§ 4.56 p.m.
§ House again in Committee on Clause 1.
§ 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 1203 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 1204 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 1205 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.
1206 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 1207 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.1208
§ 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 1209 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 1210 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. 1211 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 1212 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.
1213 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 1214 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 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.1215
§ 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 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.]1217
§ 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, 148.1221
|Division No. 1|
|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.|
|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]|
|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.|
|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]|
|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.|
|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 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 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.1227
§ 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 1228 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.
1229 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 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 1231 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 1232 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.1233
§ 7 p.m.
§ 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.1234
§ 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 1235 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 1236 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 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 1237 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 1238 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 1239 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 1240 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 1241 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 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.