HL Deb 29 April 2003 vol 647 cc582-647

3.19 p.m.

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

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.— (Baroness Blackstone.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [Functions and general powers of OFCOM]

On Question, Whether Clause I shall stand part of the Bill?

Lord Thomson of Monifieth

Before the clause passes, perhaps I may ask what I hope is a simple question and gain a simple answer. Subsection (5)(c) refers to what Ofcom will do in the matter of instituting criminal proceedings in England, Wales and Northern Ireland, but there is no mention of what will happen if proceedings have to be taken in Scotland.

Baroness Blackstone

The noble Lord, Lord Thomson of Monifieth, did not give me notice that he wanted to ask such a precise, technical question. I regret to say that I will have to write to him in order to give him the answer.

Lord Thomas of Gresford

I welcome the pre-legislative scrutiny that has occurred in relation to the Bill. Clause 1(6) is a clear commitment that Ofcom should maintain offices in Wales. We regard it as a step, but not the whole journey.

The draft of the Bill was sent to the National Assembly for Wales, which consulted widely throughout Wales and considered representations by members of the public, consumer and professional groups, broadcasters and regulatory broadcasting and communications bodies. Wales' specific concerns are the language, culture and technical problems which hinder the viewing and broadcasting of Welsh programmes, particularly in the marches of Wales.

We are therefore grateful that the Bill provides that there should be offices in Wales for Ofcom, but a number of National Assembly recommendations do not appear in the Bill before us. We will come to those issues in due course, as amendments are debated, in particular the establishment of the Ofcom Wales communication council to advise on content and consumer and technical issues to replace the existing consultative bodies; power for the National Assembly to appoint the Welsh representatives on the content and consumer panels; a general duty on Ofcom to consult with and give due consideration to representations made by the National Assembly; and an obligation that Ofcom will ensure that audience research is carried out on a Wales basis and that it will publish an annual report on its activities in Wales. We shall debate those recommendations, but unlike that in Clause 1(6) they do not appear on the face of the Bill.

It is essential that the principles of the Bill and its provisions reflect the spirit of devolution. Calls from the Welsh Assembly government for a strong voice for Wales throughout the regulatory structure should be explicitly provided within the Bill but have so far been ignored. I take this opportunity to flag up the various issues which we shall come to in due course.

Baroness Blackstone

I am grateful to the noble Lord, Lord Thomas of Gresford, for flagging up those points. We will have ample opportunity to debate those aspects of the Bill that are concerned with devolution and the particular issues in relation to Ofcom and its operations in Scotland, Wales and Northern Ireland.

  • Clause 1 agreed to.
  • Clause 2 agreed to.
  • Schedule 1 agreed to.
  • Clause 3 [ General duties of OFCOM]:

Lord Puttnam moved Amendment No. 1: Page 3, line 3, after "the" insert "principal

The noble Lord said: The purpose of this first group of amendments tabled by myself and other noble Lords, including members of the joint scrutiny committee, is to establish which moral universe this Bill is intended to inhabit. It is hoped that the first amendment will provide an unambiguous basis on which Ofcom can address even the most complicated issues falling within its remit, most particularly those which touch on the public interest.

The Government have gone a long way in meeting many of the suggestions for improvement set out in our report and I am sure that the Committee will join me in recognising that. But at the same time they have tied themselves up in knots in persisting with a number of unfortunate notions, among them being a belief that one can legislate for, at all times, giving equal weight to the imperatives of the citizen and the market. It is precisely this issue —the competing claims of the citizen and the market—that lies at the heart of these and many other amendments the Committee will be considering in the coming weeks and months.

This notion of the Government tied up in knots will attract differing levels of sympathy within the Committee, but the job of this group of amendments and others that follow is to ensure that Ofcom is itself saved from being bound up in similar knots.

Governments come and go, but in the coming weeks, if we in this House do our job well, Ofcom can look forward to a secure and productive future. That is why it is so important that we prise the Government—and from time to time the Opposition Front Bench —away from some of the more unnecessarily destructive positions that they appear to have adopted.

Let us start with the concept of co-equality. When looked at objectively it is honestly little more than a seductive chimera. It even has the potential to be positively dangerous. It would, over time, be surprising if many, if not most, of the challenges facing Ofcom do not present themselves as being capable of commercial or market-driven solutions. In fact, the entire Bill is predicated on that assumption.

But not all of Ofcom's decisions can or should be dealt with in that way. This first amendment is intended to give the clearest possible signal to Ofcom that when the public interest finds itself even marginally at variance or in conflict with the workings of the marketplace, it is the public interest test that must be judged not as co-equal but as being of paramount importance.

In a well-run world, it might be unnecessary to insist on any such clear distinction. But such are the powers of persuasion available to the marketplace, and so fragmented and under-resourced are the public interest voices raised in its defence, that it is vital that any unnecessary ambiguity becomes impossible and that a clear distinction finds its way on to the face of the Bill.

These arguments were fairly well rehearsed on pages 11 and 12 of the report of the joint scrutiny committee. We pointed out that the self-same Minister who guided the Utilities Act through another place bore the burden of this present Bill, and that in referring to Section 9 of the Utilities Act, which sets out the principal objective of gas regulation, he made it clear that this principal objective was: to further the interests of the persons who are customers … wherever appropriate, by promoting effective competition".

Members of the Committee will note the use of "wherever appropriate"; none of this "co-equal" stuff found its way into the utilities legislation.

Dr Howells made it crystal clear— and quite rightly— that it is the customer—or in this case the citizen—who counts. In fact, the Minister went even further at the time of the passage of the Act, saying that: the duties form a hierarchy which is designed to assist regulators in resolving potentially conflicting regulatory objectives".

I am forced to ask the Minister the same question as was asked by the joint scrutiny committee. Can she explain why the common-sense approach that the Government brought to bear in achieving the passage of their utilities legislation has been abandoned, when surely it must have been apparent to Ministers and their officials that Ofcom was likely to be confronted with similar, and I would suggest even far greater, conflicting regulatory objectives?

It is all too reminiscent of that short-lived concept of "light touch". It might have served its purpose as a headline grabber, but when things got serious the Government got real and sensibly decided in favour of seeking legislation that was appropriate and proportionate. That was probably what they meant all along, but I guess they just needed to hear the argument.

So it is, or ought to be, with "co-equal". It should go the way of "light touch". Bin them both, I say, because both are confusing, both invite dispute and both, as I have suggested, have the potential to be dangerously misunderstood, even so far as leading to the possibility of judicial review.

The Government in their communications Green Paper of July 1998 stated, without caveat, that: The regulatory process starts with government. Regulators must have a clear legislative framework within which to operate".

Surely, all the more reason to listen, as did the joint scrutiny committee, to the advice of the regulators themselves. We were extremely fortunate to have that doyen among regulators, Sir Bryan Carlsberg, advising us throughout the whole of our deliberations. We found ourselves in unanimous cross-party agreement with Patricia Hodgson, the chief executive of the ITC when in evidence she advised that failing to achieve such a hierarchy—the same one which was recommended by Dr Howells—may, have a danger of paralysing decision-making".

This is an area in which speed of intervention is important. A constant theme of the evidence presented to the joint scrutiny committee was that, slow regulation is ineffective regulation".

I beg Members of the Committee to listen, as we did, to Mr Nick Lovegrove, head of McKinsey's telecoms, media and technology practice, who, writing in the Financial Times of 26th November, said, All of us care as consumers and citizens what happens in these sectors … These sectors really matter to our everyday lives, and OFCOM will need to connect with citizens and consumers across the range of issues".

He added, OFCOM will need to remind itself of its primary objective, to protect the interests of citizens and customers. That will require constant vigilance over market structure and conduct since consumers are always the [first] and most direct victims of monopoly abuse or dysfunctional competition".

That is not the plaintive voice of the consumer lobby, but hard-edged, practical advice from someone who spent every day of his working life immersed in these complexities and on behalf, primarily, of commercial interests. Indeed, the Secretary of State herself, in a briefing before the House of Commons Second Reading, made it clear in her own words that, Consumer interests remain at the heart of OFCOM's focus".

So why this lingering and unnecessary ambiguity when it is clearly not intended to be such? It is possible that the Minister and the noble Baronesses on the Opposition Front Bench will find entirely persuasive these and other arguments advanced in favour of these relatively simple but important amendments. I sincerely hope so. Should the Government decide otherwise I am sure that the Committee would be grateful if the Minister were to spell out in some detail the way in which the Government imagine that their doctrine of co-equality might work in practice. One or two hypothetical cases with clear, unambiguous resolutions may well go some way towards reassuring the Committee that the day-to-day, week-to-week functioning of co-equality is in fact possible. What is certain is that she is likely to be offered any number of, I hope, useful hypothetical cases from all parts of the House, which I anticipate will establish that the Government will be doing few favours to themselves and even fewer to Ofcom if they press ahead with this clause unamended. I beg to move.

3.30 p.m.

Lord Thomson of Monifieth

I begin with an apology to the Committee that I rise to speak in connection with the very first group of amendments when I did not do so at Second Reading. I was prevented from doing so by a family funeral. I have another declaration of interest to make. I have a daughter who is a member of the management of the BBC as well as myself being president of IBA and ITC Pensioners Association. I hope that due impartiality between the two main broadcasting organisations may be some evidence of that on my part.

I am happy to follow the noble Lord, Lord Puttnam, in what he has said. It is particularly appropriate that this very important Committee stage of a major Bill should begin with a group of amendments that go to the heart of the challenge in the Bill. The noble Lord, Lord Puttnam, spoke about making effective arrangements for co-equality. I use a gentler metaphor and say "to contract a happy marriage" between the interest of Britain's global telecommunications industry on the one hand and its essentially domestic broadcasting services with the major core of public sector broadcasting on the other, which, I believe it is fair to say, is the envy of the rest of the world.

As recently as the 1980s, when I was chairman of the IBA, telecommunications and broadcasting lived reasonably happily and largely in separate houses with neighbourly but distant relationships. Now the walls are totally down. Under the Bill, the board of Ofcom will be simultaneously responsible to two Secretaries of State for major departments with important, different and sometimes conflicting interests. Indeed, that is reflected in the rather unusual wording of the clause, in my experience of legislation.

It is a case of two cooks in the same kitchen. I am sure that the noble Lord, Lord Currie, and his colleagues will have their work cut out. It is for that reason that I believe there is immense force in the arguments of the noble Lord, Lord Puttnam, for very serious reconsideration by the Government of their attitude to this matter.

There is now a global market place in telecommunications and some stunning communications technology is competing there. As I know very well from my own experience, that offers very seductive temptations to government. I was a member of a government which trusted too much in what was called, in a famous phrase, "the white heat of the scientific revolution". A lot of good it did for us in the end. I believe that a greater and, I hope, more enduring British achievement lies in our public broadcasting system, from its birth in the BBC, with the creation of a publicly-funded organisation, to an advertising-funded ITV and on to a fourth channel. They are all creations to the credit of the Opposition Front Bench and Conservative governments.

From these Benches we strongly support the amendment moved by the noble Lord, Lord Puttnam. In a media-dominated age the quality of our lives in the 21st century will be greatly affected by the quality of our media and the degree to which we can, in the words of my noble friend Lord Phillips of Sudbury, uphold the principles of public service broadcasting". I hope that the Government will be persuaded to accept the arguments of the noble Lord, Lord Puttnam. It would also be helpful if they were to accept the modest amendment of my noble friend Lord Phillips and to put the words I have just quoted on the face of the Bill.

Baroness Howe of Idlicote

Listening to the noble Lord, Lord Puttnam, made me think wryly to myself that it would have been better if there had been two commissions, one dealing with the market place which he so ably described, and the other with the contents side. But we have moved on from that point.

My noble friend Lady O'Neill had hoped to be here to join in this part of the Committee stage, but she cannot be present for the summing up and therefore decided that she could not speak today. I hope that she will have an opportunity later.

Considerable concern has been expressed in the other place about the wider needs in the interests of the citizen. We have all used that word to great effect to differentiate it from the word "consumer", but for legal reasons it could not appear in the Bill. But there was wider concern that insufficient attention was paid to the needs and the interests of the citizen. These two amendments give the Minister the opportunity to expand on how the Government expect Ofcom to interpret these vitally important general duty clauses as currently drafted. As the Secretary of State for Trade and Industry herself said at the Bill's Third Reading in another place, Ofcom's general duties are crucial in determining how it will operate".—[Officiat Report, Commons, 4/3/03; col. 777.] So where better to spell those out—if I may disagree slightly with the noble Lord, Lord Puttnam—than right at the top of this all-important Clause 3?

Perhaps the Minister will also explain why the Government felt it necessary to table the amendment which now forms Clause 3(1)(b) when their original view was that the Bill as first drafted was satisfactorily even-handed as between the consumer and the citizen. The government amendment is certainly in my view a step in the right direction but it is still not thought by all to be explicit enough to meet the concerns expressed.

The amendments that I propose spell out in much more detail than the Government's current wording relating to furthering the interests of the wider community that one of the Bill's specific duties will be to promote the communications industry's ability to contribute to public, civil and cultural life as well as to uphold the principles of public service broadcasting". In this rapidly changing world —above all, it is rapidly changing in communications—it is surely important to remember, and help to retain, the reason why British broadcasting has such a high reputation both nationally and internationally. To inform, educate and entertain is second nature to most UK terrestrial channels even if the highest quality is not always achieved in every programme. But we owe that whole approach to our broadcasting history and to the standards then set. As has just been said, from the early days of the BBC through to the introduction of commercial channels right up to today's interactive, electronic means of communication, as we must now call them, there has been the general expectation from UK citizens that public service broadcasting would form the backbone of what we see on our various interactive screens. That quality of this kind has survived owes a considerable debt, I would argue, to the regulatory framework within which British broadcasting has operated ever since. That expectation is with us still. Indeed, it is here in this very Bill where the proposed regulation for quality as well as the quantity of what is expected from our broadcasting channels is set out. Contrast that with the United States. There, regulation of broadcast content is minimal. If the Government succeed in their policy to open ownership of certain UK broadcasting channels to foreign owners, it will be even more important to have this requirement, this additional safeguard, right up there specifically spelt out as a paramount duty of Ofcom. I hope that the Minister will feel able to respond positively to these amendments.

Lord Alli

The notion of co-equality as between the consumer and the market is one that we have never really carried through in practice in this country. In fact, we have so distorted the market towards the consumer by the very existence of the BBC that it is a nonsense in terms of concept. My only contribution to the amendment we are discussing is to talk about the practicalities of it.

For some time I have worked as a senior executive of one of the major broadcasters. The effect of the measure we are discussing will be to allow me as a senior executive of a broadcasting company to look for a chink in the Ofcom armour and say, "You have to treat my commercial concerns in the same way as you do the consumer. As an executive in a broadcasting company I would not be afraid to take the Government to judicial review". In fact, Ofcom is more likely to be frightened of judicial review than I am as a commercial entity.

It seems to me that the amendments we are discussing would take away the risk of judicial review when the consumer and the market are in conflict. For that reason I believe that the Government should think very carefully about this set of amendments to save Ofcom being tested time and time again by clever executives such as myself.

3.45 p.m.

Lord Crickhowell

I intervene at this point having listened to the two speeches that have just been made. I particularly take the point about judicial review and the point made by the noble Baroness about what has happened in the United States. I shall speak to later amendments on the subject of ownership and other matters in relation to the American experience and shall produce some striking evidence of what has happened there as the monopolies have taken over— those vast companies with their commercial priorities and their ability to dictate events—as regulation has been relaxed in the United States. Therefore, it is important that we give the regulator very effective tools to tackle these extraordinarily powerful international organisations who perfectly reasonably have one overriding objective; that is, the commercial success of their companies. Often they originate in parts of the world where the public service principle has been less well developed than it has in this country.

I believe that the Government have made great progress in accepting many of the suggestions of the Joint Committee on that point. We now have spelled out the importance of, the interests of the community as a whole which I believe is intended to absorb the citizen and makes clear that that is the paramount objective. But we need to give the regulator the tools to do the job effectively. Although the statement about the function, to further the interests of consumers …and … of the community appears right at the top of Clause 3, the fact is that the clause covers two whole pages of the Bill and contains many qualifications, sub-qualifications and interpretations that will have to be addressed by the regulator. As subsection (6) of Clause 3 spells out, where it appears that any of Ofcom's general duties conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances". That indicates the kind of difficulty the regulator will be in in such cases. It will be a fiendishly difficult task. I have been a regulator in a slightly easier field than I think Ofcom will operate in. I certainly would have liked to have spelt out by government and in legislation what the primary responsibilities were. I hope that the Government will listen very carefully to the arguments because I do not think that they are quarrelling with the principle that the consumer and the community interest is paramount. It is only a question of how we best achieve that. The Government would do well to take the advice that has just been given by a practitioner in this field of huge experience and consider particularly the experience of the United States and what has happened there, about which we shall hear a good deal more in this debate. I hope that they will take account of that and move appropriate amendments in due course.

Lord Bragg

I, too, wish to support the amendment proposed by my noble friend Lord Puttnam and by other Members of the Committee, some of whom were members of the much admired scrutiny committee. My noble friend Lord Puttnam is absolutely right on two vital counts. Our task must be to make sure that Ofcom is founded on an unambiguous basis. For want of a nail finally the kingdom was lost.

As for the phrase "co-equality", it must be put aside— as my noble friend suggested— for wording that, in any essential conflict, loads the argument on the side of the public interest. We will hear the words "public interest" many thousands of times in these discussions— and so we should. We must never lose sight of the fact that the massive majority of people in this country get their news, entertainment and education from television and radio. As my noble friend Lord Thomson pointed out, public interest broadcasting in the BBC, ITV and Channel 4 has been at the heart of our system. It is the way we do it. No fashionable financial flurries, jezabel trends or talk of greener grass elsewhere should shift us from that ground. For most of the British public, for most of the time, for almost 70 years, public service as the character of the British system has delivered.

The sudden arrival of multi channels and the clatter of mega corporations should not break our lines. Just because something is there does not mean that it is good or helpful. Volcanoes and earthquakes come to mind. Both are good metaphors for what has happened in television over the past 15, 10 and especially five years, from four to about 500 different channels—new money, new technology, new impatience, new lamps for old.

The landscape may have changed but the people have not changed much. Not in terms of public interest— which, if anything, is even more precious than before. That is why I so emphatically support the amendment.

I wish to bring forward a rather unexpected witness. Mr. Barry Diller may be said to have started Paramount Studios in the USA when he produced "Saturday Night Fever"— which broke all box office records at the time. He went on to become— according to my noble friend Lord Puttnam, who knows about these things —the single most successful American media executive and entrepreneur in history. He seems to be the embodiment of market man and the new— the old Adam Smith unleashed. His stake in one of his companies stands at 3 billion dollars and he is the thirtieth richest man in America.

Where does this supreme American entrepreneur feature in debates about British broadcasting in your Lordships' House? He brings a warning. He is the Cassandra that some of us need to jolt us. In a speech to the American National Association of Broadcasters in Las Vegas on 17th April, Mr. Diller made several observations about what has happened to American broadcasting since it slipped the harness of regulation and went whole hog for the market. I am fully aware that Mr. Diller speaks out of our context and circumstances. Like all warnings, this one may seem overdramatic, but I believe that the Bill might fall into the trap of the unintended consequences that lurk in wait if we do not get the legislation right.

I hope that I shall not tax your Lordships but I would like to quote rather amply from Mr. Diller's speech. First, he referred to America's regulated face until quite recently. It sounds like Eden. He commented that broadcasters were unique because their influence on society probably had no equal: The houses of broadcasting had to be made of glass because broadcasters were given a free licence to operate, 'in the public interest, convenience and necessity'. That was a source of pride. It was also a source of fear because somebody could come in and take away those licences away. Everyone took those obligations pretty seriously and out of it came a truly remarkable balance between a great business model and servicing the public trust… But in an age when the free market has been the prevailing model this, like every other industry, wanted as much relaxation of the rules as possible so as to free the 'invisible hand' that Adam Smith envisioned, bringing us the wondrous benefits of unfettered capitalism. 'Laissez nous faire'. Get off our backs …We got the Communications Act of 1996. When it was passed, FCC Chairman Hundt said, 'The new law is intended to end the era of big government in communications and begin the era of genuine competition'. And it was embraced with enthusiasm and hope for real competition. What actually happened? Mr. Diller goes into detail but I will pick up on only one or two points: Today… the great big beautiful tomorrow has dawned. The 500 plus channels that were going to turn the old, heavily regulated world upside down is a full-blown reality …The unintended consequence of deregulation is that the government has inadvertently allowed to happen the exact opposite of what it intended to do … Are we going to get real diversity? The programme departments of these businesses are now so far down the chain of life in these giant enterprises that it is a miracle that all shows on the air aren't about rejection. Conglomerates buy eyeballs. That's it. And they leverage. Oh do they leverage. They leverage their producing power to drive content, their distribution power—such as retransmission consent—to drive new services, and their promotional power to literally obliterate competitors". He spoke about local broadcasting, which will strike a chord with many of your Lordships: Local broadcasters should not be simply the distribution arms of monolithic enterprises. [They] have too much importance in [their] communities. [They] are the foundation of the whole edifice that is television". Finally he commented: The public interest is about promoting diversity, localism and competition. The old paradigm is gone. Now we are in a new universe and the question—is what to do? There are real dangers in complete concentration. The conventional wisdom is wrong. We need more regulation, not less". Perhaps that seems too heavy a warning. I do not think that it really is. The plotline of those remarks is already recognisable over here.

I quoted Mr. Diller at length partly to emphasise that we are playing for very high stakes. In our country and culture, I trust that when there is a head-on crisis your Lordships will make it clear that the public interest must always carry greater weight. There is no co-equality. To this and many other amendments, I lend my complete support and I hope that those points will be taken into consideration by the Government.

Lord Phillips of Sudbury

As my name appears against Amendments Nos. 3 and 4, I rise briefly to support all that has been said by the noble Baroness, Lady Howe, and other speakers. I congratulate in particular the noble Lord, Lord Puttnam, on his opening remarks. He struck at the heart of the inadequacy of a Bill that, in many respects, is well judged and well framed, but Amendment No. 1 refers to a mighty and gaping void.

I confess to a little confusion in trying to equate the noble Lord's remarks generally about Clause 3 with Amendment No. 4, which would put the promotion of competition back into Clause 3. The noble Lord seeks to remove competition from Clause 3(1)(a) and to restore it in Clause 3(1)(b). I must be honest and say that I do not see the logic of that, especially in light of the noble Lord's remarks when moving Amendment No. 1.

Lord Puttnam

The key word is "principal". The intention of the three amendments is to establish a clear hierarchy. The principal objectives are those of the citizen and the consumer but we are not pretending for one second that the interests of competition are non-existent. They have a legitimate place within the hierarchy, but a subsidiary place.

Lord Phillips of Sudbury

I thank the noble Lord very much for that clarification. The problem is, that would leave the provision in the key or foundation clause, in terms of the tenor of the Bill. I urge the noble Lord to consider Clause 3(3)(a), which gives him exactly what he wants—a reference to competition but in a clearly subsidiary place. It refers to Ofcom's duties as being the desirability of promoting competition in relevant markets". Granted that does not deal with regionality but a subsequent paragraph does so. I flag that up because the noble Lord may on reflection see some merit in my remarks. I will refrain from further comment until moving the next amendment.

Lord Fowler

If I may say so, I rather hope that the noble Lord, Lord Puttnam, does not take the noble Lord's advice. He has well applied the logic of what he has been saying in the Bill. The Bill gives Ofcom a number of functions and duties. As my noble friend Lord Crickhowell said, that list goes on for about two pages. In the words of Dr Howells in another place: The duties form a hierarchy, which is designed to assist regulators in resolving potentially conflicting regulatory objectives".—[Official Report, Commons Standing Committee A, 29/2/00; col. 234.] In other words, one somehow needs to order the duties and obligations.

The point that the noble Lord, Lord Puttnam, correctly addressed is this: what are the principal aims, duties and obligations? Then one goes on to some of the others, which are important but not the overwhelming ones. For all the reasons that he and others have advanced, the fact is that the public interest—that of the consumer, the ordinary man in the street—must be the paramount, overwhelming and principal interest so far as the duties placed on Ofcom are concerned. I was also very struck by the words of Nick Lovegrove of McKinsey's—it is not renowned as some curious left-wing organisation—who says that Ofcom will need to remind itself of its primary objective to protect the interests of citizens and consumers, and that that will require constant vigilance. As the noble Lord said, that is not a plaintive voice from the consumer lobby, but hard-edged practical advice.

Basically, I agree entirely with what the noble Lord, Lord Puttnam, said. The public interest is paramount. His proposal is sensible. It clarifies the position so far as Ofcom and the public are concerned, and conceivably so far as the courts are concerned if there is any challenge of that kind. I very much hope that the Government will listen to what he said.

4 p.m.

Baroness Buscombe

The Bill grants extensive powers to Ofcom, so it is of paramount importance to try to get the general duties of Ofcom right from the start. I therefore entirely agree with the noble Lord, Lord Puttnam, that any ambiguity should be dealt with now. To that end, although it is key for Ofcom to further the interests of consumers, sometimes the market comes up against the wider interests of citizens. The general duties of Ofcom should, we agree, take account of that as a priority.

With regard to Amendments Nos. 1, 2 and 4, I believe that in practice any court would find that the duties as a whole set out in Clause 3 were by definition "principal", because Clause 3 sets the scene and everything flows from that. I note what, for example, the noble Lord, Lord Alli, said in relation to judicial review. It is important to negate so far as we can at this stage any question of ambiguity. I therefore see that it would be preferable for the Bill to ensure it would assist not only lawyers, but all of us and the board of Ofcom in particular— that Ofcom has a clear steer in its remit that "effective competition" should not simply be considered in the round, but qualified to ensure a clear focus on specific national, regional and local communications markets throughout the UK.

Serious questions and points have been raised by Members of the Committee from all parties for the Minister to answer. Given that much of the sentiment and principle behind what they have said today was set out in their speeches at Second Reading, it is hoped that the Minister is ready to answer them this afternoon.

Baroness Blackstone

The quality and depth of the debate on Ofcom's general duties is a strong indication of their importance to Ofcom, its stakeholders and, of course, the public. The Government have therefore continued to look at the duties to ensure that they are right, and that they give a clear direction to Ofcom and some certainty to its stakeholders. The Government do not accept that what we have ended up with is ambiguous in the way implied by some speakers.

The clause looks different from the one published in draft last year. We have worked very hard to take on board concerns that its drafting did not fully reflect our policy intentions. We have listened and responded. I tell my noble friend Lord Puttnam that that is why we have changed the clause. The Bill in its totality delivers for both consumers and citizens. It reflects our view that the market does not always deliver in the public interest. That has been the underlying position taken by most speakers in the debate. We of course accept it, and the Bill as currently drafted reflects that there are circumstances in which consumer interests are outweighed by the interests of the wider community.

We wanted to be sure that the general duties reflected that more fully, so that Ofcom would be able to make decisions for consumers and for citizens, and would not be open to challenge if, in any particular case, it decided that the interests of people as citizens outweighed those of people as consumers. Clause 3(1) puts that policy intent into legal drafting. Although my noble friend Lord Alli raised the spectre of judicial review, I am not sure of the legal basis for his argument.

It is of no practical significance whether the drafting gives Ofcom a "principal" duty or not. Accepting Amendment No. 1 would make no legal difference whatever. I will resist it, because it would only confuse and not simplify. The clause is complex. Its subsections, particularly subsections (1) and (2), are very closely interwoven. Of course, the provisions need to be seen alongside other specific duties set out throughout the Bill. In some cases, balancing or reconciling the duties will be a difficult task for Ofcom. I accept that entirely, but we should set out the overarching principles and specific objectives and let Ofcom weigh them up as it sees fit in each case.

The noble Lord, Lord Thomson, referred to two cooks in the kitchen. I am tempted to try a pun on the subject of curry, but I will not go down that particular road. I honestly believe that the noble Lord, Lord Currie, and his colleagues will be perfectly able to handle the overarching principles and specific objectives that have been set for them in the Bill.

I think that it would be helpful if I tried to explain briefly how the first three subsections of the clause worked. Subsection (1) sets out the general principles that will apply when Ofcom will carry out its functions. Subsection (2) gives more detailed objectives in the specific areas of Ofcom's responsibility, covering the breadth of the Bill to which the general duties apply. Subsection (3) then lists those other issues to which Ofcom must have regard in performing its duties.

Having set out how the clause is structured, I would like to explain why I feel that I have to resist the other amendments. The noble Baroness, Lady Howe, supported by the noble Lord, Lord Phillips of Sudbury, does not like the formulation of "community as a whole". Amendment No. 3 proposes a different form of words. I am also aware that others believe that the Bill should refer to "citizens", but it would not have been right to do so. In UK law generally, references to "citizen" are invariably bound up with the concept of nationality, as in Clause 4. However, that is not what is meant in Clause 3. We would get into an awful legal confusion if we were to go down that route, because "community as a whole" is right legally. It may appear somewhat dry, but quite often legislation does.

Lord Phillips of Sudbury

Would the Minister accept that the Government have recently legislated and used the word "citizen" time and again in relation to citizenship education, which came into schools last autumn? There is absolutely no confusion as to what "citizen" and "citizenship" mean when used in that legislation.

4.15 p.m.

Baroness Blackstone

I believe that in that legislation, the term "citizenship education" is used as a term of art to describe a particular part of the curriculum. I do not believe that there is particular reference to "citizens" in that legislation. We refer to pupils and students. The noble Lord's intervention does not therefore alter the validity of what I said.

The fact that "community as a whole" may appear somewhat dry does not mean that anything other than an important duty is involved. In practice, it means that Ofcom will be able to consider some of the issues that impact on us as part of a much wider community.

The Bill will deliver in the public interest in terms of, for example, standards and quality, ensuring universal service, maintaining a strong public service tradition and promoting media literacy. All of those are enormously important objectives.

In response to the point made by the noble Baroness, Lady Howe, Clause 3(1)(b) gives Ofcom the means to consider the public interest in carrying out its functions. In legislative terms, it makes explicit the commitment to the citizen, as well as to the consumer, that the Government have always considered to be central to the Bill.

That leads me to our concern that the amendment does not adequately express the full range of issues that "community as a whole" does. By explicitly referring to "public, civil and cultural life", it restricts Ofcom to considering only those issues. They may be broad, but they are not necessarily broad enough. We could have a lively and interesting debate about what could be included in such a list and that, I am afraid to say, is where the danger lies.

"Community as a whole" encapsulates the ideas of "public, civil and cultural life", but it is not restricted to those concepts alone. It is about those issues that can impact on society. We will touch on those issues on many occasions in our discussions of the Bill; I refer, for example, to standards, quality, democratic debate and universal service.

We also question the focus of Amendment No. 3, which would require Ofcom to support the communications industry in contributing to public, civil and cultural life. Ofcom's duty under Clause 3(1)(b) is to further the interests of the community as a whole. In doing so, of course, it may require business to do something new, or differently, or to stop doing something altogether. However, business should focus primarily on providing for the market. There may be other means, beyond what business can do, of furthering the interests of the community as a whole.

Amendments Nos. 2 and 4 follow the drafting proposed by the joint scrutiny committee. I hope that your Lordships recognise that we have taken on board if not the words of the joint committee then much of their spirit.

I regret that I have to say to my noble friend Lord Puttnam that we must go our separate ways on the amendment. The Government have underpinned the duty to further the interests of consumers by promoting competition. The two are closely linked. Consumers benefit from fair, open and competitive markets. I am not sure that there is the same link between competition and the community. Indeed, the wording of Amendment No. 4, by referring to "wherever possible" instead of "where appropriate", would give competition a primacy over everything else in furthering not only consumers' but also the community's interest. Sometimes competition may not be in the interests of consumers or the community as a whole and "where appropriate" gives Ofcom the flexibility to consider what is the best approach in each circumstance. "Where possible" does not enable the same freedom of action. It is important that we maintain that flexibility for Ofcom to operate and interpret the legislation effectively.

I say to my noble friends Lord Puttnam and Lord Bragg—and to the noble Lord, Lord Thomson, who partially supported their comments—that I am extremely puzzled by the references of several noble Lords, including both my noble friends, to the term "co-equality". We do not use that phrase in the Bill or refer to it as a concept. Clause 3(1) creates a single general duty to further the interests of "consumers" and of, the community as a whole". The rest of Clause 3 merely expands on that.

I say to my noble friend Lord Bragg, who quoted extensively from Barry Diller's speech, that I agree that there must be a balance of regulation in the market. There is no question in the substantial Bill of abandoning that balance. We are not the United States. I say to the noble Lord, Lord Crickhowell, who referred to the United States, that we shall hear more about that in relation to the Bill. However, this is not the United States; this is the United Kingdom. Nor does the Bill introduce a United States model to the regulation of United Kingdom communications. I do not believe that he or any other serious commentator would say that the regulatory framework that the Bill will introduce reflects a commitment to unfettered capitalism, to use Mr Diller's terms to describe some of the developments that have taken place in the United States. More regulation, not less, may be needed in the United States but, fortunately, I am not sitting in Congress defending United States legislation. We must be careful throughout our consideration of the Bill about making direct comparisons that really do not apply.

My noble friend Lord Alli is absolutely right that clever executives—indeed, he is one of them— and lawyers will try to challenge the regulator. However, it does not follow that the amendment proposed by my noble friend Lord Puttnam would make the situation any better. Nor do I accept his contention that we have created an equality of interest between consumer and market interests, for reasons that I have already given. Equality of interest is, if anything, between the consumer and the community. That is what Clause 3 states.

I have more or less answered all of the questions that were put to me. I conclude by saying that I do not believe that the effect of the amendment is, as the noble Lord, Lord Puttnam, said, to create a hierarchy in which competition is subordinate. Indeed, the actual effect is the reverse, because Ofcom would be under a duty to discharge its duty to consumers and the community as a whole by promoting competition wherever possible. Although some have argued for that, I do not believe that that is what my noble friend intends. In light of that and of my arguments for the Bill as it stands, I hope that he will withdraw the amendment.

Lord Peyton of Yeovil

Perhaps I may speak for the first time during the passage of the Bill. Unlike the noble Lord, Lord Thomson, I feel no need to apologise for not having taken part in the Second Reading debate. Indeed, I have probably placed myself in the debt of your Lordships' House for having kept silent on that occasion.

I agree with those who have acknowledged the debt owed to the noble Lord, Lord Puttnam, for explaining an extremely complicated subject and producing a report of the scrutiny committee which clarified issues. That is an almost unprecedented exercise during the litigation process. The noble Lord is to be warmly congratulated on having achieved what verges on a miracle. I am grateful to him.

My point is simple. The Minister did not refer to Amendment No. 3, to which the noble Lord, Lord Phillips, referred. I wonder why the noble Baroness has not said that Amendment No. 3 makes the position much clearer. The Bill as drafted states, to further the interests of the community as a whole in relation to communications matters". Hardly a Bill that passes through your Lordships' House is not sprinkled with unarguable pieties. I rather believe that this is one of them. If the Minister has in her brief a fairly extended explanation of what those words really mean, it would be much appreciated. I, for one, would welcome the opportunity of learning. What would the noble Baroness say to a member of the board of Ofcom if he or she were to ask what the Government meant by those words?

Baroness Blackstone

First, I welcome the intervention of the noble Lord, Lord Peyton. Coming afresh to any issue can often give rise to a greater understanding than by those who have become over-immersed in the detail.

I endorse everything the noble Lord said about the huge contribution made by my noble friend Lord Puttnam to our understanding of these issues. I was also grateful—I do not think that I said so—for his recognition of the extent to which the Government have listened to his words of wisdom and those of the members of his joint scrutiny committee.

In response to the debate, I spoke about Amendment No. 3 for quite some time. Rather than repeating my remarks, I hope that the noble Lord, Lord Peyton, will be able to note what I said when he reads Hansard tomorrow. I agree with him. I have made clear why I do not think that the amendment helps very much.

Lord Peyton of Yeovil

The substance of my question is this. What is meant by the words, to further the interests of the community as a whole in relation to communications matters"? There seems a potential conflict in those words. I should like to know whether the Government have any view. If the Government are unable to explain what those words mean, I shall drift in the direction of assuming that it is just one of those mild pieties which do not mean very much.

Baroness Howe of Idlicote

As joint author of Amendment No. 3, I support what the noble Lord says. I find it difficult to understand why our phrases were rejected. They were far more explicit than the words, to further the interests of the community as a whole". The wording of the amendment may not be perfect. It may not include everything that should be included. I had hoped for a fuller explanation of why the words in the Bill as drafted are preferable to those we suggest.

Baroness Blackstone

I think that I have given as full an explanation as I can of why the words on the face of the Bill are preferable to those of Amendment No. 3. The words, to further the interests of the community as a whole in relation to communications matters", are used to restrain Ofcom from attempting to further the interests of the community in matters which have nothing to do with communications. I think that everyone can see the common sense of that. Confident as I am in the ability of the chairman of Ofcom, the noble Lord, Lord Currie, and his colleagues to do their job in a sensible way, it is important that we restrict in legislation the extent of their operation. That is what those words are meant to do.

Lord Puttnam

To say that I am disappointed would be an understatement. With the agreement of my colleagues on the joint scrutiny committee, we shall not press any amendments to a vote today. However, it begs enormous questions. First, the issue is relatively simple. I hope that the situation is not indicative of an overall government obduracy when dealing with the many amendments that will emerge over the next dozen days in Committee. That worries me.

Secondly, where do the Government obtain their advice? I have talked to every industry professional I could. I have talked to every regulator who I believed had experience of this area. The advice is consistent. It is all of a piece with the amendment. I have also talked to a number of lawyers. The Government's record in taking on legally the commercial sector is not strong. Perhaps it could be said that the Minister is praying in aid the noble Lord, Lord Currie. I should be impressed if the Minister can assure us that the wording of the Bill is that which the noble Lord, Lord Currie, would most like to enable him to deal with vexatious, difficult and conflicting issues as they arise. I doubt it. So from where are the Government getting their advice? I am happy to withdraw the amendment and look forward to returning to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Baroness Howe of Idlicote had given notice of her intention to move Amendment No. 3: Page 3, line 6, leave out paragraph (b) and insert (b) to support and further the communication industry's capacity to contribute to public, civil and cultural life

The noble Baroness said

I thank the Minister for her remarks. I should like to read them more carefully and perhaps return to the matter at a later stage.

[Amendment No. 3 not moved.]

[Amendment No. 4 not moved.]

4.30 p.m.

Lord Phillips of Sudbury moved Amendment No. 5: Page 3, line 7, at end insert "and to uphold the principles of public service broadcasting

The noble Lord said: I fear that the noble Lord, Lord Peyton, will describe Amendment No. 5 as another "unarguable piety". I accept that. But some pieties are more pious than others; and some are more useful. I like to think that this is a particularly useful piety. I was struck by the fact that the noble Lords, Lord Puttnam, Lord Bragg, Lord Thomson of Monifieth and Lord Crickhowell, stated explicitly that they wanted the principles of public service broadcasting to be upheld. I confess that those of us who bat on this side of the argument need to get our act together before Report.

Clause 3(1) seems to me to be the foundation clause of the Bill. To insert in the Bill the words in Amendment No. 5 would have great merit. Clause 3(1)(b) would then read as follows: to further the interests of the community as a whole in relation to communications matters and to uphold the principles of public service broadcasting".

I should like to think that in the long dark nights during which he or she, the director-general of Ofcom, will have to construe this mammoth work—500 pages of dense parliamentary drafting—it will be of great help to have more specific general guidance in so doing. I agree with those who said that the phrase, to further the interests of the community as a whole", in relation to communication matters is not nearly as helpful as it could and should be. The sense I have so far is that people would like to see the time-honoured phrase, "public service broadcasting", find a place at this particular juncture in the Bill bearing in mind that the preamble refers to the Bill making provision, about the regulation of broadcasting".

There is very little in the Bill which goes further than that. Even Clause 3, over 100 lines of print, has virtually no further light to cast upon the tender subsection 3(1)(b). I could not see any reference to it at any point in the remainder of this long clause. The whole bias and balance of the clause, and, indeed of the Bill as a whole, concerns technicalities of broadcasting, the mechanics of broadcasting, market force considerations and competition considerations. I do not think anyone will say that those are not vitally important, but those of us who support the previous set of amendments and, I hope, this set of amendments will say with a loud voice that there has to be a hierarchy of values, at the head of which should be issues concerning public service broadcasting.

What about public service broadcasting? It is interesting that on 5th May 1999 in this House we had a debate entitled "Public Service Broadcasting", advanced, I believe, by my noble friend Lord Falkland.

Lord McNally

A House of Lords moment!

Lord Phillips of Sudbury

It is interesting that in the course of that debate the good Lord McIntosh, who I am delighted to see in his place, speaking for the Government, said: The obligations on public service broadcasters to entertain, inform, educate and challenge the audience into new thinking are fundamental to the public service broadcasting concept and, this is important, apply not only to the BBC but to all broadcasters, commercial, free-to-air and, in so far as it can be achieved, to satellite, cable and other converging technologies". —[Official Report, 5/5/99; col.754.] That is crucial to the sense of the amendment. This is not a set of value issues to be confined to the BBC and those other parts of the broadcasting empire which have express statutory public service duties cast upon them. This is for the whole of broadcasting.

I share the fear expressed in the first group of amendments about the way the world is going and the inexorable commercial pressures that bear down on the commercial producers, whether of sound or vision. One has only to consider the decline in advertising revenue to appreciate what further pressures they are under. In a sense, not only would it help the director-general to have something more crisp and understandable at the heart of the Bill, such as is proposed by the amendment; it would help those within the commercial radio and television world who care about standards, the product and original material to stand up to some of those who would simply have them follow the short and brutal course.

I am also confused as to why the noble Baroness, Lady Blackstone, whose own cultural credentials are impeccable, was so unsympathetic to the first set of amendments. On 26th November the Department of Trade and Industry and the Department for Culture, Media and Sport issued a landmark press notice which summarised the provisions of the Bill and stated four "key principles", the fourth of which is, ensuring that public service principles remain at the heart of British broadcasting". The noble Baroness, in responding to the amendment may say, "Of course, that is exactly what we want". Why not say that? Why not put it there flat on the face of the Bill with no ifs and buts and no wishy-washy language such as one can describe the language in Clause 3(1)(b)? Let us have it plain and simple.

Clause 12 deals with the content board. There may be some little solace in that. Clause 312 deals with the standards code, which is an important provision in the Bill. However, without Clause 3 being absolutely firm in both what it says about values and in terms of the hierarchy of values as expressed by the noble Lord, Lord Puttnam, those clauses are not adequate. As it stands. Clause 12 is a broken reed. I believe that the flag of public service broadcasting should fly from the masthead of the Bill very clearly.

I draw attention to the comments of the noble Lord, Lord Birt, at Second Reading. He is someone who understands the realities of modern broadcasting and he put in rather chilling terms the extent to which the commercial pressures on the commercial sector are driving content, quality, originality and so forth—the breadth of cultural output—down and down. He said, in effect, "Do not rely upon the commercial sector to go on providing even the level of broadness and quality output it does currently". That is why, again, surely we must have at the heart of the Bill something unequivocal and legally enforceable so that the director-general does not have to scrape around to find justification for what could be a very unpopular measure with commercial broadcasters but has something quite clear.

The noble Lord, Lord Crickhowell, referred and I believe will again refer to the Professor in Colorado who has done a great deal of work on the whole issue of what happens in America. I notice that the noble Baroness said, "Well, America is America and we are different". What is said by Professor Michael Tracey in his book on public service broadcasting in the States in 1998 and in his recent essay commissioned by the Joseph Rowntree Reform Trust—if noble Lords do not have a copy I suggest they obtain one—is of the greatest purport to what we are trying to achieve in the Bill. He quotes Ted Turner, scarcely a wimp, who refers to the loss of "so much diversity of thought" as a result of the way American broadcasting has gone. Walter Cronkite, one of the great names, refers to America, producing a population of political, economic and scientific ignoramuses at a point in time when a lot more knowledge, rather than less, is needed for the survival of democracy". Dan Rather of CBS states that "we are less" because of the way that modern television is going. That is one of the great broadcasting statesmen of America stating that we are less because of what has happened and we want to ensure that there is more.

The amendment would go some way towards shoring up the values I believe everyone in the House and the Government want to see shored up. We are dealing with cultural goods, not goods at large. To try to apply to the cultural goods of television and radio the same sort of competitive framework that might apply to beans or hamburgers is not good enough. The noble Baroness will berate me roundly for that somewhat over the top description of what the Bill does, but presently it does not do enough. It does not signal clearly and with acclamation the importance of public service standards.

I should like to mention just one more quote before I conclude. It comes from one of the real elder statesmen of the industry, Sir Denis Forman, who gave the McTaggart Lecture at the Edinburgh Festival nearly 20 years ago. He ended his speech by saying: If the top people in broadcasting become organisation men, if they become professional managers, if they are solely interested in profit or in efficiency"— that is a word that one finds endlessly in this Bill— they will fail. For the laws governing the production of good programmes are mysterious and demand from time to time that efficiency should take second place … There is an unbridgeable gap between the logic of business management and the laws of the creative world … For efficiency is the enemy of originality and it can smother talent, which is of its nature non-conformist". As Members of the Committee will know, he was the most distinguished head of Granada Television for a long time, during which he worked in close partnership with the noble Lord, Lord Bernstein, who I hope will contribute later to the debate. For all the reasons that I have outlined, I hope that the Government will allow my amendment to find its place on the face of the Bill. I beg to move.

Lord Gordon of Strathblane

I did not take part in the firing of the opening salvos for the soul of Ofcom simply to avoid prolonging the debate unnecessarily. I trust that my amendments, Amendments Nos. 7 and 8, will indicate that I am broadly in support of the amendments put forward by the noble Lord, Lord Puttnam, and others. However, the noble Lord might be wise to reflect on the observation made by the Minister that "appropriate" is a better word than "possible" in terms of the promotion of competition.

I should declare an interest in that I am chairman of Scottish Radio, a non-executive director of Johnston Press, and chairman of RAJA R, which is the joint research body between the BBC and commercial radio. With the permission of the Committee, it is not my intention to reiterate that declaration of interest before every intervention that I may make. It could all too easily sound like a boast of experience, rather than a declaration of interest.

In the old days there was an obligation reflected in the Lord Normanbrook letter to the then Home Secretary, or in the Act of Parliament setting up the old IBA, that there had to be a wide range and balance in programming—"balance" was construed in the sense of a balanced diet, rather than balanced in the sense of political impartiality for which there was separate provision.

In an age of many services, all of which are serving niche markets, I fully recognise that it is unreasonable to impose the obligation to provide a programme catering for a wide range of tastes on an individual station, or television channel, and that that obligation is properly transferred to the regulator as set out under this clause. However, my amendments would transpose the phrase in brackets—namely, "taken as a whole" —so that it qualifies only the necessity to provide a wide range of programming. It is still perfectly possible, and, in my view, desirable, to demand that individual services achieve high quality. Therefore, my amendment is mainly syntactical but with a philosophical undertone.

4.45 p.m.

Lord Crickhowell

The noble Lord, Lord Phillips, has rendered us a service by drawing our attention to one of the strangest features of this Bill—this vast two-volumed Bill—that it is not until we reach Clauses 260 and 261 that we find mention of "public service" broadcasting in any detail. Those clauses are most important. For the first time in any Bill we now have a definition of "public service" broadcasting; indeed, a very detailed definition and one which we shall no doubt debate at greater length in due course. I am sure that Ministers will be glad to hear that I do not wish to pursue too many of those issues at this stage.

It is curious that we do not see public service broadcasting mentioned in the duties under the Bill because it is a key component of the whole legislative machine, so to speak, that is now under consideration. Another feature of those clauses identifies a subject widely misunderstood by the general public. The latter normally assume that public service broadcasting equals the BBC. But the Bill actual defines such broadcasting and imposes public service obligations not on the BBC but on Channels 3, 4 and 5 and on the "public teletext service". The obligations imposed on those providers are quite detailed.

The licence holders for Channel 3—I no longer have to declare an interest in this respect, although I was for many years a director of HTV—must provide a sufficient amount of programming that reflects, supports and stimulates the diverse cultural makeup of the UK through music, drama, comedy and other visual and performing arts; that gives a comprehensive and authoritative coverage of news and of current affairs at regional UK and international level; that reflects the lives and concerns of different communities in the UK; and is made outside the M25.

The BBC is required to follow those guidelines as part of its agreement. I have no doubt that that is also a subject to which we shall return later. However, although the public service obligations are very tightly defined for Channel 3 and the other channels, they are not defined anything like so tightly for the BBC. Indeed, if Members of the Committee refer to questions 528 to 530 of the evidence given to the Joint Committee on the Draft Communications Bill, it will be seen that I pressed Mr Gavyn Davies, the chairman of the BBC, very hard to tell me what the BBC understood "public service broadcasting" to be. He was very careful not to give me a clear answer. If he gave a clear answer, he knew perfectly well that he would find himself facing some of the obligations imposed on the other television companies. Indeed, he sought to argue that, as they are obliged to provide entertainment, all "entertainment" actually met the definition of "public service broadcasting"—or, at least that we should not challenge entertainment as not coming within that remit. However, some entertainment clearly does.

It means that the obligations placed on the BBC are rather different from those placed on other broadcasters. These are also topics to which we shall want to return. Surely the noble Lord, Lord Phillips, is right to say that public service broadcasting is one of the jewels in the crown of British television that we ought to be addressing right at the start of our consideration of the duties of Ofcom. It is quite extraordinary that we have this Bill with no reference to the latter being a primary purpose until we come to those clauses to which I referred and the particular application of those concerns. I have a great deal of sympathy with the amendment moved by the noble Lord. I shall be interested to hear from the Minister why Ofcom has not been given the task of upholding this important part of our broadcasting arrangements.

Lord Bragg

I have a few brief points to make following the magnificent rallying cry for public service broadcasting made by the noble Lord, Lord Phillips. I do not believe that my first point has been mentioned, so I shall be brief. In the run-up to the BBC's charter renewal in a few years' time, the media environment taken as a whole is likely to be very hostile. It is even more important for the BBC, which is the cornerstone, but not the sole guardian, of public service broadcasting, that we accept the suggestion put forward by the noble Lord, Lord Puttnam, that public services should, for the sake of clarity, be placed at the top of the hierarchy and put on the face of the Bill as soon as possible. That will be a great protection for the BBC. Indeed, the British public would not forgive us if we did not protect them in that regard at the start of what will be a most difficult renewal process.

Secondly, I should point out to my great and noble friend the Minister that she will dismiss American experience at her peril! Barry Diller saw the future, and he said, "avoid it".

Lord McNally

I had added my name to the first group of amendments, but like the noble Lord, Lord Gordon of Strathblane, I shall restrict myself. However, both sets of amendments cover the same kind of thoughts. I shall lead on to the point made by the noble Lord, Lord Crickhowell. Many interest groups outside the industry, such as the Voice of the Listener and Viewer, the National Consumer Council and other such bodies, expressed the concern that the balance of the Bill between the interests of the citizen and the marketplace was wrong. It is wrong not to recognise that imbalance.

It would also be wrong not to recognise that the Government have tried to meet those concerns. I echo—I do not think it was a warning; it was certainly not a threat from such a gentle creature—the noble Lord, Lord Puttnam, that the way the Bill goes through Committee will depend a great deal on whether ministerial responses comprise "No, no, no, no", with little regard to the fact that, as far as I can see, these amendments are tabled constructively to make a good Bill better rather than to snarl at the Government's timetable or anything like that.

If the idea of the Ministers or Whips is some exercise in macho whipping, they will run into trouble, which will be of their making and not of those of us who are trying to make a good Bill better. To echo the noble Lord, Lord Bragg, it is not the Bill's critics who have been saying that what is missing from British broadcasting is the wonderful, entrepreneurial, dynamic skill of American management; it is the Bill's promoters who have said that across the Atlantic there is a better world. Tessa Jowell said that by bringing in the Americans we would obtain the best of both worlds. The Minister has to listen to some of the wise words of those who have gone through the American experience.

My noble friend Lord Thomson referred to the two cooks. The Minister was tempted to try the curry pun. I warn her that the origin of curry, so I am told, is to mash certain tainted meat. One of the worries about the Bill is that although, as my noble friend Lord Phillips said, the Minister has impeccable credentials in defending public service and public enterprise, many of the arguments for the Bill, certainly in the other place by Kim Howells—that new convert to the perfection of the market—have been about rigorous competition. It is no good the Government at the other end of the building having Kim Howells and John Whittingdale marching arm in arm towards the Adam Smith Institute while the Minister at this end says all the right conciliatory things because she knows that there is not the same reception at this end of the building for that kind of tosh.

She must realise that a matter of genuine concern is the commitment to what was a stroke of genius in the development of public service broadcasting. Reading a history of the BBC I was told that the mantra, "educate, entertain and inform" as a kind of job description for the BBC was Lord Reith's invention. Thank God he came up with it, because from it grew a concept of broadcasting not only for the BBC but also for the commercial broadcasters when they were introduced, that has done us a great service.

The real concern is that when Tony Ball of Sky gave evidence to our committee and was asked what his ideal of public service broadcasting was, he referred to Australia. That is normal, he being Australian, but it gave the game away. We fear that without the protection provided by the amendment there are forces at work that wish to drive the public service commitment into the ineffectual ghetto it occupies in the United States, Canada and Australia, where that battle has already been lost. We can still win the battle by putting such amendments into the Bill. I hope that the Minister, about whose interests and priorities I have no doubt, will see the logic of what we are trying to do.

Lord Fowler

Having slightly disagreed with the noble Lord, Lord Phillips, on his previous intervention, I shall put that right immediately by agreeing strongly with his proposal in this amendment. If we accept the concept of a hierarchy of duties to assist the regulator, it seems that, as the noble Lord, Lord McNally, said, one of the most fundamental is to uphold the principles of public service broadcasting. That is a fundamental value that we should hold dear.

That is something we will want Ofcom to continue to value. For once public service broadcasting is not, in the immortal words of my noble friend Lord Peyton, "a mild, unarguable piety"; its remit is set out in great detail in Clause 260. The only difficulty, as my noble friend Lord Crickhowell said, is that it comes very late in the Bill. It seems that whatever else the amendment does, it puts public service broadcasting at the beginning of the Bill and states the value that we place on it. That is fundamentally important.

Public service broadcasting is not just a pseudonym for the BBC. The BBC does uphold those principles, but so do other television broadcasters. One might say that those principles are, and should remain, the characteristics of British broadcasting. That is my view. The principles are fundamental values: the dissemination of information; the provision of education and entertainment; the broadcast of cultural activity in the United Kingdom; and what I perhaps value above all as an ex-journalist, comprehensive and authoritative coverage of news and current affairs with an overarching provision within the legislation that such broadcasting should be impartial.

It seems that that is what we should be aiming to achieve. We do not always do it, but those are the values we seek after. It is important that we have objective reporting. We do not try to force some editorial line down the throats of the public. We set out the facts and the position as best it can be seen and allow the public to make up their minds on that presentation. There has been some criticism of the coverage of the Iraq war—particularly that of the BBC; less so that of ITN. For my part, we in this country appear to have become a nation of armchair editors rather than armchair generals. Obviously, mistakes are inevitable. But, overall, both the BBC and ITN provided reasonably balanced coverage of the conflict. I shall not try to defend every part of it, but it seemed to adhere to the best traditions of British broadcasting.

I speak as a strong supporter of the action taken. But I do not want my news accompanied by flags waving in the corner of the screen, let alone background music, which was the case in one or two other broadcasts. There is a contrast between news coverage or objective reporting and propaganda. We should be very clear on the distinction and very protective of our traditions in that regard. One can get the balance wrong, but that should not prevent us aiming for such a balance.

I strongly support the proposal of the noble Lord, Lord Phillips, and the other comments made. We would be fools to downplay the principles of public service broadcasting in this country. It is worth fighting for. We should put it at the top of the page as one of the principal aims of any government with any sense in this country.

5 p.m.

Lord Brooke of Sutton Mandeville

I am the third participant in Committee to confess that I was not present at Second Reading. This is therefore my opening salvo. The noble Lord, Lord Thomson of Monifieth, said that he had been at a funeral. My noble friend Lord Peyton, like the 18th century Margrave of Baden, said that by his absence he was doing a service to your Lordships' House.

Lord Peyton of Yeovil

My noble friend has entirely misheard or misunderstood me and does me great injustice. I thought that I made perfectly clear that I was present at Second Reading, but, unlike other noble Lords, in the capacity of a learner who wishes to increase his understanding.

Lord Brooke of Sutton Mandeville

I am most grateful to my noble friend for his intervention. I delete the reference to the Margrave of Baden, who was absent and necessarily also silent. My noble friend was clearly silent. He must forgive me, as I was not in the House, and, therefore, could not have known that he was present in that capacity.

Lord Peyton of Yeovil

He might have listened more carefully to what I was saying on this occasion.

Lord Brooke of Sutton Mandeville

I was absent. I offer an apology to my noble friend Lord Peyton. Due to a particular application of Murphy's Law, whenever the Department for Culture, Media and Sport wishes to bring forward a Bill for Second Reading in this House, the business managers always schedule the debate for a time when I am attending a meeting of the British-Irish inter-parliamentary body. It happened with the Licensing Bill and again with this one.

While my noble friend Lord Peyton was doing a service to noble Lords by remaining silent, I was in Kilkenny and Tipperary doing a service to myself. I learnt for the first time that, in another application of Murphy's Law, when in 1495 one of my direct ancestors burnt down the cathedral on the Rock of Cashel, his explanation to King Henry VII was that he had been misinformed that the archbishop was inside it.

I speak from an extremity of the House, topographically rather than politically. It may be due to that topographical quirk that I happen to be personally nearest the grave of Lord Reith. As someone concerned to remain audible to the Committee, if we were not going to discuss public service broadcasting until Clause 260, the noise of Lord Reith turning in his grave would become extremely trying to Members as far from the main business of the Committee as I am. Therefore, I support the noble Lord, Lord Phillips. I particularly congratulate the noble Lord, Lord Gordon of Strathblane, whose rearrangement of a particular parenthesis was exceptionally helpful and would have been approved of by Lord Reith, for whom I am temporarily speaking.

For the remaining stages of the Bill, I have no interest to declare. But I was twice resident in the United States for a total of nearly four years. I recall very vividly how much the public sector broadcasting channel meant to exiles from this land in the United States.

As I recall, in a recent poll on what this country means abroad, the largest percentage—13 per cent—said that it was represented by British broadcasting. There is no question that the BBC plays a significant part in that reputation being enjoyed across the world. Its role is superior to anything else, including, obviously, the influence of the parliamentary tradition.

For understandable reasons, American Bills have double-barrelled names. The noble Lord, Lord McNally, implied that the Munroe doctrine was becoming the Jowell-Munroe doctrine. The noble Baroness, Lady Blackstone, said that it was a British Bill rather than an American one. I join the noble Lord, Lord Phillips, and his other supporters in hoping that we can have the reference to public service broadcasting included in the Bill at the earliest opportunity and prove that it is British rather than American.

Lord Peyton of Yeovil

I am sure that noble Lords do not wish me to probe at any depth or to seek to penetrate the murky ancestral past of my noble friend. But, as the debate continues, I feel that my status as someone wishing to gain understanding rather than to impart it is quite safe and almost unique in the Committee. Everybody else has so much knowledge.

I thank the noble Lord, Lord Phillips, and congratulate him on producing something crisp and understanding—those were his words. Unlike so many, he matches his words with performance. We all owe him a great debt for that. I wish that he would go a little further—he will have other opportunities—to say what he means by the principles of public service broadcasting. Not only would I like to see the term in the Bill, I wish to have a clearer understanding of the principles. Perhaps for reasons of vulgar curiosity, I wish to know who are ideal exemplars of the principles. As yet, that has been hidden from me. I hope to be told during the debate who is regarded as a perfect exemplar.

I echo the words addressed to the noble Baroness by the noble Lord, Lord McNally, about not saying "No, no, no" throughout. If she stuck to that negative attitude—I am sure that she will not—it might provoke even reasonable, patient people like me to protest. There is a deplorable tendency, once a Bill is launched, for the Minister sponsoring it—the noble Lord, Lord McIntosh, knows this very well—to develop a maternal love for it. They will not have anybody peeping into the perambulator and saying, "What a hideous baby".

The Lord Bishop of Manchester

I express great sympathy for the points made about public service broadcasting and its importance. I have made similar comments in earlier debates on the subject. We must never take public service broadcasting for granted in this country. It is good to see in this Bill that this is the first government to try to define public service broadcasting. I look forward to the more detailed debates on that later. For the moment, I support what has been said about the need at the very beginning to strengthen our definitions, statements and the order regarding public service broadcasting.

I also want to express sympathy with the concerns voiced today by the noble Lord, Lord Puttnam. I am sure that noble Lords will agree with me in the hope that, as Committee stage develops, the very helpful and wise interventions made by the noble Lord, Lord Puttnam, are not always responded to in a negative way from the Government Front Bench.

Perhaps I may turn briefly to Amendments Nos. 7 and 8, to which the noble Lord, Lord Gordon of Strathblane, has referred. These amendments seem to me to restore what must have been intended by the Government all along. Given that there are quality thresholds for the granting of broadcasting licences, legislation ought not to open the door to the suggestion that achieving the necessary quality is a question of average performance or that the better programmes in some way make up for the less adequate ones.

Quality is a subjective word, but one which regulators have had no difficulty in embracing in the past. I suggest that it is logical for the range of programmes taken as a whole to appeal to a variety of tastes and interests which are represented in a great variety of the populace, whereas it does not seem so logical for quality to be determined by an average. In any case, where would this stop? Would the appearance of programmes judged to have reached new heights of quality mean that poorer offerings would be admissible on a "taken together" basis? Surely not.

Lord Hussey of North Bradley

I have listened with great interest to this debate. I intervene with some hesitation having spent the whole of the holiday in bed. I hope that the Committee will excuse my somewhat halting few words. I declare an interest, having been chairman of the BBC for 10 years. I think that that is the longest anyone has ever done it and I do not suppose that anyone will ever try to do it for longer. During most of that time I tried to uphold public service broadcasting, which I thought was the hallmark of the BBC and which is what the audience—the subscribers, the people who pay the licence fee—expect.

So how does one define public service broadcasting? Speaking from memory, Lord Reith defined it as providing the best of all types of broadcasting, of whatever nature, that raised standards and tempted the audience to reach, in what they watched and what they enjoyed, higher standards than they would otherwise have reached had they concentrated entirely on the less exciting or less honourable parts of the national press.

I think that we more or less succeeded in doing that. I hope that we did. In some ways, it can be seen more clearly in the World Service, which I think is generally acknowledged to be the highest level of broadcasting—no longer only on radio but on television too. But that, to me, is what public service broadcasting should be. It is about higher standards across the whole range of output and about tempting audiences to look at and enjoy programmes which they would not otherwise have done. In that way, not only is the worth of the BBC increased, but also, through the audiences, the value of the BBC is increased and its important hold on the British public.

Baroness Buscombe

I support these amendments. I am tempted to ask myself whether the reason that this important duty for Ofcom to uphold the principles of public service broadcasting is not on the face of the Bill in the early stages, under the general duties for Ofcom, is that somehow the Government have taken it for granted that these principles would be upheld.

I hope that the Government will realise— indeed, noble Lords have made the point absolutely clear today on all sides of the Committee—that nothing can be taken for granted. In a sense, the words that I was going to say were taken from me by the right reverend Prelate the Bishop of Manchester. Nothing can be taken for granted. There is a need for flexibility from the Minister and each of these amendments can do no harm but a great deal of good.

5.15 p.m.

Lord McIntosh of Haringey

As this is my first intervention in Committee, it might be as well if I say something about the more general challenges that have been made today. The Government have been accused of marching towards the Adam Smith Institute approach of abandoning the principles of public sector broadcasting in favour of American or Australian broadcasting and have been warned about the danger of a culture of saying, "No, no, no" to amendments.

None of that represents the position of my noble friends Lady Blackstone and Lord Davies or myself in the way in which we address this Committee. We are looking at the amendments objectively. We are trying to understand what they mean and what they intend. We are trying to make an objective judgment on whether they improve the Bill. If they are defective but their intention is to improve the Bill, certainly we shall look at any alternatives that we can think of or, in discussion with anyone who is proposing amendments, we shall seek to find a way forward. Our attitude is not simply to oppose every amendment on principle.

It may be that the number of resists is more than the number of considers. It is because when we look at the amendments we find that, in our view, they do not make any improvements to the Bill. But if that is the case, we shall say so and will explain why. If there is disagreement about a matter on which we have sympathy we shall try to pursue it and make any improvements that are possible.

I turn now to these amendments. I have particular difficulty with Amendment No. 5. That is because of the wonderful phrase which the noble Lord, Lord Peyton, introduced into the debate: that is, "unarguable piety". I think that phrase will occur over and over again in our debate—at least I shall find myself using it.

What the Bill would propose is a duty to uphold the principles of public service broadcasting in the general duties of Ofcom. What the principles of public service broadcasting are, the amendment does not say. Yet, in introducing it, the noble Lord, Lord Phillips, said that these would be legally enforceable on Ofcom. I simply do not understand that. I do not understand how a statement can be made about the principles of public service broadcasting without ever seeking to define what is meant. How can such a statement be other than simply a statement of principle—a wish—rather than of actual content and improvement?

In saying that, perhaps I should explain something about the structure of the Bill because a number of noble Lords said that it is terrible that the real consideration of public service broadcasting occurs only at Clause 260 and that it should be higher up in the Bill. That suggests that what comes earlier in the Bill can be in conflict with or more important than what is later. That is not the case.

Part I is about the functions of Ofcom—not just the functions in relation to broadcasting but the functions in relation to the whole telecommunications area. There is reference in Clause 3 to quality broadcasting. Clause (3)(2)(c) refers to the requirement on Ofcom to secure, the availability throughout the United Kingdom of a wide range of television and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests". The noble Lord, Lord Phillips, called that "wishy-washy". I am sure that Lord Reith would not have thought it good enough as a definition, but it is a flag for the more detailed consideration set out later in the Bill. While it may be wishy-washy, it is better than the absence of anything at all, which is what we have in this amendment.

Lord Crickhowell

I am genuinely puzzled by the noble Lord. He has asked how it is possible to include a statement when there is nothing to explain what it means. However, as he pointed out himself, it does not matter whether something is set out at the beginning or the end of the Bill. Later we have a clear statement that: The purposes of public service television broadcasting in the United Kingdom are—". Those purposes are then set out in detail. Furthermore, a clear statement is made on the manner of fulfilling those purposes.

I do not understand why it is so difficult to link the amendment tabled by the noble Lord, Lord Phillips, with what is set out so clearly later in the Bill. Surely it would be perfectly possible for the noble Lord to do that if he was so minded.

Lord McIntosh of Haringey

If the noble Lord, Lord Crickhowell, had been patient for a moment longer, I was going to say what the Bill does.

Part 2 of the Bill is not the appropriate place since it covers network services and the radio spectrum. However, Part 3 covers radio and television services. We must look in some detail at what is set out in Clause 260 and the subsequent clauses. If any accusation has been made—and by implication that was the case—that somehow the Government are being soft on the principles of public service broadcasting, then this should answer it.

Clause 262 requires public service broadcasters to produce "statements of programme policy". They must do so at the outset and then at regular intervals. It may be said that a statement of policy may or may not be worth the paper it is written on. However, Clause 260 requires Ofcom to report on the fulfilment of the public service remit. Subsection (6) in particular sets out in great detail the requirements of public service broadcasting. Those requirements are detailed in such a way that, taken together with the powers conferred to enforce the principles, they provide exactly the protections for public service broadcasting which all noble Lords who have taken part in this debate are seeking. The subsection provides specifically that Ofcom should have backstop powers to enforce these principles for all broadcasters except the BBC, and that the Secretary of State shall have powers under the agreement with the BBC to enforce those principles for the BBC itself.

So not only do all public sector broadcasters have to undertake a form of contract with the nation about public service broadcasting, but Ofcom has the responsibility and the power to see that that is enforced. That is what I call a commitment to public service broadcasting. Simply to insert it as a part of the general duties of Ofcom does not seem to add anything of any significance whatever.

I turn now to Amendments Nos. 7 and 8, which seek to amend Ofcom's duty to imply that each individual television and radio service must be of high quality. Of course we want to see consistently high quality programming made available throughout the United Kingdom by all broadcasting providers. However, we provide for that, first, through the provision of high quality public service broadcasting—I have talked about that—and, secondly, we have provided for that through the licensing of other broadcasters, taking into account the overall responsibilities set out in Clause 3, including those relating to quality and diversity. But where there is no constraint on spectrum—I say this to the right reverend Prelate the Bishop of Manchester, who appears to think that we should award restrictive licences to all broadcasters; that is not the case where there is no constraint on spectrum—we would be wrong to set a threshold of high quality for all new entrants.

For example, I cite community radio and television, as well as radio and television services for particular minorities. There is a sense of trade-off between high quality and diversity; that is, services that appeal to a variety of tastes and interests. If we are considering community and ethnic minority radio and television services, I do not think that we would wish to impose the kinds of standards of quality intended by these amendments. Surely the right approach is to seek high quality across broadcasting services taken as a whole rather than to impose it on every single provider.

For those reasons, I hope that the amendments will not be pressed.

Lord McNally

I had a lump in my throat, as I am sure did most of the rest of the Committee, when I listened to the Minister's opening declaration. But I should tell him that the three specific criticisms to which he alluded were all made by me. I stand by them.

I wish to say only this. So far we have considered seven amendments, all seven of which have been rejected. If Peter Snow were commentating on election night, he would already be predicting a landslide. When are we going to see flexibility?

Viscount Astor

Before the Minister responds—

Lord McIntosh of Haringey

I should like to respond first to the noble Lord, Lord McNally. What the noble Lord should recognise— I know that my noble friend Lord Puttnam would do so—is that this Bill is profoundly different as a result of the changes made to it by the joint scrutiny committee. We have made huge changes—I shall not say "concessions"; they would be concessions only if we did not agree with them—in response to informed criticism. We have done so after proper debate and discussion and we will continue to do so.

However, as is the case with these amendments, if we think that it would not serve any valuable purpose to include them in the Bill, then we will resist them.

Lord Gordon of Strathblane

At a later stage of the Bill, perhaps my noble friend on the Front Bench will reconsider his judgment on the two amendments tabled in my name. I should remind him that their effect would not be to require high quality from all services. It would simply ensure that one of the obligations of Ofcom would be to secure a wide range of television and radio services that are of high quality. If Ofcom is not in place to do that, why bother with it? If it is to aim at mediocrity, then we can do without it.

Viscount Astor

I have listened with care to the debate and I wish to put one question to the Minister. I think it is important that the general duties of Ofcom should be set out clearly in Clause 3(1), as is the case with regard to the interests of consumers and the community. However, the details of those interests are spelt out only later in the legislation. Therefore I fail to understand the Minister's argument why it is not possible to include a phrase such as the "principles of public service broadcasting" which are then detailed later in the Bill.

The duties of Ofcom are not spelt out in Clause 3(1), but the basic principles are. If you can have one, then I do not see why it is not possible to have the other.

Lord McIntosh of Haringey

Clause 3(1) sets out the general duties across the range of responsibilities of Ofcom, whether it be broadcast or other telecommunications services. Public service broadcasting is enormously important, but it is a specific element of that and thus is best covered in the part of the Bill dealing with radio and television services.

Lord Phillips of Sudbury

I am immensely grateful to all noble Lords who have spoken in this penetrating and stirring mini-debate. I am particularly grateful to the noble Lord, Lord Hussey, who has come from his sickbed to make his contribution. That is greatly appreciated. Turning to the noble Lord, Lord Peyton, at least I can give him this 1924 quotation from Lord Reith, in which he described the responsibility of public service broadcasting as the need to, carry into the greatest possible number of homes everything that is best in every department of human knowledge, endeavour and achievement". The reason I did not use the quotation earlier was that it lacks "entertainment" as an important element of what today would be part of anyone's definition of public service broadcasting.

I am also grateful to the noble Viscount, Lord Astor, for pinning the noble Lord, Lord McIntosh, to his Bench where he should be pinned on his principal objection to the amendment; namely, that it lacks definition. If the Minister could tell me how much less defined it is than the phrase contained in the Bill— to further the interests of the community as a whole in relation to communications matters"— I would be deeply obliged. But, of course, he cannot do so. The reason he cannot do so—and the reason I did not—is that this is a general duty clause.

My second point is that Clause 260 is not part of the general duty clause on the obligations of Ofcom. The point made by every single speaker bar none is that public service broadcasting standards must be at the flag, at the head, at the heart of the Bill. However admirable Clause 260 may be on its own, it is not part of the general duties. The mood of the Committee, as I apprehend it, is that public service broadcasting standards should be a general requirement to which the Director General of Ofcom should have regard.

Having gone that far, this is not the moment to vote on these issues. I am sure that a great deal of talking will take place before Report, when the Government can be assured that we will be back. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Baroness Buscombe moved Amendment No. 6:

Page 3, line 7, at end insert— ( ) In conducting their duties under subsection (1), OFCOM shall have a primary responsibility to ensure that their actions are, at all times, governed by the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed.

The noble Baroness said: In moving Amendment No. 6, I shall speak also to Amendments Nos. 15, 18 and 19. The amendments focus on the general duties of Ofcom and the need, in our view, to have on the face of the Bill an increased emphasis on the principles of better regulation.

In setting out the key principles of the Bill, the Government have expressed their aim to create the most dynamic and competitive communications industry in the world. To that end, they have highlighted the need for deregulation to promote competitiveness and investment, together with self-regulation where appropriate. We support the Government in these aims.

However, we want to be sure that in practice Ofcom will, as it becomes established, adhere to the principles of better regulation; that the regulatory activities of Ofcom will be transparent, accountable, proportionate, consistent and targeted. To that end, it should be a primary duty on the face of the Bill and not only something to which Ofcom should have regard when it appears to be relevant in the circumstances.

The Bill grants extensive powers to Ofcom as a regulator to intervene right across the economy. In that case it is essential that it should not only have regard to, but adhere to at all times the principles of better regulation that are consistently championed by the Government's Better Regulation Task Force.

The chairman of the task force, David Arculus, when appointed last year, was reported in the Financial Times as having warned that civil servants are drowning small businesses in a wave of regulation because they have little understanding of business. He went on to say that, Some of the problem lies with independent regulators who are keen to make the most of the new powers they have been given".

While we are confident that the noble Lord, Lord Currie, will not fall into this trap, we nevertheless wish to protect the future and thereby make adherence to better regulation principles a primary duty for Ofcom. I can assure the Committee that we are supported in large part across the broadcasting and telecommunications industries in this aim.

We are disappointed therefore that the Government have seen fit to place a less than wholehearted commitment to the principles on the face of the Bill. I recognise that, like the remainder of Clause 3, these principles are to be disapplied when Ofcom carries out its concurrent competition powers. I have no dispute with that. Similarly, there may be instances where it is not appropriate for Ofcom to behave in accordance with all the better regulation principles but with only some of them. Someone has suggested, for example, that Ofcom cannot be too transparent in advance when it is carrying out a raid on a pirate broadcaster. That kind of situation must of course be respected.

We have tabled two alternative amendments for the Government's consideration, both of which would achieve this aim. The first would simply delete the provisions in Clause 3(3) and amend Clause 3(1) to ensure that in conducting its duties under the subsection Ofcom has a primary responsibility to ensure that its actions are at all times governed by the principles.

The second amendment would amend Clause 3(2) to provide Ofcom with a duty in carrying out its functions and in performing its duties under Clause 3(1) to act impartially and transparently and to comply with the other principles of good regulation.

The issue was raised briefly in another place. Amendments seeking this increased emphasis were rejected by the Government, even though they failed to provide much reasoning for doing so. It was an insubstantial and unsatisfactory debate. The Government's refusal to adopt these amendments is even more difficult to understand given the importance that they appeared to attach to the principles of better regulation during the consideration of the Bill in another place. The Committee stage debates recorded in Hansard illustrate how often the principles were prayed in aid by the Government as a reason for rejecting amendments that went to the heart of many of the most important debates.

I ask the Government to think again on this issue. In their exposition of the Bill in Committee they have shown how important the principles will be in underpinning and informing Ofcom in the way that it goes about its work. This sits very uncomfortably with the less than wholehearted commitment to the principles currently given in Clause 3. I beg to move.

Lord Avebury

In its report, Champions of Better Regulation, the Better Regulation Task Force claims to have the support of the Prime Minister and that that is one of the great reasons for its success. It states that several themes underpin its work and that the most important consideration of whether it is successful is to look at the themes, to judge their success over the next few years and to see whether they have been accepted and applied by policy makers and regulators. This is a very good example of how we can apply them as policy makers by incorporating them higher in the clause than the position they currently occupy.

The Minister has already explained that Clause 3 divides conveniently into three units. Clause 3(1) refers to general principles; Clause 3(2) refers to detailed objectives; and Clause 3(3) refers to matters to which the regulator must have regard. Of the two alternatives offered by the amendments, the one I prefer is to incorporate the principles of better regulation into Clause 3(1). That subsection is concerned with principles and therefore, as the noble Baroness said, if we are to divide the general duties of Ofcom into these three hierarchies, the principles of better regulation belong in Clause 3(1) and not down at the bottom in Clause 3(3) as matters to which the regulator must only have regard.

We acknowledge that the issue of the principles of better regulation is mentioned in the Bill. But we believe, as does the noble Baroness, that it should be up in Clause 3(1), which deals with general principles. Alternatively, Amendments Nos. 15 and 17 offer the option of incorporating it at the beginning of Clause 3(2), where it would be at least in the detailed objectives.

I hope that the Minister will have regard to what the noble Lord, Lord McIntosh, said about the Government being flexible and that she will consider the various options put forward by noble Lords. We have suggested two different ways of achieving the Better Regulation Task Force principles, either one of which can be discussed with Ministers during the course of the next few weeks before Report. It is important at this stage that the Minister and her colleagues should accept that the better regulation principles should come higher up in the objectives set out in the Bill.

Lord McIntosh of Haringey

I am grateful that both noble Lords who have spoken to these amendments have acknowledged that none of us is against the principles of better regulation. The issue here is where in Clause 3 is the right place to put it? We have put it in subsection (3), and it is proposed that it is put in subsection (1). The reason that it is not in subsection (1) is very simple.

The general principles set out in subsection (1) apply across the range of Ofcom's functions. They are a furthering of the interests of consumers in relevant markets—and that is all telecommunications markets—and a furthering of the interests of the community as a whole in relation to communications matters. That again is across the whole range of Ofcom's functions. Regulation is only one part of Ofcom's functions. There are many other functions, as set out in subsections (2) and (3). In upholding the principles of regulation, when we are concerned with only one part of the functions of Ofcom, it is right that it should be set alongside the other functions such as the promotion of competition in relevant markets, the desirability of facilitating self-regulation or encouraging investment in innovation. None of those is a regulatory activity. It is right that regulatory activities should be alongside those others, as referring to only part of the range of Ofcom functions.

Let me give an assurance that the words "have regard to" do not mean that Ofcom can simply ignore it. If there were any question of Ofcom going against regulatory principles there would rapidly be legal challenge to it. If that were found to be the case I am sure that such a legal challenge would be upheld. We are not in disagreement on principle. It is simply a matter of the way in which the Bill is structured and where it is right to refer to a principle which refers to only part of Ofcom's activities.

Baroness Buscombe

I thank the Minister for his response. The words that I have just written down are "lack of confidence". The difficulty that we have relates to the previous amendments in relation to upholding the principles of public broadcasting as a primary duty, and there is a similar argument here. There is a lack of confidence. It probably rests as much as anything with the wording in Clause 3(3), to which the Minister referred: In performing their duties under subsection (1), Ofcom must have regard, in particular, to such of the following as appear to them to be relevant in the circumstances". There is a lack of confidence in the marketplace that Ofcom could use that wording to exit itself in a sense from the need to adhere to the principles of better regulation. There is a real concern that if we do not ensure that at all times the general principle of better regulation is adhered to, the regulator will, as I have already expressed and others have said beyond your Lordships' House, take every opportunity to do as the—

Lord Puttnam

Perhaps I may help the noble Baroness on the issue of a lack of confidence. When taking evidence in the Select Committee, it became very apparent to us that for the most part regulators had tended to act too little and too late. That was principally because they found themselves to be under-resourced and unable to grasp market realities as they emerged particularly into a fast-moving marketplace. I think that one of the confusions and one of the problems is the different perspective from the point of view of the dominant provider and the market entrant. The market entrant tends to feel that the regulator acts far too late. The dominant provider tends to feel that the regulator is interfering. Squaring that circle is not easy, but I have total sympathy with what the noble Baroness is trying to achieve.

Baroness Buscombe

I thank the noble Lord, Lord Puttnam, for his intervention. There is no question that there is a concern beyond your Lordships' House in the marketplace, as I have already said, because there is perhaps an opportunity for regulators—using the words in subsection (3)—to act too little and too late. That is something that could and should be corrected in the Bill. That is what we are seeking to do. I thank the noble Lord, Lord Puttnam, for that assistance. We are not intending to press the amendment today, but we believe, as was stressed briefly in committee in another place, that the importance that the Government have always attached to these principles should be reflected in the Bill.

5.45 p.m.

Lord McIntosh of Haringey

Perhaps I may try to be helpful. I am hearing concern about the preamble to subsection (3). I am hearing concern about whether "have regard to" is strong enough, and whether the flexibility left to Ofcom is strong enough. I suspect that that applies not only to regulatory principles, but to many other issues. I suspect that it relates to the issue of the distinction between the items in subsection (2), which are matters that Ofcom can control, and matters in subsection (3), which on the whole it can only influence. Between Committee and Report stage perhaps we can talk about the wording in the preamble to subsection (3) and make sure that we agree that it is as strong as we intend?

Baroness Buscombe

I am grateful to the Minister for that suggestion. I think it would be extraordinarily helpful if we could have a discussion between Committee and Report stage about the wording of the introduction to subsection (3), because there is no doubt that we have been lobbied at enormous length right across the industry on this issue. We believe that if we can get this right now it would make a great deal of difference. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 and 8 not moved.]

Baroness Buscombe moved Amendment No. 9: Page 3, line 18, leave out paragraph (d).

The noble Baroness said: In rising to speak to Amendment No. 9, I shall also speak to Amendment No. 313.

During the Bill's Report stage in another place, the Government brought forward amendments which substantially revised Clause 3. One of those amendments introduced a completely new duty for Ofcom—now subsection 3(2)(d)—to secure, the maintenance of a plurality of providers of different television and radio services".

During the Report stage debate, my colleagues on the Opposition Front Bench pressed the Government to explain their reasons for introducing this new duty, and how they intended it to be used by Ofcom in carrying out its functions.

In particular, concerns were expressed that the new duty could have a considerable impact on the way in which Ofcom deals with proposed mergers and acquisitions within the sector in the future—that Ofcom could intervene in any merger between any individual TV and radio providers simply on the basis that this reduced plurality. Very specific questions were put to the Minister at the time. Would, for example Ofcom be able to prevent the creation of a single ITV, even if the Office of Fair Trading were content for that to happen under general competition law? Would it be able to prevent mergers between other existing providers such as Disney, Viacom or BSkyB, simply on the basis that this reduced plurality? What if a merger were to reduce plurality—that is the number of different providers of television and radio services—but improve the quantity, quality or range of programme content? Might not the inclusion of this new duty encourage Ofcom to value plurality for its own sake, and to temper the priority that it would have previously given to, the availability throughout the United Kingdom of a wide range of television and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests"?

The answer provided by the Government in response to those questions was unsatisfactory. I will, if I may, read it out to your Lordships now. The Minister said: The media ownership rules in the Bill will ensure that there are a number of different providers of TV and radio services. The amendment"— introducing the duty to maintain plurality— will mean that Ofcom will lake plurality as well as diversity into account in carrying out its functions, including reviewing the media ownership rules. That is the key significance of the amendment: it ensures that OFCOM will be able to consider plurality in reviewing the rules".

I regret that the Government have until now shed little light on the scope and purpose of the new duty. I hope that the Minister will be in a position to clarify matters for us further today. Given that the key significance of the new duty is its role in the review of media ownership rules, I should be grateful if the Minister could explain why it has not been placed in the relevant clause which relates to this review; that is, Clause 384.

The fact that the duty has instead been placed in Clause 3 suggests that Ofcom would be required to ensure that it is fulfilled in exercising all of its functions—a much wider purpose—and not just specific functions that relate to plurality, such as the media ownership review. Indeed, the Minister appeared to confirm this by indicating that the purpose of the duty includes, and is therefore not limited to, the review of media ownership rules. Yet the Government have not provided any explanation of what other purposes they intend for the new duty, beyond its role in the review of media ownership rules.

As I have already reminded the Committee, there is significant concern that the new duty could afford Ofcom considerable new powers to intervene in media acquisitions and mergers on the basis of plurality alone. For example, under Clauses 344 and 346, Ofcom would have to be notified of a change in control of Channel 3 or Channel 5 licensees respectively and would have to satisfy itself that the criteria in those clauses were satisfied.

However, with the addition of the plurality general duty in Clause 3(2)(d), Ofcom would now also have to ensure that plurality was maintained. Accordingly, if Ofcom concluded that plurality would not be maintained consequent upon a change in ownership of Channel 3 or Channel 5, it might seek to prohibit the acquisition under its general duties even though all other criteria—regarding, for example, the amount, range and quality of original productions, news, current affairs and regional programmes, and competition considerations—had been met.

It is not clear to me how one could claim that plurality had been "maintained" in any merger of the ITV licensees or in the acquisition of Channel 5 by any existing television provider, since it would, de facto, represent a reduction in the number of existing providers, irrespective of the benefits a merger might bring.

It would therefore be helpful if the Minister could explain how real these concerns are and how we can be assured that there is no problem. Perhaps that could be done by reference to the examples already provided. If the real purpose of the duty is to assist the review of media ownership rules, it would in our view seem sensible for the duty to appear in the relevant clause; that is, Clause 384. That approach is suggested by my amendment.

If there is a wider purpose to the duty which prevents this, the Government should be clear about what this is and how it will impact on the sector. I beg to move.

Lord Gordon of Strathblane

I tabled Amendment No. 9 during the Recess, unaware that the noble Baroness had also tabled an amendment to the same effect. I hope she will forgive me if I confine my remarks in support only to Amendment No. 9. I will study her remarks on other amendments and it may be that I shall support some of them.

When I was checking that my amendment was correct, counting the lines and so forth, I mistakenly picked up my original copy of the Communications Bill as it was published in November 2002. I searched in vain for the provision—it is not there. It is not even in subsection (1), which is a subordinate consideration. It suddenly appeared when the Bill left the House of Commons.

Had it been a reaction to the recommendations of the committee chaired by my noble friend Lord Puttnam, it would have appeared in the November version. It did not. I believe that far too much status has been given to plurality. I do not want to sound like a monopolist— you cannot be a media monopolist nowadays, however benevolent you might be—but I simply ask: in whose interest is plurality of ownership? If it is given equal status, as this does, to the preceding provision seeking a wide range of programming, what happens if enforcing plurality diminishes the range of programming, as I believe it inexorably would? As I mentioned at Second Reading, if one owner has two services, it is within his interest to make them different. Two competitive owners are likely to compete for the most lucrative audience and the wide range of programming will be reduced.

Furthermore, the same owner can amortise the inevitable overheads of any business over two services, leaving more to go into programming rather than accounts, administration and sales. In addition, competition will lead to more funds being diverted from programming into advertising and marketing against the competition without improving the quality. I therefore ask: in whose interest is plurality? It certainly is not the interest of the listener.

Arguably, the advertising industry might say, "We want plurality because we can play one against the other". In fact, no media owner enjoys monopoly of a particular market. If people do not like local radio, they can go to television which subdivides their signal so that, as in my case, STV can offer Glasgow or Edinburgh, and they are increasingly subdivided even further. Even advertisers are sufficiently catered for.

Furthermore, how many of your Lordships live in areas in which there are two local newspapers? There are few indeed—if any. The reason is that they are serving markets so small that there is no room for two. Yet, if we are to make achieving plurality a major objective of Ofcom, it cannot ignore that. It may refuse mergers that would otherwise be sensible and pass other tests.

Diversity of content and a wide range of content is important for the listener; plurality of ownership is not. This paragraph should go. It was not in the original Bill. I do not know its history of introduction. It cannot be traced to the acceptance of a Puttnam recommendation, otherwise it would have appeared in November. I hope that the paragraph is deleted.

Lord Borrie

I oppose both amendments, despite the fact that my noble friend Lord Gordon, with whom I normally agree on such matters, has spoken in favour of the first of them.

The combination of the two amendments means an unfortunate downgrading of the objective of plurality from the general part of the Bill—in Clause 3—to Clause 384 which deals with the review by Ofcom of ownership matters. I believe that plurality—multi-ownership—is highly desirable in all forms of media, including the forms especially mentioned here; television and radio services.

That is not to say that all mergers are undesirable and that small is always beautiful. It is to say that diversity and plurality are powerful objective goods for a democracy because of the range of opinions and views that should be available. A lesser argument, but none the less important in the broader terms of Reithian objectives of public service, is that a broader range of entertainment possibilities of highbrow, lowbrow, middlebrow and so forth, is also desirable. It seems to me that diversity is more likely if there is some degree of multi-ownership. There is a severe risk to diversity if there is no multi-ownership.

Since the 1960s, the laws relating to newspaper mergers have had in their legislative embodiment objectives enshrined in law which says that both diversity and plurality of ownership are to be taken into account as part of the broad public interest objectives that the competition authorities should ensure. There is nothing new in the combination of diversity and plurality in the realm of legislation. As regards newspaper mergers, in the past 20 to 30 years it has been desirable to have those provisions. Indeed, I take the view that the more they are used now in a broader way to cover radio and television services, the better. I say to my noble friend Lord Gordon that we need not concern ourselves overmuch with the specific objectives of Ofcom on their own because it is not the final decider in these matters if there is a proposed merger between the different owners of radio and television services: that is determined by the Competition Commission. The desirable objectives of diversity and plurality are there as part of the public interest—

6 p.m.

Baroness Buscombe

Does the noble Lord agree that there is an enormous difference between taking into account plurality of providers and the fact that this Bill is asking that Ofcom be required to secure the maintenance of plurality of providers?

Lord Borrie

The noble Baroness is right. I was referring specifically to the problem to which she referred, namely, mergers, how Ofcom would deal with them and whether the Government intended that the objective of the maintenance of plurality would be present in those circumstances. I was saying that it would be an objective for Ofcom in those circumstances. But in a merger issue the final decider is not Ofcom, but the Competition Commission. It would weigh up the kinds of points made by the noble Baroness and by my noble friend Lord Gordon of Strathblane; namely, whether the desirability of achieving plurality be countered in some way by the view that a merger would be much more effective and allowable even though the number of owners was being reduced because entertainment, information and various other services would be improved. That would be weighed up. No doubt consideration would be given to the number of different owners left in the market place in determining that issue. In other words, each case would be dealt with on its own. But to have the statement in Clause 3(2)(d), the maintenance of a plurality of providers of different television and radio services", is highly desirable as an objective for Ofcom. I would not wish it to be downgraded as suggested in the second amendment by tucking it away in the fairly narrow clause as regards Ofcom's review of media ownership matters.

Lord McNally

I very much hope that the noble Lord, Lord McIntosh, replies to this mini debate because I want him to resist this amendment. I promise that I shall not hold it against him in the tally which I am keeping. He can have this one free.

Whatever its parentage—perhaps the Minister can tell us where it came from—I consider it the kind of good, robust amendment that should be within the general duties of Ofcom. As regards local radio, and a great deal of the argument which the noble Lord, Lord Gordon, advanced, I even know the jargon. I was told that it is called "hotelling" when two radio stations put out exactly the same programming to capture the same market.

One of the paradoxes of the new technologies is that when they appeared on the horizon we were promised genuinely local radio, which the communities would own. Indeed, I remember when the cable service started in Greenwich we were told that we would get, God help us, direct broadcasts from Greenwich town hall with the local authority in action! That is a ratings winner if ever there was one. But in radio and television one has to look at the American example. Massive media conglomerates hoover up stations and concentrate power. In the face of that reality a healthy democracy puts plurality as well as diversity as real objectives. I listened to the noble Lord, Lord Borrie, with all his experience, and I am even more reassured that this is an amendment which, with a clear conscience, the Government can resist.

Lord Renton of Mount Harry

Before the noble Lord, Lord McIntosh, replies, I find myself very much in agreement with what the noble Lord, Lord McNally, has said. With apologies to my own Front Bench, I do not quite understand the purpose of knocking out the duty in Clause 3 and in a sense re-inserting it again in Clause 333. If there is a difference here it is that Clause 3, under the heading of "General duties of OFCOM", refers to securing the maintenance of a plurality of providers of different television and radio services. I believe that one must accept that that is stronger language than that which appears in Clause 333, which refers to having regard to the need for the maintenance of plurality.

In my experience and as one involved in the drafting and preparation from the Home Office, which was then responsible for the Broadcasting Bill 1990—

Baroness Buscombe

I hope that my noble friend will not mind me intervening. The second amendment relates to Clause 384, which deals with the review of media ownership. As the Minister has already said, the fact that it is further down the Bill does not make it any less important.

Lord Renton of Mount Harry

I appreciate what my noble friend has said. I meant page 333 (Clause 384). I return to Amendment No 9. One of the great things which we set out to do in the Broadcasting Bill 1990 was to try to provide for the continuance of plurality of different radio and television services. I remember it very well. Our aim was to try to keep going, particularly in ITV, the 13 or 14 different regional television companies. We failed. One looks at the history of the 10 to 12 years since then and realises that the market forces were too great. Obviously, with the proposed merger now between Granada and United News, the amount of plurality in ITV and Channel 3 is likely to be greatly reduced. But that appears to be a very strong reason for putting an objective to Ofcom to do its best to secure plurality.

I believe that the key words here are, of different television and radio services". One is not asking for the maintenance of two or three identical television and radio services. Although it might have been desirable, I believe that the days of that being possible have gone. One is saying that when, later in the Bill, we reach the clauses regarding ownership and changes there as regards Channel 5 or of ITN, it is extremely important that that should be against a background in which one of the aims is to have plurality of different radio and television services so that we do not finish with simply one type of television or radio service, no matter what its name or ownership.

Therefore, I very much agree with what the noble Lord, Lord McNally, and others have said. I hope that it will remain as a general duty of Ofcom as well as the specific requirement which appears in the later clauses of the Bill.

Lord Bragg

I agree very much with what the noble Lord, Lord McNally, said but I should like to support the noble Lord, Lord Gordon of Strathblane, on certain particular instances. I believe that those should be mentioned on the face of the Bill.

I used to be chairman of Border Television and I should like to use that as an example. It is a very small station. It is very difficult indeed to see how another station of commensurate clout and resources in that extremely thinly populated area could be set up. If another station were forced into existence in such circumstances, my experience leads me to believe—I could be wrong—that it would probably be an embarrassing and expensive failure that would end up having to be bailed out.

I have nothing to do with Border Television now but I believe that it would have to challenge a rival company in order to retain its own audience. As the noble Lord, Lord Gordon of Strathblane, said, television companies meet rivals head on, as we see happening most nights with ITV and BBC1 broadcasting popular soaps such as "EastEnders" and "Coronation Street" at the same time. The same thing would happen if Border Television were challenged by a rival company and would lead to a diminution in the quality of broadcasting it offered.

I believe that there is a positive side to the position in which Border Television finds itself. Having worked at Border Television for many years I believe that for such a company to have a monopoly in the tiny area it covers imposes, curiously, an obligation on it to reach as many of the people in that area and as diverse a section of those people as possible. If the company does not reach those people, it has no audience whatsoever. For example, the company cannot target 16 to 24 year-olds when there are only 16 or 24 of them.

The viewing figures of Border Television—which could be described as a monopolistic local station—were phenomenal. It achieved viewing figures of between 65 and 75 per cent for a particular evening slot and when it broadcast local documentaries. A problem might arise if we try to change that situation. I do not want such companies to be steamrollered out of existence. How does one impose plurality when the resources cannot sustain that—I am talking about equality of resources not about running a tube from the town hall—and when citizens are showing through the viewing figures that they like what they have? There are often very good solutions to the problems posed by very local broadcasting. I fear that by forcing the measure we are discussing on companies covering very localised areas we shall dilute the strength of local broadcasting.

We have to keep remembering that broadcasting, particularly television broadcasting, despite all the gadgets, widgets and whatnots, is still a very expensive undertaking. People will not be willing to set up broadcasting companies that cover tiny areas. We could rush ahead and steamroller out much good work that has been done in a quiet way in local districts a long way from London.

6.15 p.m.

Lord Brooke of Sutton Mandeville

I am most grateful to the noble Lord, Lord Gordon of Strathblane, for drawing our attention to the fact that the words which we seek to amend were put into the Bill in the Commons. The noble Lord, Lord McNally, also alluded to that process.

I have done my best to identify where they were put in in the Commons. I cannot see any evidence that they were put in in Committee. I have to assume that they were put in on Report, where under Commons procedures new clauses are taken first. When they are under a programme Motion in another place, the only reference to a government amendment that is passed at the end when the guillotine comes down will simply state, "Government amendment so-and-so agreed to". Consequently, unless I am mistaken— I accept that my scrutiny has been rapid—we have no idea why these words were put into the Bill. That puts us at a disadvantage, particularly when our attention is not drawn to the fact that they entered the Bill in that particular manner.

Lord Roberts of Convey

I am tempted to rise by the remarks of the noble Lord, Lord Bragg, about Border Television and by what he said about the dangers of seeking to impose plurality. There was an example of that in Wales in the early 1960s when the old ITA, as we then knew it—the Independent Television Authority—proposed and, indeed, promoted the setting up of a company called Wales West and North which overlapped the company in which I served, Television Wales and the West. Wales West and North was a financial failure. Television Wales and the West had to take it over and run the services on its behalf and on behalf of the Independent Television Authority which had set them up. Therefore, there is a danger in seeking to impose plurality. As in that case, when the imposition was largely sponsored by the ITA, so here we would appear to be laying a duty on Ofcom to promote plurality which might end up in the same kind of disaster.

Lord McIntosh of Haringey

I am helped by the fact that I agree with so much of what the noble Lords, Lord McNally and Lord Borrie, in particular have said. But I am afraid that for the sake of the record there are things that I have to say. Having scored two points with the noble Lord, Lord McNally, I am sure he will deduct them from two other "Noes".

The point here is that we are considering plurality not on its own but in conjunction with competition and diversity. Indeed, it is difficult to see how one can have competition m the provision of broadcast services unless one has a degree of plurality. But that apart, diversity is about a range of content and could in principle be supplied by the same provider. To ensure that that is not the only way of achieving diversity and that we get the best degree of diversity, the Bill includes certain limits on ownership. My opposition to the amendments should be supported by everyone who wants to maintain ownership rules and, a fortiori, by those who want to extend them. On that point I look deliberately at the noble Lord, Lord Puttnam, and his friends.

The Bill enables Ofcom, when it is periodically reviewing the media ownership rules, to take plurality into account. That seems obvious but Ofcom would have to conduct a review to take into account factors such as diversity and competition but not the one thing which the rules are designed to protect. That is why we have given Ofcom this general duty. Previous legislation needed no such duty because the ownership rules were not subject to review by the regulators.

Let me make it clear that this duty does not bite where Ofcom is considering matters unconnected with the media ownership rules. It does not, in other words, give Ofcom a second bite of the cherry where actions or acquisitions are consistent with the media ownership rules. For example, it would not enable Ofcom to include plurality considerations when considering changes in control of broadcasting licences where the factors which Ofcom is to consider are set out in the relevant clauses of the Bill. Nor would it mean that Ofcom could block a merger which was acceptable to the OFT on the basis that it reduces plurality of providers of television and radio services. If a merger is compliant with the media ownership rules a decision to block it could be taken only on competition grounds, and Ofcom is not a competition authority with respect to mergers.

I have listened to the points made about including the plurality duty in Clause 384. That would involve downgrading the duty and making it more limited. That is acknowledged. We considered whether the duty would be more appropriate in Clause 3 or in Clause 384. At present we think that this duty will be relevant only to the ownership review. However, this need not always be the case. Schedule 14 allows the Secretary of State to modify the rules and, in principle, it is possible that the rules could be amended in a way that gave Ofcom a degree of discretion. If that were the case, it is important that in exercising that discretion, Ofcom should have regard to plurality along with its other duties. We have no plans to make such changes but the possibility is there. So we believe that Clause 3 is the right place for the plurality duty because plurality potentially has an application wider than just the media ownership review.

In response to the point made by the noble Lord, Lord Bragg, the clause is about maintaining plurality. We are not talking about artificially seeking to create plurality where it does not exist. I hope that the Committee will take seriously the very powerful speeches made by the noble Lords, Lord McNally and Lord Borrie.

Lord Gordon of Strathblane

Before the Minister sits down, can be address the issue of the clause's parentage—bearing in mind that it was not in the Bill when it was introduced in another place?

Lord McIntosh of Haringey

Bills change as time goes on. When we introduced the Bill to another place, we considered in the first instance that the ownership rules would guarantee plurality within and between media markets. We thought that would be enough. We amended the Bill to be certain that in any Future decisions when Ofcom is not bound to apply certain rules it can maintain plurality. I have no doubt that the noble, Lord Brooke, is right to say that provision was introduced at Report stage. It may be that it was not debated on the Floor in another place.

Lord Bragg

Before the Minister sits down, perhaps I may seek further clarification. I want to make it quite clear that I am all in favour of plurality, but I gave a particular instance of where it would be very difficult to achieve and would do an existing local station great harm and—the only thing that matters—give viewers a worse service. When such occasions arise—we were given a wonderful supplementary example—may we be reassured that there will be no imposition, no "You must", or rule that what must be national must be local? That could do a disservice to many local communities.

Lord McIntosh of Haringey

The noble Lord, Lord Renton of Mount Harry, answered that point. We do not intend to impose plurality where it does not exist. I take very seriously my noble friend's point about Border Television and the risk of seeking to impose plurality. ITV licences were always allocated on a regional basis. I take the point made by the noble Lord, Lord Roberts, that at one stage there was an attempt to make sub-regions for licence purposes. That did not work then and I cannot imagine that it would work now.

Lord Brooke of Sutton Mandeville

I am grateful to the noble Lord, Lord Gordon of Strathblane, for pressing the point that I was trying to make. I am not seeking to argue against the Minister because there is a meeting of minds between us. The problem with the procedure in another place—I am making a plea for change in the procedure—is that when the guillotine falls any outstanding government amendments are immediately read into the Bill. Unfortunately, Hansard does not record their wording. It therefore requires a great deal of research to discover what is new to a Bill—provisions that were not spoken to but were added silently. It would be easier for those of us trying to follow the progress of a Bill in another place if the wording of such amendments were shown. My reading of the Bill's Report stage in another place is that selections consisted entirely of new clauses. Some amendments were added in groupings. If the next group had not been reached when the guillotine fell, Government amendments were added to the Bill willy nilly, without their wording being published.

Lord McIntosh of Haringey

I cannot take responsibility for the procedures of another place.

Lord Brooke of Sutton Mandeville

I made it perfectly clear that I was not complaining of the noble Lord, Lord McIntosh. I am simply saying that in relations between the two Houses, it would be helpful if another place indicated the text of changes.

Lord McIntosh of Haringey

That exchange is on the record.

Baroness Buscombe

I made clear in my introductory remarks that one of the reasons for tabling the amendment was to identify the source and purpose of the new clause—which, to be fair, was briefly debated in another place.

Her Majesty's Opposition are not against plurality. We are trying to understand why the Government chose to add this particular clause at this particular place. We asked whether the clause relates solely to mergers and acquisitions—the review of ownership rules. The Minister replied that one of the reasons for inserting the clause at this point in the Bill is that plurality need not always relate to ownership rules but may potentially have wider applications. The Minister referred to Schedule 14 and I shall certainly consider the clause's wider application.

This debate has been extremely helpful because it was notable that noble Lords spoke about the desirability and objective of maintaining plurality of providers. We have no argument with maintaining plurality but have difficulty with ensuring that Ofcom shall be required to secure the maintenance of the plurality of providers. The noble Lord, Lord Borrie, made it clear that in the case of mergers and acquisitions it may be for the Office of Fair Trading to decide whether or not plurality should be maintained—in which case, it will be out of Ofcom's hands.

We made specific reference to Clause 384, which deals with the review of ownership rule. I repeat, with deference to my noble friend Lord Renton, that the review is an important provision and we place equal importance on that part of the Bill in respect of that specific subject.

am grateful to my noble friend Lord Roberts of Conwy and the noble Lord, Lord Bragg, for articulating real examples of where maintaining plurality of providers is not viable and does not make common sense.

I reiterate that we are not agin plurality. Far from it. Perhaps I should return to this issue on Report, by suggesting that paragraph (d) should be inserted instead in Clause 3(3)—depending on the wording that we may devise. That allows Ofcom to take a broader, more flexible and sensible approach in the circumstances. At the moment, there is ambiguity. Speaking to Amendment No. 1 the noble Lord, Lord Puttnam, said that we should do all that we can to negate ambiguity in respect of Ofcom's general duties. The noble Lord the Minister said that there is no question but that Clause 3(2)(d) would require the maintenance of plurality providers where plurality does not already exist. The fact that we are being extensively lobbied and ourselves question the subsection's parameters tells me that ambiguity exists.

Given that the Minister is not inclined to accept our amendment, which would bracket the provision with the review of ownership rules, I ask him to think about the positioning of paragraph (d)—perhaps reintroducing it in Clause 3(3). I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Baroness Wilcox moved Amendment No. 10: Page 3, line 29, at end insert— ( ) so far as practicable and in the manner that best takes account of the need to protect personal data, in order to protect copyrighted content, and to empower parents to protect children from harmful content, that open standards for technical security systems are established and implemented

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 23. The amendments consider security, and the need for Ofcom to be involved in promoting open standards for technological security systems, in order to prevent unauthorised use of personal data and copyright content.

Technology is developing rapidly, and with it comes the potential to access sensitive information in both the business and personal spheres; hence the importance of security cannot be underestimated. Personal privacy must be protected, as individuals have the right to ensure that data concerning themselves and their families are not made available to others.

Equally important is the need to prevent children from being exposed to harmful content. Parents struggle to keep their children away from indecent material that is proliferating exponentially, and Ofcom could make their struggle a lot easier if it were to involve itself in security.

Business also has a lot at stake, most obviously the music industry, but increasingly the film industry is threatened by unlawful downloading from Internet sites. That is flagrant violation of copyright law and will, if serious action is not taken soon, lead to the decline of those thriving British creative industries.

Computer crime does not stop there, but threatens all business with widespread incidence of hacking into private systems, spreading viruses and the like. I realise that no one will deny that security is an issue of great importance that must be tackled, but why give Ofcom the responsibility?

We suggest that Ofcom should have the responsibility because the changing nature of technology means that what is currently primarily an Internet-based issue—and hence outside the scope of the Bill—will soon be faced by other communications sectors, as services available online will increasingly be accessible via other means. It is naive to ignore security in the Bill because that is an Internet issue, when it clearly will not remain within those strict confines for long. I beg to move.

Lord McNally

I will be interested to hear what the Minister says. The noble Baroness raises very real issues. I am not convinced that Ofcom is the right body to deal with them, but I might be convinced in the process. She is right on the issues covering access to pornography and other such material with convergence. Let us remember that, when we started, this was the Bill that was going to accommodate convergence. The capacity to access something on mobile phones, personal computers and televisions is converging, and some of the material will be accessible. I am not sure who should handle that.

The other issue to which the noble Baroness referred—the capacity of the new technologies to be used basically to steal music, films and so on—is one in which I have taken an interest in the past. It is a real problem. I am not sure whether it is yet another problem that we should give to the noble Lord, Lord Currie, and his colleagues, but it is a definite problem and I would be very interested to hear the Minister's response to it.

Lord McIntosh of Haringey

I shall resist the amendments, but the noble Lord, Lord McNally, cannot count that as a no, because I agree about the importance of the subject and shall suggest that there are better ways to deal with it. Of course it is enormously important to protect copyright content and to allow parents to protect children from harmful content, but there are other ways to do so that are better, for reasons that I shall give.

We have regulatory controls elsewhere. We have data protection law, copyright law, and criminal law for the protection of children. The amendments would concentrate on mandatory standards. They would not allow for either the technological change to which the noble Baroness, Lady Wilcox, referred or the possibility of self-regulation if it were to be the better route. We could have Ofcom in the position of deciding between different standards, giving advantage to some operators over others. New entrants to the market whose contribution could be very valuable could be excluded because of the mandatory controls.

There is another dimension, which is the framework of European directives that will govern regulation of communications networks and services. Those are matters for international bodies. Ofcom will not be able to impose purely national standards on the provision of those networks and services.

There are lots of technical and network-based solutions, such as spam filtering and parental control options, but they are not the answer in themselves. We have to look also to the education of parents and children in the technologies, and how to avoid unsuitable material in the first place. Ofcom 's work on media literacy, which is in the Bill, will be important. The Home Secretary has a task force on the protection of children on the Internet, which has advised the Government on public awareness campaigns.

I must resist the idea that we should require all providers of services to use particular standards or conform to particular requirements. No one solution will meet everyone's needs, and it is important that we be able to reflect both the international situation and changing technological developments. In any case, any standards imposed by Ofcom would have to be consistent with the European regulatory regime for electronic communications, including the new directive on privacy and electronic communications.

It is known that the Bill introduces four European directives, but it does not introduce that on privacy and electronic communications, which will be introduced by separate regulations under European communities legislation, precisely because we do not think it an appropriate general duty of Ofcom to enforce that. At the moment, we are consulting—we have been since the end of March—on how to implement the directive. We are also considering the results of a consultation on the implementation of the copyright directive.

We are active on the subject. We think that there are ways to deal with it, but we do not think that the amendment is the right way.

Baroness Wilcox

I thank the Minister for giving me such a full answer, and I thank the noble Lord, Lord McNally, for sharing my concerns. As to whether the Bill is the right place to deal with them, I do not know. We have had a lot of pressure on the subject, and I am quite concerned about the ways of implementing the directive from the European Union to which the Minister referred. For the moment, I will withdraw the amendment and take time to consider the right place for it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Howe of Idlicote moved Amendment No. 11:

Page 3, line 29, at end insert— "(g) the availability of adequate means for considering and, where necessary, redressing complaints from the public about alleged lapses from the standards referred to in paragraphs (e) and (f)"

The noble Baroness said: The amendments are directed to what many of us still regard as a fundamental flaw in the structure of the Bill. That flaw is the threatened removal of a unique, and uniquely important, feature of our present system—the existence of an entirely independent lay body, which has the duty to consider independently certain complaints from members of the public, either about lapses in standards of taste and decency, or about infringements of privacy or unfair treatment by broadcasters. It is also a body which has the independent power to redress such injustices.

That is what we have now, and we have it not by accident, but as a result of changes deliberately and progressively required by Parliament during the past two decades. Moreover, we have in place today an experienced group of independent people, well served by an experienced staff, who have been doing this job for a number of years and who have won the respect of complainants and broadcasters alike. The amendments are designed to ensure that those qualities and achievements are not lost but are built on and maintained.

The amendment would specifically strengthen the public service aspects of the Bill by setting out in the Bill the remit and powers—neither of which is spelt out in detail—of the content board. Reference is made only to its exercising "influence" over Ofcom's decisions. That, frankly, is not enough. A more specifically defined remit is needed to reinforce the content board's public service obligations and its powers in dealing with any breaches.

As your Lordships know, the Bill seeks lighter touch regulation, with far more onus on broadcasters to self-regulate on content and fairness and privacy. It is, however, unrealistic to suppose that every complainant with a serious grievance will be any more content in the future with answers given by the broadcasters than they were in the past. History clearly points to a likely need for a more structured, independent approach to address at least some complaints when broadcasters and citizens refuse to be reconciled. That is what is proposed in the amendment.

The history of this issue, as I said, is important and speaks for itself. The principle of scrutiny by lay people, independent of broadcasters and regulators, was first enshrined in the Broadcasting Act 1980, which created the Broadcasting Complaints Commission to deal with issues of fairness and privacy. The Broadcasting Act 1990, which created the Independent Television Commission, not only retained the Broadcasting Complaints Commission but added the Broadcasting Standards Council to handle issues of violence, taste and decency.

It should be stressed that throughout that period broadcasters had their own standards codes. Those codes were required to reflect the statutory commission's own codes. Nevertheless, complaints about taste and decency and fairness and privacy have continued to keep both commissions and the ITC fairly busy.

My experience—I declare an interest as a previous chairman of the Broadcasting Standards Council and then of the commission—is that the wholly lay membership of these bodies, which were recently merged into the Broadcasting Standards Commission, introduced a new and important dimension into the resolution, where practical, of complaints. The independence of the adjudicators provided reassurance to many of those complaining. That reassurance can be attributed, at least in part, to the power of the Broadcasting Standards Commission, like its two predecessors, to order the publicising on air or in print—or, indeed, both—of its critical findings.

The Bill currently provides for the application of standards that provide adequate protection to members of the public and other persons from unfair treatment and unwarranted infringement of privacy. Similarly, protection is to be provided from offensive and harmful material. However, in neither case is there any indication of how complaints about those matters will be handled. This is too important an issue to be entrusted to Ofcom if no specific duties or enforcement powers are provided for it in the Bill. The amendment is intended to fill that important gap. I beg to move.

6.45 p.m.

Lord Pilkington of Oxenford

I support this amendment. I, too, was chairman of the Broadcasting Complaints Commission, which dealt with unfairness and infringements of privacy. Enormous distress was caused among many people whose privacy or fairness had been infringed. This amendment is very like the amendment of the noble Lord, Lord Puttnam, about public services, although it involves a more minor situation. Enormous distress has been caused to people who suffered in this regard.

We want a statement of principle like those in written constitutions, but that does not occur. If it does not occur, distress could occur. The body is very amorphous; it deals with competition and commercial matters. We must have in it something that helps individuals. In my four or five years on the commission, I saw people who were enormously distressed by a programme that had caused them trouble. I cannot understand why the Government are not prepared to place in the early part of the Bill a principle that protects individuals.

The amendment of the noble Baroness, Lady Howe, raises a point of principle, which is related to the individual. I hope that the noble Lord, Lord McIntosh, or the noble Baroness, Lady Blackstone, will not say no to this amendment; it is most innocuous and it would care for people. We should care for people. In my four or five years on the commission, I saw people whose lives were absolutely destroyed. There is nothing in the Bill that fulfils the aim of the noble Baroness's amendment. Surely the Minister can say "Hello" to this amendment.

The Lord Bishop of Manchester

I support the amendment of the noble Baroness, Lady Howe. This approach is an essential part of furthering community interests in communications matters to ensure that there is adequate means for the individual—as the noble Lord, Lord Pilkington, said—and the community to express their voice. It is particularly important for the means available for that to be inclusive and not to limit the range of voices heard because of economic or other factors. It also follows from that that the redress for complaints must be provided free to the public by a regulatory body that should not be heard to say, "If you have a complaint then sue". Equally, the potential confusion over which issues are for the content board and which are for the consumer panel is answered by this simple amendment, which leaves the means of delivering the redress to Ofcom and its content hoard. I suggest that that is hardly onerous for either.

The present regulators provide such redress, and it is easily accessible to the public. Indeed, the public clearly feel the need to make use of such an opportunity, as is shown by the Broadcasting Standards Council's own figures, which show an increase in direct complaints to the council of 46 per cent in 2002. The content board will need to win public confidence but it will not do that without a credible and easily used means of accountability for the public, under which it is clear which matters are issues for which body. I hope that the Government will agree to the amendment of the noble Baroness, Lady Howe.

Lord Lipsey

I, too, sympathise very much with what the noble Baroness, Lady Howe, is trying to do. I want to make a single point. The problem in this context is more cultural than legislative. There was a case in yesterday's newspaper—I shall not go into the details—in which the Broadcasting Standards Commission upheld a complaint against a programme on the grounds that it conducted its dealings with people taking part in the programme under false pretences. The BSC's verdict was that it was guilty. What was the response of the organisation? Did it apologise to the people concerned and say that it would try to ensure that it would never happen again? No. The response was to say that the verdict was disgraceful and that it had done absolutely nothing wrong. I am afraid that that is a problem among broadcasters and in my former profession of journalism. I refer to an unwillingness to admit to error in this regard and a willingness to use total power.

I contrast that—I see that my noble friend Lord Borrie is in his place—with the situation regarding the Advertising Standards Authority, on which I sit under my noble friend's wise chairmanship. The advertising industry often does not like our judgments but it nearly always accepts them without further protest, redress to law or anything else of that kind. The real success of Ofcom in this regard, whatever legislative powers we give it, will be whether it can bring about a cultural change by which broadcasting organisations are prepared to admit for the first time that they are capable of error.

Viscount Falkland

We on these Benches have just suddenly agreed to follow the views generally of the noble Lord. Lord Lipsey. We have great sympathy with the amendment of the noble Baroness, Lady Howe. We have seen her distinguished work on the Broadcasting Standards Commission and the way in which it was carried out. Some years ago, she very kindly gave us the opportunity of spending a morning there; we saw the work that was done and how effectively it was done. What gives us some problems in this regard was well expressed by the noble Lord, Lord Lipsey: this is more a cultural matter—I liked that phrase—rather than anything else. Ofcom will have to deal with some objective problems, as did the Broadcasting Standards Commission whose gravest problems involved intrusion on privacy. Decisions on violence, obscenity and so on are largely subjective. They change with time and fashion as they have done since we have had the benefit of the work of the Broadcasting Standards Commission.

The regulatory body will have great difficulty on that issue. I agree that it is healthy for viewers and listeners to have the opportunity to raise issues where offence may have been given—it may be to a minority—through perceived indecency of language or behaviour or by the offending of a moral sense among some of the community. But it is not easy to make such provision in concrete terms on the face of the Bill.

Ofcom will have clear machinery to deal with issues such as intrusion on privacy or the deceiving of people into programmes on a pretext that is clearly false. The noble Baroness does not seek today to divide the Committee. However, if she were to tighten the provision, the noble Lord, Lord Lipsey, and I might come closer to agreement with her. At present, the wording is a little loose. It is difficult to envisage how it could be incorporated on the face of the Bill.

Lord Pilkington of Oxenford

I am slightly worried. I understand the noble Lord's point. Privacy and unfairness cause enormous distress. I agree that the amendment may have to be refined. However, I should be sad if it became lost in the idea of a relative morality that we cannot define. I have had to deal with individuals who have suffered infringement of privacy and unfairness. Lives can be wrecked. In considering the amendment, I hope that the Committee will try to escape from the issue of relative morality. I share the noble Lord's view. One has to define it. In a street of 10 houses, one has 10 different concepts of morality. Unfairness and privacy—those were my concerns— need to be enshrined in the Bill. At present, they are not. I hope that the Government will propose an amendment which enshrines them.

Viscount Falkland

I agree with the noble Lord. If the provision can be tightened to the extent he suggests, we would be happy.

Baroness Howe of Idlicote

I do not know whether it is appropriate for me to speak at this stage. However, it is important to clarify matters.

Lord McIntosh of Haringey

The noble Baroness asked the question. If we are to have a sensible debate, it is better for the Minister to reply and for the noble Baroness, Lady Howe, to use her right of reply at the end of the debate. There is no rule—anyone can intervene at any time in Committee—but it makes for a tidier debate.

Baroness Buscombe

I support the amendment. I agree with my noble friend Lord Pilkington. It is surprising that this important issue is not addressed elsewhere in the Bill.

Lord Davies of Oldham

My noble friend Lord McIntosh does not act in self-interest when he suggests that Ministers should speak because it now falls to me to do so. I regret that the attempt by the noble Lord, Lord Pilkington, to encourage either the noble Lord, McIntosh, or the noble Baroness, Lady Blackstone, to say "No" has not been successful. I shall say "No" instead, but he may not regard that as much comfort. However, I hope that I do so while fully understanding the concerns of the noble Lord and the noble Baroness, Lady Howe. I respect the roles they have played in their chairmanship of the Broadcasting Complaints Commission and the Broadcasting Standards Commission. They speak with great expertise.

The Government do not approach the issue in any way but in a considered manner. We do not have the flexible policy framework that the Liberal Democrat Party adopts on occasions, with last minute consultations on the Front Bench during debate. Our position is established over a period of time.

Baroness Buscombe

I should like to make clear that ours is not a last minute consultation.

Lord Davies of Oldham

I had not brought in the Official Opposition but reserved my remarks solely for the Liberal Democrat Benches.

I emphasise that the Bill contains the necessary machinery for dealing with the issues rightly identified in debate today. Ofcom will inherit the function currently undertaken by the Broadcasting Standards Commission to consider complaints of unfair treatment or unwarranted infringements of privacy. This function, and the detailed procedures for considering and adjudicating on complaints, is set out in the Broadcasting Act 1996. We believe that these provisions have worked well in encouraging high journalistic standards in the broadcast media and that is why we have preserved them and passed them on to Ofcom.

They provide a readily accessible route for complainants to pursue their complaint and have the record set straight. They do not provide a right of privacy or a substitute for matters more properly considered by a court of law, such as any claim for damages, but research carried out by the Broadcasting Standards Commission establishes that complainants are more concerned with safeguarding and restoring their reputation than with receiving financial award, and the BSC route provides a good route for addressing their concerns. That framework is enshrined in the Bill.

As we have provided for an adequate means for considering and providing redress for complaints about the matters, and the duty at Clause 3(2)(f) charges Ofcom with providing adequate protection to the members of the public in relation to the relevant standards, it is entirely superfluous to place a further duty on Ofcom to ensure the availability of that system. The Bill already contains the system.

The noble Baroness may also be interested to note that observance of the fairness code under the 1996 Act will be a condition of broadcasters' licences. Where Ofcom considers that a breach of the fairness code includes a contravention of the licence, it may take enforcement action against the licence holder in addition to adjudicating on the fairness complaint.

Amendment No. 51, with Amendment No. 11, appears designed to ensure that the functions of the content board include, to the extent determined by Ofcom, functions in relation to the consideration of complaints about breaches of fairness standards and privacy. Those functions fall within those which Ofcom could give to the content board but we do not believe it right to include them specifically in the legislation. To limit Ofcom's discretion as to how it discharges the responsibilities for which it will be held to account might skew its ability to fulfil them. Ofcom might, for example, feel that the establishment, perhaps in conjunction with the content board, of separate arrangements for handling complaints—for example, through a separate committee of Ofcom—might be a more effective option.

We do not believe it is right to seek to constrain Ofcom's flexibility in that way given that the powers are enshrined in the Bill and given the duties upon Ofcom derivative from the 1996 Act which is the basis on which the substantial work of the Broadcasting Standards Commission was done.

More generally, on the question of taste, the noble Viscount, Lord Falkland, introduced an important point, as did my noble friend Lord Lipsey. These are more difficult areas to identify with some precision in legislation. We all recognise that standards of taste and decency change over time. There needs to be a framework within which these issues are considered. I think I have established that in the—


Lord Pilkington of Oxenford

I accept what the Minister says. However, I wonder whether he realises the enormous distress caused. I shall give an example. A programme was produced by Carlton showing a murder in Northern Ireland. The Broadcasting Complaints Commission found against that programme. It was a caricature of the truth. What happened? The programme was sold to Australia. One can acquiesce and say that they can go to law, but one has to be very rich to go to law against commercial organisations of the strength of a television company. I fear that the Government are not protecting people who suffer infringement of privacy or unfairness. I hope that they will do so in the Bill. Believe me, gross abuses have occurred. I hope that the Government will pay attention to this issue.

Lord Davies of Oldham

I have some sympathy with the comments of the noble Lord. I served for a time on the Select Committee in another place that considered such abuses of the media, particularly in journalism. I am aware that cases arise which cause the greatest concern to us all. Restitution is not always made in full, although I think it is recognised that the requirements placed on broadcasting in the framework proposed in the Bill and in that which has obtained in the past are much more stringent than anything to do with the written media.

However, I emphasise that I can imagine the distress caused in the case identified by the noble Lord. The question of whether rights were sold to a company in a foreign country and whether the programme was broadcast there would be very much a matter for the law of that country, not our own in those terms. I recognise and share the concern raised. I seek to reassure the noble Lord that Ofcom inherits the powers and obligations in the Broadcasting Act; they are in the Bill. I hope that on that basis the amendment will be withdrawn.

Lord Pilkington of Oxenford

Of course, the Bill could introduce sanctions. Fines could be imposed. The Government have fought shy because the old legislation does not give that power. I do not believe the Government have given thought to this matter. A fine could be imposed if the programme was broadcast in Australia. English law is powerful.

Baroness Howe of Idlicote

I thank all noble Lords who have contributed to the debate on what I certainly regard as a very important issue— both those who have supported me and those who have their doubts. I am particularly glad to have had reassurance from the Minister that Clause 2 does exactly what he says it does; it carries through the same powers to Ofcom and, it is hoped that that will be able to be passed on to the content board or possibly, as he suggested, subcommittees. That would again make the case very strongly, not just about fairness and privacy where grave wrongs have been done in the past, with much greater damage than being taken through a court of law. It is so important that it is spelt out in Clause 3(2)(f)(i) and (ii). I do not think that fairness and privacy was there in the original draft but it is there now. It is good to know that that will be dealt with.

I hope I can assume from what the Minister said that indeed the Government will expect Ofcom, the content board or a subsidiary to deal with complaints from the public. It will be impossible to have no one ultimately responsible. I regard that as important also for taste and decency. It is all very well the noble Lord, Lord Lipsey, referring to a change of culture. Why have we not seen that over the past 20 years with broadcasters being more responsive to the attitudes of the public? Of course attitudes to taste and decency change over time. That is what was so important about a body such as the Broadcasting Standards Commission, because its approach and its membership changed over time, too. Quite deliberately today I did not refer to that which I mentioned on Second Reading and previously. I still do not regard Ofcom or the content board as sufficiently independent to make such judgments, because they issue licences. On that side, I am particularly glad to know that there will be other methods by which these matters can be dealt with.

Lord Alli

Perhaps the noble Baroness would recognise two matters as regards the broadcasters' position on taste and decency. Long gone are the days when one could test a programme before it was broadcast. Therefore, one of the problems is that condemnation comes only post-broadcast. It is difficult because one is always adjudicating. One does not deliberately put something out that one believes will offend people, but the nature of the system is that it comes through.

As a general point, it is difficult for broadcasters to consider the issue seriously and take on board the regulations imposed on them when the print media has virtually no regulation. There are dual standards. As regards privacy, it is difficult when we are putting into the Bill hoops for broadcasters to go through, yet no such hoops exist for the printed media. That dilemma is at the heart of the attitude referred to by the noble Lord, Lord Lipsey. It is an attitude of unfairness to one broadcast medium as against another.

Baroness Howe of Idlicote

I shall reply briefly to the noble Lord. I accept the point he makes, other than that I believe it is more damaging for something to be shown on television and listened to on radio than to appear in the print media. We all know why there is this longstanding element of difference between the print and the broadcast media.

Lord Bragg

It is slightly naïve of my noble friend Lord Alli to say that broadcasters do not put out things that they intend to offend against taste and decency. If he trots along the networks and the "this, that and the others" late on any night he will see things that cannot but be there to offend against taste and decency—certainly mine, thank you very much.

Baroness Howe of Idlicote

I beg leave to withdraw the amendment but I may return to it at a later stage.

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 12:

Page 3, line 29, at end insert— "( ) the application, in the case of electronic communications network services, of standards that provide adequate protection to members of the public and all other persons from unwarranted infringements of privacy resulting from activities carried on for the purposes of such services"

The noble Earl said: Following in the footsteps of the noble Lord, Lord Thomson of Monifieth, and those of my noble friends Lord Peyton and Lord Brooke, I, too, express my apologies for the fact that I was unable to participate in the Second Reading debate. However, I note that, as the noble Lord, Lord McIntosh, put it, it was an occasion when the "fluffies" crowded out the "techies". I do not consider myself to be a particular expert in the field—if you will, a "techie"— but it is important that some of the technological aspects that underlie the Bill are given a wider airing than they have had so far. Therefore, I hope that Members of the Committee will forgive me if I take a little longer than would normally be appropriate to explain the context of the few amendments tabled in my name.

Outwardly, the Bill addresses issues of convergence in the media and broadcasting sector and, as I think we all agree, in an economic sense it makes a good fist of this. There may be more or less tidying up to be dealt with around some of the headline issues—indeed, earlier debates today made that point—but, in essence, both the Government and the Bill team are to be congratulated on having produced a pretty solid piece of drafting.

The Joint Committee, under the astute and invigorating chairmanship of the noble Lord, Lord Puttnam, also deserves our plaudits. So I find it disappointing that, to my perception, the Bill is so tentative on some aspects of technological convergence.

However, I recognise the problems involved. I am only too willing to endorse wholeheartedly the Government's oft-repeated mantra that— here I quote directly the Secretary of State for Culture, Media and Sport: We do not intend to regulate the internet".—[Official Report, Commons, 3/12/02; col. 784.]

That is very welcome. While I am acutely aware—noble Lords may be tiring of me beating this particular drum—that there are problems in need of redress as far as concerns IT, I willingly accept that this Bill is not the right mechanism to deal with most of them.

The Minister will no doubt also argue that the Bill has been drafted with "future-proofing" very much in mind. Quite rightly, there is no wish to pre-empt future technological advance by inadvertently favouring a current development over any other on the face of the Bill. But I have a huge problem with the way in which Ministers— possibly the same approach will be adopted in respect of all my amendments today—seek to hide behind the supposed panacea of Clause 3(3)(e) which deals with the, desirability of encouraging investment and innovation in relevant markets".

That is not good enough. Nor can I help feeling that, desirable as the Government's aspirations are in their own right, the quest for technological neutrality has resulted in too much timidity, a few blind spots, about the way in which so many of the technological boundaries that once existed within the broadcasting sector are becoming ever more blurred.

Against that background, I turn to the substance of the amendment. As I understand it, the Government are transferring the existing privacy regime— for want of a better way of putting it— from the previous regulators to Ofcom. To that extent, the current drafting of the Bill is, as it were, a direct inheritance. Indeed, the Minister has already said as much when responding to previous amendments. To my mind, the intended purpose is specific; that is, to provide adequate protection from what we could euphemistically call journalistic or media enthusiasm. I have no complaint about that: it is welcome. But there is a big problem here.

Technological convergence has meant that the activities of the media are increasingly not confined to the traditional mechanisms of delivery, be they newsprint, television screens or radio. Media interests have been quick to realise and grasp the commercial potential of the new technology, especially the web. The BBC, all the major television companies and major newspapers now have extensive, even lucrative, presences on the Internet. We are all learning new ways of both receiving and imparting information. But I am uncertain that the web and/or Internet-based activities of media enterprises are bound by any constraint on the face of the Bill. In the words of my noble friend Lord Pilkington, the right to privacy does not seem to be properly "sanctified".

In so far as that interpretation is correct, there is potentially a huge lacuna on the face of the Bill. It is odd that one arm of the media enterprise—that involved in broadcasting by television or radio—should be regulated by the terms of Clause 3(2)(b), while another— its web and/or Internet-based activity— should not. I would go further. There is a legitimate case for arguing that web-based intrusion of privacy represents a more acute risk than that posed by traditional broadcast methods. I acknowledge that this may not be strictly relevant to the amendment as drafted, but we need consider only the modern curse of "spam". Then there is the growing menace of identity theft.

I should emphasise that it is not my intention with the amendment to impose regulation on the Internet. As I have already said, I stand four square behind the Government's position on this issue. Rather it is a case of what is sauce for the goose should be sauce for the gander. Surely it has to be the Government's intention that in circumstances where media enterprises "broadcast" material via a new technology, those activities should be subject to the terms of the Bill, as well as those already covered. If not, there is next to nothing gained in having the protection afforded by Clause 3(2)(b), because it can be ridden roughshod over by a savvy enterprise limiting its exposure to those forms of delivery where the regulation does not bite.

There is one other side-bar to the amendment that I should mention. Noble Lords will have noted that it is drafted to be consistent with the existing wording on the face of the Bill. I am sure that noble Lords will also have deduced that this is partly a, no doubt vain, hope that, by so doing, more sympathy for it will be inspired in the minds of those on the Government Benches than might otherwise have been the case. But it also serves another purpose: 3G— third-generation—mobile phones are not yet with us, but 2½G mobile phones are here. Without getting too bogged down in the technicalities, this provides users, among other things, with the facility of transferring images to each other. I believe I am right in saying that a range of establishments have felt it necessary to ban 2½G phones from their premises. These vary from, for example, fitness clubs, because embarrassing and compromising pictures were being taken of individuals and then distributed via the network, to cinemas because of the potential for breach of copyright.

It is fair to say that it is simple common sense for such establishments to impose bans; in other words, there is no absolute necessity for the narrow issue, of itself, to be subject to statutory regulation. But it explains why the amendment uses the wording preferred by the Government, especially the phrase "electronic communications network services". It also demonstrates the points that I have already sought to make—namely, that the potential risks to individual privacy and its capacity to be infringed is that much more acute in respect of the new technology.

The Minister may seek to argue that the purposes of the amendment are already substantially dealt with elsewhere under the umbrella of other legislation. This could well he so, but if there is a single theme that runs through all the amendments tabled in my name, it is that the economic and commercial health of the new technology is dependent upon the degree of trust and confidence that consumers have in it. It has been my experience that among noble Lords, to a greater or lesser extent, there is a wholly natural antipathy towards, even fear of, ICT. It would be inappropriate to define it as "Luddite", but it is a diffidence that has an echo among the wider public. That being so, there are strong arguments in favour of doing what we can to buttress confidence in the technology. Ensuring that consumers have adequate protection against unwarranted infringements of privacy is one of the ways in which this can be done. In this sense, it is my view that it is wholly appropriate that Ofcom's remit should extend in the way suggested by the amendment. I beg to move.

7.15 p.m.

Lord Gordon of Strathblane

I rise briefly on the issue of broadband simply to suggest that, again, we are making a god of competition. I give way to the noble Lord. I apologise.

Lord Puttnam

I have a few comments to make about the noble Earl's amendment. I am most concerned that he should not be allowed to be, or feel, a lone voice. The issues he has raised are of enormous importance. I am sure that other members of the Joint Committee will confirm that when we were confronted with the colossal task that we undertook a year ago we experienced some relief when we were told that we did not have to address such issues. Their inclusion in our work would have greatly increased the burden placed upon us. But these issues must be addressed, though this may not be the Bill within which to address them, nor the moment to do so.

To pretend that because such issues are complex, or in some respects defy our ability to pin them down, is no reason at all to imagine that we shall not have to grapple with them sooner or later and bring them under some form of—here is the dreaded word—intelligent "regulation". It may well be a dotcom, that is a decision for the Government. The noble Earl has done us all a favour by moving this amendment. I hope that the Committee will take his arguments most seriously.

Lord Avebury

I congratulate the noble Earl, Lord Northesk, on introducing this subject and I agree that it is extremely important. If we are seeking to regulate the content of newspapers, but we are not seeking to regulate those newspapers as they appear on the Web, then there is a philosophical inconsistency in our approach to the legislation. Perhaps we will be told by Ministers that what is published on the Web is dealt with in other ways.

However, that seems incongruous. The noble Earl pointed out that much of what is published on the Web is identical to that which appears in other media. He cited the example of the BBC and other television companies which relay identical material on the Web. It is possible to listen to Radio 4 if you so wish, or you can hear the news in real time. Alternatively, you can use a function which I find extremely convenient, that of time-lapse recording. It is then possible to listen to BBC broadcasts or watch transmissions later on.

However, it goes much further than that. It is possible to read almost any respectable newspaper, the text of which is placed on the Web simultaneously with its publication in hard copy. That applies to newspapers all over the world. I do not know whether noble Lords are familiar with a website which offers access to any newspaper published in any country. The website is called www.thepaperhoy.com. You are presented with a menu of countries. A click on Pakistan allows you to read this morning's issue of Dawn. Alternatively, the Australian section allows you to read the Brisbane Courier, or in the Thailand section you can see the Bangkok Post.

We live in a global era as regards the publication of newspapers on the Web. The regulations applying to different newspapers in different countries may seem almost irrelevant when it is possible to access all this material in an identical text format via the Internet. Issues of privacy therefore have to be considered in a much wider context than that encompassed by this Bill. I suggest that they must be dealt with on a global basis because the Internet is a global medium. If we ever seek to introduce regulations that apply to the publication of hard copy when it is relayed via the medium of the Internet, then that must be done by means of international agreement rather than through legislation in any one country.

Perhaps the Minister will try to explain how we should deal philosophically with the inconsistency of attempting on the one hand to regulate the print medium, saying that certain things can or cannot be published in that format, while backing off from any attempt to regulate the content of the Internet—a point made by the noble Earl at the start of his remarks. Given that the material may be identical, that would be a hard position to sustain.

Lord Brooke of Sutton Mandeville

I shall be extremely brief. I, too, wish to support my noble friend Lord Northesk. From the body language of the Government Front Bench, I detected a sense that we might be drifting away from the text of the amendment. Given that my noble friend has moved the first of a series of electronic and technological amendments, I shall do once what, in a different mode, the noble Lord, Lord Gordon of Strathblane, did when he declared his interests and said that he would not do so again at any stage. I will not repeat the speech I am about to make on any of my noble friend's subsequent amendments.

I share the views expressed by the noble Lord, Lord Puttnam. I can well recall occasions when in debate between the Department of Trade and Industry and the then Department for National Heritage, some attempts were made to secure rapid decisions favourable to one department by using the complexity of the issue as a way of blinding the other department. I do say that unkindly; it was perfectly proper and understandable. But it means that we must bear the responsibility to ensure that all the technological and electronic flap doors are opened in order to be certain that we are legislating sensibly. We should not pass them by because they are too difficult.

Baroness Buscombe

I support the amendment moved by my noble friend Lord Northesk. I agree with the noble Lord, Lord Puttnam, that we should be grateful to my noble friend for raising this issue. It is a complex subject, one from which perhaps some of us would wish to shrink away, and I must be absolutely straightforward and say that I defer to the expertise of my noble friend. I am grateful to him for raising these important issues.

Lord McNally

Perhaps I may intervene briefly. This is an extremely important matter. I served on the wonderfully named RIP Bill, now an Act. I recall that the interventions of the noble Earl, Lord Northesk, then were inevitably correct. Ministers and the department would do well to study carefully his amendments.

The broader issue running through all his amendments is one that cuts both ways. I have heard arguments which declare that technological convergence makes legislation superfluous and unnecessary. I am glad to see that the noble Lord, Lord McIntosh, is shaking his head. As a democrat, that attitude goes against every fibre of my being. Whatever the complexity of the technological issues, Parliament should be able, capable and willing to deal with the problems that arise.

One of those problems is of the kind referred to by my noble friend Lord Avebury; that is, print media on the Internet. Similarly, although we might agonise about taste and decency on television, you can send your nine year-old child to his room, where shortly he could use his 3G telephone to access a Dutch porn channel. It is that convergence of technology which forms the background to the Bill, but which will produce many of the problems that this amendment seeks to tackle.

All the amendments tabled by the noble Earl, Lord Northesk, present the challenge we must face. We are dealing with compartments of communications systems, but convergence is going to render some of the protections we put in place in certain compartments unworkable because of technological change.

Baroness Howe of Idlicote

I wish to intervene very briefly because I had intended to bring forward a similar issue under a later amendment. The noble Earl has done the Committee a valuable service with his amendment. He has caused us to think about these matters.

We are being asked to refer to material published by means of electronic media. If you try to look up what that is, it is clarified by subsection (2) as material distributed, by means of an electronic communications network to members of the public. That is roughly what is meant by this new series of words which seek to incorporate almost all the elements of interactive machinery.

If we follow the paper trail through to Clause 398, which sets out the general interpretations, to Clause 29(1), we are told that it is a, transmission system for the conveyance … of signals of any description". I do not know if Members of the Committee are any the wiser for that, but it illustrates how complicated this is.

Although I think I already know the answer, I wish to ask whether it applies to the Internet, however it is accessed—mobile 3G telephones and so forth—because, as we all know, with the advent of broadband we shall be using our computers in all kinds of ways. If the answer is "No, and deliberately so, because that is left to the self-regulation arm of the proposal", is that wise? We are bound to be reaching the point when there should be at least some duty on Ofcom, even if not to regulate formally, perhaps at least to approve codes. I see nothing in this Bill that gives one confidence that the whole area is being looked at in the detail required at this stage.

7.30 p.m.

Lord McIntosh of Haringey

My reply to this debate has been anticipated by nearly every speaker, and in every case wrongly. I do not disagree at all with the argument of the noble Earl, Lord Northesk. He is quite right in saying that, if we have provision in Clause 3(2)(f) in respect of radio and television services, there ought to be comparable provision for electronic communication network service users— there is no doubt about that. I shall not rely on Clause 3(3)(e); nor on saying that the matter should not be covered in legislation. I shall rely directly on my response to the noble Baroness, Lady Wilcox, on Amendment No. 10: any standards imposed by Ofcom would have to be consistent with the new European regulatory regime for electronic communications, including the new directive on privacy and electronic communications, to which I referred in some detail.

That directive updates the existing telecom data protection and privacy rules. It will introduce new e-mail and Internet controls. It will not mean us controlling the Internet. I agree with the noble Earl, Lord Northesk, that that is not our aim. As I said in response to the noble Baroness, Lady Wilcox, we intend to implement the directive in the UK by means of separate regulations under the European Communities Act 1972 for the reason that I gave — it is wider than the remit of Ofcom. We do not think that an additional general duty on Ofcom of the kind proposed in the amendment is necessary or useful.

We started consultation on 27th March. As it is a complex issue, we expect a large response. But we shall implement the directive and put in place a set of controls that will have the enormous virtue of covering Europe. It is not a UK matter, it is an international one.

The Earl of Northesk

I am grateful to everyone who contributed to this mini debate. I confess that I am also slightly embarrassed. Normally, when one holds a debate, at least one person opposes the proposal. Curiously, even the noble Lord, Lord McIntosh, agrees with the principle of the amendment. There is utter consistency of view throughout the Committee that the amendment approaches an issue of considerable substance that needs to be dealt with. I am grateful for the Minister's response. I recognise that there is an overarching temptation, almost a seduction, to assume that the best way to deal with Net problems is to wait until everyone in the world gets their act together and to do it in that way. I do not necessarily agree with that, but that is by the by.

My real problem with the Communications Bill— and this issue was elaborated upon most perfectly by the noble Lord, Lord Avebury—is that it creates an enormous inconsistency, about which I remain truly concerned. I beseech the Government and the Minister not to have too closed a mind about the matter—if not on my behalf, on that of the noble Lord, Lord Puttnam, who has much more experience of these matters than me. I am embarrassed that the whole Committee, including the government Front Bench, is happy with the principles underpinning the amendment. For the moment, I am happy to withdraw the amendment. I shall read closely what the Minister has said. But I suspect that I shall return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham

I beg to move that the House be now resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.