke, the Duke of Montrose, asked about the nations and regions. I do not have a great deal to add to what has already been said in reply to the noble Lord, Lord Roberts of Conwy. We want Ofcom to have a sensible, modern approach to its relationship with the devolved administrations that reflects all the recent constitutional changes. Of course we want to ensure that legitimate interests are taken into account in an appropriate way, but tokenism on the membership of the main board is not the right way to do that. As the noble Lord, Lord Roberts, pointed out earlier, the White Paper said that we expect Ofcom to build good links with the relevant policy committees and executives of the devolved assemblies, as well as with the English regions, which should not be forgotten. We want Ofcom to consult closely with the
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devolved assemblies and the English regions to ensure that their voices are heard and their interests are taken into account in an appropriate way.
Copies of Ofcom's annual report will be provided to the devolved assemblies, but that will be a matter for concordats rather than specific reference in the Bill. I hope that that is acceptable.
In the light of what I have said and the tenor of the debate, I hope that the noble Viscount will feel able to withdraw his amendment.
Viscount Falkland: I thank the noble Baroness for that reply. The House is overflowing with metaphors today. My noble friend Lord Geraint said in my ear that I had stirred up a hornet's nest. I am glad if I have done that, because the debate has been interesting and illuminating and I have not disagreed with many of the points that have been made. I thank all noble Lords who have participated in the debate.
I have a great deal of sympathy with the point made by the noble Lord, Lord Borrie. Logically, what he said is correct. I am glad that he has put his view on record. The debate will be read widely outside the House and I hope that it will be helpful in bringing people's minds to bear on what an important body Ofcom is and how many very difficult subjects we have to grasp in the consultation period and beyond. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Viscount Falkland Viscount Falkland moved Amendment No. 4:
Page 1, line 8, at end insert "who shall have no financial or other interest in the communications sector"
The noble Viscount said: I shall speak also to Amendment No. 7. These two simple amendments are largely self-explanatory. I suspect that the provision that members of the Ofcom board should have no financial interest in the communications sector would not meet with much opposition or doubt from your Lordships. Those who feel inclined to enter into debate on my amendment may have other views on whether the members should be able to have other interests in the sector. However, these matters clearly have to be addressed.
Amendment No. 7 would insert "with due political impartiality" after "determine". I have never been much of a friend of political impartiality—except in this House, where I like it enormously. On television I think that it is extremely boring and the more partial broadcasting is the better I enjoy it. However, public perceptions of the membership of the Ofcom board will be important. When it comes down to it, nobody is politically impartial, but those who sit on the board must be seen by the public as not having an axe to grind that will be against the public interest. That is why I have tabled that probing amendment. I beg to move.
Lord Crickhowell: I am puzzled by Amendment No. 4, on financial interests. I thought that the issue was adequately covered by paragraph 1(1) of the schedule, which specifically states that, before the chairman or other non-staff members are appointed,
"the Secretary of State shall satisfy himself that that person will have no such financial or other interest as is likely to affect prejudicially the carrying out by him of his functions as a member of OFCOM".
The noble Viscount appears simply to be drafting an alternative wording to achieve the same end, but I may be missing something.
Lord Peyton of Yeovil: The two amendments are admirable justifications for having the Bill at the present time. There is a positive temptation for zealous people such as the noble Viscount to make an honourable and perfectly fair contribution. However, by the time we have gone through all the possible dimensions of the human character to make someone fit to sit on Ofcom—which, incidentally, will have almost nothing to do—it will be fairly overloaded. The noble Lord, Lord Morris of Manchester, may well make a plea on behalf of the disabled. Everybody knows and respects his long-standing concern for the disabled and all that he has done for them, but I very much doubt that the disabled would gain much satisfaction from having a representative on Ofcom, which by that time will be in danger of being a perilously large institution.
I return to the simple point that Ofcom will have no regulatory powers, a very small membership and a very small staff, who would be overloaded by having to look after countless members. Its duties can be rather loosely summed up as doing whatever the Secretary of State thinks appropriate. What Secretaries of State think appropriate is not necessarily a first class launching pad for a new organisation. However, I let that pass.
My point is that to produce a Bill of this kind at this stage seems to me to be a classic case of buying yourself an extraordinarily expensive cart and afterwards in the years to come thinking about bringing along a horse which can contribute some animation to the process. The noble Baroness has tempted the noble Viscount—I am sympathetic towards him—and she will tempt the noble Lord, Lord Morris, and others to make all kinds of proposals about who might or might not be represented on this almost useless but certainly powerless organisation. I hope that the noble Baroness will not accept the amendments. I am happy to support her on that if on nothing else.
Lord McIntosh of Haringey: The speech which the noble Lord, Lord Peyton, should have made at Second Reading is now gradually unfolding before us. We are now getting the sense of a speech which has nothing at all to do with the amendments, as he knows, but comprises the points he would have liked to make if he had been present at Second Reading.
It is not the case that Ofcom as set up by the Bill has nothing to do; it has the job of facilitating the introduction of regulation when the Government and
1216
Parliament have decided all the details of that regulation. I made my next point at the end of the Second Reading debate. I shall repeat it now and I promise not to repeat it further. When the substantive communications Bill is completed an office of communications will be in place ready to take up its task and there will not be a delay of six to 12 months while a chairman or chief executive and others are appointed. That is the point of having this Bill; namely, to save time. However, if we continue in the way we are, we shall not exactly save time.
Lord Peyton of Yeovil: Will Ofcom do anything which it could not do without this Bill?
Lord McIntosh of Haringey: It will establish the procedures to facilitate the regulation of telecommunications set out in Clause 2. When the telecommunications Act receives Royal Assent there will be no necessity for it to go through all of the procedures in the Bill which will be put in place over the next 12 months or so.
I turn to the amendments we are discussing. I am afraid it is not the case that paragraph to the schedule sets out what Amendment No. 4 would require. Paragraph I to the schedule is more comprehensive. It provides not only that the chairman should have no financial or other interest as is likely to affect prejudicially the carrying out by him of his functions, but that that should apply also to any other non-staff member. For some reason Amendment No. 4 relates only to the chairman; I do not think that the noble Viscount, Lord Falkland, intended that as he referred to members in his speech. I hope I can convince him that paragraph 1 to the schedule meets the point and that we in no way disagree with him in requiring that the members of Ofcom should act with due probity and propriety in carrying out their duties.
Amendment No. 7 provides for due political impartiality. That protection is provided by the Office of the Commissioner for Public Appointments. We shall follow the code of practice of that office. Posts are publicly advertised and the recommendations made by selection panels provide an objective basis on which Ministers are able to make appointments based on merit. The process under which such appointments are made can also be independently audited to ensure the principles of the code have been followed. I hope that in view of that explanation of the procedures which will be followed the noble Viscount, Lord Falkland, will not wish to press the amendment.
Viscount Falkland: I thank the noble Lord for that reply. I also thank all those who have taken part in the debate, which I have enjoyed immensely. I do not normally enjoy proposing amendments but it is a happy day when one has the good fortune to cause the noble Lord, Lord Peyton, to speak. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 5 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 6:
Page 1, line 9, after "State" insert ", following consultation with the chairman and any other members who have already been appointed,"
The noble Baroness said: This follows on from our discussions on the size of the board and is one of the series of good practice amendments I have tabled.
The Government say that Ofcom is a fledgling body, that it will sort out what it is doing later and that we should not worry as the Chamber will have the opportunity to discuss the matter at that time. However, if the Government so wished, the Ofcom which we are establishing in this Bill could remain in that form. Its membership could be left at a figure of not less than three or more than six if the Government so wished. However, I am concerned that the Government might decide to raise the maximum membership above six for reasons that have nothing to do with the necessity for Ofcom's functions to be carried out properly. Its competence may not have been called into question. A government—I do not refer to this Government, of course, who are naturally above reproach—whose party has not yet been invented may wish to increase the membership of Ofcom to confer political patronage.
I am reminded of the Second Reading of the Culture and Recreation Bill which we discussed at the beginning of the year. That measure initially included provisions to change the way in which the chairmen of the major cultural institutions of this country were appointed and provisions to change the way in which the numbers of their trustees were altered either up or down. We discussed how political patronage might be misused in that context. The Government assured us that they had never intended that. However, having heard the concerns of the Chamber, the Government tabled amendments to prevent any political patronage being brought to bear on those institutions. I do not forget those discussions lightly; nor do I forget lightly the unease in the outside world with regard to how political patronage may be abused.
My amendment is a practical piece of good practice. I apologise for that hyperbole. It seeks to ensure that if the Secretary of State decides to increase the membership of the board she should first be required to consult the chairman and the existing members of the board before making further appointments, as occurs with other appointed boards. Provided the original appointments have been made in a nonpartisan and proper manner—we shall have the opportunity to debate that fully when we discuss the proposed amendments to the schedule—the fledgling body and, ultimately, the full operating body, which could comprise the same people, will be well placed to advise the Secretary of State on whether or not she should increase the size of the board and, if so, by how many according to the amount of work to be done and the skills required. I beg to move.
Lord Borrie: I share the view of the noble Baroness, Lady Anelay, that it must be a good idea for the Secretary of State to consult with the chairman before
1218
appointing the other members. That seems to me good appointmentship, as it were, on the part of the Secretary of State. However, I do not believe that the amendment is necessary. I do not like the reference to consulting the other members. In the first place, if anyone is a good chairman, he or she ought to be able to represent to the Secretary of State the views of all the members and not just those of the chairman.
In the second place, the bodies will have an element of self-perpetuation if, every time appointments are made, each and every existing member appears to have albeit not a veto but a say in the appointment of the new members. I believe that that spoils the noble Baroness's amendment.
Lord Crickhowell: I have a great deal of sympathy with my noble friend's amendment, but I believe that the issue is restricted solely to the question of numbers. In addition, I agree with almost everything that the noble Lord, Lord Borrie, said on the subject. I simply want an assurance from the Minister arising from what was said in discussion on the previous amendment with regard to going through the public procedures and so on. Of course, I understand that and I do not disagree with it. But I want an assurance that it will be normal practice for the Secretary of State to consult the chairman before making appointments.
I believe that to do otherwise and to act simply on the nominations that come through the public appointments procedure without first having a clear consultation with the Secretary of State would be a great mistake. Therefore, I want to have an assurance that, as is normal in relation to the appointment to any board in a sensible organisation, proper consultation will take place between the Secretary of State and the chairman.
Lord Gordon of Strathblane: I venture to suggest that it is best that the Bill remains silent on these matters. After all, there are risks. A chairman may be rather weak and the Secretary of State may want to bolster the board by making appointments which the chairman may not like. I quite take the point about "good appointmentship"—a very nice phrase—and I believe and hope that good practice will prevail. However, it is not always best to put in statute that the chairman must be consulted first.
Lord Thomson of Monifieth: The noble Lords, Lord Borrie, Lord Crickhowell and, indeed, Lord Gordon, all speak with a good deal of experience of this type of situation. Indeed, in a modest way, I do myself. I simply want to say that I agree with all three of them, and I hope that the Minister will agree with them, too.
Lord McIntosh of Haringey: I believe that I can give the noble Lord, Lord Crickhowell, the assurance that he wants, as, indeed, I hope that I gave him in relation to the previous group of amendments. I have already said that the appointment of non-executive members of Ofcom will be made by the Secretary of State and will follow the normal Nolan procedures for public appointments. It is a usual part of that process for the

1219
board of an organisation to advise on the types of skills and experience that it may require and on the role specification for vacancies. However, there is no need to place that in legislation in the way proposed.
I can certainly give the assurance that the Secretary of State will consult the chair. However, I am well aware of the difficulties to which the noble Lord, Lord Thomson, and others have referred. I have just been reading in yesterday's Sunday Times the extracts from the autobiography of the noble Lord, Lord Hussey. I believe that on certain occasions he would not have wished to consult some of those who worked for him before making or "unmaking" other appointments. Frankly, I believe that it is better that the matter is left off the face of the Bill.
Baroness Anelay of St Johns: I am intrigued by the closing words of the Minister. First, perhaps I may refer to a comment made by the noble Lord, Lord Borrie, and assure him that I am talking about consultation of the members. I do not intend that they should determine the outcome. Perhaps the noble Lord misunderstood my intent, which is simply that they should be consulted. Such consultation is carried out in relation to other major organisations and it works very well.
The Minister said that the issue should not be on the face of the Bill. He said that we should not worry because, of course, good practice will be followed and the chair will be consulted. The chair may, indeed, be either very weak or very strong and may not be the proper person who, alone, should be consulted.
I believe that the amendment goes to the root of whether or not the fledging Ofcom will be taken seriously and will be the independent body which can properly give advice to the Government. Perhaps because of my personal experience earlier this year with regard to other legislation, I have a jaundiced view as to whether or not proper consultation will take place unless it is set out on the face of the Bill. Therefore, I wish to test the opinion of the House.
6.4 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 148.

Division No. 1

CONTENTS

Alton of Liverpool, L.

Byford, B.

Anelay of St Johns, B.

Caithness, E.

Astor of Hever, L.

Campbell of Alloway, L.

Biffen, L.

Carnegy of Lour, B.

Blaker, L.

Chadlington, L.

Blatch, B.

Clark of Kempston, L.

Boardman, L.

Cope of Berkeley, L. [Teller]

Brabazon of Tara, L.

Craig of Radley, L.

Bridgeman, V.

Craigavon, V.

Brigstocke, B.

Crickhowell, L.

Brooke of Sutton Mandeville, L.

Cumberlege, B.

Brougham and Vaux, L.

Dean of Harptree, L.

Buscombe, B.

Denham, L.

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Dixon-Smith, L.

Newton of Braintree, L

Dundee, E.

Noakes, B.

Elton, L.

Northesk, E.

Fookes, B.

O'Cathain, B.

Gardner of Parkes, B.

Onslow, E.

Hanham, B.

Oxfuird, V.

Henley, L.

Park of Monmouth, B.

Hooper, B.

Perry of Southwark, B.

Howe, E.

Plummer of St. Marylebone, L.

Howe of Idlicote, B.

Prior, L.

Howell of Guildford, L.

Rees, L.

Jenkin of Roding, L.

Roberts of Conwy, L.

Jopling, L.

Rotherwick, L.

Liverpool, E.

St John of Fawsley, L.

Luke, L.

Saltoun of Abernethy, Ly.

MacGregor of Pulham Market, L.

Seccombe, B. [Teller]

Sharples, B.

Marlesford, L.

Skelmersdale, L.

Miller of Hendon, B.

Strathclyde, L.

Montrose, D.

Trefgarne, L.

Mowbray and Stourton, L.

Vivian, L.

Moynihan, L.

Waddington, L.

Murton of Lindisfarne, L.

Warnock, B.

NOT-CONTENTS

Acton, L.

Gilbert, L.

Addington, L.

Gladwin of Clee, L.

Alli, L.

Goldsmith, L.

Andrews, B.

Gordon of Strathblane, L.

Archer of Sandwell, L.

Gould of Potternewton, B.

Ashton of Upholland, B.

Gray of Contin, L.

Barker, B.

Greaves, L.

Bassam of Brighton, L.

Grocott, L.

Berkeley, L.

Hardy of Wath, L.

Bernstein of Craigweil, L.

Harris of Richmond, B.

Billingham, B.

Harrison, L.

Blackstone, B.

Hayman, B.

Boothroyd, B.

Hilton of Eggardon, B.

Borrie, L.

Hollis of Heigham, B.

Bragg, L.

Holme of Cheltenham, L.

Brett, L.

Howarth of Breckland, B.

Brooke of Alverthorpe, L.

Howells of St. Davids, B.

Brookman, L.

Hoyle, L.

Brooks of Tremorfa, L.

Hughes of Woodside, L.

Burlison, L.

Hunt of Kings Heath, L.

Campbell-Savours, L.

Irvine of Lairg, L. (Lord Chancellor)

Carlile of Berriew, L.

Carter, L. [Teller]

Jay of Paddington, B.

Chan, L.

Jeger, B.

Chandos, V.

Jones, L.

Christopher, L.

Judd, L.

Clarke of Hampstead, L.

King of West Bromwich, L.

Clinton-Davis, L.

Kirkhill, L.

Cohen of Pimlico, B.

Lea of Crondall, L.

Corbett of Castle Vale, L.

Lester of Herne Hill, L.

Crawley, B.

Levy, L.

Dahrendorf, L.

Lipsey, L.

David, B.

Livsey of Talgarth, L.

Davies of Coity, L.

Lofthouse of Pontefract, L.

Davies of Oldham, L.

Macdonald of Tradeston, L

Dholakia, L.

McIntosh of Haringey, L. [Teller]

Dixon, L.

Dubs, L.

McIntosh of Hudnall, B.

Eatwell, L.

MacKenzie of Culkein, L.

Elder, L.

Mackie of Benshie, L.

Evans of Parkside, L.

Maclennan of Rogart, L.

Falconer of Thoroton, L.

Maddock, B.

Falkland, V.

Mar and Kellie, E.

Farrington of Ribbleton, B.

Mason of Barnsley, L.

Faulkner of Worcester, L.

Massey of Darwen, B.

Filkin, L.

Merlyn-Rees, L.

Fyfe of Fairfield, L.

Milner of Leeds, L.

Gale, B.

Mitchell, L.

Geraint, L.

Morgan, L.

Gibson of Market Rasen, B.

Morgan of Huyton, B.

1221

Morris of Aberavon, L.

Simon, V.

Morris of Manchester, L.

Skidelsky, L.

Murray of Epping Forest, L.

Smith of Gilmorehill, B.

Nicholson of Winterbourne, B.

Stoddart of Swindon, L.

Ouseley, L.

Stone of Blackheath, L.

Phillips of Sudbury, L.

Strabolgi, L.

Pitkeathley, B.

Taylor of Blackburn, L.

Ponsonby of Shulbrede, L.

Temple-Morris, L.

Prys-Davies, L.

Thomas of Walliswood, B.

Radice, L.

Thomson of Monifieth, L.

Ramsay of Cartvale, B.

Tomlinson, L.

Razzall, L.

Turnberg, L.

Rea, L.

Turner of Camden, B.

Redesdale, L.

Varley, L.

Rendell of Babergh, B.

Walker of Doncaster, L.

Rennard, L.

Walmsley, B.

Rooker, L.

Warner, L.

Roper, L.

Warwick of Undercliffe, B.

Sandberg, L.

Watson of Richmond, L.

Sawyer, L.

Weatherill, L.

Scotland of Asthal, B.

Whitty, L.

Scott of Needham Market, B.

Wilkins, B.

Sharp of Guildford, B.

Williams of Elvel, L.

Sheldon, L.

Williamson of Horton, L.

Shutt of Greetland, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.16 p.m.
[Amendment No. 7 not moved.]
Lord Morris of Manchester Lord Morris of Manchester moved Amendment No. 8:
Page 1, line 11, at end insert—
"( ) The Secretary of State shall exercise his powers of appointment under subsection (3)(a) and (b) with a view to securing that at least one of the members of OFCOM is familiar with the special requirements and circumstances of individuals who are disabled and individuals of pensionable age."
The noble Lord said: In moving this amendment I shall briefly address also my two related amendments; namely, Amendments Nos. 16 and 68. They were drafted in close rapport with the Royal National Institute for the Blind, among other disability organisations, and I am especially grateful to Caroline Ellis of the RNIB for her care and concern in liaising with me about them.
For disabled people, the good society is one where no opportunity is lost to reduce the handicapping effects of their disabilities and where their right to full social equality and inclusion is unquestioned and undoubted. That quintessentially is the case for this trio of amendments.
will be making decisions and providing services of immense importance to disabled people in terms not only of their right to social and clutural inclusion, but even of their status as citizens. Yet as the Bill is now drafted, the board of embryonic Ofcom will be assessing its strategy free from any obligation to consider and prioritise the rights and access needs of disabled people. In fact, the existing regulators are already designing criteria for the new body's structure and working arrangements without reference to the access needs of disabled people.
Such omissions are a recipe not for reducing, but for increasing, the handicapping effects of disabilities; and they are omissions my three amendments seek to
1222
rectify now, before it is too late. The first of them—Amendment No. 8—aims to ensure that the new unified regulator has, from the outset, the necessary expertise and commitment to put the needs of disabled and older people at the very heart of Ofcom's work.
Towers Perrin's report to the regulator's steering group cites "strong links with stakeholders" as a key design criterion for Ofcom; and disabled and older people are a huge and hugely disadvantaged stakeholder group in relation to communications services. Taking into account partners, parents and children, more than one in four of the population are disabled or significantly involved in the problems of disabled living. There are, too, over 10.5 million older people, a great many with special needs in terms of communications services. The White Paper on communications acknowledged that access to communications services often poses particular difficulties for disabled and older people. It states that:
"Services may be more important to them than the population at large. Adequate access is essential to enable all to play a full part in today's society".
But disabled and older people are often now denied access by exclusive design, by the cost and technical difficulties of ensuring access, by the absence of necessary equipment and by lack of training among service providers.
If Ofcom's work and ethos is to be informed by any real understanding of the special requirements of its disabled and older stakeholders, it is clearly important for at least one board member to have experience of their problems and needs. Given that the first board members will play a key role in developing Ofcom's strategies and structures, there is a need now to provide on the face of the paving Bill—indeed for it to be writ large there—that at least one of them must have that experience.
Amendment No. 16 puts further emphasis on the importance of prioritising the needs of disabled people and other disadvantaged groups. Ofgem and Postcomm have similar obligations to those set out in my amendment and they have helped those two organisations to ensure that such needs are fully addressed.
Of the wide range of public policy issues Ofcom will be charged to address, none is more urgent than that of how disabled and other disadvantaged groups are to be included in the digital revolution. Thus, even in embryonic form, and while still awaiting its specific regulatory functions, it is timely now to put the civil rights and access needs of disabled and older people in the forefront of its thinking.
The White Paper said that Ofcom would merely give, "due weight" to the needs of disabled people. But organisations such as the RNIB and the Advisory Committee on Telecommunications for Disabled and Elderly People—DIEL—believe we must go further. They point in particular to the lack of access for disabled people to basic communications services and the often costly equipment required to achieve it. For example, visually impaired people cannot access the paltry number of audio described programmes on

1223
digital terrestrial TV because no one will fund the production and distribution of the special modules required to receive the audio description signal. This in turn begs the question why they should have to pay more for access than sighted people. All of this emphasises again the urgency of making proper provision for their needs from the outset.
Amendment No. 68 is about ensuring that Ofcom meets—again from the outset—the information and communication needs of disabled consumers. Ofcom will have a direct relationship with members of the public seeking information or making complaints, requesting advice on redress and commenting on points of concern; and Towers Perrin stresses that servicing consumer needs will require the commitment by Ofcom of substantial resources and senior management attention. Yet no attention has so far been given to addressing the way in which disabled people will be helped to interact with the single regulator on equal terms with non-disabled people.
Disability access is not referred to anywhere in the Towers Perrin scoping report. Yet this is plainly an essential design criterion—a "must have", to use Towers Perrin's own terminology. That issue was highlighted, by DIEL in its response to the White Paper. It said:
"Both OFCOM and the Panel should have ethos and funds to ensure full accessibility to their services, for example, disability access … and consumers should be able to interact successfully with both organisations using their preferred means of communication".
That is precisely the aim of my third amendment.
People with disabilities have a wide variety of information needs: from Braille, large print and tape for visually impaired people through to textphone access for deaf and deaf-blind people and plain easy-to-read English for people with learning difficulties. Meeting their needs effectively will be made possible only by a planned approach, the preparatory work for which must include a well co-ordinated strategy for ensuring that disabled consumers are fully able to interact with Ofcom using their preferred format and means of communication.
The mechanism proposed in the amendment is to require Ofcom to develop and implement an accessible information policy. The RNIB, with its acclaimed expertise in providing accessible information, advises that this should be the starting point for all information providers if they are to make their services accessible to everyone. Without an action plan with clear guidelines for staff there is scant likelihood that Ofcom's systems will be designed inclusively of disabled people. And making such provision from the outset will at once save money and ensure best practice.
The Government's response to that amendment might be to say that the issue it addresses is fully covered by the Disability Discrimination Act's reasonable adjustments/provision of auxiliary aids and services duty on service providers. But that is not so. The DDA does not prescribe that information should be made available by a service provider in a person's preferred format, which means, for example,
1224
that people with sight problems may not receive the information they need in a form they can most easily read. Also, the DDA puts the onus not on the service provider but on the individual disabled person to seek redress if his information and communication needs are not addressed.
The RNIB and other disability organisations point out as well that disabled people often have extremely low expectations of their needs being met and that this is a very real barrier to their rights being respected. Others are worn out by constantly having to complain about inadequate provision; and this is made worse by the inherent problems of enforcing rights through the courts, which, for disabled people especially, can be a costly, complex and intimidating process. Instead, a proactive approach by service providers is required; and here it has to be said that the record of government departments in providing information in alternative formats is anything but exemplary.
I am sure that my noble friend the Minister understands how important these amendments are to disabled people and how strongly their organisations support them. I know that she will want to be as helpful as she can when she comes to reply., just as I know that my honourable friend Maria Eagle, who has my warmest best wishes for all possible ministerial success as the new Minister for Disabled People, will be keeping a helpful eye on the issues I have addressed this evening. I beg to move.
Lord Addington: The noble Lord proposes a group of amendments with, I am afraid, a ring of familiarity about it. In relation to other Bills, I have more than once suggested having on a governing board someone who has an interest and expertise in disability. We keep coming back to the issue because we feel that we need to. Experience tells us that we do not get it right.
The noble Lord, Lord Morris of Manchester, said that what happens is that one has a long and protracted legal struggle, one eventually gets something brought in at the last minute that does not fit in with existing structures and one ends up wasting time and money and annoying people. Surely we have got to the stage at which such provisions should be brought in automatically. The DDA is not a perfect vessel—I hope that we shall deal with that in due course. However, we currently need something along the lines proposed by the noble Lord.
We are always being told that mass communication is the biggest thing in our age. Unless we manage to bring in this large group in our community—large groups" is a better way to refer to the disabled population of this country—and start to structure the situation before we set something up, we shall always get back on the merry-go-round of make do and mend, of plastering over and of saying, "Oh, I didn't realise that that was happening". That is roughly what goes on in all disability discussions.
I hope that the Government's response will be very positive and constructive. The Minister has heard similar speeches from me on other occasions; that is because the issues keep coming back in relation to all

1225
fields. If the noble Lord, Lord Morris of Manchester, has not got the perfect answer now, I know from experience that he is more than happy to come back and to try again and again until we get something better—until we get something in the right place and in the right Bill.
Baroness Anelay of St Johns: I rise briefly to stress that this is an important group of amendments. The noble Lord, Lord Morris of Manchester, has long experience of these matters. I shall not attempt to repeat his arguments because I could not put them as well as he did.
I remind the Committee, as ever, of my relevant interest in these matters. I work in an unpaid capacity as patron of the Tourism for All Consortium. As my noble friend Lady Miller said, there is a difficulty in the Bill if one says that members of the board occupy their position by virtue of the fact that they represent a group or groups. That has to be the root of our debate on this group of amendments.
With regard to whether or not reference should be made in the paving Bill, there was an interesting comment in the original briefing from the Royal National Institute for the Blind, which states that the Ofcom paving legislation needs to signal an awareness of and commitment to protecting and promoting the interests of visually impaired and other disabled consumers. If this is not a part of the Bill's vision from the outset, RNIB has serious doubts that it ever will be.
It is important for the Bill to recognise the needs of disabled people.
6.30 p.m.
Baroness Blackstone: I am grateful to my noble friend Lord Morris of Manchester. He and I 'have debated these issues on many previous occasions. I am also grateful to the noble Lord, Lord Addington, because again he and I have had many opportunities to discuss such issues.
As I said earlier, it is not possible for the board of Ofcom to represent every interest. Nor is it our intention to designate specific responsibilities to particular members, which would be wholly inappropriate.
That does not mean that I do not recognise that there may be special interests, particularly those of disabled or elderly people, which Ofcom will need to take into account when it is fully regulating the sector. The White Paper makes it clear that Ofcom will need to give proper weight to such interests in balancing its decisions. I assure my noble friend that what the White Paper says will happen. It will also be possible for various interests to be represented on the relevant committees that Ofcom will establish to undertake some of its functions or to provide advice when it has its regulatory powers.
Amendment No. 68 would require Ofcom to prepare and publish all its information relating to its activities in a form that is suitable for disabled people to gain access, and it would also be required to draw
1226
up and publish an accessible information policy. I agree with my noble friend that it is important for disabled people to have full access to relevant information about Ofcom's activities. However, the publication of material, and the way in which it is published, is an operational matter for Ofcom. In making its decisions, Ofcom must consider what is reasonable, weigh up cost alongside demand, and consider the importance of the availability of such material.
I understand the importance of the amendment to disabled people. May I reassure the noble Lord, Lord Addington, and my noble friend Lord Morris of Manchester that we expect Ofcom to operate in a way that will allow disabled people to gain access to information. However, we do not believe that provision is needed on the face of the Bill.
Lord Morris of Manchester: I am grateful to my noble friend. The important organisations whose concerns I voiced in moving my amendment will, I know, want to study her reply with care and attention. On that basis, I shall not be pressing the amendment at this stage and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Luke Lord Luke moved Amendment No. 9:
Page 1, leave out line 17.
The noble Lord said: This probing amendment raises the issue of the proposed role of the chief executive and the need for such a role. Interestingly, I understand that other regulators do not have chief executives.
Members of Ofcom will be appointees of the Secretary of State, as has been said, and, in line with current legislation on existing regulators, the chairman will also be appointed, together with other members of the board, by the Secretary of State. It seems that all members appointed to Ofcom will also be members of the board. However, all members of Ofcom should also be staff members, exercising full regulatory powers.
Therefore, there does not seem to be a need for a separate chief executive, which may—and probably will—raise a problem of who should exercise these regulatory powers if the chief executive is there. It would also establish yet another level of bureaucracy within the regulatory system.
All the functions of a chief executive could and should be carried out by the chairman and deputy chairman, in line with the Broadcasting Act, which does not make provision for chief executives. What is the particular magic of having a chief executive in a Bill which is contemplating Ofcom? Perhaps a better way in which to express the issue would be to point out the uninhibited power to delegate under paragraph 17 of the schedule. It is impossible to determine at this point who in practice will actually exercise the regulatory authority granted to Ofcom on a day-to-day basis.
How will the regulatory power be organised and shared internally? Perhaps we shall have to wait I o see what is in the communications Bill, in which case, why have the paving Bill at all? I beg to move.
Lord Peyton of Yeovil: I was deeply hurt by the intervention of the noble Lord, Lord McIntosh, who launched that booming rebuke that I was making a Second Reading speech. Unfortunately, one is tempted to make Second Reading speeches again and again on such Bills. As an act of grace, I must confess to the noble Lord, Lord McIntosh, that I spared myself the pain of attending your Lordships' House during the debate on this worthless measure on Second Reading.
I shall speak very strictly to the schedule. We propose to visit upon the statute book some seven and a half pages, yet even the most cursory inspection of this bulky schedule suggests that much of it could be safely left out or left to common sense, although I realise that that factor does not play a large part in the life of those who instruct parliamentary draftsmen.
I shall not weary the Committee, and I certainly do not wish to torment the noble Baroness with a detailed recital of what appears here, but should she ever suffer from insomnia, I hope that she might have this Bill available, as it would be a marvellous, almost certainly immediate cure.
Much of the Bill is simply grotesque. In order to protect myself, perhaps the noble Baroness would answer one question. Is there a respectable precedent elsewhere on the statute book for this garbage? If she can produce such a precedent, I can only say how sorry I am that my view that the statute book is too often treated by modern governments as a receptacle for garbage is justified.
Lord Crickhowell: I am sorry to see the Minister rushing to seek advice. I was about to refer to two remarks made earlier by the noble Lord, Lord McIntosh. When I suggested that there should be consultation by the Secretary of State with the chairman as to the appointment of board members, I was told it would be much more sensible not to include such a provision in the Bill; that some things were better left out. He also said that the whole of this extraordinary measure, which has just been so vividly described by my noble friend Lord Peyton, was intended to speed up the process.
However, we now have a specific reference written into the Bill about the need to consult the chief executive, though one would have thought that any board that failed to consult the chief executive on that point would be failing fundamentally in its duties and would be extremely stupid.
My second point is that in the course of my speech earlier this evening, which the noble Lord, Lord McIntosh, seemed to think was inappropriate, I pointed out that we are not likely to have a chief executive in place until at least the end of the year. The non-executive members of the board—forgive me for
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calling them "non-executive" rather than "non-staff" members—are not to be in place, on the Minister's statement at Second Reading, until the autumn.
Those of us who have been through the procedure of appointing a chief executive will know that it is a complex and lengthy process, involving interviews with a number of candidates. When one finds a good candidate, as likely as not he or she will not be able to start immediately; indeed, the better the candidate, the less likely he is to be available exactly when he is wanted. I have just rushed down the motorway to take part in this debate from a meeting of a board which I chair, where the chief executive is a woman. I am therefore aware that the chief executive in this case may be a woman and I hope it will be a completely open selection.
So we have a situation where we are debating a Bill intended to speed up the process. But before staff members can be appointed there must be consultation with the chief executive. It is highly unlikely that a chief executive will be in place before early 2003. It appears odd to me that Ministers seemed to think that my earlier remarks were out of place when I warned that the whole procedure was bizarre. I continue to hold that view.
Baroness Blackstone: I begin by reassuring the noble Lord, Lord Peyton, that I always sleep well and will not need either this or any other Bill to help me fall asleep—not that it would do that. Nor do I believe for one moment that the Bill is garbage.
Perhaps I may also say that there have been other precedents. Under the Conservative Government of 1992 coal and rail privatisation involved paving Bills, and a paving Bill was presented in both Houses of Parliament before the White Paper. This Government provided Members of the Committee and anyone else who was interested with a White Paper which sets out in great detail the intentions of the Government.
Amendment No. 9 involves the role of the chief executive of Ofcom. I was puzzled by what the noble Lord, Lord Luke, appeared to be implying; that is, that we do not need a chief executive. However, the chairman is likely to be part-time. The chief executive will be a full-time appointee and an expert in matters of regulation. That is similar to the existing arrangement for one of the regulators, the ITC, but with the chief executive on the board ex officio, in line with good practice and with what happens in many other organisations of this kind.
I thought that one of the points that lay behind the amendment—perhaps I was wrong—was that the chief executive should not advise the chairman and other non-executive members as to whether or not specific post-holders within Ofcom should be on the board. The final decision on whether or not to appoint employees of Ofcom to become executive members of the board should lie with the chairman and other non-executive members. It is patently obvious, as has been implied by other speakers, that in making such decisions it is important that the chairman and other non-executive members should consult the chief executive.

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In the light of my remarks I hope that the noble Lord, Lord Luke, will feel able to withdraw his amendment.
6.45 p.m.
Lord Crickhowell: Before the noble Baroness sits down, can she answer my question? When I suggested that the chairman should be consulted about appointments I was told by the noble Lord, Lord McIntosh, that it was not necessary to put such a provision in the Bill. Why is it necessary to put the point in the Bill on this occasion? Of course any board will consult its chief executive on whether executives should be appointed. I am at a loss to understand why the clause is included.
Baroness Blackstone: The Bill simply makes clear what the procedure will be. This is a typical example where, if it were not on the face of the Bill, someone, probably from the Opposition Benches, would be asking why not. It clarifies the position and reassures everyone who has an interest that this is what will happen.
Lord Crickhowell: Perhaps the noble Baroness will at least agree with me that, on the timetable set out by Ministers so far, none of this is likely to happen before early 2003.
Baroness Blackstone: I meant to return to that point. It is important that the position should be clarified and that any misunderstandings should be corrected. It is the Government's intention to make sure that the chief executive is appointed way before early 2003. That is one of the reasons for introducing this paving Bill; that is, to make it possible to set up an embryonic Ofcom to do just that.
Lord Crickhowell: I am sorry to pursue this matter but we now have an extraordinary situation. The noble Baroness herself said at Second Reading that the non-staff members would not be in place before the autumn. I am simply basing my remarks on the information given to the House by the noble Baroness.
As I observed earlier, anyone who has been involved in the process of appointing a chief executive will know that it is a complex procedure and usually involves interviews and a period of consideration. The person who is selected may then not be available immediately. I am simply at a loss to understand how the Minister can possibly give the Committee the undertaking she gave when the timetable she herself described makes it an extremely improbable scenario.
Baroness Blackstone: At Second Reading I said that the full board would be appointed by the autumn. That does not preclude the chairman being involved in the selection of the chief executive, possibly with one or two other members who might have been appointed by that time. That is what is intended. The chairman will be appointed in the spring with a small number of other members.
Lord Crickhowell: Again, I am sorry to rise but I am tempted by the use of the word "possibly". It is not a question of "possibly" with the involvement of one or two other members; it is clearly and specifically laid down in paragraph 5(2) of the schedule that the non-staff members "shall" be involved. Therefore it cannot be done, as is suggested in the consultant's report, simply by the chairman. Now we are being told that if there are one or two they can get on with appointing the chief executive.
That is a highly unsatisfactory way of appointing a board; that is, to appoint one additional non-staff member and then the two people can get on with selecting the chief executive. The more I hear about the way this matter is being handled, the more extraordinary it seems to be.
Baroness Blackstone: There is nothing extraordinary about what is proposed. I am surprised by the language used by the noble Lord, Lord Crickhowell. The matter is absolutely clear, and I shall set it out. In the spring, the chairman and the non-staff members of the small board of three to six members will be appointed. They will then appoint the chief executive, so he or she will be able to be in post some time in the autumn.
Lord Crickhowell: I am grateful to the noble Baroness for changing the advice she gave to the House at Second Reading and for telling Members of the Committee that it is hoped that the process will start in the spring. If I misread the situation, I apologise. From the information I read previously I believed that the job was to be done by the autumn. It is at least a relief to know that there is likely to be a speedier process. We shall have to watch what happens in practice.
Lord Luke: That question certainly provoked a debate. I am grateful to my noble friends Lord Peyton and Lord Crickhowell for their support. One matter which results from that is that one is not necessarily happy with what is happening as regards selection of members of the board and, indeed, the question of there being a part-time chairman. I was not aware that the chairman would be part-time. However, I am grateful to the noble Baroness. I believe that we shall probably return to the subject. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 10:
Page 1. line 22, at end insert "; and
(c) with the objective of reducing the current level of regulation wherever possible to nominate one member to have particular responsibility to oversee and report to OFCOM on the effect of relevant proposals about the regulation of communications."
The noble Baroness said: In the White Paper the Government promised that the new regulator would operate with a light touch. In the real world, with the amalgamation of several regulatory bodies, especially

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when there will inevitably be a degree of rival empire building between the differing segments of the new, all-embracing regulator, it is likely that regulation may tend to increase. That will happen because each segment might wish to prove itself more assiduous than thou in relation to the others.
I do not normally quote verbatim from briefing notes that receive, but NTL, the cable operator, put the point far more eloquently than I could. It states:
"The environment that OFCOM creates will be critically important for giving the UK the sort of regulatory regime that it needs to retain its position as the most attractive place for global business and internationally mobile investment".
It goes on to say, most tellingly,
"OFCOM will be a failure if it becomes a glorified landlord with five new tenants under one roof but not benefiting from living together".
There will also be the temptation for this new-broom, Ofcom, to sweep clean and to establish a reputation for the effectiveness of its regulatory activities. For the sake of argument, let us assume that I am being unduly pessimistic. Nevertheless, it is surely desirable to ensure that temptation is put out of the way of Ofcom and its separate departments. 'This moderate proposal does not inhibit the activities of Ofcom in any way; it simply ensures that one of the members has the responsibility of overseeing its regulations and ensuring that it fully considers the effect of any new regulation it proposes or existing one which it intends to retain in effect.
That is not a novel concept. This place enjoys the advice of a committee to advise it on the effect of secondary legislation before it is passed. Furthermore, Ofcom will regulate an industry whose technology is growing by leaps and bounds in a bewildering way that many of us would not have envisaged a few years ago. The White Paper promised that,
"[Regulation] must … be flexible so that it can respond to … change and allow the benefits of new technologies to flow through to society".
Competition in the industry is growing fiercely, especially as the differing technologies overlap. There will surely be occasions when costs can be saved by withdrawing or reducing regulation in areas where competition in the market justifies that course to be taken. All the amendment does is require Ofcom to appoint an overseer of regulation and a proponent of the laudable and uncontroversial need to deregulate wherever possible. I do not ask for his or her recommendations to be binding on Ofcom, rather only to take on the task of reporting to Ofcom for it to make whatever decision is appropriate in the light of a dispassionate second opinion.
The reason for the amendment is that we require reassurance that, when it becomes fully operational, Ofcom will deliver what the White Paper promised and what I quoted it as stating at the beginning of my remarks; that is, a light regulatory touch. We shall listen carefully to what the Minister has to say to us on that point. IF beg to move.
Lord Holme of Cheltenham: I have some problem with the amendment. I can see the point of what the
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noble Baroness is trying, to achieve in calling for an internal monitor of light-touch regulation. Perhaps I may say that the role that she describes is surely one that should be played by the chairman and chief executive. The sort of regulation with which Ofcom will come up—like the noble Baroness, I hope that it will be light touch as the White Paper says—is a central task of the chairman and chief executive of Ofcom. The idea of an internal policeman who taps the chairman on the shoulder and says, "By the way, you were a bit heavy touch today" seems misplaced in terms of good corporate governance.
Baroness Blackstone: We agree with the comments of the noble Baroness and those of the noble Lord, Lord Holme of Cheltenham, that it is important to ensure that the level of regulation is kept to a minimum. That is an important aim which we all share. However, I also have a great deal of sympathy with the comments of the noble Lord, Lord Holme. This must be a matter for the chairman and the chief executive.
The communications Bill will set out our proposals for ensuring that Ofcom takes into account the need to reduce the level of regulation when appropriate. Perhaps I may elaborate a little on that. It will riot be possible for each of the sectors, interests or areas for which Ofcom will have responsibilities to be represented on the board without it becoming unnecessarily unwieldy and bureaucratic, as the noble Baroness, Lady Miller, well understands. Indeed, she made that point earlier.
The board has to be able to set the overall strategic vision for Ofcom and be able to balance the wide-ranging economic and cultural interests for which it will have responsibility. In making appointments to the board we shall be searching for a balance of people with that kind of wide experience and appropriate skills. Ofcom will be charged with the need to have regard to a number of matters in making its decision. The communications Bill will set out the detail of how that will be done. In the light of my comments, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Miller of Hendon: I made clear that I would listen carefully to what the noble Baroness the Minister had to say. It is most reassuring that she tells us that the communications Bill will deal with the need for Ofcom to ensure that the regulation is not over-heavy and that it will deregulate where possible.
I agree with the noble Lord, Lord Holme, that it would be appalling to have a "policeman" as a member of Ofcom. I referred purely to my own experience on other boards where I was appointed to the board but was given a specific task. For example, I was responsible for training when on the board of the Crown Agents. My responsibility there was extremely light touch. However, in view of the remarks of the noble Baroness, I now feel confident about this matter, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 11:
Page 2, line 10, leave out from beginning to "; and- in line 12 and insert "An order under subsection (7) may not be made unless a draft of the order has been laid before Parliament and has been approved by a resolution of each House"
The noble Baroness said: In speaking to Amendment No. 11, I shall speak also to Amendment No. 12. The purpose of the amendment is to change the status of the statutory instrument—the order-making power—in Clause 1(8) from one requiring a negative resolution procedure in each House to one requiring an affirmative resolution procedure in each House. Clause 1(7) allows the Secretary of State to modify the maximum and minimum numbers of members of the board of Ofcom.
I appreciate that the report from the Delegated Powers Committee states that the negative procedure is consistent with similar powers that the committee has approved in the past. However, the committee leaves it up to the House to determine whether this is regarded as a Henry VIII power. The danger is that in this case it could be.
So far, today's debates have shown concern about the size of the board and why it may or may not be increased in size. In the briefing by NTL, the cable company, there is the interesting point that it will be for the benefit of Ofcom's political independence if the appointment of extra members is resisted. NTL feels that there is a danger that the Secretary of State could appoint extra members simply to force through a revision of the existing board's decision.
A further example of an occasion when there could be political interference by appointing new or extra members is whether the power could be used to change the whole nature of Ofcom after Parliament has given its approval to the current structure in the communications Bill. As I have mentioned, the structure created by this Bill will continue beyond the passage of the communications Bill and its implementation.
I believe that this measure is significantly different from the usual circumstances in which the negative resolution is used, in that it applies to a body that has been created by a paving bill, creating a potentially powerful new body. Earlier the Minister quoted an occasion when a Conservative government had introduced a paving Bill. Perhaps two wrongs do not make a right, but I shall have to look into whether it was the right thing to do at the time. My concern on this occasion is whether the order-making power in this Bill is properly within the remit of the negative resolution procedure rather than the affirmative resolution procedure.
As a matter of principle, I believe that it is right, if and when the Secretary of State decides to change the upper and/or the lower limits of the numbers of members, that she should be required to submit that order to the more effective scrutiny in your Lordships' House of an affirmative resolution.
I turn briefly to Amendment No. 12. Clause 1 also includes a power for the Secretary of State to introduce provisions, through this order-making power, well beyond the appointment of members. That is why I believe that it is vital that it should be accomplished by means of an affirmative resolution. The Secretary of State will be able to put in the order provisions that are incidental, supplemental, consequential and transitional, which is a wide power indeed. Presumably, not only could the Secretary of State thereby introduce measures that Parliament had indicated during its debates on the communications Bill that it wanted, but the Secretary of State could also use it subsequently to change the whole nature of Ofcom.
In what circumstances would changes be made other than in response to the requirements of Parliament in the communications Bill? I hope that the Government will be able to give full reassurances on this matter and that they are able to accept that the proper way of dealing with such an order-making power is to submit it to the affirmative resolution procedure. I beg to move.
Baroness Blackstone: Amendments Nos. 11 and 12 relate to the power of the Secretary of State to make an order to modify the minimum and maximum numbers of members of Ofcom. We do not believe that modification to the size of the board in future should raise any major issue of principle. It is a matter of sensible, pragmatic policy. Therefore, the negative resolution procedure is considered adequate.
On earlier amendments, I have mentioned that once Ofcom has assumed its regulatory powers, it would be desirable for the Secretary of State to have power to make later adjustments to the size of the board in the light of the experience of Ofcom in carrying out its wide range of regulatory functions and possible changes in this fast-moving sector. We do not anticipate frequent use of this power. As the noble Baroness, Lady Anelay, has conceded, noble Lords will recall that the Delegated Powers Committee examined this Bill and did not object to the negative procedure, noting that it was similar to powers that have been approved in the past and that it was considered appropriate in this case also. I am happy to ask the committee to confirm again that that is its view, if that would help the noble Baroness. In the light of that, perhaps she will feel able to withdraw the amendment.
Baroness Anelay of St Johns: I appreciate what the Minister says about the report of the Delegated Powers Committee. As I mentioned in opening, the relevant paragraph of that committee's report leaves the House to decide whether the power is so wide that it is a Henry VIII power. I do not believe that the Minister has answered my question as to why the Government may want to increase the number of members of Ofcom other than in response to the requirements of the communications Bill. Does she wish to respond to that matter?
Baroness Blackstone: Perhaps I may add to what I have already said. Although we do not anticipate

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having to use some of those powers, it may be helpful to provide one or two examples of the type of incidental, supplemental, consequential and transitional provisions—to use the jargon—that may be required in an order made under Clause 1(7) to modify the minimum and maximum number of members of Ofcom. There may be, for example, instances when, in reducing the number of members on the board, the Secretary o f State may need to make consequential provisions connected with the removal of members. Similarly, there may be instances, in increasing the number of members of Ofcom, when transitional provisions would need to be made to cover the period prior to the time when the new appointments could be made. Of course, Parliament would have the opportunity to consider any order made under this provision. I hope that that is helpful and answers the supplementary question posed by the noble Baroness.
Baroness Anelay of St Johns: I believe that takes us a little further but not far enough. I am not trying to prevent the Secretary of State from having the opportunity to come to Parliament to ask that the number of members be increased or reduced, but I have difficulty in accepting what the Government say in regard to the vehicle. 'The negative procedure limits whether this House may amend such delegated legislation. The affirmative procedure gives far greater opportunity for debate and for consideration of changes. Of course, this House cannot make amendments thereto, unless there are changes in the way in which the House operates, but the affirmative procedure provides a better opportunity for considering how the Secretary of State may be trying to change the whole operation of Ofcom.
The Minister gave some interesting examples, relating to where it may be necessary to reduce the number of members of Ofcom in order to remove members. The Minister looks concerned, but I understood the Minister to say that there may have to be a change to the number of members of Ofcom if a member were to be removed. I took that to mean that one may have to go below a current minimum in order for Ofcom to continue to operate with fewer members in place. As the Minister does not contradict me, that must be the case.
I am firmly of the opinion that the affirmative resolution procedure is the better way to go in such matters. I shall wish to test the opinion of the Committee.
Lord Thomson of Monifieth: Before the noble Baroness comes to a conclusion, I must say that I have listened carefully to what she has said and I have a considerable degree of sympathy with her arguments. Did. I understand from the Minister that she is prepared to ask the Delegated Powers Committee to take a further look at this matter? If so, perhaps the matter could be left open for the time being and, in the light of any fresh view from that committee, we could come t o a final conclusion on this matter on Report.
Baroness Blackstone: That is exactly what I said and I was therefore extremely surprised to hear the noble
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Baroness, Lady Anelay, suggest that the Committee should divide. Perhaps I can put it to her again. We would be extremely happy to ask the Delegated Powers Committee to look at this and to see whether it wishes to confirm its original view or whether it wishes to take into account the different view of the noble Baroness.
Baroness Anelay of St Johns: I am very grateful to the noble Baroness for making that offer even clearer than she did before. I certainly accept it in the way that she has now put it. I repeat that the Committee may still wish to consider whether or not an affirmative resolution is more appropriate. As always, it will take the views of the Delegated. Powers Committee as being definitive in this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 12 not moved.]
Clause 1 agreed to.
Clause 2 [Initial function of OFCOM]:
Lord Lipsey Lord Lipsey moved Amendment No. 13:
Page 2, line 24, at end insert—
"( ) It shall be the duty of OFCOM to promote the case for an examination of such proposals by a joint committee of both Houses of Parliament."
The noble Lord said: I wish to move Amendment No. 13 and, with it, Amendments Nos. 29 and 30. These amendments are designed to make even more likely that the final Bill should be considered, as I and many other noble Lords have argued, by a committee of both Houses of Parliament before it proceeds.
In one sense, I do not think that is a very controversial proposition even with the Government. Privately I receive quite warm noises on the proposal and even publicly, when we had the Second Reading, the noble Lord, Lord McIntosh, said,
"… if there is time to do it and if both Houses of Parliament ask for it, I cannot imagine that the Government would wish to resist it."—[Official Report, 15/10/01: co1.467.]
Those are not what I would call warm words, but they are encouraging words.
I want to get rid of the wriggle room in this. I believe that there are some reasons why the Government do not want to commit to this. I do not believe that the Bill should be allowed to pass until they have committed to it, and I wish to make my reasons very plain to the Committee.
The first attempt they use, in the formulation of the noble Lord, Lord McIntosh, is to say that this is a matter for both Houses of Parliament. That is of course true. That is why the third of my amendments, and the strongest of them, merely says that they must allow time for both Houses of Parliament to do it. This is a "wriggle" argument, however, because we now have a very good sense of what both Houses of Parliament want. The amendment is signed in this House by representatives of all three parties. In the Commons it was recommended to the Secretary of State by the all-party Media Committee. I am sure that the Minister will be able to confirm in reply that the Secretary of State has been written to in the last few days by both the spokesman for the Liberal Democrats

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in the House of Commons, Nick Harvey, and by the spokesman for the Conservatives, Tim Yeo, strongly supporting a Joint Committee.
From reading the press, I know that this Government have an attitude to Parliament rather like that of the famous editor of The Times who was once approached by one of his junior staff with a suggestion for a leader that might appear in the paper, and who shot back, "Laddie, when I want your opinion, I'll give it to you". Some people accuse my party of taking the same view of Parliament. An assiduousness for Parliament's view is entirely right and I am glad to see that the Government now embrace it by giving that as the reason that they do not want to accept this amendment. We now know what Parliament's view will be, and I do not think that wriggle room therefore gets them out of making the commitment.
I now come to the reason they do not want to do it. It is because they are frightened that the Bill will slip; that they will not get it done by the spring; that they will get it out only in July. They want to introduce it at the beginning of the next Session, which would give us a whole Session in which to deal with it—and we shall certainly need it. They are therefore frightened that the timetable will slip and that a Joint Committee would hold things up. That is why they want the chance to get out of it.
I wish to make three points. The first is that they have had long enough to draft this Bill. We have had two consultation papers: the last of them last December. They were drawing up clauses for the Bill at the time of the general election and yet, even on their own timetable, we still have to wait until the spring before we see it in draft. They should get this Bill together by the spring, which would allow plenty of time for a Joint Committee. If they do not, the consequences will rest on their head, not on anybody else's.
The second point I make is that a Joint Committee of both Houses need not take long. I dug out the timetable for the analogous committee on the Financial Services and Markets Bill. Many noble Lords have said in our debate that, without that Joint Committee, the Bill would have been a disaster. It was set up and started taking evidence in March 1999. Its first evidence day was 16th March and on 27th April it reported: less than two months. It is no excuse, therefore, to say that we cannot find two months to look at a piece of legislation of this importance.
I would go further, however. It is not that having a Joint Committee will cost us time; it will save us time. Even with a Joint Committee, the Committee stage of that incredibly complicated Financial Services and Markets Bill took five or six days, but that was mainly because it was possible to get through. All of us who sat through it had had the arguments spelt out to us by the Joint Committee. Supposing that had not been so. We would not have been talking for six, eight or 10 days in this House. We might have been talking for 12, 14 or 16 days before that Bill had been properly examined. We know that it can be guillotined in the
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House of Commons, and no doubt they would be willing to do so. However, it cannot be guillotined in this House.
I say to the Minister in great friendship—because I know that there is a great deal of sympathy for having such a committee on our Front Bench—if there is no examination by a Joint Committee of the final proposals, this House will have a duty to go through them paragraph by paragraph, clause by clause, line by line, comma by comma, full stop by full stop, until ministers scream for mercy at the detailed examination that is required.
In all seriousness, this game has gone on long enough. Commit to the means necessary to get the Joint Committee, as provided for in my amendments. If the Houses continue to show the enthusiasm for it that they have shown so far, commit to a Joint Committee. Ministers will not only be doing the right thing but will be saving themselves a lot of pain and a lot of time. I beg to move.
7.15 p.m.
Baroness Anelay of St Johns: I rise to support the amendment proposed by the noble Lord, Lord Lipsey. I can be fairly brief, because I believe that his argument cannot be countered.
It is certainly right for this amendment to be before the Committee because, as the noble Lord said, this will be a very complex, technical Bill and, ultimately, I believe that pre-legislative scrutiny will save your Lordships time on the Floor of the House.
There has been a White Paper after the usual Green Paper. The disappointment was that the White Paper, published at the end of last year, was very green at the edges. Even the Secretary of State in another place referred to it as being green at the edges, and I think it also went a good deal further into the centre of the paper.
Given the experience of the utilities Bill, we have already seen how the Government's attempt to try to frame legislation with regard to the telecoms industry came to grief and had to be withdrawn. We are therefore aware that this is a very difficult and complex matter—a non-party political matter—where Joint Committees can work so effectively.
From my discussions with the industry at the end of last year, they believed that they had been given the very firm impression by the Government that there would be such prelegislative scrutiny. They would be extremely disappointed if the Government felt unable to keep to what appeared to be an offer. It may be that that was simply their misconception, but they certainly believed that this would take place.
I can confirm what the noble Lord, Lord Lipsey, said with regard to support being given to his request by my honourable friend in another place, the shadow Secretary of State for Culture, Media and Sport, Tim Yeo. He has written to confirm that the Conservative Party in the House of Commons would like to use the procedure involving a Joint Committee of both Houses of Parliament to examine the draft Bill, due to be introduced next year to establish Ofcom. He says

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that the matters with which the Bill will deal are complex and important and he believes that the use of the procedure will assist in achieving the best possible outcome.
He also recognises that there are concerns about the timetable for the Bill, but he believes it is important that the best parliamentary scrutiny should take place. I confirm that we on the Conservative Benches in this Chamber agree with that view. I hope that the Government are able to accede to the request of the noble Lord, Lord Lipsey.
Lord Holme of Cheltenham: I shall be even briefer than the noble Baroness, Lady Anelay. I put my name to the amendment because we on these Benches support the idea of a Joint Committee of both Houses. It is par excellence the kind of issue which, with a great deal of detail and complex inter-relationships, should be dealt with by a Joint Committee of both Houses. If one were writing a parliamentary textbook, it would be the kind of issue which one would think was most appropriate to be dealt with in this way. I am convinced that the Government, if they want to, can find the time. The noble Lord, Lord Lipsey, is right in saying that if they do not do so they will ultimately take longer to get the Bill passed.
It is therefore in the Government's interest to respond as warmly as possible to the noble Lord's tanks on their lawn; that is an intimidating prospect set before them. I do not know how they will respond, but I hope it is sufficiently warm for the noble Lord, Lord Lipsey, to be able to withdraw his amendment.
Lord Dubs: I appreciate that the question of prelegislative scrutiny is as much for both Houses as it is for the Government. However, if the Government were to say that they welcome the idea, the two Houses can take it further and ensure that it is done.
This is not an occasion for a general debate on parliamentary procedure. However, prelegislative scrutiny of one form or another—the Joint Committee procedures are not the only ones available—is a good idea. I suspect that my noble friend on the Front Bench would have welcomed prelegislative scrutiny of this Bill. It would have cut down significantly the time of the Committee.
In my experience of the other place, where we had a special Standing Committee procedure on a Bill many years ago, the time necessary was significantly reduced. We all know that the process of tabling probing amendments is a clumsy way of finding out what is going on. Although we have all tabled probing amendments for this, that and the other Bill, it is not a good way of establishing the truth. It is cumbersome and long-winded and therefore my noble friend's suggestion is a good one. I hope that the Government will say that they are in favour.
Finally, perhaps I may press the Minister on a comment he made during the Second Reading about making the full Bill a consolidation measure. If we are to have prelegislative scrutiny, it would be easier if the draft communications Bill were to be a consolidated
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Bill, encompassing the two previous Broadcasting Bills. It would make the prelegislative task of scrutiny much easier.
Lord Crickhowell: The emphasis in the debate has been on speed. One of the great advantages of the proposed procedure, which I wholly support, is that we are likely to have fewer mistakes and a better Bill. I cannot sufficiently emphasise the importance of the Bill which will come before us. Not only are the issues extremely complex but they are extremely important and they affect the survival of large parts of the communications industry. They certainly affect our competitive position in the world.
Already we are suffering from delay and vital act ion is being postponed. It is most important that we get the Bill right and the advantage of the procedure is that it is much more likely that we will get the Bill right And do so within the correct timetable. I wholly support what has been proposed.
Lord Borrie: My noble friend Lord Lipsey has made a powerful case. The last few words of the noble Lord, Lord Crickhowell, are extremely relevant. This is the right kind of Bill for such examination and I hope that my noble friend the Minister will not be too slow in responding positively to it.
Lord McIntosh of Haringey: I am in favour of prelegislative scrutiny. I am in favour of Joint Committees. I worked on the Financial Services and Markets Bill—indeed, I can say that I worked harder than anyone else in this Chamber on the Financial Services and Markets Bill. I agree that it could not have been done without prelegislative scrutiny and the work of the Burns committee. Therefore, I do not believe that the position of government in respect of prelegislative scrutiny can in any way he denied.
The question is: what can we do for this Bill in order to achieve the best possible scrutiny? I must remind the Committee that, yes, when we debated the Financial Services and Markets Bill we had prelegislative scrutiny at great length—we had a report from the Select Committee in the House of Commons and we had the Burns committee—but we also had agreement on carry-over between two Sessions. If we had not had that, we would not have got the Bill through. Those in the Chamber who are making threatening noises—putting tanks on the Government's lawn, as it has been expressed—had better consider that if the analogy with the Financial Services and Markets Bill is pursued there may have to be negotiation and consideration of what opposition parties are to offer in order to achieve what we all want; that is, the best possible Bill.
Let us put on one side Amendments Nos. 13 and 29 because no one has talked about them. They do not make sense because it is agreed that neither Ofcom nor the existing regulators are in a position to hold opinions on how Parliament should conduct its affairs. Let us concentrate on the significant amendment; Amendment No. 30. The Queen's Speech announced that a draft of the main legislation will be passed later in this Session. I hope it is understood that when the

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Government publish a draft they are doing so with a view to consultation and parliamentary scrutiny. The only question is how that scrutiny is best conducted.
During the Second Reading debate, I said:
"But if there is time to do it, and if both Houses of Parliament ask for it, I cannot imagine that the Government would wish to resist it".—[Official Report, 15/10/01; col. 467.]
There is a constitutional point that it is not for the Government to dictate to Parliament, and certainly not to dictate to Parliament on the face of primary legislation, how it should conduct its scrutiny. We are eager to have such scrutiny. There are at least two Commons Select Committees with interest in the area and they have previously been keen to take part in the scrutiny committee process. We also recognise the interest and expertise in the matter of the Members of the House of Lords. Again, that is an argument for a Joint Committee or for some kind of examination by Members of this Chamber as well as by Members of another place.
I hope that after consultation—and it has to be consultation in which Parliament and not the Government in legislation takes the lead—the Government will be able to propose a process of scrutiny that will be fair to both Houses. However, I cannot say what time in this Session will be available for the Bill. The Committee and all Members of this Chamber know that as a result of the events of 11th September there are several pieces of legislation about terrorism which must take priority over existing legislation in the programme. We know that following the welcome events in Northern Ireland last week there must be further legislation relating to the Province.
No Government could commit themselves on the face of a Bill of this kind to a timetable within a single Session—within this Session—which asks what Amendment No. 30 asks. Amendment No. 30 is well drafted and well thought out and it skilfully avoids the problem of the Government taking the lead in what Parliament should do. Even so, it goes beyond what this Government, or any government, could conceivably agree to at this time.
In response to my noble friend Lord Dubs, I believe that he misunderstands what is meant by a consolidation Bill. Certainly, it is desirable that this legislation should adopt and update, as far as possible, previous broadcasting legislation and should be definitive and not require reference back to previous legislation. However, "consolidation Bill" is a term of art. A consolidation Bill, which I believe is proposed by the Law Commission, contains no new policy whatever; it takes only existing legislation and rationalises it. Therefore, the consolidation Bill procedure is entirely inappropriate.
7.30 p.m.
Lord Dubs: I am grateful to my noble friend. I believe that it was a slip of the tongue on my part.
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I intended to ask whether the Bill would consolidate the two previous Bills concerned with broadcasting. My noble friend has answered the point.
Lord McIntosh of Haringey: The answer is: as far as possible. However, I am aware that that is not the principal issue before the Committee. I hope that my noble friend Lord Lipsey recognises the inevitable constraints on business managers in this Session of Parliament.
Lord Lipsey: As my noble friend Lord McIntosh warmed to his task I waited for him to accuse me of being the objective ally of Mr bin Laden by proposing a Joint Committee which would prevent all the legislation intended to bring him to heel. But my noble friend's view of what a responsible government can do does not accord with mine. My amendments—I am sorry that he thought so little of the first two, but the third is the most significant—do not mandate a Joint Committee but simply provide that there must be time to have it. If there is terrorist-related legislation it will take priority over the big Bill in any case. I am delighted that there should be carry-over if that is agreed and it is necessary. But that is much more likely to be necessary if we have not had a Bill that has gone through this process and has had its edges removed.
I find the arguments utterly unconvincing. I do not believe that in due course this House will find them convincing. I believe that when the Government go away tonight and reflect on the tone and tenor of the speeches made in Committee, as I am sure they will, they will realise that their position is unconvincing and when we come to the next stage of the Bill they will give a more forthcoming reply. In that confident hope and expectation I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: My Lords, I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again not before 8.33 p.m.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

Special Educational Needs Code of Practice
7.33 p.m.
Baroness Ashton of Upholland Baroness Ashton of Upholland rose to move, That the draft code of practice laid before the House on 23rd October be approved.
The noble Baroness said: My Lords, regulations made under the 1996 Act, which were also laid before this House on 23rd October and are referred to in the draft code of practice, provide the detail of the statutory requirements for assessments, statements and reviews of statements of special educational needs in England. These consolidate the Education (Special Educational Needs) (England) Regulations 2001, the

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Education (Special Educational Needs) (England) (Amendment) Regulations 2001 and the Education (Special Educational Needs) (England) (Amendment No. 2) Regulations 2001, which themselves replaced the 1994 regulations.
Noble Lords will know that we withdrew a previous draft of the revised code of practice from Parliament in July in the light of concerns expressed by Members of both Houses, many on behalf of parents, about the guidance concerning statements of special educational needs. We have reflected carefully on those concerns and addressed them in the present draft. The current code of practice has done much to improve the identification and assessment of special educational needs. Ofsted reports on the implementation of the code of practice have shown that it has helped schools considerably in identifying children with special educational needs and matching appropriate provision to their needs. That is due in very large measure to the careful and thoughtful way in which the noble Baroness, Lady Blatch, developed the code of practice and steered it through this House and into practice.
It is not surprising, however, that the operation of the code has shown us ways in which it may be improved. In particular, teachers and local education authorities have told us to look at reducing the bureaucracy in the code and to focus more on teaching and learning and reflect within it important developments in education.
We consulted extensively on a draft revised code of practice. Over 30,000 copies of a consultation draft were sent out between July and October 2000, and we received over 1,000 responses from a wide range of organisations and individuals. Officials attended many conferences and meetings to listen to people's views. Most people favoured the main changes we proposed but some issues were raised. We listened carefully to people's views on these issues and made a number of changes to the draft. In chapter 1 we brought together the strategic planning functions of school governing bodies and LEAs for SEN to make it easier for parents and others to know who is responsible for what. In chapter 2 we have provided fuller guidance for LEAs on the services that they are expected to provide to parents through parent partnership services and their arrangements for resolving disagreements with schools and parents, including minimum standards.
In chapter 3 we have strengthened considerably the guidance on seeking and taking account of the views of children with SEN. Chapters 4, 5 and 6 now give stronger support for the role of the SEN co-ordinal or in helping school governing bodies and head teachers to raise standards of achievement for children with SEN and recognition of their need for support within the school. The guidance on assessments in chapter 7 has been strengthened by clarifying the terms on which LEAs should seek advice and making clear that they should seek the views of the child. We have enhanced the guidance on specifying provision for individual pupils in their statements and highlighted the accountability which schools and LEAs share for children with statements when funds are delegated in chapter 8.
The draft code of practice that we are considering today is all about removing barriers to participation and learning and raising the attainment of all children. Its key principle—that children with special educational needs should have their needs met—reflects the Government's belief that providing effective support for children with SEN is an essential feature of an effective school. We are supporting the greater emphasis in the draft code of practice on the early identification of children's special educational needs with £25 million over the next three years to help LEAs and their early years development and childcare partnerships to improve local provision for young children with SEN. There is also a multi-agency working party to consider the needs of children under two with SEN and disabilities and their families, working with the Department of Health to consider the educational implications of the introduction of new-born hearing screening.
Noble Lords will be very aware that children can have special educational needs at different stages of their school career, not just in the early years. That is why we have developed the guidance in the draft code of practice on school-based intervention to focus less on procedures and more on improving teaching and learning at all times.
We have given proper recognition to the role of class and subject teachers in identifying children's SEN and tailoring their approaches to meet those needs. We have reduced the number of school-based elements from three to two and cut the paperwork on individual education plans and annual reviews to free up time for teachers to concentrate on helping children to learn.
Teachers and other professionals play a crucial role in making effective provision for children with SEN. But children themselves have a unique perspective. They know what it feels like to have the learning difficulties that they have and can tell us their wishes and aspirations. The draft code places the voice of the child at the heart of provision for special educational needs. It expects schools and LEAs to seek and take account of the views and wishes of children with SEN throughout their school lives. This includes during statutory assessments, the management of individual education plans, attending annual reviews and drawing up transition plans.
Partnership with parents is given fresh impetus and greater emphasis in the draft code. The code makes clear that the parent partnership services and disagreement resolution services that LEAs are expected to provide, following the Special Educational Needs and Disability Act 2001, should be of high quality, and they will in no way affect the right of parents to appeal to the SEN Tribunal.
Essential guidance on the key features of the new statutory framework for inclusion, also introduced in the SEN and Disability Act, is set out in the draft code of practice. But we have also been consulting teachers, governors, local education authorities, teacher associations, voluntary groups, parents and others on separate statutory guidance on the new arrangements

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for inclusion. Copies of the guidance have been placed in the Library. We aim to publish it formally alongside the revised SEN code of practice.
The guidance provides practical advice on how the inclusion framework interacts with other provisions within the Education Act 1996; the kinds of reasonable steps that maintained schools and LEAs should consider taking to prevent inclusion being incompatible with the efficient education of other children; instances when it may not be possible to include specific children; and the safeguards which protect the interests of individual children with special educational needs.
Inclusion can improve the educational experience of all children, but one size does not fit all. There is a continuing and vital role for special schools in an inclusive education system. They form part of the continuum of education, offering high quality education to children best educated in them, as well as supporting children being educated in mainstream schools. They are key partners in our strategy on inclusion.
In the debate held last July in another place on the previous draft of the revised code of practice, it was clear that a number of honourable Members were anxious that guidance on quantifying the special educational provision in children's statements of SEN could be interpreted as encouraging vague statements. Noble Lords expressed similar concerns ahead of the debate scheduled for 12th July in this House.
At the time we took the decision to withdraw the draft code of practice and to reflect very carefully on the guidance on quantifying provision in statements. I want to make it absolutely clear that it was never the Government's intention to weaken the position of children with statements. The guidance in the previous draft of the code of practice laid before the House in June made it clear that a statement should describe all of the child's special educational needs clearly and in full; set out the main objectives that the special educational provision aims to meet; specify clearly and in detail appropriate provision to meet each of the child's needs; describe the arrangements for setting shorter-term objectives for the child; and any special arrangements for the annual review of the statement. It stressed the importance of school monitoring and evaluation of the child's progress during the year and placed a new emphasis on the importance of the child's progress towards identified outcomes being monitored by the LEA with the school.
The current code of practice, introduced in 1994, advises that provision in a child's statement should,
"normally be specific, detailed and quantified".
The draft code we placed before the House in June advised that appropriate provision for each identified need should always be specified in terms that are clear, specific and detailed. It made absolutely clear that LEAs must not have blanket policies of never quantifying provision in statements. And, following helpful interventions during the debates on the Special Educational Needs and Disability Act from the noble Baroness, Lady Darcy de Knayth, and the noble Lord,
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Lord Lucas, the section in the draft code on assessments was strengthened to make it clear that professionals giving advice can comment on the amount of provision they consider appropriate for a child, and that LEAs must not have blanket policies preventing that.
The draft code we are now considering retains all of that advice, but it also makes clear that provision in statements should normally be quantified in terms, for example, of hours and staffing arrangements. The change should remove any doubt about encouraging vague statements. The draft also recognises—as does the current code of practice—that cases will arise where some flexibility is required to meet the changing needs of the child concerned. That is very important. No code of practice can dictate the precise details of the provision to be made for each and every individual child.
It also includes some other changes. First, the advice relating to children with medical needs contained in chapter 7 of the draft code clarifies that, where a child has medical needs which impact on their access to education, local education authorities should consider whether there is a need for statutory assessment by reference to the detailed guidance set out earlier in the same chapter under four broad areas of need.
Secondly, the advice in chapter 8 on school placements now makes it clear that school governing bodies cannot refuse their school being named in a child's statement; they can only argue against it. The changes we have made to Schedule 27 to the Education Act 1996 ensure that schools are always sent copies of proposed statements before decisions are made about placements. This will put LEAs, schools and parents in a better position to consider and discuss placements at an earlier stage.
Thirdly, the draft code of practice and the associated regulations clarify that those giving advice can comment on the type of provision they consider appropriate if they wish, but, as now, cannot give the name of a particular school. The draft code makes it clear that this should not, of course, pre-empt the parent's statement of a preference for a particular school or the LEA's eventual decision about the school, type of school or education other than school-based that it considers appropriate.
Issues were also raised concerning the advice contained in the previous draft code of practice as regards LEAs' duties to identify children with special educational needs who may need statements. The noble Baroness, Lady Darcy de Knayth, had been concerned about the position of children with SEN who are excluded from school.
I believe that the draft code now laid before the House is clear on the duties of LEAs. Indeed, it sets out the new requirements for LEAs to publish their arrangements for identifying children with SEN from July 2002. In practice, LEAs are able to fulfil this duty without the need for additional bureaucratic burdens to be placed on schools. Parents of children without statements have always been able to request assessments. Following the SEN and Disability Act,

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schools will be able to request assessments and have their requests considered within the same six-week timescale as requests from parents.
I appreciate the concerns expressed by the noble Baroness, Lady Darcy de Knayth, about children who are excluded from school. She will be pleased to learn that from January 2002 we shall be collecting additional data, by LEA, on children with statements who are excluded from school. Furthermore, from September 2002 we shall ensure that any child who is excluded from school for 15 weeks receives suitable full-time education. We expect LEAs to ensure that children with special educational needs who are excluded from school receive provision that is appropriate to their special educational needs.
Some noble Lords have raised issues concerning the parents of children with statements who choose to educate their children at home. Advice on this is included in the draft code. It makes clear that where such education takes place, local education authorities will retain their duty to ensure that the child's needs are met. The statement must remain in force and the authority must make sure that parents can make suitable arrangements. The term "suitable arrangements" does not mean having to specify exact arrangements in the child's statement. However, the authority must satisfy itself that the arrangements put in place by the parents are suitable to meet the needs of the child. Where that is the case, the authority is relieved of its duty to arrange for provision as specified. If, however, the arrangements fall short, then the authority is not absolved of its responsibility. However, the authority could, for example, itself make some provision to help the parents to put in place suitable arrangements. Furthermore, even where authorities are satisfied that arrangements are suitable, they will still have a duty to maintain the child's statement and to review it annually.
I hope that noble Lords will see that we have taken extremely seriously all the views that have been put to us. I am enormously grateful for the comments and advice that we received. I hope that noble Lords will now approve the draft code. I commend the draft code of practice to the House.
Moved, That the draft Code of Practice laid before the House on 23rd October be approved.—(Baroness Ashton of Upholland.)
7.45 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for her comprehensive introduction of the draft code of practice. No doubt many of the points to be raised in our debate will already have been touched on by the noble Baroness in the course of her detailed comments.
Like many other noble Lords, I welcomed the withdrawal of the former draft special educational needs code of practice which was laid before the House earlier this year. It was clear at the time that the drafting was unsatisfactory. Indeed, most of the points of concern had been raised during the course of the debates on the Special Educational Needs and Disability Bill as it made its way through this House.
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Ever since the then Secretary of State, the right honourable David Blunkett, downgraded the need for specificity in the drafting of statements for children with special educational needs, I and many others, in particular those organisations representing children with special educational needs, have fought to have statements written in such a way that the detail of educational needs in terms of hours of provision, staffing arrangements and any additional equipment requirements should be specified. We also argued strongly for flexibility only—I stress this—in exceptional circumstances.
The changes made to the draft laid before the House tonight are welcome, but they are by no means perfect. For example, the Royal National Institute for the Blind is concerned about omissions from the draft code as regards provision for mobility education for children with sight impairment and the need for guidance on detecting visual impairment. We know that work has been carried out to establish more widespread screening of babies for sight impairment. It would be helpful to know today what progress has been made by the department. I understand that 30th October is Eye Test Action Day and that literature will be provided by the Royal National Institute for the Blind to emphasise the importance to parents of having sight tests for their children.
As to the question of mobility, it is important to make the point that mobility education for children with sight impairment is as important as language or speech therapy for children with other difficulties. It is a pity that this has not been properly addressed in the code.
But, having said that, like many other organisations, the Royal National Institute for the Blind wishes to see the code approved to allow schools and LEAs to get on with its implementation.
As the Minister said, the earlier 1994 code contained a requirement for clear and precise wording of statements. We are pleased to see that the wording has been reinstated. We welcome the changes in paragraph 7 to improve intervention measures for children who, through other medical needs, are prevented from gaining free access to education, and we also welcome the clarification of the respective roles of schools and LEAs concerning the allocation of funding and provision of information.
Although there has been a widespread welcome for the code and the fact that the contents of statements are now to be more specific, the wording is still not right. For example, paragraph 8.37 of the code leaves something to be desired. The Independent Panel for Special Educational Advice has expressed a concern—with which I entirely agree—about the words,
"some flexibility should be retained in order to meet the changing special educational needs of the child concerned".
IPSEA speaks for many of us. It believes that guidance should be issued to make it clear to LEAs that the Government envisage only a very small number of children—the genuinely exceptional cases—require statements in which provision is not quantified.

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IPSEA states its reasons for taking this view as:
"A statement which fails to quantify provision (no matter how positive and benign an LEA's intentions) leaves the child without the protection which the whole assessment process, and finalised Statement, was meant to put in place. An unquantified Statement is inevitably, by definition, a risk. For this reason, extreme caution needs to be exercised by LEAs when considering whether a child's statement should be quantified or flexible. Indeed, they should bear in mind Counsel's Opinion on this issue, provided by David Wolfe (which the Government has seen and which was copied to Lords for the last debate). Wolfe points out that 'if a child's needs are known to fluctuate, that…can be accommodated without losing the protection which comes from quantification. For example, if a child needs speech therapy but the amount they need varies from week to week, then that can be reflected by quantifying provision over, say, a term…provision for a child whose ability to benefit from speech therapy varies according to his medical condition could be quantified as follows: weekly sessions with a speech therapist of an average length of one hour each leading to a termly total of at least 13 hours. In my opinion, such a formulation allows for appropriate flexibility while also ensuring that the child is protected and (importantly) the school and the LEA know what they need to do in order to meet the child's identified needs'.
"In short, it is extremely difficult to imagine a situation in which the need to provide flexibility has to be at the expense of quantification.
"Further, it is difficult to imagine very many cases in which flexibility is appropriate. The overwhelming majority of children with statements of special educational needs have learning difficulties which arise from life-long conditions: their needs are stable. Changes will of course be needed, over time, to the provision they receive, but the review and amendment processes have always allowed for this. If a child's needs require it, a statement can be amended at the stroke of a pen by an LEA, following the statutory period of 15 days for parents to comment on the proposal to amend.
"The example provided by David Wolfe indicates how exceptional the need for flexibility is. A statement from the Minister to the effect that flexibility is appropriate not just in the minority of cases, but in an exceedingly small and clearly exceptional minority, would be helpful as reinforcement to the guidance in the Code.
It is also essential that Government guidance keeps up with changes in case law. The judgment of Justice Laws in L v. Clarke and Somerset County Council (1998) post-dated the original Code of Practice and refined the interpretation which LEAs must make of their duty under s324 to specify special educational provision in a statement. Included in the judgment was this passage:
'It would seem that in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out. The real question, therefore, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case'.
"It would be useful if the Minister would confirm that LEAs must act in accordance with case law as well as the Code of Practice. It is a waste of public resources, apart from anything else, for parents to have to appeal to the SENT [Special Educational Needs Tribunal] in order that Part 3 of their child's statement should leave no room for doubt as to what has been decided is necessary for their child".
I am therefore asking the Minister to place on record that statements will normally be specific and quantified in terms of hours of provision and staffing arrangements, and that only in very exceptional circumstances will LEAs be able to depart from the normal procedure. One test of exceptionality would be
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when it is not possible to quantify in terms of hours of provision or staffing arrangements. For the life of me, I find it hard to think of a single exceptional case.
I gave the noble Baroness notice of a related concern to do with Section 324(4)(a) of the Education Act 1996 as amended by the Special Educational Needs and Disability Act. The noble Baroness touched on the point, but I wish to emphasise it because I am not sure that the whole point was addressed. I understand a letter has been sent to the Minister, Estelle Morris, asking her to look again at what appears to be an error in the Act. The noble Baroness did not refer to it as being a mistake.
For children who are electively home educated and for whom a statement is maintained, it would appear that the parents have a duty to arrange the provisions specified in the statement. Yet there is no such duty on parents in the Education Act 1996. Does the Minister have any further news as to whether there is a disconnection between what the Act states and what the amended Act is intended to mean? I know that Mrs McLean, of Spearhead, which is the organisation most concerned about education at home, would be interested in any reply.
I should now like to say a word about paragraph 7.80 of the draft. In my view, paragraph 7.80 is badly drafted. Perhaps I may read from part-way through the paragraph:
""Discussions between advisers and parents about the child's needs may include consideration of various options, including the scope for mainstream education for the child and the type of school in which the child's needs might best be met, for example, mainstream, special or residential".
Part of that paragraph is otiose. The point is made twice. I think I know where the department is coming from and why it makes the point twice, but, frankly, it should not be there. The words,
"including the scope for mainstream education for the child",
are otiose because the paragraph states that,
"Discussions between advisers and parents about the child's needs may include consideration of various options".
The various options relate to the type of school in which the child's needs might best be met—for example, mainstream, special or residential. The words do not have be there twice. Although I shall not oppose the Motion, I point out to the noble Baroness that that may be confusing. There may be a deliberate hidden message.
We are grateful to the noble Baroness. Following earlier debates in another place and the debate on my amendment in July, she was probably influential in persuading her colleagues to withdraw the draft code of practice for revision. For that we thank her most warmly. If I may be so bold as to say so, how I wish the noble Baroness had taken the Bill through the House. Many of the points made during our proceedings would have resonated more strongly with her. However, we shall not oppose the code of practice. We wish it well, especially if we can have some of the assurances that have been sought.

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There is one vexed point. We are placing on local authorities an onerous duty to deliver effectively what the Government want them to deliver. If they do not have the resources, they will be unable to do so. That point needs to be made strongly.
Finally, the test of the code of practice will be the degree to which early special educational needs are identified; the degree to which they are specified; the degree to which the specification is appropriate; and, the degree to which, where possible—if it is consistent with the special educational needs of the child—it honours the parents' wishes.
8 p.m.
Baroness Sharp of Guildford: My Lords, we on these Benches very much welcome the new code of practice. There has been lengthy consultation on the code, over some 18 months. It carries forward the Government's inclusion agenda that we debated at some length earlier in relation to the Special Educational Needs and Disabilities Bill. We welcome in particular the strategic approach that is now incorporated in the code of practice, and its emphasis on links between agencies.
We are pleased to see the shift from the five-stage special educational needs approach to the three-stage approach, and the fact that the code clarifies the respective role of schools and local education authorities, including the information on what schools are expected to provide from their delegated budgets. We are pleased to see arrangements for the training and support of staff with SEN responsibilities. We are pleased to see the arrangements for monitoring admissions of children with SEN to maintained schools. We are delighted that there is now guidance for provision in the early years settings. We are also delighted that there are arrangements for reviewing and updating the policy itself.
In particular, we welcome the emphasis on participation by parents and pupils. Perhaps I may draw the attention of the House to paragraph 7.85, which makes it clear that LEAs,
"should also seek to ascertain the views of children and young people as part of the assessment".
That issue was raised at some length when we debated the Bill. I am pleased to see that it is now incorporated in the code of practice.
Like the noble Baroness, Lady Blatch, in the debates in July we had considerable difficulties in regard to paragraphs 8.36 and 8.37 on the issue of quantification. We were alarmed at the watering down of the promise that we had been given, as we thought, by the Minister that he would strengthen the pressure on LEAs for quantification. We felt that the weasel words "as necessary" in the original draft made it much too easy for LEAs to wriggle away from their obligations.
This has been a long-term and difficult problem for those dealing with SEN issues. I have been approached by many parents, concerned about the fact that they thought that they had got it clear as to what provision would be available—say, in speech therapy for their
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children—only to find that, when it came to it, it was not provided and the LEAs were able to argue that provision of speech therapy could imply one hour a week or it could imply eight hours a week. We were extremely concerned about the issue.
The new wording is considerably better than the old wording. The code now makes it clear that provision shall normally be quantified, although—a point made by the noble Baroness, Lady Blatch—there will be cases where some flexibility should be maintained.
Our preference on these Benches—like that of the Conservatives—would have been for rather more emphasis on the exceptional nature of non-quantification. We should have preferred wording such as, "although in a few cases", or "occasionally, it may be necessary to retain some flexibility". Like the noble Baroness, Lady Blatch, I hope that the Minister can give us assurances that the intention is that it will be exceptional for quantification not to take place.
Generally speaking, we welcome the new code of practice. We welcome also the fact that attempts have been made between the two codes to clarify the assessment of children with medical needs and the guidance on requests for advice from professionals working with LEAs and the position on the naming of schools.
I echo the points made by the noble Baroness, Lady Blatch, about the evidence from the RNIB and its worries about those with visual impairment. This emphasises the need for early screening. We dealt with the point at length during our debates on the Bill. The earlier a disability is known about, the better it will be for the person concerned. The RNIB's comments have considerable merit. The same is true in regard to mobility education.
Finally, I again echo the words of the noble Baroness, Lady Blatch. We are delighted to see the publication of the code of practice and we welcome it. However, we emphasise once again the question of resources. We have willed the ends, but we must make sure that there are sufficient means to meet those ends.
Lord Rix: My Lords, I begin by declaring a personal interest. Having a new grandson with Down's syndrome—with whom I have just spent a very happy day, noting his excellent progress—I am conscious of being close to someone who might well be directly affected by the code of practice, perhaps in the special "under two" category, and certainly a little later on. Perhaps I should also declare an interest as one of those who, during your Lordships' debates on the Special Educational Needs and Disability Bill, pressed for assurance to be made doubly sure in areas of doubt—if not in the Bill itself, then in the guidance issued with it. The government response during debates on the Bill was frequently in terms of what should be incorporated in two codes of practice, the regulations, one or more circulars, and what I must now learn to call the "toolkit". Those who have tried to navigate and drive while referring to several different maps will share my concern that there might be more confusion than direction.

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Given the often heated debate about educational theories and the politics of education, I ask one thing above all others of the code and the rest of the guidelines—in addition to coherence. The absolutely basic issue is a relevant and appropriate education for each and every child. I have concerns about what I shall term the "cop-out" clause—the one modifying the rights of disabled children by reference to the efficient education of other children. Safeguards are needed, but I need assurance that the use of this clause will be closely monitored to stop it being used to excuse poor management of inadequate resources.
With these caveats, I welcome the code, and hope that it will be read and acted upon, and not merely added to the groaning staff-room shelf of volumes telling schools how to teach. In particular, I welcome the acceptance that the way in which educational provision is described should always be specific, and that it should normally be quantified. I am glad that the Government have been able to respond favourably to the concerns expressed by your Lordships and others. I still have three or four questions that I want to raise, in the hope of a reassuring reply.
The first concerns the thorny issue of flexibility—which has already been touched on by the noble Baroness, Lady Blatch—and, most importantly, who benefits from it. What worries parents is the flexibility that some schools have shown in using funding intended for pupils with special educational needs for quite other purposes. It would be very reassuring to hear that schools are to be accountable for the significant moneys that are given to them to meet the special educational needs of their pupils.
I note that we have some small changes to consider in the way that the code deals with children with health needs. That has already been referred to. I have spoken before about Mencap's report Don't Count Me Out, which tells the sad tales of youngsters excluded from aspects of school life because of their additional health needs. As ever more severely disabled children survive their early months and years and have a future, we need to make sure that our schools are geared up for them.
I am not sure that we have got things quite right in the code. If, for example, a child needs medication during the school day, parents need to feel confident that school staff will be able and willing to give it. I should like to be assured that schools know and accept their responsibility for getting that right. Some schools have clearly been struggling with those issues. With medical needs, as with sensory support, lack of awareness of needs and lack of an appropriate response can mean exclusion from appropriate education.
Finally, whether we like it or not, we live in a doctrinaire age, with a number of the interested parties determined on change for change's sake. I should welcome a reassurance that the code is thought likely to stand up to, for example, the strain of local or national policies of increasing numbers of specialist
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schools. I know that we seem to have an education Bill a year, but I cannot believe that legislation is necessarily the right way. A continuing dialogue between the Government and the Special Educational Consortium might deliver what is required by way of a regular review.
I notice the hint of a further code revision, which may well be necessary. However, if there is one thing even more likely than too much guidance to persuade people to ignore it, it is the likelihood of frequent changes in guidance. On the other hand, if we have good guidance that is accessible to those affected by it, there is a better chance of it being implemented.
I hope that the Minister will be able to give me at least some of the assurances that I am seeking. We have in our hands the futures of many children with special educational needs—children we value for who they are and for what they could be.
Lord Renton: My Lords, I apologise to the Minister and to your Lordships for being late to this debate. Like the noble Lord, Lord Hylton, I have been to the funeral of a dear friend and former Member of this House.
I have a severely handicapped daughter. Like the noble Lord, Lord Rix, I have been closely involved with Mencap for many years. We have each been its national chairman.
I draw your Lordships' attention to a short but vital quotation on page 65 of the report. Chapter 7, paragraph 9, under the heading "Request by the child's school or setting", states:
"In some cases, schools or settings will conclude, after they have taken action to meet the learning difficulties of a child, that the child's needs remain so substantial that they cannot be met effectively within the resources normally available to the school or setting".
I ask the Minister to bear that in mind. Many children have such serious learning difficulties that they need special education at a school that can help them better than those that provide normal education. I know that Mencap and many others consider it unfortunate to have to send children away from normal schools and to special schools, but it has to be done. I press the Government on the issue.
There are three important factors to bear in mind. The first is that most young people with special educational needs learn more at special schools than they can be taught at normal schools. Secondly, such unfortunate children are often teased and occasionally bullied at normal schools. Thirdly, the burden on teachers at normal schools has often been increased by their having to teach pupils with learning difficulties. I ask the Government to bear those important factors in mind.
8.15 p.m.
Baroness Darcy de Knayth: My Lords, it is a pleasure to welcome the draft code of practice. It is a much bonnier baby than when it first lay on the Table in July. That previous draft contained many welcome changes, as the Minister has said, including the simplification of

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the school-based stages, clearer guidance on speech therapy provision, duties to meet transport costs of children in distant residential schools, and a greater emphasis on the importance of seeking the views of children and young people.
I am particularly grateful to the Minister and the Secretary of State for having the guts and good sense to withdraw the code in order to get it absolutely right. I thank the Minister for being so willing to meet, discuss and listen, and I also thank her officials for all their help.
The revised draft is improved. As the Minister said, it makes clear an LEA's duty to consider the formal assessment of children whose medical needs constitute a barrier to accessing educational provision. Many of the organisations had been concerned about that, including IPSEA—of which I am a member—Mencap and the RNIB. The noble Baroness, Lady Blatch, has already flagged up that tomorrow, 30th October, is Eye Test Action Day. I also support what she and the noble Baroness, Lady Sharp, have said. I was horrified to see recent research that shows that one in five schoolchildren may have undetected poor sight.
I also welcome the clarification in the new code that school governors cannot lawfully refuse a place to a child when their school is named in a child's statement, but can only argue against it.
The most important change is the inclusion in the code of guidance on the need, in the majority of statements, for special educational provision to be quantified. If not, there is no guarantee that a child will receive the help to which he or she is legally entitled. That is reinforced by the additional guidance that LEAs must not operate blanket policies of refusing to quantify provision and must not try to prevent professionals recording an opinion on the amount of help that a child needs in their assessment reports. The reinstatement of guidance on quantification and the additions that strengthen it are most welcome.
However, for the guidance to result in improvements for children, two things must happen. First, the LEAs must refrain from using the argument that a child's need for flexible provision justifies a vague statement. Like the noble Baroness, Lady Blatch, and David Wolfe, whom she quotes, I see no reason why flexible arrangements cannot be conveyed in a quantified way that retains the protective functions of the statement. I hope that the Minister will be able to reassure the noble Baronesses, Lady Blatch and Lady Sharp, and the rest of us that the overwhelming majority of cases will be quantified and that the absence of quantification will be appropriate only in exceptional cases. That is what all the disability organisations wanted. Furthermore, it would be helpful if the Minister could stress the Government's expectation that in these exceptional cases, LEAs will base their decision on professional evidence with regard to the individual child's need for flexibility.
Secondly, while the advice against blanket policies to produce vague statements is welcome, such policies are, of course, illegal. Unfortunately, in the past the Secretary of State has been slow to respond to formal
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complaints made against LEAs which are operating blanket policies. I know of one instance in which the department took a whole year to react to the complaint, even though officials were provided 'with clear written evidence that the policy was in operation. Now that the code has added government guidance on that issue, which is hugely welcome, it would be encouraging to have an assurance that in future, where there is clear written evidence of an LEA operating a blanket policy, the Secretary of State will act swiftly to quash it.
Before moving to my final point about excluded children, I should like to support the point made by the noble Baroness, Lady Blatch, about Spearhead's worries about the implication that parents have a duty to arrange the provision specified. I hope that the Minister can set at rest Spearhead's anxieties on that point.
Finally, I should like to say something about excluded children. IPSEA and the RNIB are particularly worried about excluded children. About 20 per cent of IPSEA's children are not necessarily excluded from school but are out of school or excluded at any one time. Around half of the children who are excluded from school at any one time have special educational needs. I sought to persuade the Minister to include in the code of practice guidance that LE As should identify among those children and young people who are excluded those with special educational needs as the likelihood is that their exclusion in most cases will have resulted from those needs not being met. I was not sufficiently persuaded at the time. Therefore, I am absolutely delighted to hear what the Minister said in her opening speech and I am very grateful for that. I reiterate my very warm welcome to a significantly improved code which will greatly benefit parents, teachers and, of course, children with special educational needs with or without statements.
Baroness David: My Lords, having been involved for a long time in the whole special educational sphere I am delighted to follow the noble Baroness, Lady Darcy de Knayth, as I think that I agreed with everything she said. I congratulate the Government on having paid such attention to the matter even though it has taken quite a long time to get the draft code revised. From all that has been said around the House it appears that it has had a warm welcome. There may be a few criticisms and warnings but I think that they will be attended to. I have great faith that the Minister will follow up everything that has been said tonight.
I also pay tribute to the noble Baroness, Lady Blatch, who during the passage of the 1996 Act went to an enormous amount of trouble to consult on the code. We have moved on a further stage. I say to the noble Lord, Lord Renton, that I believe the Government have accepted that special schools are necessary. I am sure also that the comments of the noble Lord, Lord Rix, with all his experience will be paid attention to.

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I congratulate the Minister and the Government on the great success of the draft code. I say to the noble Baroness, Lady Sharp, that I too support paragraph 7:85 on the views of the child. I believe that that has now been generally recognised and accepted everywhere although that was not the case some years ago.
Lord Baker of Dorking: My Lords, I welcome the revised code. I apologise for not being present to hear all of the Minister's opening remarks. I was late as I was attending a charity fundraising event for the special school of which I am president. I declare that as an interest. The school in question is Dorton House, a school for blind children. It is a centre of international excellence and takes in children from the age of two to two-and-a-half and takes them through to a further education college at the age of 25.
The Minister will know from the briefings she will have had on debates that took place earlier this year that long hours were devoted to the relationship of special schools to the Government's policy. The Government's policy is to put many children with disabilities through mainstream schools. That policy was initiated a long time ago under a Conservative government. When I had responsibility for that policy I soft pedalled it as I was never enthusiastic about it. However, the foot has now been put on the accelerator and the Government are keen on the policy. I continue to have misgivings about it. I think particularly of children with severe physical disabilities and children with profound behavioural problems which make them ungovernable and children who have what are called low incident disabilities such as blindness or deafness. I am fairly certain that those children's needs are best met in special schools whether in the non-maintained sector—Dorton House is in that sector—or in the maintained sector. I find it rather depressing that some special schools in the maintained sector are being closed. I believe that is a mistake.
I understand the advantages of inclusion. Many children benefit from inclusion but there are many children who will not benefit from it and will benefit much more from receiving the degree of support and services that are available in special schools. I realise that the Government have not set their mind completely against special schools although some of the replies we were given earlier in the year were fairly cool and distant and rather frosty. Therefore, the revised code is welcome, particularly paragraphs 8:36 and 8:37 which have already been mentioned.
We were concerned that the statement, which is the critical element in determining what should happen to a child, should be much more specific. The noble Lord on the Front Bench opposite will recall some earlier briefs on the matter which were unspecific and which told us, as it were, not to worry as the needs would be met. I am glad to see that other counsels have prevailed. I do not know whether this is the first instance of the Government moving even a few inches
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in the direction of parliamentary comment. That was not a common event in the previous Parliament; I hope that it will be more common in this one.
The Government have moved in that direction and have included in those two paragraphs the measures which we sought; namely, that,
"A statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each identified need".
That is a tremendous step forward. The document also states:
"This can only be done by a careful assessment of the pupils' difficulties and consideration of the educational setting in which they may be educated. Provision should normally be quantified (e.g. in terms of hours of provision, staffing arrangements)".
The brackets were not necessary; that is a slight conditioning but I forgive that. Therefore, a statement will be provided stating, for example, that a child will need so many hours of speech therapy or so many hours of Braille instruction and the staffing arrangements—that is, presumably, how well qualified the staff are to cope with that provision. I know of no provision in the maintained sector that can provide the degree of expertise for blind children that a school such as Dorton House can.
I should also like to see in the document a reference to equipment. It is not just a question of hours of provision and staffing arrangements. Equipment for dealing with the specific needs of the blind and the deaf is costly and it changes almost yearly. For example, one can now obtain software packages that verbalise e-mails. I should think that Ministers should have that equipment, quite apart from blind people. It is a good way to access one's e-mails but it is expensive. That is just one small example. I refer to all the devices that are available on an ordinary computer "qwerty" keyboard to help blind people. Those are continually being improved.
I am not against maintained schools providing services for blind children, but the costs of that will be enormous. I do not believe that the Government appreciate the consequential costs of the policy on which they are embarked. They will now give parents a greater degree of information on school and LEA provision. That can be easily compared with the degree of expertise provided by special schools. For example, in our nursery for blind children the pupil/teacher ration is 1:2 and 1:3. For those children who suffer in addition from serious behavioural problems, the ratio is almost 1:1. Local authorities will be hard pressed to afford that kind of provision.
The noble Lord, Lord Rix, said that money is being diverted from special to general education. When a local education authority is faced with the degree of provision that is needed to deal with a small minority of pupils there will be enormous pressure not to provide that. But if an LEA is transparent, parents and children will be able to see what is being provided.
I believe that the consequential costs of this policy are enormous. Therefore, I very much support what my noble friend Lord Renton has just said. There is a

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continuing need for special schools in our society. I hope that the Government will do everything they possibly can to encourage them.
I received a very helpful letter from the Minister today. Our school wondered whether it could become a special school under the initiative by which I started city technology colleges. The first reply that I received was rather distant and cool. I do not know whether the Minister has made changes since she has been in office. The first reply that I had was fairly stifling, but the reply received today was rather optimistic because it stated that state-maintained special schools will be included in that programme. I believe that that is a tremendous step forward and I welcome it. I hope that the programme might also be extended to the non-maintained sector.
I am sure that the Minister will appreciate that the schools about which I am talking are not schools run for profit. They are all run by charities. They must raise an enormous amount of money. A great deal of state money goes into them through the provision of per capita grants for the children. Therefore, these are rather special cases. I hope that in a year or so the Minister will be able to say that she has extended the scheme to special schools, too. With that proviso, I certainly welcome the code tonight.
8.30 p.m.
Baroness Ashton of Upholland: My Lords, for me and, I hope, for other noble Lords, this has been a fascinating and very useful debate. I shall attempt to answer as many of the questions as I can. I apologise if I fail to answer any. If I do, I shall certainly write to noble Lords and shall continue to do so.
Perhaps I may begin by saying to the noble Lord, Lord Baker of Dorking, that I am very pleased that Dorton House has been working with the south-east SEN regional partnership to share its excellent expertise with mainstream schools. That is a very important role for our special schools. The noble Lord may know that I met the head teachers of all the schools for children with visual impairment. I had an interesting and very enjoyable day. We talked about the continuing value that the Government place on special schools.
The number of young people at special schools has remained constant. I shall look carefully at their future role to ensure that there is nothing cool and frosty about the way in which we view them. We shall also ensure that that role is open to them both for children who should be educated by them and for those within the mainstream sector.
I believe that the noble Lord, Lord Renton, made a similar point about specialist schools. As I said, we are very clear about their role. We are also concerned that children within the state sector who have special educational needs should not suffer from bullying. It is a requirement that head teachers deal with bullying and draw up measures to prevent all forms of bullying against pupils. That, of course, includes children with special educational needs.
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We are concerned to ensure that teachers of children with special educational needs have appropriate qualifications. We also intend that the experience of teachers who have worked successfully with children with different special educational needs is shared to ensure that that expertise is used to the full.
I return to the subject of children with visual impairment. We hope that, alongside its other roles, the under-twos working party will be able to consider the early identification of children who have visual impairment.
I turn to the question of the number of children with special educational needs being excluded from school. The noble Baroness, Lady Darcy de Knayth, referred to my earlier comments, and I shall not repeat them. However, we are looking very carefully at investing in tackling disaffection. We want to ensure that we are able to keep children within schools. We recognise that children who are not able to stay in schools because of particular behavioural issues need to have full-time education. That is a key priority for us.
The noble Baroness also talked about the blanket statements policy and the need to consider the time that it takes us to examine complaints. I assure her that we are constantly working to sharpen up our practice so that cases are dealt with as quickly as possible. We continue to work in partnership with LEAs with a view to improving their practice. That, in particular, is the case in relation to our SEN regional partnerships and the work of the partnership unit. However, we want to be sure that we have all the evidence that we need in order to establish the facts of the matter. Sometimes that takes a little time.
The noble Lord, Lord Rix, was concerned about funds for special educational needs being directed to other purposes. As the noble Lord will know, school governing bodies must report to parents on the use of those funds and must, under Section 317, use their best endeavours to meet the needs of children. Of course, we want to ensure that funds are used specifically for those children. However, it is also true to say that people who work with such children often play a valuable role within the classroom above and beyond that. I do not believe that we want to take anything away from those people while we recognise that their function is to support the children in their care.
The noble Lord, Lord Rix, also talked about the possibility of the reference to the efficient education of other children being abused as a way of denying mainstream places to children. Concerns have been raised about that. Questions have been raised as to how the efficient education caveat within new Section 316 of the Education Act would work in practice. We believe that it would be possible only to demonstrate that the inclusion of a child with a statement was incompatible with the efficient education of others in a small number of cases. We envisage that that would occur where it could be clearly demonstrated that a child's behaviour was so challenging that the safety of other children could not be guaranteed or that other children's learning would be persistently and systematically disrupted. In such cases, in our view a mainstream place should not be provided.

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The noble Lord, Lord Rix, should also be aware that the monitoring of efficient education will be carried out by HMCI—in particular, Section 316(3)(b)—both at school and LEA levels. I hope that that will provide him with some reassurance. In responding to the noble Lord, I should add that we are aware of the concerns expressed in a recent Mencap report, Don't Count Me Out. Officials have discussed these issues with Mencap and have promised to consider its views further. I look forward to hearing what has happened in relation to those discussions.
The noble Baroness, Lady Blatch, talked about the identification of children with hearing impairments. We are supporting a bank of training materials, innovative activity in the next tranche of the LEA excellence centres and support through the SEN standards fund in order to promote early intervention in relation to such children.
The noble Baroness also referred to the fact that mobility education is not included in the draft code. LEAs can make arrangements for mobility training if they wish, but we do not consider that we should make it obligatory. There needs to be good liaison with health services locally and, indeed, with voluntary and social services to look at those issues. We shall, of course, try to ensure that that happens.
Clearly I need to say a little more about parents who educate their children at home. I hope to clarify their position. The provision in Section 324(4A) of the Education Act does not place new duties on parents. The duties on parents who home educate their children are contained in Section 7 of the Act. This requires parents to ensure that their children receive efficient full-time education, suitable to age, ability, aptitude and special educational needs.
Section 324(4A) relates to LEAs' powers, allowing them not to name a particular school in a child's statement where they are satisfied that the parents have made suitable arrangements for the child's needs to be met. We need to make clear that an LEA must arrange for the provision specified in the children's statement unless the child's parents have made suitable arrangements. The LEA could assist the parents to make their arrangements by providing help in some circumstances. However, we do not suggest that parents must carry out exactly what is written within the statement. It is for the LEAs and the parents to work together to ensure that the child receives suitable provision, recognising that provision within a school is different to that provided at home. We are not keen to take away the responsibility of LEAs to ensure that children's statements are reviewed annually, that they are monitored and that we ensure that the child receives the best possible provision. It is not meant to place additional burdens on parents.
A number of noble Lords have talked about the issue of specification and quantification. We have said that we would always wish to see specification take place. I underline the word "always". Noble Lords have talked about the difficulty of interpretation. I am very conscious that we need to be clear about what we
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are describing. To me, the word "normally" means that in the majority of circumstances one would expect to see a statement as to quantification.
I give an example. If an LEA refers to the provision of speech therapy "as necessary", that is not properly specifying provision for speech therapy. The provision must be specific as to what is provided and it must be quantified in most circumstances.
However, I am clear that in some circumstances we need to be flexible. I do not want to suggest that, by having flexibility, we have provided a get-out clause for any LEA. The vast majority of cases are well catered for. Where there are exceptions we have ensured that there are methods for parents and LEAs to sort out, through the parent partnership services and eventually through the tribunals, the issues under dispute. We do not wish to have blanket policies. We believe that there is a need to have a little flexibility. But I put it on record that that does not mean that LEAs should do anything other than normally quantify.
If it is an unusual set of circumstances, LEAs would not quantify. Such circumstances should be agreed with all those involved.
A number of noble Lords spoke about resources. I recognise that I need to wind up this debate in order to allow other business to take place. But I am conscious that today I have announced an additional £9 million in the SEN standard funds for this coming year, making the total available for SEN £91 million, to help support training on the revised code of practice and to give direct practical support to inclusion. We have been talking through eight regional conferences with a variety of schools, LEAs, the National Children's Bureau, and the National Association for Special Educational Needs to make sure that the code, if approved by your Lordships' House, is able to be implemented, which is the most fundamental part of the matter.
I hope that I have dealt with many of the questions which noble Lords have raised. I am indebted to the noble Lords who have contributed to this debate, the organisations which have made representations, and the parents and the children who have given me their views. I firmly believe that the implementation of the revised code will improve the experience of children and young people with special educational needs and their families. I commend the draft code of practice to your Lordships.
On Question, Motion agreed to.

Office of Communications Bill [H.L.]
8.42 p.m.
House again in Committee on Clause 2.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 14:
Page 2, line 36, at end insert—

"(c) harmonises regulation between the existing regulatory regimes;

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(d) reduces sectorial regulation to the minimum; and

(e) promotes the efficient use of resources by taking clue notice of—

(i) areas where duplication of activities by existing regulators enables economies to be made; and

(ii) current activities of existing regulators which may be discontinued or pursued with fewer resources as a result of the increase in competition in the telecommunications and broadcasting industries."

The noble Baroness said: Again, this is a probing amendment. We are seeing in this Bill the amalgamation of the functions of five regulators, each supervising a major segment of the communications industry. Furthermore, competition between telecommunications and broadcasting is increasing. It is not merely competition. In many respects they are beginning to overlap, and the distinctions between them are beginning to blur.
People can send e-mails, order goods, do their banking and pay bills via their television sets, and it is possible to receive television broadcasts down land lines to a desk top computer or even to a mobile phone.
This amendment seeks to ensure that in setting itself up Ofcom reduces the overlap between its separate divisions. No less important, it ensures that whatever differences of approach and emphasis may exist at present, in the new super regulator that we are creating the same rules should apply to all segments of the industry.
The proposed new paragraph (e)(ii) enables Ofcom's board to ensure that it forbears from enforcing conflicting rules as a prelude to their removal or harmonisation under the new regime. At present, regulators have a duty to enforce their powers, even obsolete ones. This paragraph may also encourage the use of the general competition law wherever possible.
The Towers Perrin report, which was commissioned by the five regulators being replaced by Ofcom, identified very little scope for reducing headcount or expenditure. Perhaps that is not surprising. Without impugning in any way this excellent report, it would have been surprising if the authors had come down in favour of those commissioning it looking at ways to downsize themselves. An image of turkeys and Christmas comes to mind.
Nevertheless, it is the responsibility of Parliament to instruct the new regulator that it is his responsibility to take advantage of the new harmonisation of functions which should be accompanied by a reduction in size and a reduction in the resources required to perform the amalagamated functions of the five regulators. That inevitably happens in the commercial world when there are mergers. There is absolutely no reason why a well-run and efficient new regulator should not be able to do the same.
As I said at the beginning, this is a probing amendment. I shall listen with great interest to what the Minister has to say. I beg to move.
8.45 p.m.
Lord McIntosh of Haringey: I have very good news for the noble Baroness, Lady Miller. I begin by saying that we are entirely in sympathy with the objectives of the amendment. But the good news I have is that it is already happening. The noble Baroness referred to the Towers Perrin report and was kind enough to say that it is excellent. But that report exists because it was commissioned, as she said, by the five regulators. They have been working very closely together. My noble friend Lord Dubs is not with us at present. As chairman of the Broadcasting Standards Commission, he knows from first hand experience. Indeed, he said earlier today that a group that has been meeting for many months is making the preparations for which this amendment calls. Each member has signed a memorandum of understanding to share information and, where there are common interests, to develop policy issues together, including those of competition and convergence. The group has also resolved to establish mechanisms to ensure that complaints a re handled in order to avoid double jeopardy wherever possible.
During this transitional phase it is important that the existing regulators are able to carry on with their current duties without interference from Ofcom. That is the purpose behind the provision of Clause 2(2)(b) which will prevent Ofcom from interfering with the effective carrying out by the existing regulators of their current functions. However, in taking the practical steps which are necessary to set up Ofcom, we will expect it and the existing regulators to examine activities which may no longer be necessary and where savings may be achieved.
The noble Baroness is entirely right in saying that the Towers Perrin report has not identified very large areas of savings in money or headcount. But I believe that as the five regulators work together in assessing the report and its implications it may well be that there will be opportunities which have not yet been identified. I believe and hope that the provisions in the Bill and the memorandum of understanding which I have referred to are preferable to putting obligations of this kind on the face of the Bill. On that basis I hope that the amendment will not be pressed.
Baroness Miller of Hendon: I thank the Minister for that very helpful, comforting and reassuring reply. Under the circumstances I am pleased to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 15:
Page 2, line 36, at end insert—
"( ) In fulfilment of the functions set out in subsection (1), OFCOM shall have regard to the need (subject to subsection (2))—

(a) to ensure fair and effective competition in the provision of services provided within the communications industry and those connected with them; and

(b) to ensure needs of consumers are protected with regard to both economic considerations and access to communications services."

The noble Baroness said: One of the central planks of the White Paper was to make the United Kingdom home to the most dynamic and competitive communications and media market in the world. Indeed, when introducing the Bill on 15th October, the Minister used those very words. She went on to tell your Lordships that it would,
"ensure universal access to a choice of diverse, high quality services and proper safeguards to protect the interests of citizens and consumers".".—[Official Report, 16/10/01: col. 597.]
That is a great mission statement for a regulator in the 21st century and one with which we wholeheartedly concur and support.
It is a clear target and an achievable aim, and something which the new regulator and his organisation can be proud to have as their objective. It should be at the heart of the role of the regulator and should be the criteria against which every one of his actions and decisions should be judged.
Some communications companies have been concerned about the balance between content and economic regulation. The amendment, by giving equal weight to paragraphs (a) and (b), strikes the right balance. It enshrines the ambition of the Government as a key function of the new regulator and should be welcomed by all those who are involved with the communications industry, whether as operators, stakeholders or consumers. The White Paper said that the objective was to protect the interests of consumers in terms of choice, price, quality of service and value for money by, in particular, promoting open and competitive markets.
Members of the Committee know that the Government have said much about safeguarding the interests of citizens and consumers but, sadly, nothing to that effect appears in the paving Bill. This Bill is, after all, the blueprint of the substantive operative Bill, which will eventually be published. It is also strange that the premium rate services regulator, which is known by the acronym ICSTIS—the Independent Committee for the Supervision of Telephone Information Services—has been left out of the Bill. In terms of strengths, it is a valuable test of the way in which content regulation might be applied. We should welcome clarification from the Minister on that and on whether Ofcom will be able to act when a question is raised about the regulation of entertainment services that are delivered down the telephone at premium rates.
I shall summarise the amendment's purpose. If the regulator is being charged with the responsibility of protecting the welfare of consumers in the communications sector, that duty should be enshrined in the definition of his principal role and functions. I beg to move.
Lord McIntosh of Haringey: I am grateful to the noble Baroness for moving the amendment. I am rather relieved that attention is being paid to the communications side; so much of the emphasis in our debate has been on the broadcasting side, and it is
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refreshing that the noble Baroness has paid attention to the communications aspect of regulation, which will, in the fullness of time, become the responsibility of Ofcom. The White Paper runs very much on the same lines as the amendment; the amendment could almost have been taken from the White Paper.
The White Paper made it clear that promoting effective competition and protecting the interests of consumers in terms of choice, price, quality of service and value for money will be part of Ofcom's central regulatory objectives.
My only qualification involves what I shall call "the dusty answer", and which I shall use now and on future occasions. The dusty answer is that the sole responsibility of Ofcom, as that is set out in the Bill, is preparation for regulation when the substantive Bill has been enacted. The only function that this Bill will confer on Ofcom is that of preparing itself to take on other functions at a later date. Thank goodness the noble Lord, Lord Peyton, is not here—he cannot explode with rage at that definition! However, that is what the Bill has been about from the very beginning. The truth is that Ofcom will not exercise any regulatory functions at this stage, and it will not be in a position to ensure competition or to protect consumers—desirable as those aims will be—when it is carrying out regulation.
The noble Baroness raised a couple of specific points, the first of which was about emergency services and entertainment services being fed down telephone lines. Those matters will be covered broadly to the same extent as is done under the existing system. The detail of the way in which that should be done will be in the main Bill—that has been the procedure in relation to many other matters.
The noble Baroness asked about ICSTIS. I may have to write to her on that point but I assure her, from personal experience, that ICSTIS is having discussions with the existing regulators, although that is not covered by the Bill. Nothing is being done without consultation with it, when that is appropriate.
I have given, I am afraid, a dusty answer about the amendment's effect and relevance. However, in view of the fact that we have a great deal of sympathy about its objectives, I hope that the noble Baroness will not press it.
Lord Borrie: I hope that the Minister will forgive me for intervening after he has spoken. I point out that in Clause 2(1), the only initial function of Ofcom is given as,
"to do such things as they consider appropriate for facilitating the implementation of … any relevant proposals about the regulation of communications".
I know that the Minister was trying to be helpful but he is also being consistent in his answers by pointing out that this is only a paving Bill that merely assists with the implementation that will come later. I am bound to say that the reference in Clause 2(1) to "relevant" proposals about the regulation of communications is singularly unhelpful; it does not even say—either in the terms that the noble Baroness,

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Lady Miller, mentioned, or, so far as I can see, anywhere else in the Bill—that, in due course, those proposals will be put forward to regulate communications in the interests of, to put it briefly, competition and the consumer. One would have thought at the very least that the Minister might be able to say somewhere in the Bill that the ultimate purpose of assisting consumers and competition exists. Without that, we merely have the extremely vague and unhelpful phrases in Clause 2(1).
In other words, I am saying that I have every sympathy with what the noble Baroness is trying to do. I wonder whether, perhaps at Third Reading, something—it could be phrased in even the most general terms—could be added to the Bill to say what the ultimate objectives are that we are paving the way for.
Lord McIntosh of Haringey: That is an interesting philosophical point, is it not? Much of the time that we have been considering this Bill has been spent defending the paving Bill against those who are afraid that we are in that Bill committing ourselves in the longer term to things to which we do not want to commit ourselves until the communications Bill has been presented to and debated by Parliament. My noble friend Lord Borrie suggested quite the opposite; he said that in the Bill we should express the objectives that will constitute the main thrust of the final Bill. I do not see how we can do that. I do not see how legislation that is debated in October 2001 can say what legislation in 2002 or 2003 will be. It is much better for us to rely on the modest objectives of what the noble Baroness, Lady Miller, called "this little Bill" and to allow for the fact that, by establishing this organisation in advance of the final legislation, we are saving much time and money and enabling the wishes of Parliament to be carried out more effectively than they would otherwise be.
The White Paper states which topics will be given to Ofcom if government proposals are approved by Parliament; but they are not, of course, being approved by Parliament in the course of this legislation. The main Bill will set out the general duties of Ofcom. I confirm—there is no difficulty about this—that they will include competition, consumer protection, universal access and so on. However, that is not in this Bill.
Baroness Miller of Hendon: I thank the Minister for his answer and the noble Lord, Lord Borrie, for his support. The amendment raises one of the Bill's real dilemmas. The Government clearly want to restrict our debate to the paving Bill. Out of curiosity on all sides of the Committee we want to know what we are paving the way for. We are trying now and then to get some information from either of the Ministers about that. I am acting with quite a lot of restraint; it seems that the nicer the answers, the easier it is on this side of the Committee to withdraw an amendment and say, "Oh well, that sounds all right". We cannot push the amendment further. It would have been nice if we had a little more information but we are clearly not going to get it.
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The Minister said that he was pleased that I had talked about the communications side instead of merely the broadcasting side. On a previous occasion I pointed out that in the White Paper telecommunications is mentioned on 78 occasions whereas broadcasting is mentioned on 592 occasions. A quick read of the White Paper suggests that it is concerned only with broadcasting. It clearly is not. Obviously we have much more to do. Given the kindness and the gentleness of my nature this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
9 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 18:
Page 2, line 42, leave out "whether"
The noble Baroness said: In moving Amendment No. 18, I shall speak to Amendments Nos. 19, 20, 26, 27, 41 and 44.
We have returned to broadcasting, but we shall shortly be discussing telecommunication matters again. As my noble friend Lady Miller said, the world converges and it is sometimes difficult to tell the difference between broadcasting and telecommunications.
The purpose of the amendments is to place a duty on the BBC to prepare plans by which the regulatory functions of the board of governors might be transferred to Ofcom if that is what is decided in the communications Bill. They would also put a duty on Ofcom to work with the BBC for the same purpose. The question of whether it is right or not to bring the BBC fully within Ofcom cannot of course be decided tonight. It will be determined when we debate the communications Bill.
However, Parliament's opportunity to make that decision will be fettered unless we take steps in this Bill to ensure that the BBC is as ready to join up to Ofcom as any other regulator.
Clause 2(1) gives Ofcom the function to do just about anything that it considers appropriate for implementing or modifying proposals covering regulation. It is limited by subsection (2) to working only with the Secretary of State and existing regulators. There is no mention in the Clause 5 definition of existing regulators of the regulatory function of the BBC governors.
I strongly believe that if the BBC is left out of the loop now, it will be too late when we come to the communications Bill to bring it fully within Ofcom. if that is then Parliament's wish. Ofcom will have worked throughout the transitionary period without building up a relationship with the BBC. The noble Lord, Lord McIntosh, in the debate on the previous amendment, referred to the fact that the whole point of a paving Bill is to save time and money by setting up an organisation that is ready for the off as soon as the communications Bill has been passed. That is a laudable objective. I would argue that that laudable

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objective will be compromised unless the BBC is also ready, willing and able to join the same escalator as the other regulators are currently on.
On Second Reading, the noble Lord, Lord McIntosh, said that the provisions of Clause 2(3)(a) allowed the Secretary of State to bring the BBC within Ofcom at some later unspecified date if she so wished. That seems to me like a case of this year, next year, some time, never. It is an unacceptable uncertainty.
The transitional Ofcom may well be into maturity by the time that Parliament has the opportunity to consider the BBC's position with regard to the Bill. It may not have its regulatory powers, but it will have already taken on its own culture. The shadow Ofcom should not be set up in such a way that it becomes difficult, if not impossible for Parliament to bring it wholly within Ofcom in two or three years time, or when the Bill is passed.
Although we are not deciding tonight whether BBC regulatory functions should come fully within Ofcom, I anticipate that Members of the Committee may wish to express their views, as some did on Second Reading. They legitimately form a back-cloth to our debate on the amendments. It is illogical to establish a single converged regulator and then exclude from its remit those services that represent a major part of broadcast television and radio.
The Government often say that their aim is to create a single regulator for the communications sector. But in reality, as the Bill stands, there will continue to be two broadcasting regulators—Ofcom and BBC governors. As the National Consumer Council said, that would be retaining two disconnected streams of regulation, which would not be in the consumer's interest. That could lead to messy turf wars between the governors and Ofcom, which could further lead to chaos and confusion.
At Second Reading, the noble Baroness, Lady Young of Old Scone, wanted to leave the BBC half in and half out of Ofcom. She argued that the BBC is different from other broadcasters, that its sole role is public service broadcasting.
I recognise that there is a difference between the BBC and other broadcasters in its constitution and remit, and I have treated the others somewhat differently in my amendments. The difficulty is that the BBC does not always act differently. Therein lies the problem. In its determination to chase ratings, the BBC has often appeared too much like every other broadcaster. Last Christmas, it broadcast a whole Harry Potter book non-stop. That was fine. I thoroughly enjoy Harry Potter books—I have read them all. It is like going back to childhood and enjoying it all over again. The BBC could chase ratings over Christmas simply because BBC Worldwide had bought the company—Cover to Cover—that owned the rights to the audio tapes. That is fine in itself and a good example of successful, aggressive commercialism. But how does that make the BBC different from commercial broadcasters?
Could we argue that Ofcom simply will not be competent to deal with BBC regulation? If that is so, why not? Surely it will have to have the expertise that is necessary to take decisions, bearing in mind the different needs and status of different service providers. If Ofcom does not have that competence, it will not be competent to regulate other public service broadcasters such as Channel 4—or, indeed, those which are not public service broadcasters. Either the Secretary of State has confidence in Ofcom, or she does not. If not, why is she taking the trouble to introduce this legislation? If she does have confidence in Ofcom, surely the suspicion must be that she wishes to control the political direction of the BBC to a greater level than would be achievable via an independent regulatory body. I hope that we shall be told that that is not the case.
I will not take time at this late stage in the evening going through the technology of each of my amendments. I have not followed the route chosen by the noble Lord, Lord Gordon of Strathblane. That is not because I disagree with him; I do not; I support his objectives. But my amendments may offer a more appropriate way of achieving the same objective. They are simple, fair and practical as a way of ensuring that this paving Bill does not leave the BBC behind, half in, half out of Ofcom. It will also ensure that Parliament can make its decisions in regard to the BBC in the communications Bill unfettered. It is all a matter of keeping our options open. I beg to move.
Baroness Blackstone: Taken together, these amendments would make the BBC an existing regulator for certain purposes in the Bill, alongside the other regulators. Ofcom would have certain duties to ensure co-operation between itself and the BBC, and the BBC would have new functions for facilitating the implementation of legislative proposals. However, the amendments would impose on the BBC a duty to prepare for the Secretary of State a scheme setting out how any of its objects, powers or duties might be conferred on, or regulated by, Ofcom; how those proposals might be effected, and the property rights and liabilities that it would also be appropriate to transfer to Ofcom for that purpose. They would also allow preparation for the transfer of functions from the Secretary of State.
Amendments Nos. 18 and 19 would mean that there would be no scope for the new functions to be embraced by Ofcom, but I shall explain that point in more detail later.
Let me say at once that, while we are clear about government policy, I fully acknowledge that we must not pre-empt the outcome of parliamentary debate on the main communications Bill. At the end of the Second Reading debate my noble friend Lord McIntosh responded to the important point on this which was made by the noble Baroness, Lady Anelay, and which has been reiterated by her this evening. He sought to assure her. Whether or not she was reassured I cannot say; perhaps not, in view of what she said this evening.

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Before I explain in more detail why I do not believe that the provisions introduced by these amendments are necessary, it may be helpful for me to spend a little time going over the relationship that the Government envisage between the BBC and Ofcom as outlined in the White Paper. It would be useful to set the record straight in that regard.
It is a pity that, in the public debate we have had so far on our proposals for regulating the BBC, there has been so much emphasis on how its position differs, and rather little attention paid to the features that are common to all public service broadcasters. Let me start by repeating that the aim is to treat all broadcasters in a similar manner. The White Paper describes a new three-tier structure of regulation which is to be generally deregulatory and, in the interests of fairness, will apply across the board.
The public service programme broadcasters are Channels 3, 4, 5, the BBC and S4C. They cover a broad range—from the BBC, a body established by charter and funded through the licence fee, to Channel 5, a commercial channel with fairly restricted public service obligations.
The White Paper recognises that the new system of regulation will need to take account of those differences. There will therefore remain some differences in regulation between the BBC and others. The position of the governors will be unchanged internally, but will be modified by the new relationship with Ofcom. Broadly speaking, the BBC will be subject to the same degree of standard setting and monitoring as all other public service broadcasters for each of the three tiers regulated by Ofcom.
The overall result will be that the BBC will be subject to greater external regulation than at present. I want to make that clear. Let me emphasise that its position will be brought much closer than it has been to that of other broadcasters. One might put it the other way round: by lightening the burden on other broadcasters, we are bringing their position closer to that of the BBC. There will be three tiers of regulation for television. Tier I will apply to all broadcasters; tiers 2 and 3 will apply to all the public service broadcasters.
Tier I includes such matters as guidelines on the portrayal of sex and violence. Ofcom will develop overarching codes tied to the statutory principles, which will bind all broadcasters. Those will also apply to the BBC. The governors will be responsible for developing more detailed guidelines building on the overarching codes and applying those standards to BBC services. There will be one specific exception for the BBC: regulation of the impartiality requirements will remain with the board of governors because that is so closely bound up with their overriding role of ensuring the BBC's editorial independence.
Tiers 2 and 3 will apply to public service television broadcasters only. Tier 2 provides for consistent regulation by Ofcom of quantifiable elements for which quotas or targets can be set such as quotas or targets for regional production and output and the requirement for news/current affairs to be broadcast in peak time. The same system of quotas will apply to all.
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The White Paper says specifically that Ofcom will be responsible in future for both agreeing and monitoring the BBC's compliance with the regional production targets, and that there will be no requirement on the BBC for the first time to provide news and current affairs in peak time.
Tier 3 relates to the qualitative obligations on all public service television broadcasters, including the BBC. It is about the content of broadcasting, and the aim is to give other broadcasters a freedom similar to that enjoyed by the BBC. A system of self-regulation will operate. All the public service broadcasters, including the BBC, will still be required to provide a mixed and high quality range of programmes. They will also be required to develop statements of programme policy and self-regulatory mechanisms. Those statements will be updated annually.
This is an opportunity for all public service broadcasters to demonstrate that their obligations can be better delivered and monitored through self-regulation. The White Paper states:
"The BBC Governors must equally demonstrate that they are regulating the BBC effectively. In the run-up to the Charter Review in 2006, they must demonstrate not only that the BBC continues to reach the vast majority of the audience, but that it also fulfils its public service remit.…
"OFCOM will report periodically on the key cross industry issues of public service broadcasting and we would expect OFCOM's advice to be published. The BBC's Board of Governors will want to consider observations made by OFCOM in drawing up the BBC's annual statement and all other broadcasters will be expected to undertake a similar and formal process".
Should there be a major failure by any of the broadcasters, Ofcom will have a restricted power to intervene. For the BBC those backstop powers will be subject to charter review involving the Secretary of State for Culture, Media and Sport, and Parliament. The Secretary of State will also retain the power to approve new BBC licence-fee funded services and material changes to existing services. The regulator will, however, give formal advice to the Secretary of State on the often important market impact of both proposals for new BBC public services and for material changes to existing ones, before she reaches a decision. The BBC will also continue to be subject to economic regulation, in future principally by Ofcom instead of the OFT. Like other broadcasters, it will be subject to the normal competition laws.
The White Paper refers to the need for amendments to the agreement between the Secretary of State and the BBC. The agreement and any amendments are presented to Parliament and it is through amendments that the Government intend to set out the relationship between the BBC and Ofcom. The amendments will work alongside the statutory duties and powers that Ofcom will hold. Draft amendments will be available for discussion when the main Bill is published next spring.
That route fits the constitutional position, which was briefly reviewed at the time of the licence fee review in 1999. It will be fully reviewed again in the run-up to 2006 when the charter will expire. We do not see the need for another review at this time and by

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using amendments to the agreement we can establish the relationship between the BBC and Ofcom without jeopardising the lines of accountability to Parliament.
Having set out how the Government intend that the new system should work, perhaps I may now explain why we see the amendments as unnecessary. Clause 2 of the Bill, without the amendments, gives Ofcom the power it needs to facilitate or secure the modification of any proposals concerning the BBC. Under Clause 2(1) Ofcom has the power to do whatever is appropriate for that task. The BBC's charter will allow the BBC to prepare for implementing these proposals.
The phrase,
"whether by transfers from the existing regulators or otherwise"
has been included in Clause 2(3). That means that Ofcom's power is not limited to transfers from existing regulators but can also include transfers from the BBC.
Furthermore, the phrase has a wider purpose, which Amendments Nos. 18 and 19 would remove. The amendments would delete words so that the phrase reads simply,
"by transfers from the existing regulators".
That change would prevent Ofcom taking on new functions which are not currently being carried out by the existing regulators, including any new functions arising in relation to the BBC. So if these amendments are carried without the other amendments in this group, their effect will be to exclude the BBC entirely because it is not an existing regulator under the terms of the Bill.
I am satisfied that the powers in the Bill are sufficient to cover the points that we are debating. They will allow Ofcom and the BBC to make preparations for implementing the new regulatory regime. Therefore, there is no question of pre-empting your Lordships' right to debate more fully the exact relationship between Ofcom and the BBC, when the communications Bill is debated in this House.
In the light of what I have said, I hope that the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.
9.15 p.m.
Lord Thomson of Monifieth: I begin as I did at Second Reading, with a declaration of interest. I have a daughter who is employed by the BBC. I hope that the two noble Baronesses who have spoken will not regard the following remark as politically incorrect. We have had a most impressive dialogue between the two noble Baronesses. I congratulate the noble Baroness, Lady Anelay, on the thoughtful way in which she has moved her amendments and the ingenious way in which they have been drafted. The Minister has performed a useful service to all noble Lords by setting out clearly and fully—more fully than was possible at Second Reading—exactly what the Government have in mind for the relationship between the BBC and Ofcom under this Bill and the major Bill that is to follow.
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My view is that the BBC, within the British broadcasting scene, including the contemporary broadcasting scene with all the revolutionary changes that have taken place, remains unique, with unique characteristics. It is uniquely financed and it has a unique remit. Therefore, I believe that one is entitled, when shaping a major telecommunications and broadcasting Bill, to seek some special arrangement that reflects the need for a unique degree of regulation of the BBC. The BBC, for all its faults, is a great British institution with an international reputation, with which one should tamper only with very great care. Having some experience of both sides of broadcasting—of independent, commercial broadcasting and of the BBC—perhaps I may say that the Government have achieved the right balance in their current legislative proposals on the relationship between the BBC and Ofcom.
Having said that, there remains a heavy responsibility on the BBC to adapt itself to the situation. I noted the words that the noble Baroness quoted from the White Paper, recognising the special responsibilities of the BBC. In a curious way, in the new broadcasting scene, the relationship between the BBC's governors and their broadcasters has become comparable to the relationship between the old Independent Broadcasting Authority, of which I was chairman for some years, and the television companies. We had an arm's-length relationship with the television companies, as the broadcasters, but it was a close relationship. In that relationship we used our regulatory skills, such as they were, to encourage the highest public service quality out of what were commercial organisations that had sometimes conflicting duties to shareholders. In the contemporary situation I believe that the BBC should try to invent a comparable relationship with its broadcasters. Something more of an arm's-length relationship than it has had in the past is required.
I thought that the noble Baroness, Lady Jay, in her speech at Second Reading—and I am sorry that she is not now in her place to speak for herself on these matters—produced some very interesting and constructive ideas about how the BBC governors, as that part of the institution, should reform some of its internal arrangements to give itself a better relationship, at a little distance from the broadcasters whom it has the responsibility of regulating. I think that these ideas ought to be pursued and explored.
There are two other remarks to be made about the responsibility—the new responsibility, in a sense—of the BBC governors in a new situation. One is that they ought to recognise the limits on their public service remit. They should get out of the mood that is deep in the BBC tradition, that wherever there is any new development of any kind in broadcasting the BBC must, by definition, be there and spending its resources on it. Some more discriminatory approach to that limitation would be helpful.
Equally, they have to recognise the limits that ought to be imposed on them as to how far they compete commercially for audience and ratings in the rather overlapping field of some of the BBC's commercial activities. There I say—and I have said this many times in the debates in this Chamber on these broadcasting

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matters—that the BBC would benefit if it had the courage to go for total transparency in its commercial operations, a transparency audited and invigilated independently of the BBC itself. These are some of the ways in which the BBC governors—now in a very special position in our debates—could adapt themselves to this changing situation.
As the noble Baroness has said, there is in relation to the BBC a laid-down timescale. It has its Royal Charter; it has a limit. The noble Baroness mentioned the date of 2006, which perhaps seems a long way ahead. As these things go, however, it is not. The preparation for such a review has to take place at a very much earlier date.
The debate that the noble Baroness, Lady Anelay, has initiated regarding the future relationships of the BBC within the overall broadcasting scene, and the new regulatory arrangements of Ofcom, will be an ongoing debate. It has now begun and it will not stop. The right timetable, however, in terms of looking at the way the BBC adapts itself to these changes, is the review of the charter in 2006.
Lord Bernstein of Craigweil: I need to declare an interest. Until five years ago, I was a chairman of the Granada Group, which is the parent company of Granada Television. I am still a shareholder in the company, and I am crucially dependent on my pension to continue to live in the style to which I have become accustomed.
I was going to support Amendment No. 27, to ensure that the BBC was more fully brought within the ambit of Ofcom, but my noble friend Lady Blackstone has convinced me that the balance she has adopted is one which is suitable both to the unique characteristics of the BBC, as the noble Lord, Lord Thomson, has said, and which will also involve at least some degree of control by Ofcom.
The noble Lord, Lord Thomson, with the experience of having been chairman of the Independent. Broadcasting Authority, said that there is a slightly more distant connection between the authority and the companies than the BBC governors and the management have. I can support that. I recall that in the past we had some very interesting and intriguing skirmishes between the IBA and Granada. It has been a benefit to public service broadcasting to have had the IBA with that relationship. I would also agree with the noble Lord, Lord Thomson, that the BBC needs to look at its governance afresh.
My noble friend Lady Jay made some interesting points about the role of the governors and their relationship with management. There is a danger that the BBC is moving away a little from its public service broadcasting traditions and it is up to the governors to ensure that that no longer happens.
The idea that in the next year, in the run-up to the main Bill, the BBC should be involved in a dialogue with the DCMS and with the public about its role in the future is excellent.
9.30 p.m.
Baroness Blackstone: I want to make a couple of brief remarks. However, before doing so perhaps I may correct something that I said earlier in a slip of the tongue. I suggested that there will be no requirement on the BBC to provide news and current affairs programmes in peak time. I should of course have said that there will be a requirement and I apologise for that.
The noble Lord, Lord Thomson, made many wise remarks, most of which are for the BBC governors. I hope that they read what he said and take it seriously. I am sure that they will.
As regards the particular point about transparency, the BBC introduced more transparent procedures following the 1999 review and perhaps we should acknowledge that. They were separately audited with the fair trading audit, published in this year's annual report. The BBC has been given a clean bill of health in that respect.
I am delighted that I was able to convince my noble friend Lord Bernstein that we have the balance about right. But of course as regards this issue we need to continue to think and talk to the BBC, and that we shall certainly do. I hope that the noble Baroness, Lady Anelay, will be convinced that when we debate the main Bill nothing we are doing in this Bill will pre-empt further consideration of the issues she raised.
Baroness Anelay of St Johns: I do not intend to test the opinion of the Committee on this matter tonight. In my earlier attempt to be brief, I omitted to explain to the Committee that Amendments Nos. 18 and 19 were paving amendments only. They were tabled simply to inquire what the Government might have up their sleeve with regard to other bodies in addition to the existing regulators. There are matters relating to other bodies to which we might want to return on Report.
As regards matters relating to the BBC, I listened to the thoughtful contribution of the noble Lord, Lord Thomson of Monifieth, based on his long experience in the sector. I am sure that we shall continue to disagree about when it is right to implement any changes for the BBC. I have as yet seen no willingness from it to co-operate immediately Ofcom is in its transitional stage in order to be in the same position of readiness as the other regulators. Therefore, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 19 to 21 not moved.]
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 22:
Page 3, line 5. at end insert—
"( ) In particular. OFCOM shall develop appeal procedures ensuring a parity of rights of appeal between economic decisions taken pursuant to the Competition Act 1980 (c. 21) and relevant decisions regarding the regulation of communications."
The noble Baroness said: This is a drafting amendment to cure what we believe might be a potential anomaly under which any decision of Ofcom

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under the Competition Act would be subject to full appeal rights, whereas those under the projected communications Bill, so far as we can divine its contents, would, according to the White Paper, be limited to matters of procedure, law and fact, and would not include appeals on the merits of any decision.
In order to explain what I mean, perhaps I may paraphrase paragraph 8.10.3 of the White Paper. It states that the regulatory structure must embody a transparent and effective appeals procedure. So far, that is good. In line with draft EC directives, this will give the courts explicit scope to review errors of fact as well as errors of law and procedure. That is still very good, and I agree with it so far.
The White Paper states that where there is a need for appeals against regulatory decisions on content that will be met by appropriate appeals within the regulator—for example to a specific panel—backed by final resort to the High Court. That will probably be all right as long as the courts are told that they must accept such appeals and not refuse to interfere in the decisions of Ofcom unless it errs in law. But why is there no provision for internal appeals on fact and law and on the merits of a decision before the aggrieved party is compelled to go to the expense and incur the delay of resorting to the courts? This amendment ensures that the appeals procedure is consistent whether its decisions are under the Competition Act or the intended communications Bill, whenever that becomes law.
In any case, we cannot have a public body whose far-reaching decisions are apparently immune from challenge by way of appeal, even an internal one. Once again, the absence of flesh on the bones of the new Ofcom, and the as yet unpublished definitive communications Bill, is a problem. I look forward to an assurance that perhaps the Minister can give the Committee today that the new regulator will not be all-powerful and that its mere word as regards those whom it regulates will not be the final law. I beg to move.
Lord McIntosh of Haringey: I can certainly give the noble Baroness, Lady Miller, the assurance that she seeks. When Ofcom—this is my qualification—comes to deal with the economic issues and make decisions of the kind referred to in the amendment it will not do so without having an adequate appeals procedure in force. We come back to "dusty answer" time. This is a matter for the main communications Bill when it comes, not this Bill. I entirely share the desire to ensure that there are no contradictions between the appeals processes for comparable situations. We do not want inconsistency and unfairness and companies engaging in regulatory arbitrage. But Ofcom as established by this Bill will not take any decisions on economic issues until authorised to do so by the communications Bill. Therefore, there is no need for a provision in this Bill for appeals against these decisions.
Before we come to the main Bill the draft legislation will contain detailed provisions on the appeals procedures relating to Ofcom's future regulatory
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activities. I am sure that Parliament as a whole will want to scrutinise these proposals in detail when they are published. In the White Paper we have given some indication of our thinking. We have indicated that Ofcom will have concurrent powers with the Office of Fair Trading under the Competition Act 1998 and the Fair Trading Act 1973. I referred to that in my closing speech at Second Reading. I said that, as is normal in cases of concurrent jurisdiction, Ofcom and the OFT will decide which of them is best placed to deal with specific issues or concerns in which both may have reason to be involved. What I did not say and could have said is that this is an arrangement that already works perfectly well between the OFT and Oftel. Therefore, it is not purely theoretical.
The noble Baroness referred to the proposed new communications directives. It is true that one of the provisions in those measures requires appeals against regulatory provisions to an independent court or tribunal. As drafted, it does not require reconsideration of the merits of decisions; it goes no further than the existing telecommunications directives, existing UK law and what is so far proposed in the main communications Bill. I can, therefore, safely confirm that the present situation is that there is no potential for conflict between the EC directive and what is proposed here. I return to the dusty answer: it is for the main Bill.
Baroness Miller of Hendon: This evening we have become used to listening to dusty answers, as the Minister describes them. However, the fact remains that we are pleased that this paving Bill provides us with an opportunity to raise questions. The response of the Minister to the effect that those points will be covered in the main communications Bill is comforting. Passing legislation in the dark, without knowing the detail, is dangerous. I should say that, despite the fact that Members on these Benches have been asked to restrict their points to matters covered in the paving Bill, we are glad that both Ministers have been receptive to our inquiries. They have taken the opportunity to explain how matters will be perfectly safe when later they arise.
Under the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 23:
Page 3, line 18, at end insert—
"( ) Borrowings under subsection (6) shall not exceed £5 million until legislative effect has been given to the proposals about the regulation of communications referred to in subsection (3)."
The noble Baroness said: In moving Amendment No. 23, I shall speak also to Amendments Nos. 58, 59, 60 and 61. All the amendments in this grouping are probing amendments and relate to the financing of Ofcom. We need to learn more about this aspect of the Bill than is available in the sparse information provided so far. Amendment No. 23 seeks to put a cap on the borrowing power of Ofcom.
Like most new bodies set up by the Government, Ofcom will have a wide remit and a grand set of objectives. Many of the details regarding those objectives will not be readily apparent because of the Government's practice of introducing paving Bills, such as the legislation before the Committee, or enabling Bills, where the details are set out in subsequent secondary legislation. Such legislation is not subject to the same level of scrutiny by Parliament. In this case, we are glad that primary legislation will be brought forward in due course.
The amendment seeks to ensure that the worthy and diligent individuals who will be charged with the task of setting up Ofcom and making it ready for business do not become so intoxicated with the grandness of the scheme and with the important job that they are going to do for the nation that they choose opulence over prudence. It would ensure that they do not spend more than they need to until they are functioning with their permanent purpose.
The Explanatory Notes to the Bill make two important points. First, I shall paraphrase paragraph 15:
"Subsection 3 … imposes limits on what Ofcom may do … under the Bill".
More important, paragraph 24 of the Explanatory Notes states that:
"The Government envisages that the extra costs of establishing OFCOM will be of the order of £5 million spread over the period of transition".
I am not sure how elastic is the phrase, "of the order of", but I am open to the Minister offering a slightly higher figure to allow for minor and unforeseen contingencies. However, for the moment I shall use the Government's own figure and thus seek to ensure that the law says what they say they mean.
The amendment would ensure that neither the taxpayer nor the industry, who between them will foot the bill, are saddled with unnecessary costs, in particular if, for some reason, the substantive Bill is not passed and the whole exercise to set up Ofcom proves to be abortive.
Amendment No. 58 seeks to remove paragraph 8 from the schedule. While we do not disagree in the least with the laudable instruction to Ofcom to ensure that its revenues cover its expenses, as stated in paragraph 8(1), what is objectionable begins with the words, "at least sufficient". Why should Ofcom charge more than sufficient to cover its expenses? Without those words, the sub-paragraph, taken alone, might not have been objectionable and, on a reasonable construction, would have enabled Ofcom to create a contingency fund to cover foreseeable future commitments.
However, the words "at least sufficient" lead ominously to the conclusion that Ofcom could be encouraged to collect in more money than it requires. What will it do with the surplus? Noble Lords will not be surprised to learn that paragraph 8(4) proposes that the surplus should go to the Treasury. In other words, as the Bill stands, whenever the Government so choose, they can ensure that Ofcom raises surplus funds as a means of imposing yet another hidden tax.
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There is no reason that Ofcom should become a tax gatherer for the Inland Revenue. Any surplus funds should be returned to the industry, and hence indirectly to the consumer. We will obviously be prepared to consider, without any commitment, a provision to be introduced at a later stage by the Government requiring Ofcom to balance its books.
I turn now to Amendments Nos. 59 and 60. Both amendments are proposed on the assumption that the blanket amendment to delete the whole of paragraph 8 of the schedule is not accepted. Amendment No. 59 is purely a paving amendment for Amendment No. 60.
Amendment No. 60 seeks to require Ofcom, in exercising the powers it is to be given, to make the punishment fit the crime and not to use whatever offence has been committed as a means of raising additional revenue for Ofcom or, indeed, for the Treasury. The provision does not prevent Ofcom including in the penalty the reasonable costs of investigating and prosecuting the offending conduct.
Turning to Amendment No. 61, paragraph 10 of the schedule requires Ofcom to pay interest on any amount the Secretary of State may advance to it. We consider that to be perfectly right and proper. However, the Bill does not specify a rate of interest, which means that, as Ofcom is not a government department, the Secretary of State could virtually charge what he likes, thereby swelling the coffers of his department or of the Treasury. As I pointed out earlier, this seems to be an ambition of the Government. This amendment seeks to ensure that Ofcom is charged only a reasonable rate, not in excess of the commercial rate that would be charged in the open market to a concern of Ofcom's status and creditworthiness.
When I introduced this group of amendments with Amendment No. 23 and tried to suggest that it could be necessary to cap the limit of Ofcom's borrowing, I started by saying that it should not be allowed to borrow too much; however, it would be equally fair to limit the interest that Ofcom will have to pay for that same borrowing. That is why I came to my other conclusion towards the end of my remarks. I beg to move.
9.45 p.m.
Lord McIntosh of Haringey: Again I am grateful to the noble Baroness, Lady Miller, for these amendments and for the way in which she has explained them. I am sorry that the noble Viscount, Lord Astor, is not in his place. He raised these matters at the beginning of the Committee stage and we had to refer forward to matters which are much better discussed in their place on the Marshalled List with proper amendments; and these are indeed proper amendments.
Amendment No. 23 seeks to place a strict limit on Ofcom's borrowings. I should make it clear—this is relevant also to later amendments—that Clause 2(6) specifies that borrowings can be only from the Secretary of State. There is no question of Ofcom going out to the market and borrowing for any purposes of its own.

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The figure which we have put into the Explanatory Memorandum is indeed of the order of £5 million. It can only at this stage be, "of the order of £5 million"; we cannot make a precise estimate. The actual cost may turn out to be somewhat higher or lower, which is why we cannot accept an amendment that seeks to impose a rigid limit of £5 million. The work to determine what practical steps are needed to make Ofcom operational has begun, but it is only when Ofcom begins to take those steps next year—in other words, when the chairman, chief executive and so on are in post—that we will have a clear idea of what the extra costs of transition are likely to be.
We have some useful guidance from the Towers Perrin report, but those who have read the report will agree that it does not give us a basis for saying that £5 million is a magic figure and that the sum will not be £5.1 million or £5.5 million. The Government intend to bring forward the communications Bill as soon as possible, but we do not know exactly when that will be. Therefore, the transitional period is of an indeterminate length. We need to be confident that the transition will be effected smoothly; therefore, we need that degree of flexibility in the legislation, rather than the rigid figure that would be provided by Amendment No. 23.
Amendment No. 58 seeks to remove the whole of paragraph 8 of the schedule. I understand the fears that the noble Baroness, Lady Miller, has in relation to the phrase "at least". "At least" is a precaution. It is not our intention that Ofcom should raise more money than it needs. Obviously, the Secretary of State does not want Ofcom borrowing more than is absolutely necessary, but the figure must inevitably be somewhat imprecise.
For example, there is always the possibility of income to Ofcom from the auction of surplus spectrum. That would affect the figure. It could be affected upwards or downwards. We have included this provision in the Bill to give a clear indication of how we propose that Ofcom's finances should be managed, both when it is first established and in the future when it is carrying out its regulatory functions.
The duty under sub-paragraph (1) will be essential right from the outset. We expect Ofcom to conduct its affairs to ensure that its revenues are enough to meet its obligations. That is just as important when Ofcom is borrowing from the Secretary of State as it is in the later period when it is raising its revenues and charges from the industry through the exercise of its regulatory functions.
The other parts of paragraph 8 may be slightly less relevant during the initial phase, but they have been included in the Bill in order to give Parliament a full picture of how we propose that the revenues of Ofcom will be treated in the future.
As set out in sub-paragraphs (2), (3) and (4), any excess revenues will be applied in such manner as the Secretary of State may direct and include the whole or part of the excess being paid back to the Consolidated Fund. It has come from the Secretary of State; it is only
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right that any surplus should be returned to the Government. That answers the question of why the money has to be returned if there is a surplus of the kind that has been suggested.
Amendments Nos. 59 and 60 refer to penalties. There are no penalties. Under the Bill, Ofcom does not have any power to impose penalties. Again, this is a matter for the main Bill.
Finally, Amendment No. 61 seeks to specify the interest rate that the Government are to charge on loans. I am not aware of any legislation that goes into that detail. I hope that the noble Baroness, Lady Miller, does not think that we should be guilty of usury. I hope, therefore, that she will not press the amendment.
Baroness Miller of Hendon: Heaven forbid that I should ever think anything like that of the Government, or indeed of the Minister. I should not dream of it.
The Minister's answers were interesting. To quote my earlier remark, I am open to an offer from the Minister of a slightly higher figure—certainly not £10 million, but we could be talking about £5 million or slightly more. I was trying to make the point that the amount should not be completely unfettered and without any cap whatever.
I am not of a mind to divide the Committee on matters of this kind at present. We shall consider the Minister's remarks carefully. My amendments are quite reasonable. They merely attempt to point the way. I am glad that the Minister agrees. He has agreed with me so much this evening that it makes it so much easier for me to withdraw amendments. I beg leave to withdraw this one.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 24:
Page 3, line 18, at end insert—
"( ) In managing its affairs, OFCOM must have regard to such generally accepted principles of good corporate governance as it is reasonable to regard as applicable to it."
The noble Baroness said: In moving this amendment, with the leave of the Committee I shall speak also to Amendments Nos. 62, 75 and 76, which are grouped with it. They relate to issues of good corporate governance. I think that they are absolutely on line for a paving Bill. I hope that I am being reasonable, as my noble friend Lady Miller has been. In this instance, I hope that none of the amendments will be said to be relevant only to the later communications Bill. As soon as any appointment is made, Ofcom will have to abide by good corporate governance.
Amendment No. 24 would impose on Ofcom the overriding duty to conduct its affairs in accordance with acknowledged principles of good governance. I hope that the amendment is not controversial.

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Paragraph 8.6.1 of the communications White Paper says that the members of Ofcom,
"will operate in accordance with the best principles of corporate governance and better regulation".
The amendment would simply put that commitment into the Bill, reflecting the accepted standards for this statutory duty by reflecting the drafting contained in Section 7 of the Financial Services and Markets Act 2000.
It makes no sense to leave the principle to be addressed in the communications Bill. Even Ofcom's interim function will involve the reconciliation of numerous actual and potentially conflicting interests. That is made explicit in paragraph 1(4) of the schedule to the Bill, which allows the Secretary of State to appoint to Ofcom persons previously involved in the regulation of the sector. It must make sense for those with the most relevant experience to fulfil Ofcom's interim function. On the other hand, that heightens the need to ensure that Ofcom acts beyond reproach in overseeing its own creation.
Amendment No. 62 would require Ofcom to keep and maintain accurate records of its decisions. The keeping of accurate records showing exactly what decisions it has reached and on what basis will be fundamental to the work of Ofcom. It will have to do that from day one, when the first members are appointed. I hope that the drafting is not considered controversial. The draft code of practice produced by the noble and learned Lord the Lord Chancellor on the management of records under the Freedom of Information Act 2000 states at paragraph 8.1:
"Each operational/business unit in an authority [ie public authority] should have in place an adequate system for documenting its activities. This system should take into account the legislative and regulatory environments in which the authority works".
Ofcom will be subject to the Freedom of Information Act, but most parts of the Act, and the code that I have just referred to, are not in force yet. Until that happens, it must make sense for Ofcom to be beyond doubt in recording its decisions in such a way as to enable them to be scrutinised openly and honestly.
Amendment No. 75 refers to the publication of agendas and minutes of meetings at monthly intervals, together with a reason for the decisions taken by the Ofcom board. The aim of the amendment is simply to ensure transparency around the decision-making of Ofcom.
The Community Media Association briefing supplied to your Lordships says:
"Government should make a commitment from the start to openness, transparency and accountability in the functioning of Ofcom. This should include the publication of agendas and minutes of meetings, a requirement for public consultation and the publication of reasons for decisions"
That is a reasonable request, because if the public and industry cannot have confidence in the openness and accountability of Ofcom's decision-making processes, Ofcom will not be able to function effectively.
I can be even briefer on Amendment No. 76, which would impose a duty on Ofcom to make public the regulations and procedures by which it has chosen to operate. This paving Bill has omitted any requirement for Ofcom to make public its proceedings. As a public body, it has a duty to make details of its proceedings known for public scrutiny and transparency, as well as in the interests of making information generally available to any interested party. I beg to move.
Lord Holme of Cheltenham: I support the amendments, particularly Amendment No 24. As a supporter of what the noble Baroness is trying to achieve, I venture to suggest that it is important that, even in its shadow existence, Ofcom observes the principles of good corporate governance. However, I cannot help feeling that some of the amendments in this group are too detailed for a paving Bill and that the rubric of good corporate governance would include some of the more detailed amendments.
10 p.m.
Lord McIntosh of Haringey: The noble Baroness, Lady Anelay, certainly knows how to touch my sore spots and the Financial Services and Markets Act is a sore spot. She rightly points out that her Amendment No. 24 is comparable to the duty which applies to the Financial Services Authority by virtue of the Financial Services and Markets Act. That has not been included in the Bill as Ofcom is a statutory corporation to which the general law on the conduct of such bodies will apply, whereas the Financial Services Authority is a company limited by guarantee which requires statutory reference to governance if that is Parliament's wish.
However, I am not personally convinced that that is a good enough reason for excluding a requirement for Ofcom to conform to accepted principles of good corporate governance. I am certainly happy to take that away and consider whether there are differences which would make it impossible for us to include a measure of that kind on the face of the Bill.
I appreciate the intentions behind Amendments Nos. 62, 75 and 76 to ensure openness and transparency. We share the desire that Ofcom should be as open and transparent as it cart. But we want Ofcom to have the discretion, in regulating its own procedures and those of any committees it may establish, to establish flexible procedures which will be able to meet different, circumstances and not compromise its operational effectiveness. Maintaining records of decisions and keeping them safe is, as the noble Baroness, Lady Anelay, says, a matter which is included in freedom of information legislation. I should also like to take that issue away and consider whether any additional obligation ought to be placed on Ofcom with regard to record keeping.
I am not so happy with Amendment No. 75 Ofcom will, of course, want to make as much information available as it can in order to maintain the confidence of stakeholders and relevant interests. That might include agendas for meetings or publishing its procedures. However, that may not always be possible. There will be matters of commercial

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sensitivity or cases involving personal privacy or fairness to individuals where the full disclosure of proceedings could reveal information which could itself breach confidentiality. We went over this issue last week in considering orders made under the Financial Services and Markets Act. I think the Committee will agree that the kind of blanket requirement in Amendment No. 75 could have risks. Therefore, as I say, I am substantially less enthusiastic about that amendment.
Amendment No. 76 is perhaps more straightforward. It mentions publishing regulations and procedures. I am sure that that will occur because the principles of the general law on the conduct of such bodies will apply and will make that obligatory. However, just in case there is any doubt about that, that again is a matter I shall consider between now and the next stage.
Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Holme of Cheltenham, for his partial support for my amendments. I take on board his strictures as regards some of the amendments being too detailed for the Bill. However, I am glad that they elicited from the Minister some further explanation which was most helpful.
I certainly had no intention of touching the Minister's sore spots. They are certainly not too obvious as he always maintains himself with equanimity in the Chamber. However, I am pleased to hear that he is prepared to look again at Amendment No. 24 and the matter of good governance. It would be helpful to include such a measure on the face of the Bill. I was also grateful for his offer to look again at the Freedom of Information Act and its implications with regard to Amendment No. 62. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Lord Holme of Cheltenham Lord Holme of Cheltenham moved Amendment No. 25:
After Clause 2, insert the following new clause—
"STATEMENTS TO PARLIAMENT
(1) At least once every six months the Secretary of State shall make a statement to Parliament about OFCOM's activities and its relationship with the existing regulators.
(2) The requirement to make a statement to Parliament under subsection ( I ) shall cease when—

(a) legislative effect has been given to the proposals about the regulation of communications referred to in section 2(3); or

(b) OFCOM has been wound up."

The noble Lord said: In rising to move this amendment, I declare an interest as a member of the advisory board of NTL, whose briefing material the noble Baronesses, Lady Miller and Lady Anelay, so kindly referred to earlier. I shall be brief because at Second Reading the noble Lord, Lord McIntosh, gave a positive response to this amendment, and I do not want to detain the Committee at this time of night longer than I need to.
There will be a period—it should not be longer than one year—in which Ofcom co-exists with the five current regulatory bodies. Organisationally that is quite properly intended to be a preparation for a hand-over. Hence, the Bill refers to preparatory functions and to transitional arrangements. Amendment No. 25 is intended to allow Parliament to keep tabs on how that hand-over is going.
There are always dangers when two sets of people are engaged in worrying about the same issues in that one set of people is coming and the other set is going. Earlier the noble Lord, Lord Peyton, expressed concern that the new Ofcom chairman, the non-staff directors and the chief executive would have nothing to do. That is one possible danger. However, assuming that they are all able people, might not the greater danger be that they may choose to be activist and do too much too soon, anticipating their future powers in one way or another.
The time-scale is somewhat uncertain, as the noble Lord, Lord McIntosh, told us so eloquently in reply to his noble friend Lord Lipsey on the issue of a Joint Committee. External events may delay the main Bill, competing legislation may put it back, and its passage may turn out to be even more time-consuming and complex than the Government's managers expect. Judging from the two debates that we have had so far, I believe that that is more than possible. One year could stretch to two. Then we might have two years of coexistence between the five current regulators soldiering on and the shadow regulator converting itself from ectoplasm to a more solid existence.
I certainly want to pay tribute to the constructive and thoughtful way in which the five existing regulators have approached the difficult problems of transition. I see that the noble Lord, Lord Dubs, is in his place. He, of course, is one of them. I believe that the Towers Perrin report is encouraging and that the process is difficult but going well. However, I am concerned to keep the process of change constructive and thoughtful, with minimum confusion, with no turf wars and with no chilling effect of anticipating what the new Ofcom might want. I believe that we must allow the existing regulators to run right through the tapes so long as they are charged with these important responsibilities. That is something in which Parliament has a legitimate interest.
Therefore, my hope is that the periodic report suggested in my amendment will be able to tell us that everything is going well. I believe that the need to report makes that more likely. The Minister was generous in his response at Second Reading, and I hope that he will feel able to be so now. I beg to move.
Lord Lipsey: I rise briefly to support the amendment moved by the noble Lord, Lord Holme. I do so for one or two reasons. First, I am not absolutely certain that the full Bill will dash through the House in the next Session of Parliament. We have heard of the terrorist legislation that may be required. I now fully expect a Bill to commit me to the Tower for dangerously aiding bin Laden in proposing a Joint Committee of both Houses to consider this Bill. Therefore, the legislative

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process may be obstructed in that way and, on a more serious note, we may yet see more issues of that character.
The Bill is not at all easy to draft. Various attempts at doing so have not yet succeeded in dealing with all the problems involved. There are a number of areas in which we have not reached finality. There is the question of cross-media ownership on which we are now to have a consultation paper from the Government. There is the issue of the BBC which has been very usefully exposed tonight, but we have not yet reached finality. With all these big issues I do not believe that any of us would like to bet our lives that we shall have a Bill which has received the right proposals and had the proper consideration by next autumn.
Inevitably, long run-ins to Bills are difficult. That is why we have this Bill. Reforms of this kind with bodies running in parallel are difficult. I can speak from personal experience as a member of the board of the Personal Investment Authority at the same time as it was running in parallel—it still is—with the Financial Services Authority. The truth was that with every passing month it became more difficult. There was great good will as there is between all the organisations involved in Ofcom. But it became more and more difficult to reconcile the needs of the new organisation with the policies and prejudices of the old organisations. In the end there was a bust up or two. I hope that that will not happen in this case. But it seems to me very sensible, as the noble Lord, Lord Holme, is proposing, that Parliament keeps an eye on it, regularly reviews the matter and considers where we have got to. If we really believe that there will not be a Bill, then Parliament may decide that the time has come to pull the plug on the organisation set up by this Bill. We must keep it under review and I believe that we would be helped in that by this amendment.
Baroness Blackstone: The noble Lord, Lord Holme, said that he was going to be brief. I shall be brief in reply. That is not because it is getting late, but I believe that I can be fairly positive in what I am going to say.
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I believe that both he and my noble friend Lord Lipsey were unduly gloomy about the prospects for the main Bill. The Government are more optimistic. I believe that we shall spend time next Session debating it. I agree that it will contain many difficult and complex issues. We may well be debating long into the night. If I am still in my present position I shall certainly look forward to engaging with noble Lords about it.
The new clause tabled by the noble Lord, Lord Holme, requiring a statutory obligation for reports to Parliament to be made on progress every six months is taking matters a little too far. Perhaps I may reassure the noble Lord that the Government will keep Parliament and other interested parties fully informed of the progress which is being made. That is a pledge that I make to Members of the Committee tonight.
We published the Towers Perrin report, which was the first concrete step down this particular road. It did not have to be published, but we believed that it was in the interests of both this House and the other place that we should do so. We will continue to follow an open approach to reporting on the progress made. I am sure that we shall be making reports to Parliament more frequently than the noble Lord has proposed in his amendment.
In the light of that commitment I very much hope that the noble Lord will be able to withdraw his amendment.
Lord Holme of Cheltenham: A pledge from the noble Baroness is not something that anyone would take lightly in this House. I certainly welcome the terms in which she has responded to the amendment. I also welcome the fact that she expects reports to Parliament more frequently than every six months. In a fast changing communications scene, she is probably better advised than I as regards my original amendment. I would like to consider whether to return at a later stage as regards a more concrete pledge, but for the present I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed.
House adjourned at a quarter past ten o'clock.