Lords Sitting of 1 July 2003

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

Palace of Westminster: Smoking Policy
Baroness Galeasked the Chairman of Committees:
What action is being taken to help asthma sufferers by making the Palace of Westminster smoke free.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I can of course answer only for the House of Lords' half of the Palace. With regard to staff, since 1992 the administration has observed the principle that staff are entitled to work in a smoke-free atmosphere. With regard to Members, the rules on smoking are a matter for the House as a whole. The current rules were agreed in March 2001, following a survey of Members. There are no current plans to review those rules.
Baroness Gale: My Lords, I thank the Chairman of Committees for his Answer, although I am sure he will understand that I am not completely happy with his response. Does he agree that research shows that passive smoking is one of the main triggers for asthma attacks? Does he further agree that there should be a duty of care towards members of staff, and, indeed, Peers, and that, in the light of all the evidence that shows that passive smoking causes ill health and in the long term can cause death, we should now be moving towards a smoke-free environment for all the staff and Peers in your Lordships' House?
The Chairman of Committees: My Lords, I cannot comment on the research on passive smoking, some of which I have seen goes both ways. As I said in my original Answer, the rules were last changed just over two years ago. There were considerable improvements from the point of view of restrictions on where smoking was permitted. As far as I am aware, no member of staff has complained about being made to work in a smoky atmosphere. All those who work in the Bishops' Bar do so as volunteers.
Baroness Trumpington: My Lords, is the noble Lord aware that since I gave up smoking I have developed a very sensitive nose? Is he further aware that, at the age of 80, there are very few pleasures left to me, but one of them is passive smoking? Does the noble Lord agree that it is not possible to smell smoke or tobacco in the Palace of Westminster except in the smoking areas, so there is really no need to generate hot air?
The Chairman of Committees: My Lords, I congratulate the noble Baroness on having given up smoking. I have given up as well, except for the occasional small cigar, I must admit. I, too, perhaps enjoy the occasional smell of someone else's smoke.
Lord Geddes: My Lords, as always, I declare an interest as a member of the Lords and Commons Pipe and Cigar Smokers' Club. I also declare an interest as a member of the Refreshment Committee of the House, although of course I do not speak for it. Is the noble Lord aware that there have been some 260 replies to the recent survey on the catering outlets of the House which was sent to every Member of the House, of which more than 230 were from regular attenders, and that of those replies only a handful—the Clerk was unfortunately unable to give me the precise number but said that it was definitely fewer than 10—even mentioned smoking?
The Chairman of Committees: My Lords, I was aware of the survey of Members of the House about the refreshment facilities. I was aware that only a small number had commented on smoking, but I am glad that the noble Lord pointed that out to the House. Of course, as I said in my original Answer, in 2001 various changes were made to the various outlets of the Refreshment Department. Smoking is now not allowed in some of the places where it was allowed before.
Baroness Finlay of Llandaff: My Lords, is there an attempt to cull this House by allowing smoking to continue here among Peers and therefore bring their deaths forward?
The Chairman of Committees: Not by me, my Lords.
Lord Faulkner of Worcester: My Lords, is the Chairman of Committees satisfied with the quality of ventilation in the areas of the House where smoking is permitted, particularly in the Barry Room, where there is a hard core of smokers at the Long Table? The effect of that smoking is for the smoke to drift throughout the whole of the room. Indeed, I cart see one or two Peers opposite are nodding after their experience in the Barry Room last night. Is not the answer for us to make the building non-smoking, but to provide designated closed smoking areas for those who wish to continue?
The Chairman of Committees: My Lords, the ventilation in the Barry Room has been looked at. I hope that there has been some improvement there. I am aware that the noble Lord, Lord Faulkner, took part in the debate when these measures were

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introduced in March 2001. At that time he congratulated the Offices Committee on proposing what is for many of us an acceptable compromise.
Lord Brookman: My Lords, would it be possible for the Chairman of Committees to think about issuing white masks? It would have the added advantage that one would not know to whom one was speaking.
The Chairman of Committees: My Lords, I shall take away that suggestion.
Viscount Simon: My Lords, is the Chairman of Committees aware that a motion proposing a ban on smoking in all public places was overwhelmingly agreed to by doctors attending the annual conference of the BMA in Torquay today? If we institute a ban in the Palace of Westminster, would we not be setting a good example to others?
The Chairman of Committees: My Lords, I was aware of that because I saw it on the news this morning. If the Government wish to introduce a ban on smoking in public places, they no doubt will do so and we will, of course, have to follow.
Lord Wallace of Saltaire: My Lords, do the Government accept that it should be a principle of liberal democracy that government should interfere with people's lives as little as possible, and that further bans should be very carefully justified before the detail of government regulations extend into every aspect of our private lives?
The Chairman of Committees: My Lords, I do not answer at the Dispatch Box for the Government, but it is nice to hear from the noble Lord, Lord Wallace, of proper liberal principles.
Lord Janner of Braunstone: My Lords, does my noble friend believe that the Government should interfere as much as possible to prevent people's unnecessary deaths?
The Chairman of Committees: My Lords, I really cannot be drawn on questions for the Government.

Smoke-flavoured Food Additives
2.43 p.m.
Earl Ferrersasked Her Majesty's Government:
Whether European Union regulations are being drawn up which will prevent the use of smoke-flavoured additives in food.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, a European Union regulation bringing controls on the use of smoke flavourings in food into line with existing
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controls for other food additives has been proposed. The proposal would prevent only the use of smoke flavourings that present risks to the consumer.
Earl Ferrers: My Lords, I am grateful to the Minister for that reply, but does he agree that the introduction of such constraints will affect the smoky bacon crisp industry, the smoked salmon industry and all the others? Does he further agree that, in the end, those are only flavourings, and that one would have to eat a monumental amount of such food—as a result of which one would die of obesity and a heart attack—before one would ever die of cancer?
Lord Warner: My Lords, let me reassure the noble Earl that his ability to consume smoky bacon crisps will remain unaltered by the regulation. Smoke flavourings are produced from condensed wood smoke, which contains substances known to be harmful to human health, especially those called polycyclic aromatic hydrocarbons—of which I am sure every member of the House will be well aware—which are known to cause cancer in humans.
Traditionally smoked foods, such as kippers and smoked salmon, to which the noble Earl referred. would be unaffected by the proposed regulation. The regulation is likely to require the assessment of no more than 20 primary products from which all smoke flavourings are produced, none of which is produced in the UK.
Lord Clement-Jones: My Lords, is this not just the thin end of the wedge? Are not exactly the same chemicals contained in smoked foods such as kippers or smoked cheese?
Lord Warner: My Lords, I am reliably advised that traditionally smoked foods, such as kippers and smoked salmon will not be affected by the proposed regulation. Smoke contains certain chemicals that are of health concern, hut it is the primary products that are the cause of concern.
Lord Skelmersdale: My Lords, is this not another example of the European Union going over the top? What peer review has been undertaken by doctors on the carcinogenic effects of polcyclic aromatic polycarbons?
Lord Warner: My Lords, other member states have quite strict controls on smoke flavours. As I mentioned, the primary products that produce those flavourings represent a hazard to human health. If I may, I dare to say that this is an example of the EU protecting UK consumers from potentially dangerous products manufactured abroad. I know how many Conservative Members are interested to know about the benefits of belonging to the European Union.
Lord Tanlaw: My Lords, what of the smokies of Arbroath? The noble Lord did not include them. The

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terms "smokies" and "Arbroath" are synonymous. Can he assure us that that product is excluded from the regulation?
Lord Warner: My Lords, if it is a traditionally smoked product, it will be covered by my earlier remarks.
Baroness Trumpington: My Lords, does it make a difference from where the smoke comes? For instance, smoked salmon proudly boasts that it comes from oak chippings. Is smoke regardless bad for one's health? Is it the end of bonfires? Is it the end of barbecues?
Lord Warner: My Lords, we are discussing the production of the primary products that would lead to smoke flavourings. We are not discussing barbecues, and so on, in this Question.
Lord Livsey of Talgarth: My Lords, is the Minister aware that blow torches are used with some meat—lamb, in fact—for minority use? Some of that meat is not properly cooked and is the subject of investigation by environmental health authorities. Does he have any plans to keep a register of those retail outlets, which are causing great health concern?
Lord Warner: My Lords, if the noble Lord will write to the appropriate Minister, I am sure that he will take up those concerns. The Question concerns smoke-flavoured additives to food.
Baroness Masham of Ilton: My Lords, if those additives were dangerous, why were they allowed in the first place?
Lord Warner: My Lords, what I am saying in answer to the Question is that there are controls on those additives in other countries. That concern has been brought to the attention of other members of the European Union and the regulations will deal with the issue in due course.
Baroness Sharpies: My Lords, can the Minister tell us how many prime products there are?
Lord Warner: My Lords, as I said earlier, there are 20 primary products, all of which are produced overseas.
Viscount Simon: My Lords, if smoking were banned in public places, what would be the status of food flavoured with tobacco smoke?
Lord Warner: My Lords, I do not think that I can give any advice on passive exposure to smoky bacon crisps.

Specialist Schools
2.50 p.m.
Lord Dormand of Easingtonasked Her Majesty's Government:
Whether the progress being made by specialist schools is satisfactory.
Baroness Andrews: My Lords, the progress being made by specialist schools is very satisfactory. In 2002, 54.1 per cent of pupils in non-selective specialist schools achieved five or more GCSEs at grades A*-C, compared with 46.7 per cent for all other comprehensive schools, even though the intake of ability at age 11, as shown by key stage 2 results, was broadly similar to that for non-specialist schools. By this September there will be 1,454 specialist schools in place, providing for 46 per cent of all pupils.
Lord Dormand of Easington: My Lords, given the massive and continuing growth in the number of specialist schools, can my noble friend tell me how many schools wishing to become specialist schools have been unable to do so because of the shortage of certain specialist teachers? Can my noble friend also confirm that the specialist schools receive much more in the way of grants than do non-specialist schools? In those circumstances, how can the non-specialist schools pretend to have the same standards as the specialist schools?
Baroness Andrews: My Lords, my noble friend is very interested in specialist schools and has been for a long time, but I regret that I cannot give him any information about the number of schools that have not been designated "specialist" because of the shortage of teachers. We know that some schools have not been able to achieve the £50,000 sponsorship that they need but, again, we do not know how many because schools are not required to provide that information. However, I do believe that the results that are being attained in specialist schools demonstrate that the status is part of a very effective schools improvement programme, which I hope my noble friend will want to support and thereby enable more schools to achieve that aim.
Baroness Gardner of Parkes: My Lords, the Minister said that over 50 per cent of those pupils in need of a special school place are catered for, which means that well over 40 per cent are not. Do the 40 per cent of pupils who do not have a special school facility available to them not wish to attend such schools—some people believe that it is better not to be educated at a special school—or is there still a desperate need to be met among that proportion of well over 40 per cent?
Baroness Andrews: My Lords, the noble Baroness is talking about special schools, while I am referring to specialist schools. Specialist schools are those which have a specialism in one of 10 different subjects.
Lord Quirk: My Lords, as the specialist school programme now spreads its wings into areas of the

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humanities where there is less consensus on a canonical core curriculum than is the case for the sciences, to what extent are the Government encouraging such schools to develop their own curricula, either individually or collectively?
Baroness Andrews: My Lords, it is true that the two most recent specialisms to be announced are in music and the humanities and, as with all other specialist schools, we want to see those curricula being developed to the highest standards. But the schools themselves are all bound by the national curriculum and will have to abide by it.
Just as we have seen from the excellent and quite outstanding work being done in the arts colleges in both history and geography, we now look forward to seeing the same in music.
Baroness Sharp of Guildford: My Lords, is it government policy to roll out specialist status to every secondary school in the United Kingdom? If that is the case, how are the Government proposing to help those schools which cannot find sufficient local resources to meet the £50,000 sponsorship required for specialist status?
Baroness Andrews: My Lords, the noble Baroness is absolutely right. The Secretary of State has made it clear that we intend to roll out the specialist school programme nationally because the status forms part of the improving schools programme, and it is successful.
We know that many schools are experiencing difficulties in raising the required sponsorship. For this year we have made available £3 million in the form of partnership money on which schools may draw. The application forms are now being made available and, if they meet the criteria, the first schools will be able to draw down from that fund from September to March of next year. When we come to the end of this funding year we shall look again at the situation to see what else we can do.
Lord Renton: My Lords, is the noble Baroness aware that great confusion has arisen over the use by the Department for Education and Skills of the terms "special schools" and "specialist schools"? Special schools are for those with learning disabilities and thus are quite different from the specialist schools. Could not something be done to rename either the special or the specialist schools in order to avoid further confusion?
Baroness Andrews: My Lords, I do not believe that generally there is any confusion between special and specialist schools. Perhaps I was not clear in my pronunciation of the word "specialist", which may not have helped the noble Baroness. However, the specialist school status is very much about schools having specialisms in different subjects.
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Of course within those schools there will be children with special needs, who are also helped by the programme. But there is no confusion between the different types of school.
Baroness Blatch: My Lords, does the noble Baroness agree that my noble friend has made a very good point? Special schools do have a specialism: they are specialist in the field of teaching young people with learning difficulties. So I do think that my noble friend has a point.
Further, does the noble Baroness accept that specialist schools were established by my government when last in office and that we are delighted that the proposal is being built upon? However, concerns are now being expressed that many schools are being given specialist status when in fact the particular subject in which they are declared to be specialist is one that is very weak within some schools? I think that the rigorous selection process for allowing a school to become a specialist establishment should at the least insist that a school is specialist in the subject for which it is given specialist status.
Baroness Andrews: My Lords, I agree with the noble Baroness's first point: that special schools are very specialist. We have seen the results and we admire the wonderful achievement of all those children.
Turning to specialist status, it is true to say that certain specialist schools have been in some sense weak in their specialism. The funding and extra help they have been given has enabled them to develop and improve in those areas. Certainly the application process, as it has developed, has become more rigorous. I think that we are now seeing the benefits of that in all kinds of ways, including in the improvements schools are making in developing their partnership arrangements with other schools.
Lord Hunt of Kings Heath: My Lords, as every school will now be able to become a specialist school, is not the answer to the problem of the confusion over names to call them comprehensive schools?
Baroness Andrews: My Lords, I am sure that my noble friend heard me talk about "other comprehensive schools" in my first Answer. Specialist schools are within the family of comprehensive schools, although a very small proportion—under 6 per cent—selects by aptitude. Specialist schools are certainly comprehensive schools.
Lord Dormand of Easington: My Lords, can my noble friend comment on the view of the House of Commons Select Committee on Education and Skills that the expansion of specialist schools is taking place without any evidence to show that they are successful?
Baroness Andrews: My Lords, without wanting to anticipate the Government's response, which I think will be fairly robust, I have to say that we do not agree with that view. The evidence that we have gathered in support of the expansion of the scheme comes not only

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from the Government's own evidence, but also from a very wide range of quantitative and qualitative data from academic sources, Ofsted, the National Foundation for Educational Research and, just as importantly, from the experience of those schools which are part of the programme and that of others wishing to join.

Coinage: Supply
2.58 p.m.
Lord Razzallasked Her Majesty's Government:
Whether there is adequate competition to supply United Kingdom coinage following the collapse of the Birmingham Mint.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government have an agreement with the Royal Mint for the supply of circulation coinage that has some time to run. The Royal Mint will continue to meet demand for the duration of this agreement.
Lord Razzall: My Lords, does the Minister accept that Birmingham Mint is now in administration primarily as a result of the termination by the Treasury of the Royal Mint's market-sharing agreement with Birmingham Mint? Does he further accept that, as a result, a significant reduction has taken place in competition for the supply of UK coinage?
Lord McIntosh of Haringey: My Lords, I am afraid that I am not able to comment on the commercial relationship between Birmingham Mint and the Royal Mint because it is a matter of legal dispute. I cannot give the assurance being sought by the noble Lord, Lord Razzall.
Lord Corbett of Castle Vale: My Lords, is my noble friend aware that many in the City of Birmingham and beyond will be saddened that the Mint has a hole in it? Can he confirm that part of the reason for the loss of business has been the introduction of the euro? Will he have a word with his colleagues in the Department for Work and Pensions to ensure that every assistance is given to those who may lose their jobs at the Mint to find work elsewhere in the manufacturing sector?
Lord McIntosh of Haringey: My Lords, it is not true to say that the Royal Mint has a hold of the Birmingham Mint.
Noble Lords: A hole!
Lord McIntosh of Haringey: My Lords, I have not seen the ads recently. I thought that they had been discontinued, but I may be wrong.
The Birmingham Mint went into administration and the administrators sought a purchaser. The only thing to have happened since is that the Royal Mint
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has bought some of the equipment belonging to the Birmingham Mint and that is the limit of their connection. No, it is not true that the Birmingham Mint has gone into administration because of the euro. We expect—and have always expected—that we shall be responsible in this country for the production of most, if not all, of our coinage under the euro. Therefore there should be no loss of business.
Lord Skelmersdale: My Lords, the original Question of the noble Lord, Lord Razzall, was about competition. I did not hear the Minister refer to competition in his Answer. Be that as it may, the Royal Mint is a failing organisation and has been losing money hand over fist. When will it live up to the Government's trading fund rules by at least breaking even? When will it stop entering into costly plots such as contracting to mint euros, for which it was always ill equipped?
Lord McIntosh of Haringey: My Lords, perhaps I may concentrate on the last part of the noble Lord's question. The Royal Mint did not succeed in its tender to mint euros for other member states which were entering stage three of European monetary union. There are indeed lessons to be learnt from that. I do not believe that it was well enough prepared; I do not believe that it appreciated the extent of the competition; and I do not believe that it appreciated the quality requirements demanded for the euro coins. So, to that extent, the noble Lord, Lord Skelmersdale, is right.
As to the relationship between the Treasury and the Royal Mint, clearly the Crown has a contract with the Royal Mint which is reviewed from time to time. It was last reviewed in 1997–98; it will come up for review fairly shortly.

Hong Kong
3.2 p.m.
Lord Goodhartasked Her Majesty's Government:
Whether they have made representations to the Government of China or Hong Kong about the terms of the National Security (Legislative Provisions) Bill which is about to be considered by the Legislative Council in Hong Kong.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we have made frequent representations to the Hong Kong Special Administrative Region Government about their draft national security legislation under Article 23 of the Basic Law. We have also discussed the issue with the Chinese Government. My right honourable friend the Foreign Secretary did so with the visiting Chinese Foreign Minister last week. My honourable friend the Parliamentary Under-Secretary of State, Mr Rammell, issued a further statement about the draft legislation yesterday, 30th June.
Lord Goodhart: My Lords, I am aware of and grateful for the concern which the Government have

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expressed on a number of past occasions on this issue, but we are now getting to the crunch point when the Bill will be voted on. Indeed, I understand that there has been a big demonstration against the Bill in Hong Kong earlier today. Do the Government agree that there are still serious defects in the Bill which raise concerns about the rule of law in Hong Kong? Are the Government aware that the democratic movement in Hong Kong sees intervention by the Government as a last hope of achieving changes in the Bill? Will the Government therefore make representations to the authorities in Hong Kong and Beijing at the highest possible level?
Baroness Symons of Vernham Dean: My Lords, I am aware of the demonstrations and I can assure the noble Lord, Lord Goodhart, that we are following this issue very closely indeed. I have made the point that my honourable friend Mr Rammell and my right honourable friend the Foreign Secretary have made representations. I also had some brief discussions about this matter last week.
We welcome the fact that the Hong Kong Special Administrative Region Government have improved the legislation in many areas from the original proposals put forward last autumn and the legislative proposals published in the spring. We are particularly concerned about the proposed new provisions on prescription, which I believe may be the issue troubling the noble Lord, Lord Goodhart. We believe that these provisions blur the dividing line between the separate Hong Kong and mainland legal systems by introducing into Hong Kong legislation links to mainland law. That is the real problem and the nub of the issue. We share the view of many in Hong Kong—who may well have been demonstrating today—that this is inconsistent with the one country/two systems principle that underlies the joint declaration.
Lord Howell of Guildford: My Lords, did we not tell the people of Hong Kong six years ago that they would not be forgotten? Does the Minister agree that the rule of law and freedom under the law that we bequeathed to Hong Kong is its most precious asset today? While I am glad to hear that some of the effects of the Article 23 measures and subversion legislation may have been modified—or, indeed, exaggerated in the first place—will the Government nevertheless be very bold indeed, as the noble Lord, Lord Goodhart, suggested, in pointing out to the Government in Beijing, at the highest level, that their pressure for these changes could lead to very serious long-term damage for Hong Kong? Does the Minister agree that quiet dialogue is no longer the appropriate medium for handling this issue? Does she further agree that we must avoid the accusation being levelled at the British Government—as it has been—that they are mere spectators in this very serious situation?
Baroness Symons of Vernham Dean: My Lords, if such a charge is being levelled at the Government it is quite unfounded. Quiet dialogue has its place and it is
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important that we are able to engage frankly with both the SAR and Chinese Governments on this issue. That does not and has not precluded our making quite robust public statements. I remind the noble Lord that the former Lord Chancellor and Mr Rammell have put across our concerns in person when visiting Hong Kong. There was a period when such visits were not possible because of the SARS outbreak, but we have continued these exchanges at official level and we have made frequent representations. On 20th June, Mr Rammell sent a personal message to the Secretary for Security on this issue and, as I indicated in my original Answer, the matter was raised only last week by my right honourable friend the Foreign Secretary with the visiting Chinese Minister. We have also spoken out on this issue—not only in private but in public. We have now issued three statements—on 18th November last year and on 27th March and 30th June this year—and we have led international efforts to improve the legislation, with the US, the EU, Canada and Australia following our lead. The EU, of course. issued a statement yesterday.
Lord Dubs: My Lords, does my noble friend hold out any hope that there will be a change of heart on the part of the authorities in Hong Kong or in Beijing? What has been the Chinese response to the many representations made by the Government?
Baroness Symons of Vernham Dean: My Lords, the Chinese Government have responded today in relation to the statements that have been made. I have referred to the statement put forward by the EU yesterday and the United States Government have also made a statement. The Chinese Foreign Ministry has said that the allegations made in these statements are "unfounded" and that Article 23 is an internal matter in which foreign countries have no right to interfere. That is the public statement being made by the Chinese Government. That is why I was so emphatic in saying to the noble Lord, Lord Howell of Guildford, that this is not only a matter for public exchanges; there also have to be quiet exchanges between those who are able to talk frankly to each other. Of course we should say what we believe to be the case publicly but it is enormously important not to lose the value of quiet diplomacy.
Lord Hylton: My Lords, can the Minister confirm that this objectionable law is likely to come into effect as early as 9th July? Does she see any prospect, in the short time remaining between now and then, of achieving changes in the sweeping provisions which are liable to affect the media, the churches and groups such as Falun Gong?
Baroness Symons of Vernham Dean: My Lords, the noble Lord is right. This continues to be a matter for discussion in Hong Kong. Our representations and the representations of others have led to some changes in the original points put forward by the Hong Kong Special Administrative Region Government. We now have a period of about eight days. I have told the House what the Chinese Government have said. Your

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Lordships are in a position to make judgments, as are the British Government, about how much progress we are likely to make by shouting the odds at the Chinese Government rather than trying to pursue some well-argued points with them. In your Lordships' anxiety to do the right thing, I hope that your Lordships will not lose sight of the importance of diplomacy as well as public statements.
Lord Geddes: My Lords, I wish that the Minister's remarks had been used in the two, three or four years immediately before the hand-over. That is now history. The Minister mentioned several times representations being made in this respect to the government in Beijing. I am sure that the House welcomes that. Have representations also been made directly to Mr Tung Chi Hua, the chief executive of the Hong Kong SAR? If not, could they please be made?
Baroness Symons of Vernham Dean: My Lords, yes. I had hoped that I had made that clear in my initial Answer, when I said that we had made frequent representations to the Hong Kong Special Administrative Regional Government about the matter. We shall of course continue to make sure that they are left in no doubt about our views on this issue.
Baroness Williams of Crosby: My Lords, given that there has been a strong statement from the White House, which the Minister has confirmed, that there has been a statement from the European Union, and also repeated representations from the British Government, will the Minister consider drawing to the attention of the Chinese Government the damaging effect on foreign direct investment that this is likely to have, if it is pursued in its present form? If Hong Kong, as the Minister indicated, does riot have full recognition of its special status, there is likely to be concern among foreign investors about continuing to invest in that region.
Baroness Symons of Vernham Dean: My Lords, I would add that there have also been statements made by Australia. This is a difficult issue and I appreciate that your Lordships are enormously concerned and wish to leave no stone unturned in the arguments that may be put forward. There are judgments to be made about the efficacy of what might be seen as a threat in relation to what otherwise might be seen as encouragement. I was specific in reading out what I understand is the reaction of the Chinese government.
We have to make some quite difficult judgments over the next few days about the most efficacious way to proceed. If I may say very gently to the noble Baroness, it is just possible that pointing out what might happen over foreign direct investment—which I would suggest is self-evident—might be seen as more on the threatening side, rather than on the persuasive side, of the equation.
Lord Eden of Winton: My Lords, the original Question of noble Lord, Lord Goodhart, referred to the fact that the issue is about to be considered by the
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Legislative Council in Hong Kong. Can the Minister say whether the Legislative Council is in a position to amend or reject the proposed Bill, and if so, what would be the consequences?
Baroness Symons of Vernham Dean: My Lords, as I understand the matter, it does have some powers of amendment, although they might not be the same types of powers enjoyed, not so much by your Lordships, but by another place. The matter is under consideration and the discussions should be completed by 8th July. As I understand it, there is some room for manoeuvre. I hope that we focus on the continued good will and persuasion of those who feel that there are some outstanding issues about the effect on the Joint Declaration, and the whole point about one country/two systems and the consistency of what is suggested in the legislation, even as it stands with that principle in the Joint Declaration.

Liaison: Select Committee Report
3.14 p.m.
The Chairman of Committees: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Second Report from the Select Committee (HL Paper 126) be agreed to.—(The Chairman of Committees.)
Following is the report referred to:
Appointment of an additional Sub-Committee of the European Union Committee
1. At their previous meeting on 17 February, the committee considered a proposal from Lord Grenfell that two additional sub-committees of the European Union Committee be set up. This request was related to the review of scrutiny of European instruments conducted by the European Union Committee. The Liaison Committee took the view that it was at that stage premature to come to a decision on Lord Grenfell's proposal before the House had debated the European Union Committee's report and before the Government's response had been received.
2. The report was debated by the House on 9th May 2003. At the end of the debate Baroness Symons of Vernham Dean indicated that the Leader of the House would support the creation of one additional sub-committee. In the light of this Lord Grenfell has proposed that one additional sub-committee be set up, so that the division of policy responsibilities between sub-committees might be improved; to deal better with the increase in workload of the Select Committee; and to anticipate outside pressure for an enhanced role for national parliaments in the European Union stemming from the proposals of the Convention on the Future of Europe. Lord Grenfell has indicated that the European Union Committee would be content to reduce slightly the number of Members of the House serving on each sub-committee so as to minimise the effect of the appointment of an additional subcommittee on the availability of Members to serve on them.
3. A majority of the committee agreed that an additional subcommittee should be appointed for the reasons provided by Lord Grenfell in his original proposal. Concern was expressed, however, that the appointment of such a sub-committee might lead to an increase in the number of reports recommended for debate. Current pressure on time for debates was already very high. Concern was also expressed that the appointment of another sub-committee should not place undue pressure on the availability of Members of the House to serve. Accordingly, the committee recommends that the European Union Committee appoint an additional sub-committee with effect from the next Session; that

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the committee exercise restraint in the number of reports recommended for debate; and that the number of Members of the House serving on sub-committees should not exceed ten.
Lord Peston: My Lords, I rise to ask the Chairman of Committees a couple of questions. I shall place the matter in context. When I first saw this document I assumed that it was a wind-up and as such one of the most brilliant spoofs I have seen in this House.
First, there are the remarks that whatever we do we must minimise the effect of the appointment in this case, but we must generalise it to cover any case, on the availability of Members to serve on the subcommittees. The expression,
"should not place undue pressure on the availability of Members of the House to serve".
Given that there are several hundred people who comprise the membership of your Lordships' House, is it not odd that the availability of Members to serve on important sub-committees is so limited? Whenever we debate the role and future of this House—and I assume we are due for another such debate any minute—we always emphasise our enormous contribution, our total commitment, the fact that we do this marvellous job, and so on, yet when one comes to a small subcommittee, which is not put forward frivolously by the noble Lord, Lord Grenfell, one of the immediate considerations is the somehow limited availability of Members to serve. This is not a trivial matter, because, regarding the Finance Sub-Committee, which your Lordships are keen on—where I was told that this House was full of experts in the scrutiny of the Government's finances—I had to go around cap in hand to persuade almost anybody to serve. Whenever someone asked, "Do I have to turn up?", I replied "Yes, you not only have to turn up but this committee will be meeting continuously for about four weeks". The answer was, "Regretfully, no". This is a serious matter. If our House is being prevented from doing its job because of availability, there is something much more wrong with our House than I was willing to take seriously.
The more important wind-up—and this is brilliant of the Liaison Committee—is that whatever this new sub-committee does it must exercise restraint on the number of reports recommended for debate. This is not doing what, again, I thought we set up committees to do, which is to look at the subject, study it properly, write a report and then rather pathetically hope that people are interested so that we might have a debate. Now the approach is, "Well, we have been set up, but we had better not do anything in case it might lead to a request to debate our recommendations". It is so ridiculous that, if this is the way our House is to run in future, one starts to come to the view that perhaps the world would be better off without us altogether.
I do not believe that for one minute. But the lesson we must learn is that if we decide to so something—and in this case the noble Lord, Lord Grenfell, has put forward a serious suggestion—the correct response is to say, "If it's worth doing, we will provide the
734
resources to do it. We will, I am sure, find Members to serve, and when they have produced a first class report, we will find time to debate it". That is our justification.
Baroness O'Cathain: My Lords, I largely support the comments of the noble Lord, Lord Peston, about membership of committees. However, is there a minimum level below which there should not be a committee? Ten members sounds fine. But has there been any research on all the committees of this House that have sat over the last two or three years, and on their attendance levels? There are a large number of people who accept membership of committees and are unable to serve for all sorts of reasons. Some of the reasons are manufactured in this House. As the noble Lord, Lord Peston, knows, I have been unable to attend this committee on two successive weeks through being involved in discussion of amendments in the Chamber or in Grand Committee. There are around 100 people who are doing an enormous amount of work; the remaining people are not sharing the burden. It would be useful to know the attendance figures. The last thing we would wish to do is to appoint 10 members, and then find that only five ever turn up regularly.
Lord Brooke of Alverthorpe: My Lords, as a former chairman of a sub-committee I am also concerned that we are reducing the number of members from 12 to 10. Is it possible that the situation might be reviewed in light of the views expressed? The European Union Committee actually asked for two additional subcommittees to undertake its work, but we have ended up with only one. The principal reasons seemingly being given are that we are short of resources. In light of the fact that we have nearly 700 Members of this House and that we have problems ensuring that EU scrutiny is carried out correctly, would the Liaison Committee be prepared to set up an investigation to try to see why we are having difficulty finding sufficient people, and can it take steps to ensure that we have sufficient people?
Lord Grenfell: My Lords, I would like to shed a little light without pre-empting what the noble Lord the Chairman of Committees has to say.
I start by saying that I am grateful to the Liaison Committee for granting us one of the two committees we asked for. That will help. There is tremendous pressure at the moment. The mandates of individual sub-committees are very wide. They are all important, but a particularly significant one at the moment is the Environment and Agriculture Sub-Committee, which is also meant to deal with public health and consumer affairs. We wanted an extra sub-committee so that we could have a committee devoted to social policy and consumer affairs, which would include health, worker protection and education and other issues. I am grateful to the Liaison Committee for providing us with an extra committee. I am particularly grateful to the noble Baroness the Deputy Leader of the House, who told me first that the Government Front Bench would support it. I am grateful to her for having promoted it in the Liaison Committee.

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With regard to numbers, I think that we can make things work with 10. I have never been a great supporter of large committees. The question is whether we get people who will attend. If we have a committee of 10 and we can guarantee that seven or eight will be there for the meetings, it will work. What we must avoid is a situation in which the usual channels feel that they must put so-and-so on to a committee because they need the party numbers, and so-and-so does not show up. My philosophy is to keep the numbers reasonable but to make sure that those on committees are genuine attenders.
The noble Lord, Lord Peston, raised a concern about debate times. There may be a slight misunderstanding here. I do not think that it was the intention of the Liaison Committee—the noble Lord the Chairman of Committees can confirm it—that the extra committee, which will be known as Sub-Committee G and will deal with social policy and consumer affairs, would have to go slow in producing reports. The Liaison Committee was saying that the whole constellation of sub-committees must not produce more reports than the House can digest. I accept that; it is a fair point. It does not invalidate the point that I have made for a long time, which is that we should try to get prime time for our reports. We are making determined efforts to ensure that reports that can be for information only, rather than debate, will not be brought to the Floor of the House.
One of the reasons why we are doing a great deal in the Select Committee and the constellation of subcommittees to improve our external relations and our publicity is that we want to make sure that reports that are for information will not just be for the information of the House but will be made available to the outside world.
We can live with 10 members. We are grateful to have a seventh sub-committee. Provided that we can get time in the House for the really important reports, the Select Committee on the European Union and its sub-committees will deliver what your Lordships want.
Lord Barnett: My Lords, I pay tribute. first, to the work done by the noble Lord, Lord Grenfell. I know how much he does and what a great job he does. I understand why he does not want to upset the Liaison Committee. Having got one of the two committees that he requested, he might want to go back sometime for the other one.
I never thought that I would find myself in disagreement with my noble friend Lord Peston. When he said that he had to go cap in hand to get anybody to serve on the Finance Bill sub-committee, I was quite offended on behalf of those who did join, including the noble Lord, Lord Wakeham, who is certainly not "anybody" and was an excellent member of the committee, as was my noble friend Lord Sheldon. We had an excellent Finance Bill sub-committee as, I am sure, those noble Lords would agree.
I agree with my noble friend on one important point. It is not that relating to the size of committees. I agree with the noble Lord, Lord Grenfell, that a committee
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of 10 members, provided that even nine of them work full-time, can do a great job. Usually, on our committee—the Economic Affairs Committee—we do not have 100 per cent. The more important question has been raised before; I have raised it before. How do we find time to debate the reports? There is no point in having reports from committees if we do not find time to debate them on the Floor of the House. I noted the recent suggestion that time might be found for debate in the Moses Room or in a Grand Committee room. That is an excellent idea, and I hope it will be followed up, although 1 would prefer reports to be debated on the Floor of the House. There are so many excellent reports from committees of your Lordships' House. It is an important matter.
Those on the Government Front Bench always say that they do not have control of more than 27 per cent—even then, it is only for some of the time—of your Lordships' House so they cannot decide how many days should be allocated for Select Committee debates. That is a matter for the usual channels, as we call them—that is, those on all the Front Benches. I hope that they will take note of the mood of the House, and I hope that time will be found, one way or another, if necessary. We might even sit for an extra day or evening in order to debate important reports. As I said. that is not a matter for the Government Front Bench alone; it is a matter for all Front Benches. I hope that they will take note of that and that the last words of paragraph 3 of the Liaison Committee's report will be, if not deleted, noted with some concern.
The Chairman of Committees: My Lords, first, I can assure the noble Lord, Lord Peston, that the report is neither a spoof nor a wind-up. It is the work of the Liaison Committee. As noble Lords will see, the committee was not unanimous in wishing to set up an additional European Union sub-committee. It agreed to do so only with the accompanying recommendation about reducing the number of members of the committee from 12 to 10. At present, there are six European Union sub-committees. They are not all up to strength, but, if they were, they would involve 72 noble Lords. There will now be seven sub-committees of 10, adding up to 70.
The committee was conscious of the additional work of committees in train at the moment. A new statutory instruments committee is to be set up in the new Session. There are pre-legislative scrutiny committees for several Bills, and the number is likely to increase. There is also, of course, the finance subcommittee, to which the noble Lord, Lord Peston, referred, not to mention the Select Committee on the Speakership of the House that is due to be set up later this week.
The noble Lord, Lord Peston, made a second point about whether reports should he recommended for debate or information. That was answered by the noble Lord, Lord Grenfell, to whom I am grateful for his intervention. I am grateful that he is happy with what the Liaison Committee has come up with.

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In response to the noble Baroness, Lady O'Cathain, I must say that I have no research into attendance at committees. So far as I am aware, there has not been a problem finding a quorum, whatever that may be. We can look into it. No doubt, the noble Lord, Lord Grenfell, will wish to do that in respect of the European Union sub-committees.
The noble Lord, Lord Grenfell, also, I think, largely answered the point made by the noble Lord, Lord Brooke of Alverthorpe. The noble Lord, Lord Brooke of Alverthorpe, referred to a membership of 700 in the House. The active membership of the House is considerably fewer than that.
The noble Lord, Lord Barnett, asked for more time for debates. I am sure that the usual channels will have heard that request. I hope that they will be able to respond to it. All the report asks is that the committee exercises restraint in the number of reports recommended for debate, does not insist that all reports should be debated and agrees that some should be only for the information of the House. I hope I have answered most of the questions. I commend the Motion to the House.
On Question, Motion agreed to.

Sunday Working (Scotland) Bill
3.30 p.m.
Lord Hogg of Cumbernauld: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Hogg of Cumbernauld.)
On Question, Motion agreed to.

Marine Safety Bill
Lord Donaldson of Lymington: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Donaldson of Lymington.)
On Question, Motion agreed to.

Communications Bill
3.31 p.m.
Lord McIntosh of Haringey: My Lords, I beg to move that the Bill be now further considered on Report.
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Moved, That the Bill be further considered on Report.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
Viscount Astor Viscount Astor moved Amendment No. 109:
After Clause 195, insert the following new clause—
"DUTY OF OFCOM IN RELATION TO THE BBC'S NEW SERVICES
(1) Prior to the Secretary of State approving under the Charter or the Agreement the provision by the BBC of any new service or changes to an existing service whether or not a broadcasting or programme supply service it shall be the duty of OFCOM to prepare and publish a report commenting on whether the proposed new service or changes to the existing service will satisfy the objectives set out in subsection (2).
(2) The objectives referred to in subsection (1) are—

(a) the new service or the changes to the existing service are compatible with the BBC's primary public service role as set out in the public purposes of the BBC or any of the services it provides as set out in those documents;

(b) that the value to the public of the new service or changes to an existing service will be proportionate to the likely impact on the market;

(c) that the new service will be universally accessible within a reasonable period of time free at the point of use;

(d) that the new service or the changes to the existing service will represent value for money for licence fee payers.

(3) It shall be the duty of OFCOM—

(a) as soon as practicable after the end of the period of twelve months beginning with the commencement of this section; and

(b) as soon as practicable after the end of each subsequent period as may be selected by OFCOM for the purposes of this section,

to satisfy, for that period, the review and reporting obligations of subsection (4).
(4) The review and reporting obligations are—

(a) an obligation to carry out a review of the extent to which new services provided by the BBC and changes to existing services—

(i) comply with the terms of the approval granted by the Secretary of State for such new services or changes to existing services; and

(ii) satisfy the objectives set out in subsection (2);

(b) an obligation to prepare a report on the matters found on the review.

(5) In this section—
"Charter" means the Royal Charter for the Continuance of the British Broadcasting Corporation of May 1996 and any renewal or replacement thereof;
"Agreement" means any agreement made (whether before or after the coming into force of this section) between the BBC and the Secretary of State to regulate the provision of the BBC's services and the carrying on by the BBC of other activities for purposes connected with the provision of those services.
(6) In this section for the purposes of the review and reporting obligations of OFCOM "new services" shall mean all new services approved (whether before or after the coming into force of this section) by the Secretary of State under the Charter or the Agreement."
The noble Viscount said: My Lords, I shall not move or speak to Amendment No. 110 in the light of our previous debate on the amendment of the noble Lord, Lord Gordon. My amendment is long, but its purpose

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is short and simple. As currently drafted, approval for new BBC services lies solely with the Secretary of State. My amendment would ensure that before the Secretary of State can approve any new BBC service Ofcom must review, first, whether the service is compatible with the BBC's public service remit; secondly, whether it represents good value for licence fee payers; and, thirdly, its potential impact on the wider broadcasting market. That is the most important aspect of the amendment.
Ofcom is well placed to advise on those issues, and any such review would he of benefit to the Secretary of State in reaching a decision. The reason Ofcom is so suitable is that, as your Lordships are aware—and it bears repetition many times—other broadcasters also have public service remits: ITV, Channel 4, and so on. They are therefore regulated by Ofcom, so any new service from the BBC in the new area affects their channels and their public service remit.
In the past new BBC services have resulted from negotiation, or—perhaps more aptly—complicated horse trading between the BBC and the Secretary of State with the trade-off of new services, licence fee increases, and so on. Ofcom's involvement would make the process more open and accountable and the public interest would be better served by it. I must stress that nothing in my amendment would bring the BBC under Ofcom; it purely allows Ofcom to advise the Secretary of State when she makes a decision on new services for the BBC. I beg to move.
Baroness Buscombe: My Lords, we support the amendment.
Lord McIntosh of Haringey: My Lords, the amendment is an odd hybrid between the approval of new services by the Secretary of State under the terms of the BBC's charter and agreement, and Ofcom. I am not sure that it makes a huge difference to what will happen in practice, but there are some difficulties in the way that it has been framed. It seeks to bring the process for approving new BBC services within the statutory framework, although the Secretary of State would continue to grant the approval for new BBC services or changes to existing ones under the BBC charter and agreement.
A statutory requirement would be placed on Ofcom to prepare a report on whether BBC new service proposals satisfied certain objectives. There would be a duty on Ofcom to review and report periodically on the extent to which new and changed BBC services complied with the relevant approval, and the objects mentioned in the amendment.
I am sure that, having been involved in broadcasting legislation in the past, the noble Viscount, Lord Astor, is aware that the amendment conflicts with the principle that the BBC is not, generally speaking, regulated by statute. It has a special status as a chartered body with a special relationship to Parliament. As I said, it is anomalous that the amendment leaves the grant of approval to be carried
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out under the charter or agreement but makes statutory provision for the process. I might understand it the other way round, but not this way round.
Let us be clear: new BBC services are already subject to rigorous assessment by the Secretary of State—anyone who has followed the process of approval of BBC3 and BBC4 will be aware of that. The guidelines provide for full public consultation. They set out the factors to which the Secretary of State has regard in taking her decision. We always take into account the views of the ITC and the OFT—the ITC, at any rate, will be subsumed within Ofcom. The guidelines are published, and the amendment draws on them. It is well drafted in the sense that imitation is the sincerest form of flattery.
In future, Ofcom will have an important role in the approval process for new BBC services. Ofcom will be consulted on any new BBC service proposals and on any reviews of existing BBC services. The Secretary of State is committed to an independent review of the BBC's new digital television and radio services in 2004, and she is committed to the involvement of Ofcom in those reviews. I believe that that is what the noble Viscount, Lord Astor, is looking for. We are not persuaded that formal provision is needed to ensure that Ofcom plays an appropriate role in relation to the approval of new BBC services, or changes to existing services.
Viscount Astor: My Lords, I am grateful for the Minister's reply. He has given me the assurance that Ofcom will have a role in the approval process and will be consulted. I am always attempting to move the BBC gently further away from the Secretary of State, because at the end of the day it will be in a safer place. Perhaps the relationship between the Government and the BBC in recent days has shown that more clearly.
We now have the rather bizarre prospect of the BBC possibly using licence fee money to take the Government to court, who will be using taxpayers' money to defend the action: a somewhat circular process that will benefit only lawyers. But I am grateful for the Minister's assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 110 to 112 not moved.]
Lord Stoddart of Swindon Lord Stoddart of Swindon moved Amendment No. 112A:
After Clause 195, insert the following new clause—
"APPOINTMENT OF ADVISERS TO CHAIRMAN AND BOARD OF GOVERNORS
(1) All staff responsible for advising the Chairman and Governors of the BBC on their duty to ensure that political, news and news-related programmes are impartial, wide-ranging and fair shall be employed by trustees independent of the Governors.
(2) The trustees in subsection (1) shall be appointed by the Secretary of State."
The noble Lord said: My Lords, it is with some diffidence that I move this amendment tabled in the name of the noble Lord, Lord Pearson of Rannoch. He has asked me to apologise to the House for his absence. He had hoped to move the amendment last Thursday,

741
but today he has an important business engagement involving his company and has asked me to move the amendment in his absence.
The justification for my moving the amendment is that, together with the noble Lord, Lord Pearson, and the noble Lord, Lord Harris of High Cross, I am a co-founder of the Global Britain research unit, which has commissioned deep and extensive research into the BBC's coverage of the United Kingdom's relationship with the European Union. The amendment would provide that all staff advising the chairman and governors on their duty of impartiality are employed by independent trustees appointed by the Secretary of State rather than the BBC operational staff who cannot be absolutely impartial since they have an interest.
The results of this research are published on Global Britain's website, www.globalbritain.org. The highlights have been revealed by the noble Lord, Lord Pearson, in a debate in your Lordships' House on 11th March 2002, during the Second Reading of this Bill on 25th March this year, and in Committee on 20th May. So your Lordships will be glad to know that I do not need to repeat any of the detailed findings of the analysis now, which run into hundreds of pages, suffice to say that the BBC stands accused of consistent Europhile bias over several years.
Perhaps our most important complaint against the BBC over the handling of these reports is that the chairman always appears to give them to management for adjudication and not to the governors, who are responsible for ensuring that the corporation fulfils its fundamental duties to "educate, inform and entertain", and that its political coverage should be "impartial, wide-ranging and fair". The BBC has also refused our offer of independent arbitration.
Our contention is, therefore, that for whatever reason, the governors are not doing their job. Indeed, it is interesting to note that in the present drama between the Government and the BBC over its coverage of the Iraq war, the governors have yet to appear on stage. They have said nothing—we have heard nothing from them. Yet they alone are vested, under the Broadcasting Act, with the supreme responsibility to ensure that the BBC does not behave as No. 10 believes it did. In their defence, it may be that the Government's terms of reference are impossible—they are judge and jury in their own court.
The amendment is designed to alleviate that dilemma by creating new BBC trustees, perhaps three in number, who would in effect become the employers of all those in the BBC whose duty it is to advise the governors on whether the corporation has fulfilled its public service remit. This might solve the present difficulty, which is that those employees, in. for instance, the Governors' Programme Complaints Committee and the Governance and Accountability department, are most unlikely to advise the governors that Mr Dyke and the BBC's management, who control their careers, have got it wrong. Can we imagine their predicament if Mr Alastair Campbell complains to the programme complaints committee?
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Of course one would hope that in such a high-profile case the governors would get personally involved, but there is necessarily a large volume of complaints in the BBC where their predicament is less obvious but, cumulatively, perhaps just as great or even greater.
The noble Lord, Lord Pearson, moved an amendment in Committee designed to alleviate the problem, in which he suggested that a committee of the governors should have been formed to specialise in this public service remit and report annually to Parliament. Critics of the amendment felt that this was bringing the Government too much into the affairs of the corporation. This amendment would not have that effect.
This is still a probing amendment, and it will be most interesting to hear your Lordships' views. At the very least, I should have thought that the governors should be encouraged to form a sub-committee to concentrate on their public service remit even if reporting to Parliament or separate trustees are not thought to be appropriate.
If I may conclude on a more personal note, I have supported the BBC's licence fee in your Lordships' House as being a very good bargain. I support the BBC and hope it can survive by providing truly independent and wide-ranging political coverage. I opposed the war in Iraq, so I cannot be accused of wanting to get at the BBC in any way at all. I am just, as usual, trying to help the House and Ministers and, indeed, to help the BBC itself to become more respectable. I beg to move.
3.45 p.m.
Lord McNally: My Lords, I do not think the noble Lord, Lord Stoddart, needs to apologise for the absence of the noble Lord, Lord Pearson. I can think of no more perfect substitute for the noble Lord.
I intervene for two reasons—the remark of the noble Viscount. Lord Astor, about whether the recent events concerning Mr Alastair Campbell are a sign of things to come, and the amendment in the name of the noble Lord. Lord Pearson, spoken to by the noble Lord, Lord Stoddart. It is a hit of a warning cloud that we must be quite sure that the independence and integrity of the BBC as a news organisation is protected and retained. I agree with the noble Lord, Lord Stoddart, to the extent that I am a little perplexed at the silence of the governors during the recent furore. There is a need for a clear statement on two sides. I am intrigued about whether the spat between Mr Campbell and the BBC is a personal vendetta or a statement of government policy. There needs to be clarification.
I think the governors should tell Mr Campbell and the Government, in no uncertain terms, to get their tanks off the BBC lawn. I do not think it is any accident that the personal standing of the Prime Minister has plummeted during a time when there has been a mudfight between the Government's spokesman and the BBC. The reason is very simple: the British public inherently understand that when politicians in government try to intimidate the BBC, the public interest is being threatened, along with the independence of the most trusted news organisation in

743
the world. It is interesting that 93 per cent of the UK population used BBC television, radio, text or online services during the first two weeks of the war in Iraq, and that there were over 140 million hits on BBC News online in the first week, after which there were 3 million a day.
I have said before that we have a unique national asset in the BBC. The current structure, with the governors providing a cordon sanitaire between the BBC practitioners and the politicians, has stood the test of time. I am glad this is only a probing amendment, but if ever it came to the vote, I hope that the Government would resist it.
Baroness Cohen of Pimlico: My Lords, a nervous glance around the Chamber suggests that I am the only serving or former BBC governor present. I feel, therefore, that I should speak against the amendment and remind noble Lords of the existence of something called the Governors' Programme Complaints Committee. I was a member of the first one of these committees; anybody has the right to appeal to it, wherever their appeal first comes in. They will be informed that they have the right to go to the governors.
There were four of us then. We saw everything and read all the papers if the appeal came to us. It is not that governors do not see complaints about the news or fairness—they see them all right.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Stoddart, for not rehearsing the long-standing complaint that the noble Lord, Lord Pearson, has against the BBC about its attitude to Europe. We have had it not only in a debate but at two stages of the proceedings of the Bill. I hope that the noble Lord, Lord Stoddart, will convey the message that some of us think we have had enough of it.
Nor shall I follow the noble Lord, Lord McNally, who seems to want me to use the amendment as an opportunity to clarify the dispute between Alastair Campbell and the BBC. I shall certainly not do that. It is a matter for the governors of the BBC, Mr Campbell and his friends, which does not arise out of the wording of the amendment.
The amendment would require advisers to the chairman and governors of the BBC to be employed by independent trustees appointed by the Secretary of State, which is an interesting thought in itself—bringing the Secretary of State into the issue. I certainly agree, and the noble Baroness, Lady Cohen, has confirmed it, that the governors need access to independent and informed advice on which to make decisions. I am not sure whether it is well known that the governors already have access to independent advice through the governance and accountability department.
The BBC announced last year a number of significant reforms to its internal governance arrangements. which were to establish a clear delineation of the functions of the governors and the
744
executive committee to enhance the role of the governors in monitoring performance and regulatory compliance, to provide the governors with independent advice and support on compliance, and to introduce objective setting and accountability through a new governance and accountability department.
The amendment would provide unnecessary and inappropriately intrusive government interference in the way in which the governors operate. It is clear that the governors have the power to ensure that they have suitable advice that is independent of the BBC executive. Again, the noble Baroness, Lady Cohen, confirmed that. If they become unhappy with the existing arrangements for obtaining independent advice they can change them. The governors themselves are independent and ought to be left to get on with their job, which includes ensuring that they have appropriate advice.
I stress that the Government have full confidence in the governors' ability, and it is offensive to suggest that they are incapable of doing so. The suggested role for trustees appointed by the Secretary of State would mean needless additional bureaucracy that could impede the governors' effectiveness. The governors who actually do the job of regulating the BBC are clearly the best people to decide how and by whom they should be advised in order to maximise their own effectiveness. Giving that role to trustees over whose decision the Government would have no control would undermine that. As the noble Lord, Lord McNally, asks, we resist the amendment.
Lord Stoddart of Swindon: My Lords, I thank all the noble Lords and the noble Baroness who took part in the debate.
It is interesting that the noble Lord, Lord McNally, had some sympathy with the amendment. He was right to do so because the BBC is held in very high esteem—make no mistake about that. I am concerned that that esteem should not be undermined and that the BBC retains the trust of licence-payers and the whole community. That was one of the reasons for moving the amendment.
To illustrate that, I saw on ITN a poll as to who people trusted more—Mr Campbell or the BBC in the recent spat. The result was decisive. Ten per cent said that they trusted Mr Campbell more and 90 per cent said that they trusted the BBC more. The BBC should guard that reputation very closely. I was glad to hear from the noble Baroness, Lady Cohen, that the governors do take an interest. However, it is not patent that they do so. The people who make complaints do not understand that they do so. The replies that they receive from the BBC are entirely unsatisfactory in many instances. I know that because I have taken up many complaints with the BBC and have been completely dissatisfied with the way in which they have been handled and replied to.
I did not expect the noble Lord, Lord McIntosh, to support the amendment. Indeed, it is a probing amendment. I am sorry that he has had enough of it. We always enjoy the interventions of the noble Lord,

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Lord Pearson, especially in European and BBC matters. I hope that he will not be deterred by the view of the noble Lord, Lord McIntosh, that we have had enough of it, but will continue to bring matters of importance to the House.
The noble Lord, Lord McIntosh, said that the governors of the BBC already have independent advice. But we are not sure whether that advice is independent, and we shall be watching it. I hope that in time we can have full confidence in the BBC in how it handles European matters and complaints about its coverage of such matters. Having said that, I thank everyone who has taken part in the debate, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 205 [The Gaelic Media Service]:
Lord Luke Lord Luke moved Amendment No. 113:
Page 182, line 42, at end insert—
'the retail prices index' shall have the same meaning as in section 19(10) of the Broadcasting Act 1990 (c. 42) (additional payments to be made in respect of Channel 3 licences);"
The noble Lord said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 114. Amendments Nos. 211, 212, 214, 215, and 216 are consequential.
As your Lordships are aware, Amendment No. 113 relates to Clause 205. We on these Benches strongly support the aims of the Government in creating the new Gaelic media service. I shall not try to pronounce it in Gaelic. While we feel that the provisions in the Bill for a Gaelic service are to be commended, there are some concerns about the effectiveness of the legislation. In another place the Government stated that they were unwilling for funding issues to appear on the face of the Bill. I do, however, believe that there are a number of funding issues that need to be addressed, given the unfortunate experience with the Gaelic Television Fund.
It is essential to secure and protect the new Gaelic media service so that it is sufficiently funded at the outset and to ensure that the funding is protected from erosion in the future. That was not the case when the Conservative government set up the Gaelic Television Fund in the Broadcasting Act 1990. Unaccountably the budget of £9.5 million was neither inflation-proofed nor ring-fenced. In 1991, £1 million was promptly diverted to education—I am sure for perfectly worthy causes. That happened every year. Therefore, the amount available for the Gaelic Television Fund is now £8.5 million a year. When taking into account inflation through the years, it should be some £12.5 million. That is a shortfall since 1991 of 33 per cent. Consequently, television hours financed by the fund have now fallen to 150 hours from 195 in 1991.
While Gaelic television was in its infancy, Welsh television, in the shape of S4C, was going from strength to strength. It continues to do so, and has contributed significantly to the revival of the Welsh language. During the Committee stage in this House, on 22nd May, the noble Lord, Lord Evans of Temple
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Guiting, promised a review of funding for S4C, necessitated by the increased costs associated with digital development. We on these Benches welcome this. S4C funding has been index-linked since 1997. After the Broadcasting Act 1996 a minimum funding level was set.
As the Government have accepted the arguments for a funding review of S4C, surely Gaelic deserves the same—or better—consideration. If the Government are serious in their commitment to regional broadcasting and to fulfilling their obligations to Gaelic—a language identified by UNESCO as endangered—they must seek to improve on the measures proposed in the Bill.
The Bill as it stands allows a new Gaelic Media Service to establish a Gaelic channel. That will not only serve the Gaelic-speaking audiences but will also provide a most welcome economic boost. An impact assessment by Highlands and Islands Enterprise has shown that in excess of 100 jobs could be created in the region. That is a very large number in such a sparsely populated area. We support that commitment to promoting economic development in rural areas.
Amendment No. 114 relates to Clause 206 and the supply of programmes to the Gaelic Media Service for broadcast on a Gaelic channel. That would be an enormous leap in the service available to Gaelic consumers who would no longer have to channel surf round the terrestrial channels for the odd snippet of their mother tongue but would finally feel that their language was being brought to them in a better, more coherent package. The Broadcasting Act 1996 created a digital service available via satellite through the Multiplex A licence holder. The Gaelic service provision is for a minimum of 30 minutes per year. The 1996 Act prescribed that programmes previously broadcast by the BBC and the Channel 3 licence holders be made available "free of charge" to the channel. Unfortunately neither the BBC nor the Channel 3 licence holders have done that, and they have not supplied programmes to the Multiplex A licence holder. Only programmes funded by the Gaelic Broadcasting Fund have been made available. The situation contrasts sharply with that of S4C which receives 10 hours per week from the BBC alone.
We feel that the Government are missing an opportunity to utilise resources already available to the new Gaelic Media Service. The amendment empowers the Secretary of State to impose the requirement that broadcasters provide a minimum 30 hours per week to the Gaelic Media Service. This amendment makes it clear to the broadcasters that they have to supply programmes other than those funded by the Gaelic Media Service. While that obviously places a burden to fulfil the requirements, we believe that it is achievable and that it constitutes much less of a burden than is endured by BBC Wales in its commitment to S4C. I beg to move.
4 p.m.
Baroness Michie of Gallanach: My Lords, as I have said previously, I welcome the setting up of Seirbheis

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nam Meadhanan Gàidhlig, the new Gaelic Media Service. By tabling these amendments we return to the issue of funding and the provision of programmes in Gaelic—that is, the number of television hours per year from the suppliers going out at peak times and not in the middle of the night as so often happens. I am grateful to the noble Lord, Lord Luke, for his support. He spelled out the reasons for these amendments and explained their purpose. I reiterate that the value of the Gaelic Broadcasting Fund has been eroded by cuts and inflation each year since its establishment in 1991 when its value was £9.5 million. If its value had been maintained, it would now be worth £12.5 million. Instead there has been a 33 per cent real-terms reduction which has severely weakened the fund.
Under the Broadcasting Act 1996 the remit of the Gaelic Committee was expanded to include radio as well as television programmes. Furthermore, it was expected that Grampian, Scottish Television and the BBC would each provide from their own resources at least 30 hours of Gaelic programming a year to the current licence holder, S4C Digital Networks. That has not happened.
The Gaelic Broadcasting Fund requires protection at least similar to that for the Welsh language. The Welsh language has not been subject to the same squeeze because, as we have heard, its fund has been index linked since 1998. However, I understand that the Welsh S4C funding has not kept up with the requirements of digital development coupled with inflation in the broadcasting industry. We have been told, and, I believe, that the Government have promised a review of funding for Welsh broadcasting. However, I am always very suspicious of reviews and ask myself when they will happen and how long they will take. Nevertheless I am sure that Welsh broadcasting will welcome the fact that the funding is to be reviewed. I submit to your Lordships that Gaelic deserves at least similar treatment.
These amendments seek to secure some sort of stability at last for future funding. I simply do not understand how the arrangements currently work. In Committee, the Minister said:
"I can confirm that the matters addressed in the current Bill as regards Gaelic broadcasting are wholly within the reserved policy area".
I welcome that statement. He went on to say:
"However, it is true to say that the funding of Gaelic-medium programmes through the Gaelic Broadcasting Committee is being provided by the Scottish Executive".
Then he said:
"The executive is not responsible, however, for programmes supported by the Gaelic Broadcasting Committee".—[Official Report, 22/5/03; col. 988.]
It seems a huge muddle. Perhaps the Minister can explain by what method this very specific fund, the Gaelic Broadcasting Fund, reaches the Scottish Parliament. He may say that it goes in some mysterious and opaque manner via the Barnett formula and the block grant. That may be so, but I doubt it. The Barnett formula operates on the basis of planned spending in departments in England. I believe that it works by identifying whether a spending area
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within a devolved administration is a comparable sub-programme in terms of spending by the United Kingdom Government on services in England. However, no programme in England is comparable to the need to fund Gaelic broadcasting in Scotland. So presumably funding does not come through the block grant. There are areas where various forms of funding are passed directly to the devolved administrations and simply bypass the Barnett formula. Perhaps that is the answer to the problem.
I do not like mysteries in government. We are supposed to be open and transparent these days—freedom of information and all that. Noble Lords can perhaps sense my frustration. Why do we have to argue about such a paltry sum when we know the benefits of a secure Gaelic broadcasting service—which would be of such enormous value to a language that is still alive despite having endured years of deliberate proscription and denigration? We believe that it is at last beginning to turn the corner. I ask the Government to give Gaelic broadcasting a long-term and secure future.
The Duke of Montrose: My Lords, I support these amendments. I must first apologise for being unable to take part at the Committee stage. However, I have read Hansard. On Second Reading I declared my interest as a life member of An Comunn Gaidhealach.
In Committee the Minister gave some very reassuring comments about the opportunity now afforded for having a dedicated Gaelic language television channel. Gaelic may or may not, as some of its apologists have asserted, have been the language spoken in the Garden of Eden, but it is a language and a tradition which for the best part of 2,000 years relied exclusively on oral communication to relay its truths and histories. Some historians have liked to cast doubt on the authority of that as opposed to a written history. However, it would be nice to think that technology has finally come up with a complete means to redress the balance which, particularly since Caxton went to work with his printing press, has worked against that sort of communication for this particular culture.
Speaking particularly to Amendments Nos. 113,211 and 212, the noble Baroness, Lady Michie, explained at Second Reading how the original concept in setting up the Gaelic Television Fund was that the target for production of Gaelic language programmes should be 200 hours per year. As my noble friend Lord Luke said, if the money provided then had been index-linked it would now be worth £12.5 million. He also made the point that it is sad that, since then, some of that money has been transferred to other purposes.
There is currently no legislative provision for maintaining, far less increasing, the fund, which is no doubt very comforting for those who have to deal with the purse strings. These amendments are a modest effort to ensure that current funding will at least keep up with inflation.
I shall try to follow up on the arguments made by the noble Baroness, Lady Michie. The Government have made an effort to point out that all funding is taken

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care of by the Scottish Parliament, which we understand. However, considering that such funding is presently based on Section 183 of the Broadcasting Act 1990—neatly transferred to Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999—can the amendments that we are proposing to the 1990 Act be similarly neatly transferred as the basis for consideration to the Scottish Parliament? A number of your Lordships feel that this issue is much in the interests of our historical cultural diversity.
Lord Crickhowell: My Lords, as a Welshman, I rise to support my Scottish colleagues in this House. In the days when I was Secretary State for Wales, I greatly regretted that I did not speak the Welsh language. I was, however, energetic in my support of it, and the late Lord Whitelaw and I played the major role in establishing S4C. Against that background, I have the greatest sympathy with those who want to see the Gaelic language supported and adequate broadcasting provision provided. I confess that I have not followed the exact arrangements in detail, and if the Minister can convince me that they are entirely satisfactory, and that there is adequate funding and so forth, fine. However, some reassurance would be helpful. This issue is of interest not only to Scottish Members.
4.15 p.m.
Lord Evans of Temple Guiting: My Lords, the amendments to Schedule 15 and the consequential amendments to Clause 205 would link the resources provided for the Gaelic Broadcasting Fund with the retail prices index. We believe that it is not acceptable for the Bill to provide for a guaranteed level of funding as measured against the retail prices index or, indeed, any other indicator.
The implied comparison with the funding for Welsh language broadcasting is clearly inappropriate. The Welsh Authority service was set up on a distinct basis to provide a fully-fledged channel, S4C. The formula approach to funding was therefore a basic element in its construction.
In the case of Gaelic broadcasting, although the Bill empowers a new Gaelic Media Service to broadcast a dedicated channel following the granting of relevant licences from Ofcom, that is a longer-term aspiration. What we are dealing with at the moment is a body that administers grants from the Gaelic Broadcasting Fund to provide a more limited service of up to 200 hours of Gaelic programming. In future, the Gaelic Media Service will take over that role. Any moves to create a dedicated channel for Gaelic programming are more likely to be evolutionary than revolutionary in nature. Moreover, this is expenditure wholly within the competence of the Scottish Parliament. Even if the other factors that I mentioned did not apply, I would not see the Bill as the right vehicle for imposing unilaterally a spending obligation for Gaelic broadcasting on the Scottish Executive.
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Amendment No. 114 after Clause 206 would give the Secretary of State the power to impose an obligation on the BBC, the Channel 3 licensees in Scotland and Channel 4 to provide at least 30 hours of Gaelic programming each year, free of all charge, to the Gaelic Media Service. None of those programmes may be funded wholly or partly by the service.
Under the Broadcasting Act 1996, read in conjunction with the Mulitplex Licence (Broadcasting of Programmes in Gaelic) Order 1996, the BBC and Channel 3 licence holders in Scotland are already obliged to provide, free of charge, the holder of the multiplex licence under which Channel 5 and SC4 Digital are broadcast with at least 30 hours of Gaelic programmes each year. Therefore, the amendment would effectively double the quota which the BBC and Channel 3 licensees have to make available. It is not clear from the amendment whether the same programming could be supplied to both SDN and the Gaelic Media Service.
The effect of the amendment would be to impose on the BBC and Channel 3 licensees an increase in their existing obligations with regard to the provision of Gaelic programming. That increase has not been the subject of any consultation or negotiation. As the 1996 order has not thus far been extended to Channel 4, it could also impose new obligations on Channel 4.
Amendments Nos. 214, 215 and 216 to Schedule 15 to the Bill would amend Section 32 of the 1996 Act to make the existing requirement on the BBC and Channel 3 licensees in Scotland, which is to provide 30 hours of Gaelic programming each year to SDN, subject to the proviso that such programming should not be funded by the service.
As with the previous amendment to Clause 206, the effect of the amendment would be to impose on the BBC and the Channel 3 licensees an increase in their existing obligations with regard to the provision of Gaelic programming to SDN, which, again, has not been the subject of any consultation or negotiation.
The noble Lord, Lord Luke, asked for—to put it bluntly—more money and for a review of funding for Gaelic broadcasting. It would not he proper for this House to commit those responsible for the funds, the Scottish Executive, to such a review of funding. However, the Scottish Executive will consider the case for an increase as part of its spending review in 2004.
The noble Baroness, Lady Michie, referred to the mystery of the funding arrangements, the lack of transparency and a general difficulty in coming to terms with where the money comes from and where it goes. We are aware that the funding for Gaelic broadcasting is met by the Scottish Executive from within the Scottish block grant. We will, however, write to the noble Baroness with precise details of how the money moves from one part to another.
The comparison with Wales is interesting, but we should all bear in mind that there are estimated to be 57,000 Gaelic speakers inside and outside Scotland and 500,000 Welsh speakers. That may give us some clue as to why Welsh television is more highly developed than its Scottish counterpart. As I said, we

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are looking not at revolution, but at evolution. It is the Government's wish to support the Gaelic language. It is the Executive's wish. If the demand is there, I am sure that a Gaelic television station will emerge in due course. In light of what I have said, I hope that the amendments will not be pressed.
Lord Luke: My Lords, while I thank the Minister for that answer, I found it pretty unsatisfactory. I cannot understand why it is inappropriate to compare the S4C and the Gaelic situations merely because one is one-tenth the size of the other. It still should be considered and surely it should have the same amount of money that was designated for it in 1990. The fact that it lost so much of its value should be taken care of. I am not asking, as the Minister suggested, for more money; I suggest that we should now have the money that was originally available. The fact is that the money comes in some mysterious way from the block grant to the Scottish Parliament but it still comes from Whitehall; that is where the block grant comes from in the first place. I find it rather strange that the reference involved the Scottish Parliament when I understand—I believe that the noble Baroness, Lady Michie, shares this view—that that is a reserved arrangement.
I thank the noble Baroness, Lady Michie, for her support; she knows so much more about this subject than I do. I also thank the noble Duke, the Duke of Montrose, and the noble Lord, Lord Crickhowell, for their support. This is not a very satisfactory situation. However, at this stage there is nothing more that I can say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 114 not moved.]
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 115:
After Clause 209, insert the following new clause—
"DUTY TO ESTABLISH AND MAINTAIN NATIONAL COMMUNICATIONS COUNCILSM
(1) It shall be the duty of OFCOM to establish and maintain National Communications Councils for England, Scotland, Wales and Northern Ireland.
(2) The chair and members of these Councils shall be appointed by OFCOM.
(3) In making appointments under subsection (2) in respect of Scotland, Wales and Northern Ireland, OFCOM shall seek nominations from the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly respectively.
(4) The National Communications Councils may review OFCOM's work in respect of their individual territories where such work affects devolved matters.
(5) The National Communications Councils may issue such recommendations to OFCOM or the Secretary of State with respect to their territories as they see fit.
(6) The National Communications Councils shall produce an annual report on their activities."
The noble Baroness said: My Lords, the amendment seeks to insert a new clause after Clause 209. The amendment is based on the recommendations of the specialist advisory committee chaired by Geraint Talfan Davies. The report was accepted in January 2003 by the Welsh Assembly Government.
In Wales and Scotland, the rural and remote agricultural communities experience financial hardship. They have poorer infrastructure in most domains. They are more dependent on broadcasting and telecoms for vital information as well as entertainment. New technology and e-mail can bring new jobs, education and employment diversity to those areas. Despite telecoms being an increasingly important component of the Welsh economy, the smaller Welsh economy is more susceptible to monopolies or quasi-monopolies.
The Bill as it stands runs contrary to the philosophy and policies of devolved government. With devolution has come an increased awareness of local issues and a clear recognition of the difficulties in rural areas for all aspects of education and communication, and health and other services delivery. The Scottish Parliament has many devolved powers and functions. The Welsh Assembly Government have been communicating closely with all agencies in Wales to ensure that concerns arc noted and, where possible, plans are put in place to address them. The Welsh Assembly Government are debating and making policy in all of those areas, which will directly impact on the people of Wales.
The development of the media goes far beyond the delivery of programmes. The infrastructure for communication networks is particularly complex in remote areas to strive towards equity of access. Devolved territories require their own separate advisory councils, reporting annually. Those can then be sensitive to local culture, including Welsh-language or Gaelic-language programming; to local topographical problems; to meeting local history, culture, education and information needs; and to the entertainment opportunities of its innovative and high-standard programming industries.
The proposed councils will be able to relate directly with the devolved government at civil servant and ministerial level over the devolved functions, especially health, environment, education, culture and economic development. Their responsibilities will be substantial.
The accountability will have clear management lines to the central structures of Ofcom, thereby strengthening Ofcom in devolved institutions, within a unified UK system of regulation. Ofcom's intelligence on the ground will he strengthened and formalised, and consistent connections will be built with relevant areas of civil society in each country. I beg to move.
Lord Roberts of Conwy: My Lords, I, too, shall speak primarily about Wales. I point out that the new clause applies to England, Scotland and Northern Ireland as well as to Wales.
The noble Baroness was good enough to accept my earlier Amendments Nos. 116 and 117 to her new clause and I hope that their incorporation in the new clause that is before us will make it more acceptable to the Government and to my noble friend Lord Crickhowell, who spoke on this issue in Committee.
The amendments were drawn up specifically to take account of the comments of the Minister, Dr Kim Howells, in Committee in the other place on a not

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dissimilar clause, which was moved by Mr Simon Thomas, the Plaid Cymru Member for Ceredigion. The new clause as amended will confine the national council's review of Ofcom's work in respect of Scotland, Wales and Northern Ireland, solely to the extent that it affects devolved matters. That Ofcom will affect devolved matters such as the economy, education and, in Wales, the Welsh language, is beyond question. Communications are all pervasive in regional and national life.
That the new clause is essential seems to me beyond doubt. If we do not have formal, statutory councils of the kind proposed, I am sorry to say that I can see nothing but trouble ahead for Ofcom in the national regions. My noble friend Lord Crickhowell mentioned S4C in our previous debate. Those of us who have had anything to do with broadcasting in Wales know that it can be a troublesome area. That was so long before the difficult birth of S4C in the early 1980s and I am sure that it will continue to be so.
The Minister, Dr Howells, in the other place told the Committee that the Government would,
"expect Ofcom to consult the relevant territorial departments and, through them, the devolved Administrations in order to seek nominations for suitable candidates".—[Official Report, Commons Standing Committee E, 12/12/02; col. 106.]
The candidates would be for the content and consumer panels. That is all right so far as it goes; indeed, since the Government accept it, I see every reason for its inclusion in the new clause—and included it is. However, there will be matters outside the scope of the consumer and content panels—matters relating to policy and direction. Who will advise Ofcom in those circumstances and warn it of the likely public reaction? It may not be known to local directors and so on. Ofcom will certainly need a sounding board of the kind that the councils will provide.
The Minister also anticipated consultative arrangements set up in a memorandum of understanding between Ofcom and the relevant Secretary of State for each nation. That is better than nothing, but my preference is for councils, enjoined by statute, similar to those of the BBC. Such councils will be a good sounding board for Ofcom, and I am sure will be found invaluable.
4.30 p.m.
Lord Currie of Marylebone: My Lords, in considering this amendment, it may be helpful to your Lordships to know what Ofcom intends to do on its own account with respect to advisory structures in Scotland, Wales and Northern Ireland.
Ever since I was appointed chairman of Ofcom last summer, I have made it clear and public that we will set up national advisory councils for each of Scotland, Wales and Northern Ireland, whether or not we are specifically required to do so under the statutes as finally determined. We consider that it will be of the highest importance to Ofcom that we receive advice at a senior level from those who can reflect the concerns
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and interests of people living in the home nations, such as those issues that have been highlighted by the noble Baroness, Lady Finlay.
There is a national representative from each nation already on the Ofcom content board and we would expect a similar arrangement to be put in place for the consumer panel, with the detail subject to the outcome of our consideration of the Bill. More generally, we are determined that Ofcom shall be present and properly represented in each nation. Ofcom executives have already made contact with the territorial offices and, while respecting the principle of reserved powers, with the devolved administrations.
We are engaged in discussions about how good, effective working relationships can he established. Those discussions will cover procedures for consultation; the appointment processes for the national councils; seeking advice on Ofcom's physical presence in each nation; and arrangements for the maintenance of regular contacts with the devolved administrations.
I greatly hope that that will serve to reassure noble Lords about Ofcom's own plans. We intend to do this well. I hope also that Ofcom will be allowed enough freedom in the wording of the Bill to allow these structures and processes to evolve organically from those discussions, and to demonstrate appropriate flexibility. Too much detailed prescription on the face of the Bill could be counterproductive.
Lord Crickhowell: My Lords, the whole House can be grateful to the noble Lord, Lord Currie, for his important contribution to our debate. It was precisely because I was worried that the original wording of the amendment would be in conflict with his closing words that I was critical of a similar amendment at the Committee stage, and pressed my noble friend Lord Roberts of Conwy to seek to put down amendments.
I entirely share the noble Lord's view that we must not put wordings into the Bill that might suggest to the national assemblies or to the other devolved bodies that they have responsibilities for the operations of Ofcom that they do not have. Similarly, we should not write into the Bill directions which go outside the proper role of advisory committees. I therefore understand and sympathise with the comments made by the noble Lord.
Having said that, the amendment now before us is very similar to the amendment suggested by the joint scrutiny committee and also to the amendment which I put forward in Committee. In a sense, the noble Lord, Lord Currie, has undermined any arguments against having it written into the Bill—clearly what this amendment suggests is very much in line with what they are already going to do—but, for the reasons that my noble friend Lord Roberts of Conwy has hinted at, there are some quite powerful arguments for having it actually covered in the statute, if only to give the reassurance that is sought in the nations and regions, and perhaps to eliminate some of those sources of conflict to which he referred.

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When my noble friend looks back to past history and to the troubles that we had in the very first days of the administration of which we were both members, I hope that he will not prompt anyone else to start, or threaten to start, a fast unto death, to get what they want. But those were the sorts of emotions that were raised at that time about broadcasting. He is quite right to say that these are touchy subjects.
I hope that the noble Lord, Lord Currie, and his colleagues will be able to accept the proposed wording. Alternatively, if there are some minor amendments that would make it easier for him to do so, perhaps they could be brought forward on Third Reading. If the noble Lord could accept something along these lines, which is broadly similar to what he is going to do anyway, it would, as my noble friend Lord Roberts suggested, help his task. It would calm things. It would give reassurance. I think that it would be a wise move. I therefore support the amendment. I hope that it, or something very like it, will emerge from the Bill when it leaves this House.
Lord McNally: My Lords, the intervention of the noble Lord, Lord Currie, was extremely helpful, but I have one small point to make. He indicated that Ofcom was planning to set up such councils for Scotland, Wales and Northern Ireland, whereas the amendment also specifically mentions England. This relates to the reason why we on these Benches support the amendment.
We are still coming to terms with and grappling with the realities of devolution. We shall also have to come to terms with the realities of devolution for England. I think that it would be sensible to have this kind of amendment on the face of the Bill—particularly as the noble Lord, Lord Currie, has gone so far in indicating his own thinking.
I believe that my credentials on this are sound because, both when I chaired a party committee and when I sat on the Joint Committee, I resisted the idea of specific national nominees on the main Ofcom board. I believe that it was right to do so. However, there has also been the powerful point made by the noble Baroness, Lady Finlay, and the noble Lord, Lord Roberts, that there are national sensitivities. It was put rather brutally by my noble friend Lord Thomas of Gresford in Committee that Ofcom would be run from the bar of the Groucho Club. Perish the thought! However, such sensitivities exist—namely, that what is happening in the regions and nations will not be fully appreciated by a metropolitan organisation—and they will have to be counteracted.
I believe that this amendment has the right balance. It addresses the right issue, as we understand that Ofcom is already well down that road. I think that it would be a very smart move on the part of the Government simply to accept it.
Lord Northbourne: My Lords, the noble Lord, Lord Crickhowell, in what may have been a Freudian slip, referred to "the regions". This amendment would appear to refer to the three devolved nations and then, in rather general terms, to England. There is an
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asymmetry about the amendment that distresses me, because I believe that in England there are many different regional concerns, which ought also to have the opportunity to be expressed on a level footing with the concerns of the devolved nations.
Baroness Buscombe: My Lords, I rise briefly to support the amendment. I entirely agree with all that noble Lords have said. My noble friend Lord Roberts of Conwy referred to the possibility of trouble in the national regions. I was also interested in that statement. Perhaps we could have a debate on the definition of "national" and "national regions".
I agree with my noble friend Lord Crickhowell. Notwithstanding the fact that it is extremely helpful to have the noble Lord, Lord Currie, offer his reassurances on this matter today, it would be better if this issue were covered properly in statute. The changes introduced by my noble friend Lord Roberts of Conwy are extremely helpful and sensible. I hope that the amendment will be accepted.
Lord Davies of Oldham: My Lords, I am very grateful for the way that the noble Baroness, Lady Finlay, presented her arguments—reinforced, as they were, by subsequent contributions—on an area which we debated at considerable length in Committee. This amendment advances the issues which were discussed in Committee, and the debate has taken place in a very constructive way.
I have listened carefully to the debate and I want to respond as constructively as I can. Of course. we are sympathetic to the anxieties reflected among the nations and to the obvious concern expressed fully in the opening speech that broadcasting is a significant feature of life in scattered communities, as is the case in certain parts of Scotland, Wales and Northern Ireland.
I am very grateful, too, for the contribution of the noble Lord, Lord Currie. He reinforced a point that we also expressed in Committee; that is, there is no way that Ofcom would go about its business without having due regard to the needs of the nations which make up the United Kingdom. I recall that at that time the noble Lord said that there had been a considerable number of visits to outlying possibilities. Much constructive work has been done, and I do not need to do anything other than thank him for his contribution and reinforce what he said this afternoon.
We are somewhat hesitant about expressing in the legislation a degree of rigidity in relation to the committees that Ofcom would set up. It is recognised that Ofcom has provision for representing the nationalities with regard to contact sports, and so on. But we are anxious about the degree of rigidity that would be involved in establishing four committees of Ofcom in the way that has been argued. Throughout the passage of the Bill, we have sought to avoid placing unnecessary constraints on the structure of Ofcom or limiting its flexibility in dealing with changing circumstances.
However, the case has been well deployed today. We do not wish to accept the amendment at this stage and hope that it will not be pressed. But we undertake to

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consider this debate in full, to look at the issues again and to see the extent to which we can amend the Bill without, at the same time, falling into the trap of rigidity, which would do harm to the broad objectives that we all share. On that basis, and heartened by the debate, I hope that the noble Baroness will feel able to withdraw the amendment.
Lord Maclennan of Rogart: My Lords, before the Minister sits down, can he indicate whether he has consulted the Welsh and Scottish Executives and whether they have given any indication as to what their attitude would be?
Lord Davies of Oldham: My Lords, certain aspects of their attitude have been well expressed. With regard to the feeling in Wales on this matter, I leave that to the eloquence of the contribution of the noble Lord, Lord Roberts. In introducing the amendment, the noble Baroness sought to reflect proper concern for the nations, and we all recognise that concern. But the noble Lord will also recognise that some difficulties arise with regard to this issue. Broadcasting is not a devolved issue. Respect for the views of Wales, Scotland and Northern Ireland is very important. Suggesting that this matter should be directed from Scotland, Wales and Northern Ireland is a different matter altogether.
Baroness Finlay of Llandaff: My Lords, I am most grateful to all who have spoken in the debate. In particular, I express my gratitude to the noble Lord, Lord Currie, for his contribution and for his very reassuring remarks. I accept the advice of the noble Lord, Lord Crickhowell, that some improvements could be made to the wording of the amendment. I am extremely grateful to the Minister for his sympathetic remarks concerning the spirit of the amendment, and I accept that some rewording should take place. In the light of those comments, I should like to take up the offer to reconsider the amendment and to reword it. Therefore, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 116 and 117 had been withdrawn from the Marshalled List.]
Clause 215 [Duty to secure the provision of a public teletext service]:
4.45 p.m.
Lord Addington Lord Addington moved Amendment No. 118:
Page 191, line 5, at end insert "and which is, so far as practicable, accessible to persons who are blind or have a dual sensory impairment".
The noble Lord said: My Lords, in moving Amendment No. 118, I shall speak also to Amendments Nos. 135 and 139. The noble Baroness, Lady Wilkins, will not be here to support the amendment. I have been informed that she was injured
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in a fall from her wheelchair and thus will not be present in the Chamber today. I hope that we can all join in wishing her a hearty recovery.
Noble Lords: Hear, hear!
Lord Addington: My Lords, the amendments concern issues that we have already addressed. However, we did not come to a satisfactory conclusion with regard to the idea of teletext services being available. As a result of various technical innovations—for example, through items such as a Braille printer being attached to the system—the analogue system is currently available to those who have a sight impairment and to those with a dual impairment in sight and hearing,
I have been assured by the RNIB and its specialist adviser that great difficulties will arise under the changeover. When the adviser spoke to Portset—the Talking Teletext manufacturer—it was said that no device could be made to read the digital teletext in its current format. However, we were assured that, with a new software programme, it would be possible for the service provider to provide a programme which accesses and reads the contents in different ways—that is, it would be compatible with assisted technology. Effectively, such a programme can be devised if one takes the time to apply pressure and ensure that people think about the problem.
When it comes to providing news, it is particularly important that we remember those who have dual sensory impairment. I had a meeting with the Minister and other Members of this House at which the subject of dual sensory impairment—that is. deafness/blindness—was discussed. I hope that this will be a warning shot with regard to later amendments. It was said that if one deals with problems affecting the blind or with those affecting people with hearing impairment, then one deals also with problems affecting the deaf/blind. That is not true. One simple reason is that usually if a person has a hearing problem, he can go primarily to a visual medium for support, or vice versa. In this case, the teletext and the printer which provides Braille enables the sense of touch to provide the information, and that would greatly assist certain groups. As people live longer, the number of those with dual impairment is bound to rise. Effectively, in Amendment No. 118 we are suggesting that the Government should place upon Ofcom the duty to ensure that the best use is made of technology. According to technical advice, we believe that that is now possible.
I turn to Amendments Nos. 135 and 139. These Benches become rather more friendly towards Sky than is normally the case. We suggest that public broadcasters should allow and pay for audio description to be used on the Sky system so that it can reach those who already have the Sky box. Radio 4—it is nice to use the BBC against the BBC—in its "In Touch" programme, asked its listeners for their views on this matter. One response was, "Why should we not use the Sky system?". I must apologise for not being present at one of the briefings, but Sky now has a

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system which delivers audio description. A secondary system which delivers audio description—it may not be quite so good—is infinitely better than a good system that is not available.
A response to the "In Touch" programme stated:
"You asked if the listeners wanted AD [audio description] well this one does. You also asked how we wanted to receive it. Any way we can. When do we want it?—I wanted it the day I got my audio description set on my Skybox. I despair of this penny pinching and mean spirited country sometimes, it is shameful".
The sentiments and language are probably true of all phone-ins. What are the costs? There was an initial cost of £6,000 and then £20,000 per annum per channel of extra bandwidth. Of course, it is not only £20,000. It expands some local/national channels. But the sum is probably under half a million pounds per year.
The RNIB, whose hand lies heavily on these amendments, suggests that there may be a case to answer under the DDA for not taking reasonable steps to ensure that people receive the system. I suggest that there is a case to answer. If the Government accept the amendments they will he dealing now with the problem for a large number of people. Approximately 480,000 people with a visual problem have access to Sky. It would be a step forward which would not get in the way of those who choose to receive the free-to-air services in other ways. It would merely ensure that those with systems in place receive access now. I beg to move.
Lord Morris of Manchester: My Lords, I congratulate the noble Lord. Lord Addington, on the success he has achieved in the proceedings so far on this important Bill. None of his amendments is more important than Amendment No. 118 with its concern for people who have a dual sensory impairment: the Helen Kellers, as it were, of contemporary Britain.
When I was Minister for disabled people from 1974–9, I was asked what combination of disabilities I thought was the most devastating in its effects. The question was, of course, unanswerable; but I recall that my first inclination was to offer blindness combined with pre-lingual deafness as my response. For it takes scant imagination to appreciate the extent and severity of the handicapping effects of being without hearing, without sight and without speech.
My noble friend Lord Ashley played a leading role in 1970 in enacting the world's first-ever legislation on the dual sensory impairment of deafness and blindness; and this must he an evocative moment for him, fighting the good fight for them again as he is today.
There are those who think that without any action in Westminster or in Whitehall someone will turn up and design new equipment to replace talking teletext and that this will sort the problem out. But it will not. It has to be understood that it is the format of digital teletext itself which is the fundamental problem. The technical expert for the Royal National Institute for the Blind has studied the issue and looked at the structure of digital teletext and how it works. He has concluded that Portset (talking teletext manufacturers) are right to say no device could be made to read digital teletext in its
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current format. That is why this amendment is so important. It would ensure that Ofcom does all it can to ensure blind and deaf-blind people's continued access to teletext post-digital switchover.
What would he untenable would be for Westminster and Whitehall to do nothing. The experience of audio description should teach us that these things should not he left to chance. Nor is it tenable to expect small specialist providers to continue to fill in the gaps in the market and expect cash-strapped, deeply excluded consumers to pay exorbitant amounts of money for a service which everyone else gets at no extra charge.
Amendment No. 118 is very much about social inclusion. I hope that the House as a whole will recognise its importance as today's debate proceeds.
Lord Carter: My Lords, in Committee I tabled amendments which dealt with audio description. Therefore, I wish to speak to Amendments Nos. 135 and 139.
The technology is there. As we heard from the noble Lord, Lord Addington, it is available already on Sky for approaching half a million blind and partially-sighted people. It is available on other broadcasts but only to about 65 people who had the trial modules. There seems to be a real problem in persuading the manufacturers that there is a market for producing set-top boxes. We are told that the technology on trial at present with the 65 trial modules is better. I believe that it is an accepted European standard. But there is still the problem of bridging the gap.
In Committee, the Minister said that requiring the BBC and ITV to simulcast audio description on Sky digital would somehow jeopardise the development of receiver-mixed audio description for digital terrestrial. I wonder sometimes—I dismiss it as an unworthy thought—whether broadcasters who are invoked with free-view consider that if consumers could obtain the service on Sky they would be less inclined to have free-view. Later amendments deal with how the percentage of audio description is calculated; and the powers of Ofcom to vary it.
The set-top boxes could be adapted extremely cheaply. We are told that the chip for the set-top boxes costs only about £10 and that the facility will soon be available on all set-top boxes. If it is available, but that does not take place, I ask the Government seriously to consider the possibility raised by the noble Lord, Lord Addington, of a case brought against the broadcasters under the Disability Discrimination Act. It would be unfortunate, if I may so put it, if the Government were to side with the broadcasters and perhaps resist these amendments, or similar provisions, and then find that they are conniving in a situation which could result in the broadcasters losing a case under the Act. The RNIB is prepared to back a legal case against the broadcasters because we are talking about a very reasonable adjustment.
The DDA applies explicitly to access to and use of a means of communication. Section 21 of the Act places a duty on service providers including broadcasters to amend policies, procedures and practices which

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prevent disabled people using a service and to provide auxiliary aids and services. Therefore, I ask the Minister to consider the issue extremely carefully. The technology is there. There are two kinds of technology. We are not clear why there is this delay in the more advanced technology being adopted. However, if it is not adopted, there is a strong chance that a case could be brought under the Disability Discrimination Act. It would be unfortunate if the Government were backing a situation which turned out to be illegal.
5 p.m.
Lord Ashley of Stoke: My Lords, I make two basic points. First, I thank the noble Lord, Lord Addington, and my noble friends Lord Morris and Lord Carter for their contributions. I appreciate what they have said. They have covered most arguments.
However, on Amendments Nos. 135 and 139 there is a clear conflict about the facts of the situation which should be resolved to the satisfaction of the House. In Committee, the Government said that the cost of Amendments Nos. 135 and 139 was an issue—and for our briefing we have relied heavily on the RNIB and the RNID, both of which have been excellent—but the RNIB, on the contrary, states that nothing could be cheaper or easier to arrange. Only one is right: it is either an issue of cost or it is easy and cheap.
I have enough confidence in my noble friend to assume that he will treat these amendments with great sympathy, but if for any reason he cannot, I do think that it is incumbent on the Government to illuminate the costings and to say what these expensive costings are. Of course we could think about different wording or something of that kind. However, I hope that the Government will he able to give us the details of why these developments will be very expensive.
My second point is on discrimination. I am a great advocate of the DRC taking legal action if one gets recalcitrant employers or organisations and so on. I press all the time to start legal action but I wonder in this case. It occurs to me that it is a form of discrimination if blind or partially-sighted people cannot use these wonderful advances. So I agree with the noble Lord, Lord Addington, that the Government or the DRC should consider taking action.
But why take that risk? Why bother? The simple answer is to accept the amendments and one would not then need to argue about legal action. The answer is plain and simple for the Government and lies in the amendments tabled by the noble Lord, Lord Addington. I hope that they are able to accept these three amendments.
Lord Luke: My Lords, I associate noble Lords on the Conservative Benches with the sending of best wishes to the noble Baroness, Lady Wilkins, and hope that she will be back with us before too long.
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We support Amendment No. 118 in principle. I was most interested to hear the noble Lord, Lord Carter, say that the technology—I hope I have this right—with regard to the digital teletext is there, but that it is too expensive to deliver.
Lord Carter: My Lords, I was speaking about technology on audio-description, which is in Amendments Nos. 135 and 139.
Lord Luke: My Lords, I beg the pardon of the noble Lord, Lord Carter. Nevertheless, I just want to say that we support the amendment and hope that the Minister can give us some joy on what is being delivered. It is very important that the discrimination described by the noble Lord, Lord Ashley, does not take place. 1 am not sure that I go along with the idea of suing, but certainly we wish to see progress on this as on other issues.
The Lord Bishop of Manchester: My Lords, we on these Benches have consistently supported amendments tabled by the noble Lords, Lord Addington and Lord Ashley. I simply want to say that I endorse and repeat that support for these amendments.
Baroness Howe of Idlicote: My Lords, my contribution will also be brief because everything that I want to say has been said. I have read the RNIB briefing. Like the noble Lord, Lord Addington, I was particularly moved by the pleas made by those who wrote to say that they would have wanted these services and facilities from the moment they arrived.
It is clear that this is a growing market. We are told that the longer people live, the more likely they are to be disadvantaged in this way. So the market is there. The costs are going down the whole time. So, again, there is every reason to be doing this. Inclusiveness was mentioned, which the Government have as a main objective. I think it is a very desirable objective. We can now see that if push comes to shove there is a clear possibility that a case could be made under the DDA.
So I hope very much that the Minister when responding will be able to accept the role that government must play if the broadcasters are to have this responsibility. It must be overseen and underwritten by the Government.
Lord McIntosh of Haringey: My Lords, I share with all noble Lords who have spoken today our keenness that people with sensory impairments should benefit by improved access to all television services including the public teletext service. I think that view has been universally expressed. In particular, we recognise the peculiar problems of those with dual sensory impairment. My noble friend Lord Ashley was particularly eloquent on that point in Committee.
There is a problem between analogue and digital. Those who are visually impaired and those with dual sensory impairment have access to analogue public teletext services and other analogue text services through Talking Teletext equipment, which uses a

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teletext decoder and a voice synthesiser to translate written teletext into audible speech. The information can be stored on a computer and printed out in Braille. That is fine for analogue teletext services, but the digital technology, for reasons I shall not go into, does not enable the same thing.
The amendment would require Ofcom to introduce a new kind of technical requirement in the regulatory regime for the public teletext service with no certainty of how and at what cost the broadcaster might fulfil any condition imposed. We want the legislation to be future-proofed. In so far as we can, we want to provide for any anticipated new beneficial technologies, but we really cannot include in a Bill an obligation on Ofcom to do something that we do not know can be done, and which, even if it could be done, we do not know how to do it.
The fallback situation—I realise that this will not be entirely satisfactory—is that in carrying out its functions Ofcom has a general duty to have regard to the needs of persons with disabilities. Of course that includes the needs of those with dual sensory impairment. So there is the general duty pushing Ofcom in this direction, but we are arguing that it does not need a special provision of the kind set out in Amendment No. 118.
We do not just rely on the wording. One of the key tasks of the technology and equipment group of the digital action plan is to consider the specific equipment needs of disabled people. We will ensure that the issue of accessibility to digital teletext services is taken forward within the work of the group. The most effective way would be a commercial solution, but it does not need to be reflected in the provisions of the Bill.
Lord Addington: My Lords, I intervene in the hope that it will save time later on. Is the noble Lord saying that, to the best of his understanding, if, say, a new software system was designed that would make access to teletext possible, it would have to be brought into being and used in the existing structure?
Lord McIntosh of Haringey: My Lords, certainly the digital action group would take that forward, yes. The general duty on Ofcom would oblige it to take action on it. I do not know what that action would be. It depends on whether the technology is inherent in the broadcasting process or is much wider, which is converting the spoken word into something which is intelligible, particularly to those with dual sensory impairment. So I cannot tell on whom the obligation would lie, but I can say that the digital action group has a responsibility to take it forward and that if it takes it forward and finds the solution, Ofcom has a duty to progress it under its general duty towards people with disabilities.
On Amendments Nos. 134 and 139, we fully understand the need to ensure that, where a channel must be offered on a network or satellite service, any viewing aids that relate to that channel are also carried. But in fact, audio description, which is what is in play here, is just one form of ancillary service. As is clear
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from subsection (6) of Clauses 268 and 269, the Bill already provides a "must offer" obligation to encompass ancillary services, as well as the main "must offer" channels to which they relate. Given Ofcom's general duty, to which I referred, under Clause 3(3)(i), to take into account the needs of persons with disabilities, we have every sympathy with the motivation behind the amendments, but there is already specific provision.
I turn to the issue of the Disability Discrimination Act 1995, to which several noble Lords referred. That Act relates to persons who provide the services—in other words, to the broadcaster, certainly not to the Government or Ofcom. Although the debate about the type of audio description is for Ofcom to deal with, the question of compliance with the Disability Discrimination Act is for the broadcasters. If nothing were done, they could be prosecuted under the Act. It is in their interests to take the necessary steps. That needs no further action from Ofcom or the Government.
I hope that it is clear that we are in sympathy with the amendments. We believe that we are taking the necessary steps, both for dual sensory impairment and for audio description, to advance provision as fast as technically feasible.
Lord Addington: My Lords, the Minister's argument—"Don't worry; it is already covered twice"—was plausible. As for his answer on Amendment No. 118, it was interesting and should be considered in detail by those who helped me with—let us be honest, performed—the drafting. I am prepared to withdraw the amendment to consider exactly what sort of cover is available and whether the process is strong and quick enough.
However, when it comes to Amendments Nos. 135 and 139, I am less happy. We are basically dealing with the cock-up school of history come to life. We are producing audio description that no one can receive. Boxes do not have the technology available; no manufacturer has been going through a system. Then we have a system through which we could access a huge chunk of those using a free-to-air service—something that the public are funding and which the public should be able to access but which, because of an administrative disagreement, they cannot.
To be honest, that is on the edge of sanity. If our figures are right—the Minister did not challenge them, as the noble Lord, Lord Carter, said—we have every grounds for pressing ahead. But the Minister then effectively said, "If you have a case, go and do it". To pick up on the words of the noble Lord, Lord Ashley, if we must use the existing legal structure, we shall. I am not sure whether the Bill is the right way with which to deal with the matter, but I say to all those listening, please remember that if you are to give us nothing other than a legal option, we shall use it.
Lord McIntosh of Haringey: My Lords, before the noble Lord decides what to do about those later amendments, there are two aspects to what I said. First, under Clauses 268(6) and 269(6), Ofcom will

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already have the powers sought under the amendments. Secondly, under the Digital Action Plan, we are already taking steps to act using those powers.
Lord Addington: My Lords, with due respect, I accept that, but the fact is that audio description, which has previously been allowed for in legislation, has been produced but still is not getting through. There is no guarantee in the Bill or in any discussion about it that we will have the box with a chip in place. We have heard good noises; we have heard of things going forward. Perhaps we should not press the amendments; we have not reached the appropriate stage in the Bill. I am trying to listen and to be as co-operative as possible.
However, good intentions were already there. That is why the issue arises. We have not achieved them. Having said that, there is a case for further discussion and for returning to the issue at a later date—if, indeed, there is still a live issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 229 [Meaning of "television licensable content service"]:
5.15 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 118A:
Page 205, line 36, at end insert "if such service is accessible from the main service immediately by the execution of a single action"
The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 119 and 120. The Government have stated that they have no intention of regulating the Internet. On Second Reading of the Bill in another place, the Secretary of State stated that,
"we do not intend to regulate the internet, but … we intend broadcasting to be subject to a tough content regulatory regime".—[Official Report, Commons, 3/12/02; col. 784.]
The Government have further stated that they,
"have tightened the definition of television licensable content so that it only covers, and can only cover, services that consist of radio and television programmes that are available for reception by the general public—in other words, so-called push technology. In that way, we exclude the internet—a point about which several hon. Members were particularly concerned, because it is pull, rather than push, technology".—[Official Report, Commons, 4/3/03; col. 777.]
However, the world in which we live is one in which the distinction between television and the Internet is becoming increasingly blurred. It is possible to access the Internet via digital television; it is possible for near-broadcast quality pictures to be distributed via broadband connections on the Internet. That is why it is important to define what is meant by television—and therefore is capable of being regulated—and what is Internet content, and therefore not regulated. That is what Clauses 229 and 230 are intended to do.
Clause 229 sets out a definition of what should be regulated—that is, what is to be considered as a,
"television licensable content service".
That includes not just television programme services and electronic programme guides but other services that can be accessed via digital television, such as enhanced facilities that provide alternative camera angles or background information. Subsection (3) provides that where there are direct links to other services, such as websites, the links to those services and, potentially, those services themselves—both being within the definition of relevant ancillary services in Clause 229(6)—should be seen as part of the television service and therefore subject to regulation.
Clause 230 makes clear that there are a number of exemptions to the definition of "television licensable content services". Those include all websites, as specified in Clause 230(3), if they are accessed via a personal computer, and most types of website that can be accessed via digital television.
However, increasing amounts of the content that can be accessed on websites is of a broadcast-type nature, known either as "webcasting" or "webstreaming". If such content can be linked to via digital television, it appears that Clause 229 will make that content subject to content regulation by Ofcom, as the webcasting service providing it will be defined as a relevant ancillary service. Such a service will not fall within the exclusions set out in Clause 230(3).
At present, the functionality is still being developed that will allow webcast material to be screened on a television set, but it will not be long before satellite and cable set-top boxes can play webcasts that are accessed via websites available on television.
There is an argument that someone sitting in his or her sitting room watching the television not only expects what he or she sees on television to be regulated but also expects any television-type material that he or she can access to be regulated as well. But in the converged world, that is surely anomalous: the consumer expects to be able to access the same material from a website on his or her PC as he or she can access from a website that he or she can reach via the television.
Equally, a website that provides web-streaming will be capable of being accessed both via television and from PCs. There is a real danger that, as presently drafted, these clauses would allow for the back-door regulation of Internet content. Any company that provides both a television service and a web-streaming service would be at risk of its web-streaming service being classified as television licensable content if it could be linked in any way, however remotely, from a television service.
Our amendments seek to deal with the situation by introducing the principle of putting distance between the television service that viewers are watching and the web-stream they are capable of accessing. Everyone can agree that the viewer should not he able to switch by a single click of the remote control from a regulated television environment to an unregulated web-streamed one. However, if viewers see a link in a television service and have to follow a route out of the regulated environment, then they ought to be able to access the same web-based material as they could access via a PC.
These amendments seek to introduce the idea of web-streaming provided via a website accessible by television being at least two clicks away from the regulated television environment so that viewers would know that they were leaving a regulated environment and entering an unregulated one.
These are probing amendments aimed at elucidating exactly how the Government intend to address the issue. The Explanatory Notes to Clause 229 state that although a link to a website would be regulated as part of television licensable content, the website at the end of the link would be neither regulated nor within the licence of the main service. But the note fails to point out that this is not true for websites that consist of web-streaming services provided by companies that also provide television services where the web-streaming service is accessible, however remotely, from the television service. The amendments seek to reintroduce the principle of an unregulated Internet which, we understand, has been government policy. I beg to move.
Lord Avebury: My Lords, when I first read the amendments I was not entirely clear what the noble Baroness was driving at and I am grateful to her for that explanation, which has made matters a great deal clearer. I understand that a television licensable content service means TV or EPG, whether broadcast from a satellite or distributed through an electronic communications network, and that "relevant ancillary service" includes any other service apart from advertising which is ancillary to a programme and relates directly to its contents. Thus if the web-streaming service to which the noble Baroness referred was not immediately relevant to the content of the main service, then she need not worry about it. However, the noble Baroness seeks to limit this to a service which is accessible from the main service by the execution of a single action, which I think would be rather too limiting.
An example is given in the Explanatory Notes. At this point I must say that the notes for this particular clause are much more helpful than is usually the case. Often when I turn to them I find that generally they paraphrase what is set out in the Bill, whereas for this clause the Explanatory Notes give an excellent description of a service that might be covered.
They cite a wildlife programme which allows the viewer to choose different camera angles via a menu or to access factual material about the animals from within the broadcast stream. Those would be relevant ancillary services because they are made available by the provider of the main service, but they might not be accessible by the execution of a single action. The viewer might first have to bring up the menu on screen and then perform a second action to pick one of the options displayed. No doubt the provider would try to make the choices as simple as possible, but the effect of the amendment would seem to be to exclude these menu-driven services from the definition and thus to require the provider to obtain a separate licence for
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them, even though from a common-sense point of view they are ancillary to the main service because they come directly under the control of the main provider.
Lord McIntosh of Haringey: My Lords, I am not qualified to know whether the response of the noble Lord, Lord Avebury, to the noble Baroness, Lady Buscombe, has been effective, but I am sure that she will be glad to have had it fed into the debate. This is a horribly complex subject and one on which we know that there is not immediately in sight a definition that will please everyone. That is why we have provided in Clause 231 for amendment of the definition if future technological and other changes require it so that policy objectives continue to be met.
The central distinction we want to make here is that of keeping broadcast services within regulation and leaving on-demand services outside. I think we are all agreed on that point. We have already held discussions with representatives of Channel 4, which is interested in the issues raised by these amendments, and no doubt we shall continue to hold those discussions. We think that the concerns of Channel 4 are misplaced, but we want to ensure that the definition is right. Officials are available to continue to discuss these matters.
Let me explain why we cannot accept these particular amendments. Amendment No. 118A would have the effect of ensuring that an ancillary service which could be accessed from the main service only by "two clicks" should be unregulated. However, that would take out of regulation ancillary broadcast services such as interactive Wimbledon camera angles accessed from BBC1 if they could be accessed only via the BBCi interactive area. I do not think that that is what is intended.
Amendments Nos. 119 and 120 seem to try to ensure that any Internet service dedicated to broadcast material is excluded from regulation as a television licensable content service so long as it is at least two clicks away from a television or radio programme. Our definitions already effectively exclude Internet services of the kind with which we are familiar, but the scenario which our forward-looking colleagues in the industry may have in mind is a service wholly dedicated to web-casts and operated in such a way that it met the criteria for television licensable content services and so fell within regulation. Where that happens, the power in Clause 231 to change the definition would come into force.
However, the particular service to which Channel 4 has referred in discussion is that which provides on the web an uncut version of a film which can be broadcast only in cut form. Channel 4 did this with the Danish film "Dogme #2—Idioterne". We think that such services are already excluded from regulation by way of the definitions in the Bill.
As I said, we are more than happy to continue our discussions to ensure that the definitions work well, but I hope that the noble Baroness will not press her amendments.
Baroness Buscombe: My Lords, I thank the Minister for his response and I agree that this is a complex

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subject. It is certainly helpful to have the contribution of the noble Lord, Lord Avebury, and I admit that I should like to reserve my thoughts until I have had an opportunity to read in Hansard what he said.
This is an important area and I am grateful to the Minister for his reassurance that the Government are in discussions with representatives of Channel 4. This is a matter that will be of growing interest and debate as the distinction between television licensable content services and the Internet inevitably blurs with the further development of the technology. Indeed, I recall that, prior to Second Reading, I had long and really interesting discussions with various people in the media industry about this situation, which will grow. Indeed, the blurred distinction here might test the lifeline of this legislation. It may bring about the need to consider in the future how we deal with licensable content for broadcast television and then find that something available on the Internet is not regulated in any way.
I am grateful to Channel 4 for its two-clicks proposal. It has certainly helped me to understand the potential problem that may arise as the distinction becomes more blurred. I am grateful that the Minister will continue discussions. I hope that the definitions will work and reassure Channel 4 and others in the broadcast media. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 230 [Services that are not television licensable content services]:
[Amendments Nos. 119 and 120 not moved.]
Clause 245 [Services that are not radio licensable content services]:
5.30 p.m.
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 121:
Page 218, line 38, leave out "or"
The noble Lord said: My Lords, in moving Amendment No. 121, I shall speak also to the other government amendments in the group. I shall delay commenting on three amendments that have been tabled. In Committee, I attempted a pre-emptive strike against amendments. It resulted in a colossal failure on my part. I sought to pre-empt some quite brilliant speeches and suffered the ignominy of being put in my place. I also gave away all the arguments that I had intended to deploy against the amendments and I therefore came off rather worse. So this evening I shall make no comment on those amendments, but I hope, with the leave of the House, to reply to them in due course.
The government amendments relate to the agreement we made in Committee, following an amendment tabled by the noble Lord, Lord Avebury, and the noble Baroness, Lady Howe, that we would consider the need to regulate electronic programme guides provided on radio and giving access to radio services.
In this fast-moving environment, we need to ensure that EPGs for digital audio broadcasting radio, such as the one recently launched, are regulated whatever form they take, whether they are purely sound services, visual or audio-visual services. This is the purpose of Amendments Nos. 121, 122, 164, 220 and 221.
Amendment No. 218 is a minor amendment to correct a drafting error. It removes the exclusion of digital additional sound service from the definition of "additional radio service". I beg to move.
Lord Avebury: My Lords, I speak to Amendment No. 161, which is grouped with these amendments. The amendment clarifies the meaning of "due prominence" for public service broadcasters on electronic programme guides and ensures that due prominence is given to the correct national or regional variation of public service channels—for example, BBC Wales in Wales and Granada in the North West.
When this issue was debated in Committee, there was considerable support for these arguments. However, at the same time, concerns were expressed by the noble Lord, Lord Lipsey, and the noble Baroness, Lady Buscombe, that the amendments as tabled were rather too prescriptive. Others were concerned that we might be getting involved in a commercial dispute between the BBC and Sky over the electronic programme guide listings.
Since then, I am happy to say, the BBC and Sky have resolved their difference in a way that satisfies the public interest. The BBC will no longer purchase an encryption service from Sky and will therefore broadcast its channels in the clear on digital satellite. BBC1 and BBC2 will continue to be located at slots 101 and 102 on Sky's electronic programme guide.
The BBC will purchase a regionalisation service from Sky to ensure that viewers with viewing cards within the UK receive the right national and regional services. That applies to everyone who has pay TV. In future, new customers will have to buy a card if they wish to access the regional variation of their choice at slots 101 and 102. They will still of course be able to access those channels by memorising a three-digit number if they do not want to buy a card.
The way in which the dispute has been resolved does not guarantee that the outcome of any future commercial arguments between platform operators and public service broadcasters will necessarily be in the public interest. The dispute has underlined the need for Parliament to set as clear objectives as possible for Ofcom while leaving it adequate discretion to implement the policies set by Parliament. That is the purpose of the amendment.
Unless Ofcom is given greater clarity than we gave to the ITC, it is possible that the same problems that led to the recent dispute between the BBC and Sky will

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arise with other public service broadcasters. That cannot be in the interests of the consumer, Ofcom or your Lordships' House.
Baroness O'Cathain: My Lords, I support Amendment No. 161, which has been spoken to by the noble Lord, Lord Avebury, and to which my name is attached.
In Committee, great prominence was attached to the importance of public service broadcasting. It is important that the public service channels—BBC, ITV and Channel 4—are able to broadcast their programmes in a way that makes them easily accessible to viewers across all platforms. There is little point in insisting that our public service channels should produce in their programming a certain amount of regional news if in order to find it you have to scroll down to the nether regions of the electronic programming guide.
In our deliberations on the Broadcasting Act 1996 I fought for top prominence for the public service broadcasting channels in the electronic programming guide. This was accepted. However, some seven years later, we are now re-engaged in the same issue. When we had those debates in 19961 am certain that we never even considered that Sky would be in a position unilaterally to move the BBC from the top positions 101 and 102 in the EPG—but that is what it recently proposed.
However, I believe that the voices raised in this House—in a period when, by chance, we happened to be debating relevant legislation—made clear the importance that Parliament attaches to the ability of citizens to find their public service broadcasters. Fortunately, as the noble Lord, Lord Avebury, said, the dispute between the BBC and Sky has been settled. But we cannot expect such legislation to be on the Floor of the House when there is a future dispute between commercial platform operators and a public service broadcaster. We need to do more than make our views known. We need to give clarity to the regulatory framework and we need to ensure that public service broadcasters will always have prominence.
Technology has moved on since 1996. The purpose of the amendment is to provide clarity for the regulator in the light of that change. I hope that the Government and my own Front Bench will listen sympathetically to the arguments that the noble Lord, Lord Avebury, and I have made.
Baroness Howe of Idlicote: My Lords, I rise briefly to explain why I have attached my name to the amendment spoken to by the noble Lord, Lord Avebury.
It is important to emphasise that the purpose of the amendment is to ensure that all public service channels remain easily accessible to viewers. This concerns not only the BBC, but ITV, Channel 4 and Channel 5.
As has been mentioned, the BBC and Sky, thankfully, have resolved their current dispute. But ITV's contract, for example, expires in autumn 2004.
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The amendment establishes that public service channels should be at a position on the EPG that is no less prominent than will be the case at the enactment of the Bill.
The amendment also importantly clarifies that when we refer to "due prominence" we mean for the right regional version of a public service channel. This is particularly important for ITV, with its unique regional structure. A viewer in Manchester expects to receive Granada on button 103. The viewer in Belfast expects to receive Ulster TV. How can we urge ITV to uphold its long-standing public service tradition if we are not prepared to will the means to ensure that viewers are guaranteed easy access to their regional services?
Lord Lipsey: My Lords, I rise to speak to Amendment No. 162 standing in my name. I am delighted to see the noble Lord, Lord McNally, back in the Chamber because he gave the House wise counsel in a previous debate. He said that in this dog fight between the BBC and Sky it would be sensible for Parliament to keep its distance. He slightly spoiled the effect by then supporting the amendment drafted by the BBC. Never mind, his advice was wise. It was shown to be so by the agreements, to which the noble Lord, Lord Avebury, has referred, reached between Sky and the BBC without any help from us. Those wise words should resound with us as we consider these amendments.
Again we have to choose between two extreme positions, although "extreme" is perhaps unfair. One favoured by the BBC is put forward by the noble Lord, Lord Avebury, and others in Amendment No. 161, and we have heard the case for it. The other, favoured by Sky, is at the other extreme, arguing there should be no change in the Bill. I am not sure who will put that case. I said from the beginning that I thought that Parliament could do with giving a nudge, but not a push, on this matter—not siding with one side or the other, but nudging in favour of the public service channel. That is the thrust of my amendment. It may be feeble, but it endeavours to say that Ofcom should use its best endeavours to make sure that the public service channels do not lose their present prominence. There may be situations in which it is right for that prominence to be reviewed. If, for example, BBC Four was doing incredibly well and BBC Two was doing incredibly badly, it might be a good idea for BBC Four to be promoted, and Ofcom should allow that. That would register with Ofcom Parliament's will that due prominence should be given to the public service channels. I hope that the Government will he sympathetic.
Lord Crickhowell: My Lords, I agree with virtually everything said by the noble Lord, Lord Avebury, my noble friend Lady O'Cathain, and the noble Baroness, Lady Howe of Idlicote. My former company HTV believes the issue to be of crucial importance for it and similar companies for the reasons that the noble Baroness, Lady Howe, argued well. As to which amendment to choose, I would prefer a firm push

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rather than a gentle nudge, so I strongly support the amendment proposed by the noble Lord, Lord Avebury.
Baroness Gibson of Market Rasen: My Lords, I shall speak to Amendment No. 163 in my name. This is a plea on behalf of smaller broadcasting channels and for clarity within the proposed code of practice. I have placed the amendment at the request of S4C, a channel that broadcasts in Welsh and which I had the pleasure of seeing, if not totally understanding, on my recent visit to Cardiff.
Ofcom has a duty to draw up and revise periodically a code of practice to be followed in providing EPGs and especially to give due prominence to public service broadcasting channels. S4C has already experienced some problems with its placings in Wales, and it does not believe that the due prominence element on EPGs is being followed. EPGs will be a key issue in future broadcasting and may well alter people's viewing habits perhaps more than any other aspect of the digital revolution in broadcasting. Most people do not know the number of the channel that they want to watch but instead surf the channels, as I often do. This presents a problem for channels like S4C, which are not genre based.
For example, S4C hosts a well-known and, I understand, well-respected children's programme, "Planed Plant", which in English is "Children's Planet", but this cannot be found in the children's section of the EPG and has to be searched for. Any codes of practice must be strong enough to protect not only the larger broadcasters, but the smaller broadcasters, such as S4C. The channel number on an EPG is crucial in that the smaller broadcasters do not have large marketing or promotional budgets, so their profile must be prominent enough to give ease of access to them by channel hopping. This amendment aims to ensure that the smaller broadcasters such as S4C are given a fair chance in the code of practice.
5.45 p.m.
Baroness Buscombe: My Lords, I reassert my comments in Committee. We believe that public service channels should have prominence, especially those channels referred to—BBC One, BBC Two, and ITV. The noble Baroness, Lady Howe, referred to ITV's unique regional structure. It is important to ensure that these public service channels are easily accessible across all platforms. Notwithstanding, I sympathise with the amendments proposed. I am still concerned about the prospect of putting something into the legislation as opposed to leaving it with Ofcom. Technology is moving ahead all the time, the introduction of new channels is growing, we are going to have more and more public service channels, and I am concerned about those kinds of channels—such as the History Channel, which does not happen to be a public service channel but has all the characteristics of one—being pushed further down because they do not happen to have that label, PSB.
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The amendments do not answer my continuing concerns. It is important that Ofcom should take on the task early in its life of drawing up a code on the application of EPGs. As noble Lords have said, there has been a long expectation for a code on EPGs to be put forward by Oftel and the ITC. It is important that Ofcom takes this work forward at an early opportunity so that easy access to the channels of viewers' choice is safeguarded, but I am concerned about the lifeline of this legislation, which I mentioned in the last amendment, and the flexibility for Ofcom to be able to respond to what I hope will be an ever-increasing number of channels. There should be more choice for the viewer, good, high quality public service channels, but there should also be no discrimination against other channels that do not happen to be PSB but provide high quality viewing.
Lord Davies of Oldham: My Lords, I sound a note of dreadful warning. The two Front Benches are in total agreement. My contribution is almost otiose after the careful arguments deployed by the noble Baroness, Lady Buscombe. However, I shall also say that as there has been no dissent I hope that the Government's attempt to meet the requirements of the agreement that we struck in Committee are agreed in the form of a government amendment.
First, I turn to Amendment No. 163, spoken to by my noble friend Baroness Gibson. She is right that it is necessary for Ofcom to consult widely, and we expect that to be done. Before it draws up and revises the code on electronic programme guide, they should consult, as we expect them to consult on all significant decisions. I point out to my noble friend that appropriate consultation by Ofcom is already required as part of its general duty to follow the best regulatory practice. We provide for that in Clause 3(3)(d), and, therefore, we do not believe that there is any need for a specific statutory provision regarding this area of consultation, although I do value the fact that my noble friend has emphasised that fact, and it will be part of Ofcom's remit. There is also a danger that accepting a specific amendment might give rise to the implication that Ofcom is specifically enjoined to consult in this area but not in others. In fact, I think that it is recognised that we want maximum consultation by Ofcom on all crucial decisions.
I must say—this relates to a point touched upon by the noble Baroness, Lady Buscombe—that it is not just a question of public service channel providers. It might not be just those providers who ought to be consulted. They are affected by the "due prominence" provision, but they are not the only parties affected by that provision or by the other topics that will be dealt with in the code, such as fair terms between EPG operators and service providers or accessibility for people with disabilities. It is for that reason that we think that it would not be right to make the amendment, even though it is an important reminder to Ofcom of its obligation to carry out due consultation on a matter as important as the code.

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I turn to the amendments to which I shall have the most difficulty replying. I do not want to go too much into the general argument, as I agree with the way in which the noble Baroness, Lady Buscombe, expressed the matter. She may feel that that is a nod of congratulation warmly to be wished, but, in that area, we are in agreement. We are all convinced of the benefits of EPGs and the need for viewers to find their public service channels easily. We are strongly committed to ensuring that public service channels are given due prominence on EPGs.
As was mentioned by the noble Lord, Lord Avebury, an important step forward was taken during the deliberations on the Bill in the agreement reached by the BBC and Sky, which the noble Lord defined with great accuracy. Obviously, I hope that, if similar issues arise in relation to other public service channels, they will also be solved in such an appropriate way. In case there is any doubt, I shall make it clear that, when I talk about due prominence being given to a public service channel, I mean it to apply to all the regional variations of that channel. Each of those variations should benefit from due prominence to the same extent. As it is a matter of public policy, I agree that it is something that Ofcom should address in its code.
For the same reason, I have some sympathy with the provisions in new subsection (2A)(b) and new subsection (2B), proposed in Amendment No. 161, so ably spoken to by the noble Lord, Lord Avebury. I shall consider further whether we should include something to a similar effect in the Bill. Having said that, however, I have reservations. They relate to the reservations emphasised by the noble Baroness, Lady Buscombe. They were also reflected in the speech made by the noble Baroness, Lady O'Cathain, who referred to the fact that things had changed apace since the Broadcasting Act 1996—only seven short years ago.
We are trying to put into statute significant arrangements for the industry, and we are all too aware of the fact that things move on apace and we must come to terms with the rapidity of change. We just do not know how things will evolve in the all-digital world. Our perception of what "due prominence" should mean might change—for instance, when new channels are created. The inevitability of such change is the reason why we have aimed to ensure that Ofcom has the necessary powers and flexibility to regulate EPGs of every form and on every platform. The code will be central to that regulation and will need to balance our policy objectives with the need, to which we have often referred, to leave commercial operators as much room as possible to negotiate their affairs without interference. Finding that balance is not easy. Given the increasing importance of EPGs, which several noble Lords accurately identified, we must think about how we deal with the matter. However, it would be unwise to allow Ofcom only six months in which to draw up that important code.
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We will move towards the significant arguments that were presented. My noble friend Lord Lipsey referred to the concept of the "nudge"; it is a bit more than a nudge. The argument has caused us to think about how we can move towards the objective, while not so confining ourselves in legislation that we cannot keep up with the rapidity of technological change that we are wrestling with.
Baroness O'Cathain: My Lords, I said that the world had moved on since 1996, and, of course, that is true. It has moved on in a big way: at that stage, I was battling with my party's government over the prominence of public service broadcasters on the EPG.
What I really wanted to say—perhaps I did not express it well—was that, although the world is moving on, it is important that we always maintain public service broadcasts in the prominent position. Of course, that also involves regional channels, as the noble Baroness, Lady Gibson of Market Rasen, said. The Minister threw back at me my remark that the world had moved on, but I have not changed my focus. The public service broadcasters must be in the prominent position.
Lord Davies of Oldham: My Lords, I apologise to the noble Baroness if I gave that impression. It never crossed my mind that, when she was thinking about how the world had moved on, she was talking about the arrival of a different administration. Such a thought would never cross my mind, as the noble Baroness will readily understand.
I sought to emphasise that we all recognise that, with any Act that aims to establish a framework for broadcasting at a time of rapid technological change and development, we must move with great care. We must put in statute and try to maintain a degree of flexibility that enables Ofcom to do its work without being cabined and confined too much. I was merely making that point.
Baroness Howe of Idlicote: My Lords, I wanted to follow up one point. My memory may be at fault. Certainly, the concept of public service broadcasting—
Lord McIntosh of Haringey: My Lords, this is Report stage. Interventions are supposed to be made before the Minister sits down and are supposed to be related to what he has said. They are not to be used to expand on previous points.
Baroness Howe of Idlicote: My Lords, my intervention relates exactly to what he said. I thought that I had got up before he sat down. I shall, of course, do what is required. I was going to say that the Bill is meant to be sufficiently future-proofed to take account of the speed of change, so that, if and when it becomes necessary to deregulate in this area, it will be possible to do so. That was my only point.
Lord Davies of Oldham: My Lords, I agree entirely. The noble Baroness puts it more succinctly than I did.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 122:
Page 218, line 40, at end insert "; or
() it is comprised in a television licensable content service."
On Question, amendment agreed to.
[Amendment No. 123 had been withdrawn from the Marshalled List.]
6 p.m.
Lord Davies of Oldham moved Lord Davies of Oldham moved Amendment No. 123A:
After Clause 257, insert the following new clause—
"RENEWAL OF RADIO MULTIPLEX LICENCES
In section 58(2) of the 1996 Act (renewal for twelve years of radio multiplex licences granted within six years of commencement)—

(a) for "which is granted within six years" there shall be substituted "granted within ten years"; and

(b) for the words from "for a period" onwards there shall be substituted

"(a) in the case of a licence granted within six years of that commencement, for a period of twelve years beginning with the date on which it would otherwise expire; and

(b) in any other case, for a period of eight years beginning with that date."

The noble Lord said: My Lords, the UK leads the world in digital audio broadcasting. One of the reasons, I am informed by the industry, is the early supporting legislation, to which reference has already been made. One of the attractive features of the Broadcasting Act 1996 was that radio multiplex licences could be automatically renewed on one occasion. That automatic renewal applied to all radio multiplex licences issued before October 2002. The amendment proposes to extend such renewals to those issued before October 2006. That would include those issued between October 2002 and the commencement of the new provision. We consider the four-year extension necessary to help keep going the momentum of digital radio. Although the UK leads the way in the field, it is only now that sufficient numbers of affordable receivers are available in our shops. Digital radio is still in its infancy. It is still not economically viable.
The aim of the amendment is to continue to encourage investment in digital radio multiplexes. Licences issued between 2002 and 2006 can be extended for eight rather than 12 years, so that all the licences will expire no later than 2026. We believe that, in view of the development of the digital radio industry, eight years is the right figure. It strikes a balance between offering an incentive to those considering taking up a licence while not committing Ofcom to using the spectrum in question for radio multiplexes too far into the future. I beg to move.
On Question, amendment agreed to.
Clause 258 [Access radio]:
Viscount Falkland Viscount Falkland moved Amendment No. 124:
Leave out Clause 258 and insert the following new Clause—
"COMMUNITY RADIO
(1) In subsection (2) of section 84 of the 1990 Act (regulations by authority of independent radio services) after paragraph (a)(iii) there shall be inserted—
"or—
(iv) for the benefit of members of the public in a defined geographical locality or of a particular community and not operated by the BBC or for commercial purposes (a "community service")".
(2) In subsection (6) of section 104 of the 1990 Act (application for other licences) in paragraph (b) after "satellite" there shall be inserted ", community".
(3) After that subsection there shall be inserted—
"(6A) In determining whether or to whom to grant a licence to provide a community service and the duration of such licence OFCOM shall have regard to the extent to which the proposed service—

(a) would confer significant benefits on the public or on the particular community for which it is proposed to be provided;

(b) demonstrates evidence of support by the public or the particular community for which it is proposed to be provided;

(c) includes provision for public access to training, production and broadcast facilities;

(d) includes measures to ensure accountability to and participation by the public or the particular community for which it is proposed to be provided; and

(e) would be distinctive from existing local sound broadcasting services licensed to cover over 50 per cent of the proposed service's coverage area."

The noble Viscount said: My Lords, the amendment introduces a new clause to replace Clause 258. It has been drafted by the Community Media Association in consultation with the Commercial Radio Companies Association. It has the purpose of placing community radio in the Bill rather than leaving it to secondary legislation.
Community radio has stimulated a good deal of interest, not only among members of the public but also in government circles. The amendment seeks to provide a clear definition of community radio, among other things. I do not think anyone could disagree with the definition—it may not be perfect, but definitions seldom are. It states that community radio is,
"for the benefit of members of the public in a defined geographical locality or of a particular community and not operated [either] by the BBC or for commercial purposes".
It is a growing sector, and it is surprising that the Government have not sought thus far to recognise that fact by hastening the right support and structure for community radio. Most noble Lords will agree that the unfortunate term "access radio" seems to have been dropped: it was not a happy choice of description of community radio, which is generally the term used in other countries. The Government have acknowledged the benefits of community radio. There has been strong parliamentary support for it. Over the past 12 months, with the Government's agreement, the Radio

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Authority has introduced some experimental services, including what was known as the access radio pilot scheme.
The independent evaluation of the scheme was completed in February this year by Professor Everitt, former secretary-general of the Arts Council. It lends strong support to the case for a distinct licensing framework for community radio, which the amendment introduces. Professor Everitt remarked that the new tier of radio provision,
"promises to be the most important cultural development to take place in this country for many years".
The question that the amendment addresses is not whether to proceed but how and under what rules. While the detail of licensing can obviously be left to Ofcom, there does not seem to us any remaining reason why there should not be provision for community radio in the Bill. That would give clarity to those who aspire to become community radio broadcasters and to the radio industry generally. It will ensure increased confidence in the growth of community radio, building on a clear parliamentary mandate for development.
There has been considerable discussion and consultation on community radio, starting with the White Paper and involving a Select Committee, the Joint Scrutiny Committee, a draft Bill, and debates in both Houses of Parliament, as well as the pilot scheme that I mentioned. The amendment has three major components. I have dealt with the definition, which is the first, but the second component—namely, the selection criteria—is also important. Such criteria should confer significant benefits to the public or a particular community, and demonstrate clear public support.
Further, provision for public access to training, production and broadcast facilities should be included, as well as,
"measures to ensure accountability to and participation by the public or the particular community",
for which the service is to be provided. It is also important that the community radio service should be clearly,
"distinctive from existing local sound broadcasting services licensed to cover over 50 per cent of the proposed service's coverage area".
The third component relates to the regulatory framework. The amendment would ensure that community radio would fall into the regulatory framework of the Broadcasting Act 1990 as a "sound broadcasting service" alongside "national services", "local services" and "restricted services". The same rules would apply to community services as currently apply to restricted services, including requirements to conform with the relevant programme content, advertising and sponsorship and technical regulations. Similarly, the regulatory powers to impose financial penalties or shorten a licence period and to revoke licences would also cover community services.
Various questions arise from the amendment regarding the financial viability of those who seek licences, but such issues are clearly understood by your
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Lordships and I shall not, therefore, elaborate further on them. I hope that we have now reached the point where the Government might give further support—which is already gathering momentum—to community radio, as the amendment suggests. I beg to move.
Lord Bragg: My Lords, I support what the noble Viscount, Lord Falkland, said. This provision should be in the Bill; it would provide a clear definition, and help, to community radio. Anything that helps community radio does great good for the duties and opportunities in this country of local communication. We can hammer on and on. We live in a technological world, not only at a massive level but also at a local level. Such local opportunities are golden. If we can get it right here, it will be a great help to many communities in this country. In fact, for what it is worth, I think the two great areas of technological growth in the future are global and intensely local.
Community radio in this country is encouragingly advanced. I think it is our duty to sow this marram grass and help prevent the shifting sands of merely global, national and moneyed technology from drifting around without roots.
Lord Phillips of Sudbury: My Lords, I, too, strongly endorse this amendment. In many ways, it is as important an addition to the Bill as virtually any we are discussing. We have developed, and are developing, a society which is increasingly, as the noble Lord, Lord Bragg, has just mentioned, money-driven and top-down. This is the part of the broadcasting spectrum that is bottom-up—of the people, by the people, for the people. It surely must find a place in the Bill.
I refer the Minister to the fact that his own Government have placed huge store—rightly, in my view—on the 10th report of the policy action team which came out of the first initiative taken by the Prime Minister after Labour was elected to power in 1997. That action team encapsulates in its report perhaps the most important single insight of all 18 action teams: that social inclusion—and this amendment is about eliminating social exclusion—can come only from self-help and by communities doing for themselves what they think appropriate and what they want to do, rather than being told from on high. I very much hope that the Government will give this a fair wind.
Baroness Howe of Idlicote: My Lords, I, too, will be extremely brief. Everything that I have heard and seen about access radio—now renamed community radio—since debates on the Bill have begun has left me with the feeling that it is very worth while. As the noble Lord, Lord Phillips, has said, it will certainly help regarding social exclusion. To be able, within a community, to help it communicate about the various issues that concern it is a crucial part of how communities and citizenship develop.
Lord Puttnam: My Lords, I add my support to a very important concept. I would go further—I would like to

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think that this is a beginning, not an end. The whole notion of community building is surely at the heart of Labour Party policy and, interestingly enough, was the theme the shadow Home Secretary, Oliver Letwin, used in an excellent speech in Brixton last week. He said:
"I believe in the miracle of the establishment of a neighbourly society—the bringing about of sustainable social programmes in our inner cities".
It is surely beyond question that the ability of communities to talk to each other, to communicate with each other, to get to know each other better has to be the most fundamental paving stone towards better and more neighbourly communities.
I was very lucky a couple of weeks ago in Liverpool to be shown a facility that has been built whereby I was able to webcast question and answer sessions with elderly people trapped in tower blocks. The creation of this type of technology and this type of opportunity in the process of building communities in this country should surely be a priority for the Government, not an add-on to a very large and complicated Bill. I should have thought this could be central to the Bill and the beginning of something far more important than the brief discussion we have had this afternoon would suggest.
6.15 p.m.
Lord Evans of Temple Guiting: My Lords, Amendment No. 124 seeks to replace the existing community radio clause and to bring community radio directly within the existing regulatory regime for applications for radio licences. There is a real problem with the amendment, as it refers to Section 84 of the 1990 Act, which is to be repealed. Leaving that to one side, we feel that there are very good reasons for rejecting the amendment.
Fundamentally, we believe that our Clause 258 is simply more effective. As drafted, it already gives Ministers the power to set up community radio regimes. All noble Lords who have contributed to this debate will be happy to hear that we plan to do this by introducing an order later this year, following consideration of Anthony Everitt's report, which the noble Viscount, Lord Falkland, mentioned.
The Government believe strongly—to echo the comments of every noble Lord who has spoken—in community radio and in the future of community radio. As I said when we considered the same amendment in Committee, the amendment also seems problematical in that it seeks to bring community within the mainstream radio licensing regime by inserting a reference to community radio into Section 104 of the 1990 Act. But Section 104 deals simply with the process of making an application, and would not allow us to introduce, for instance, specific content regulation. Were we to accept the amendment in place of the provisions in Clause 258, we would lose the ability that we have deliberately reserved to tailor the regulatory regime in a way that is more appropriate to
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community radio. The result would he that community radio would be subject to the same rules as commercial radio services.
I ask the noble Viscount to withdraw his amendment, recognising, I hope, that the Government believe very strongly in community radio and that, by introducing an order later this year for consultation and debate in both Houses, they will demonstrate their commitment to this extraordinarily important cultural and social matter, which my noble friend Lord Bragg described so eloquently.
Viscount Falkland: My Lords, I thank all those who have taken part in this brief debate for the support which has been given to the amendment, particularly the noble Lord, Lord Bragg, the noble Lord, Lord Puttnam, the noble Baroness, Lady Howe, and my noble friend Lord Phillips of Sudbury, all of whom added an element of their own to the argument. All those arguments added up, as I interpret them, to an agreement that there should be something on the face of the Bill. The Minister said that that was not possible; I shall look very carefully at what he said in Hansard—
Lord Evans of Temple Guiting: My Lords, I do not think that I said it was impossible; I argued that the provision was already in Clause 258 and, in connection with the order which we wish to introduce later this year, that shows the Government's commitment to community radio.
Viscount Falkland: My Lords, that is exactly the point. I would like to read carefully what has been said and to consult the authorities in community radio on their reaction to the Minister's remarks. They may well receive them more favourably than I appear to have done.
It is quite clear that we have moved on apace during the Bill's proceedings in accepting the importance of community radio, as has been said by those noble Lords who were kind enough to support the general drift of my amendment. Obviously reserving the right to come back should it be necessary, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 260 [OFCOM reports on the fulfilment of the public service remit]:
Lord Lea of Crondall Lord Lea of Crondall moved Amendment No. 124A:
Page 231, line 13, at end insert—
"() that sufficient high quality original drama is broadcast covering a range of issues in a variety of formats:"
The noble Lord said: My Lords, there was very wide support for the principle of this amendment in Committee. For example, people of the eminence and wide experience of my noble friend Lord Bernstein, who speaks with great authority, pinpointed exactly why it was important to have a specific reference to high-level drama. The spirit of Report stage being very brief and succinct, perhaps I may say that many of us

783
have been very selective in the amendments that we have pressed. That is why I think this one is of considerable importance.
There is wide anxiety in the House, and in the country that the defining quality of British television, which is admired by people around the world, is very much bound up in drama—both contemporary and classical—as well as other facets of broadcasting, notably news analysis. It is a treasure and it would be an historic mistake and hard to put Humpty-Dumpty back together again if drama were to be abandoned.
That is the heart of the problem, from the informal observations of people in the industry, and those who are not in the industry but who are part of the wider cultural establishment, such as the British Council, television and drama critics, and so on. Superb, high quality drama is not a question of division between ourselves and the Front Bench, but there is division over whether, as the Minister said in Committee, it is necessary to include it in the Bill. The Minister said that it was a fair enough point, but that it was not necessary to add it to the Bill because drama is one among many other programme types referred to in the earlier recital in the Bill. However, the question needs to be discussed a little more face to face. We have not gone past the stage of discussion although it is becoming a little late in the day. We are not two ships passing in the night, with classical drama dying a death. International comparisons arid research demonstrate unequivocally that simply having a list of programme types in the recital is exactly what will allow the removal of that sort of quality television. Therefore, general lists do not cut too much ice.
I am sure that my colleagues who support the amendment would think it timely if the Minister were to agree to meet to consider this question. I beg to move.
Lord McIntosh of Haringey: My Lords, without wishing to pre-empt debate—clearly, there will be a debate after I have spoken—we could be in some procedural difficulty as a number of amendments in the group are government amendments to which other noble Lords will wish to respond. I hope that the House will agree that I should intervene now to debate the government amendments and then, with the leave of the House, respond to that debate before the mover of the prime amendment decides what to do.
Amendment No. 127 imposes a requirement on broadcasters to include programmes of an educational nature and other programmes of educative value. After we debated the amendment tabled by the noble Baroness, Lady Howe, in Committee, we concluded that the requirement for broadcasters to provide programmes on educational matters did not accurately reflect our intentions. Amendment No. 127 clarifies that programming covered in Clause 260(6)(e) should not apply only to issues relating to education such as school class sizes, for example, but should extend to programmes whose purpose is to educate and which have educational value.
784
Amendments Nos. 128, 129 and 133 relate to programmes dealing with religion. Amendments were proposed in Committee both to modify the focus of the current reference to religion in Clause 260(6)(f) and to make reference to other forms of belief.
Having reflected on that, we have identified two separate concerns that we can meet. The first is to make it clear that the reference to religion within the remit encompasses both factual programmes about religion and programmes of a religious nature. We interpret that as meaning the portrayal of religious activity, including acts of worship. The second is to add a reference to other beliefs, which would include ethical systems or philosophies such as humanism or secularism.
Amendment No. 128 expands the reference to religion in the matters listed in subsection (6) of Clause 260 to "religion and other beliefs". Amendment No. 129 sets out the range of issues to be encompassed by programmes dealing with religion and other beliefs. The effect is that public service broadcasters as a whole will have to provide programmes which, first, convey factual information relating to religion and other beliefs, including news, tenets of faith or belief, and history. Secondly, they must portray activity relating to religion and other beliefs, in particular, by showing acts of worship and other ceremonies and practices, such as church services and the equivalent for other faiths. That includes some services or ceremonies in their entirety.
I shall not respond to Amendment No. 129A at this time if the House agrees. Amendment No. 133 defines "belief" to mean a collective belief in, or other adherence to, a systemised set of ethical or philosophical principles or mystical or transcendental doctrines.
On Amendment No. 130, the noble Lord, Lord Lea, argued in Committee for a strengthening of the reference to programming for children and young people in the public service television remit. The provision for children's television in the public service remit is already unique among the list of requirements in that it specifies that programming should be both high quality and original. Nevertheless, we accept the case for an additional safeguard. Amendment No. 130 therefore expands the existing wording to refer to a suitable quantity and range of programmes for children and young people. That is similar to the formulation used in respect of the requirements for education programming and programming on topics such as science, religion arid international issues.
I think that I have dealt with the government amendments, and if the debate proceeds, I can then, with the leave of the House, respond to other amendments.
Baroness Howe of Idlicote: My Lords, in speaking to my Amendment No. 131, may I say that I am in favour of all the other amendments, including the government amendments? I am most grateful to the Minister for the amendment on educational nature and value.

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I resubmitted my amendment because there appeared to be some misunderstanding about its intention when it was debated in Committee. The misunderstanding came particularly from the noble Baroness, Lady Buscombe. My noble friend Lady O'Neill had kindly taken over the task in Committee of moving the various amendments in my name to Clause 260, as I could not be present the day on which they were called; or it may have been a question of divorce.
I had intended to stress the importance of ensuring on the face of the Bill that programmes for children included a significant quantity about the UK's history, culture and traditions—and specifically geared to audiences in this country. That is particularly important for the child audience who will shortly become the UK's adult citizens.
There are two reasons behind that thinking. First, with an increasingly multi-ethnic and multi-cultural population, the commissioning of this kind of programme would be an important public service duty for broadcasters. The intention is perhaps not dissimilar from that of Amendment No. 125, which will be moved later by the noble Lord, Lord Holme. I am glad to have the opportunity again of correcting any misunderstandings that there may have been about what I said on another occasion. I am very enthusiastic about the noble Lord's amendment. My amendment is intended better to equip today's young people to play a full and active part in the UK, particularly in their citizenship role.
Secondly, the amendment is intended to act as a further hedge against the possible consequences of foreign ownership. Should a global player take over a major part of our broadcasting industry, it would need a regulation requirement of this kind to avoid the temptation to produce nothing but homogenised programmes that were saleable world wide.
I thank the Minister for tabling so many amendments. We are all most grateful to him for having listened to the many concerns about the wording of the clause and its subsections. I am therefore sure that he will be able to reassure me that his Amendments Nos. 127 and 130, I think, will meet the concerns on this point that many people have voiced to me.
6.30 p.m.
The Lord Bishop of Manchester: My Lords, in speaking to my Amendment No. 129A I welcome most warmly government Amendment No. 129. I am very grateful to the Government for listening carefully to the views that have been expressed from these Benches and across the House about the importance of reflecting in broadcasting the significant place that religion and other beliefs have in our national life. Amendment No. 129 does in my view meet the aspirations of many people both within the Churches and in the population at large of whatever faith and none. Certainly there are many elderly or disabled and others who for various reasons are confined to their homes who will be especially grateful for the emphasis on the broadcasting of worship.
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Amendment No. 133 is an interesting definition of "belief", not least because it repeats as part of its definition the very word it seeks to define—an echo perhaps of what I think was Sydney Smith's much quoted answer to the question about the functions of an archdeacon:
"an archdeacon is one who performs archidiaconal functions".
I take Amendment No. 133 to be an entirely appropriate attempt at an umbrella definition. In that sense it meets the need adequately. What Christians mean by belief is quite different, for example, from what Jews mean by belief. Each faith, or non-faith, sees things differently and poses different sets of questions. So as far as these Benches are concerned we are willing to back this definition of belief. As a distinguished theologian with whom I shared my views and sought his put it:
"I should have thought that if you were to support this amendment you would be standing on a not uncertain wicket".
Amendment No. 129A in my name and that of the noble Lord, Lord Phillips of Sudbury, makes what I hope will be seen as a benign drafting point in relation to government Amendment No. 129. I think that it is the Government's intention that news and other information about different religions and other beliefs should include discussion programmes. I am sure your Lordships would agree that intelligent engagement and dialogue is particularly important in areas of religion and belief, not least because it is often the most effective way of building up tolerance and respect between people of differing viewpoints, and thereby encouraging greater harmony and understanding on these fundamental issues within local communities. It is a point which in a different way the noble Lord, Lord Puttnam, has recently made in relation to an earlier amendment.
So I hope that, at least by specific mention in the record of this debate, the desirability of such positive exchange in discussion—being as it were a genre within the programmes dealing with religion and other beliefs—will be affirmed by the Government.
Baroness Whitaker: My Lords, I rise very briefly to support all these amendments. They seem to me to be an extremely worthy group. I should particularly like to welcome my noble friend's amendments and Amendment No. 129A in the name of the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Phillips of Sudbury. They all seem to me to strike exactly the right balance for a modern, tolerant and civilised democracy.
Lord Holme of Cheltenham: My Lords, I rise briefly to comment on Amendment No. 124A and on the government amendments to do with the definition of belief, including Amendment No. 133. I very warmly support the aspirations of Amendment No. 124A. I think that drama—and I choose my words carefully—is the jewel in the crown of broadcast television. We need it, and it is one of the things that we do best in this country.

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If I can be marginally pedantic, perhaps I may say that I was not sure in the amendment as drafted about the notion that drama covers a range of issues. I recognise the place that "Cathy Come Home" has in that tradition of issue-based drama, but does all drama have to have an issue? Can it not be the product of imagination and not simply of issues? Does every drama have to have a helpline attached at the end of it? Is Brideshead Revisited about student homosexuality or interfaith marriages? Is "King Lear" about care in the community for ageing monarchs? I am not at all sure that the movers of the amendment have not slightly constricted themselves. Perhaps if the word "imagination" found its way in there as well as "issues" it would improve the amendment. But that is not to say that it detracts in any way from my support for it.
In the same mood of pedantry I shall move on, if I may, to Amendment No. 133 in particular. I was impressed by how easily pleased the right reverend Prelate was with this definition, which seems to me extremely tricky. I am not saying that I for one could do any better. I think that it is a matter that has vexed philosophers down the ages. However, there are certain problems with this definition in terms of Ofcom, which has to make it work. First, are all "beliefs" equal? I imagine that at one time the Government considered using the word "faith" rather than -belief', but they have come up with belief in the end. I think that "a not uncertain wicket" probably is not what our Lord had in mind when he talked about St Peter as a rock. I think that a "not uncertain wicket" is probably slightly different from the rock of faith which sustains most religions.
I think that the Government have problems, for example, in contrasting within the definition of belief a systemised set,
"of ethical or philosophical principles",
on the one hand,
"or of mystical or transcendental doctrines",
on the other. Certainly Christianity, Islam and Hinduism combine those so that—in this mood of pedantry—the amendment at least should read, "and/or of mystical or transcendental doctrines", which would describe most of the major faiths.
More practically, rather than picking at this very difficult piece of drafting, how far does this extend? Would the so-called Church of Scientology now be able to apply for judicial review if it did not receive proper coverage from public service broadcasters? My observation is that the smaller the number of people who adhere to the so-called systemised system of beliefs, the more intense is their fervency. It seems to me that if the Government are not very careful they are going to make it extremely difficult for Ofcom to distinguish between the major faiths which we would all like to see receive adequate coverage in the way that the right reverend Prelate described and the more
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marginal and very significantly minority views which would nevertheless claim to have codified their views in one way or another.
Lord Bragg: My Lords, I should like to support my noble friend the Minister in his amendments which I think are very welcome and very well thought through. I should also like to support the right reverend Prelate the Bishop of Manchester with regard to his remarks about religious programmes. Those of us who make them find them extremely difficult to make. They are extraordinarily valuable. They reach out across the community in ways that no other programmes do. It is very welcome indeed to have the Bill reinforce them.
In this supportive mood, I should finally like to support the noble Lord, Lord Lea of Crondall. However, I should like to extend his definition which provides,
"that sufficient high quality original drama is broadcast covering a range of issues in a variety of formats".
Why does that not apply to the arts, sciences, politics, documentaries and nature programmes which are often more distinctly for British public service broadcasting across the four channels than is drama? I know that this is a quixotic request and that the time is late. I am not going to press it. I nevertheless thought it worth burying in Hansard. Who knows, one day it could be excavated.
Baroness McIntosh of Hudnall: My Lords, I rise simply to support with great pleasure the amendment moved by my noble friend Lord Lea of Crondall. Having spent most of my life working in and around drama I find it enormously encouraging to see it put forward as an issue itself. It would also be particularly nice to imagine a future in which less of the drama that appeared on television involved police uniforms and white coats. Perhaps we were looking at a slightly wider range.
Viscount Falkland: My Lords, I am prompted to rise—and I had not intended to—to speak to the amendment of the noble Lord, Lord Lea of Crondall, Amendment No. 24A, concerning original theatre. Over the weekend, I was sitting in my car and I heard a radio broadcast by the celebrated actor, Tim Piggott-Smith. As many of your Lordships will recall, he was one of the stars of "A Jewel In The Crown". He spoke interestingly about his life in the theatre, but I was interested particularly in a remark that he made towards the end of that broadcast that is relevant to this amendment. He said that he thought that legitimate theatre in this country had shifted over the past 20 years slightly away from the centre of our culture. That rang a bell with me. As an impressionable young man, I worked for a theatrical agent and went around the country to repertory companies. At that time, theatre and drama were available to a much wider range of people. Nowadays, West End theatre relies increasingly on celebrities and star performers to draw audiences. Admittedly, there is interesting work going on in fringe theatre, but this amendment is absolutely correct. Television drama,

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which reaches large audiences, can explore areas which perhaps legitimate theatre is finding more difficult to address. It is important that that fact should be given recognition in the way that is suggested by the amendment of the noble Lord. I have no disagreement. I cannot follow my noble friend Lord Holme of Cheltenham on the drafting of it. "Issues" perhaps has some connotations which might be worrying, but I cannot think of a better word myself, so I shall not criticise it.
Lord Phillips of Sudbury: My Lords, perhaps I may speak to Amendment No. 133E. It is in this group, but it has so far been orphaned. I am not surprised, because it seems to be ill-grouped. However, it is there and unless someone speaks to it now, it will be lost.
The amendment would toughen up Clause 266, which is the enforcement clause in the Bill. That is a vital clause because, frankly, all of the laboured and intense discussion that we have had over many days, including the one just now about the content of Clause 260, which relates to public service broadcasting standards and the purposes of public broadcasting, would come to nought if Ofcom has such feeble powers to uphold those standards as to be, so to speak, honoured in the breach.
As it stands, Clause 266(1) states that if Ofcom is of the opinion that a licensed public service provider has failed to meet the requirements of Clauses 260 or 261, no action can be taken unless—and this is the rub—
"Ofcom are of the opinion that the failure of the provider is serious"—
well, fair enough—
"and is not excused by economic or market conditions".
Many Members of this House are of the view that that excuse does so much to weaken the enforcement test that it should be taken out. Ofcom has to be of the opinion that the provider has failed; it has to be a serious failure; and that is enough. As I have said on previous occasions, it is a little like saying that in future shoplifting will not matter if the person who has done it is hard-up on the day.
A further point to which I wish to draw your Lordships' attention is that Clause 266(3) states that even if Ofcom is of the opinion that the failure of the provider is serious, it still cannot proceed unless it has regard to a number of further factors, one of which is,
"general economic and market conditions affecting generally the providers of television programme services".
So, at any event, it is there later on in the clause. I wonder what power Ofcom will ever have to make sense of the key cause, Clause 260, if those words are not removed.
In closing, I ask a pregnant question. The enforcement clause begins by saying:
"This section applies if OFCOM are of the opinion that the provider … has failed",
but can Ofcom come to that opinion at any time, or is it implied that the decision must be taken during one of the five-yearly reviews provided for in Clause 260? I sincerely hope that the Minister will say that Ofcom
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can come to such an opinion at any time. Otherwise, again, the whole mechanism vis-à-vis enforcement will be altogether too feeble.
6.45 p.m.
Lord Lipsey: My Lords, I rise in response to the noble Lord, Lord Phillips of Sudbury. I understand why he is concerned about the economic tests, but they seem to offer a sensible flexibility for Ofcom. We may be entering a world in which ITV will be a much less economically healthy organisation, although I hope that that is not true. Inevitably, that would affect its ability to pay its way—which it must do—and also its ability to meet its public service obligations. If we are to future-proof the Bill, Ofcom must be able to make allowances of some kind for that. The Bill as drafted allows for that, but the amendment would not assist with it.
Lord Phillips of Sudbury: My Lords, before the noble Lord, Lord Lipsey, sits down, will he not concede that there is already a second provision, which I just read out? There is a double provision, so the first reference is not needed.
Lord Lipsey: My Lords, it may be otiose, but I would prefer to have belt and braces than neither.
Baroness Buscombe: My Lords, I rise briefly to welcome the government amendments. I also strongly support Amendment No. 124A. which was moved by the noble Lord, Lord Lea of Crondall. It is hugely important to include high quality drama in the public service remit, although I question the point raised by the noble Lord, Lord Bragg, when he said, "Why should we stop with drama? What about arts and science?" The noble Lord, Lord Bragg, even mentioned politics, God forbid. It is certainly a good amendment and I hope that the Government accept it.
I also have a lot of sympathy for the amendments proposed by the right reverend Prelate the Bishop of Manchester. Although I accept some of what the noble Lord, Lord Holme of Cheltenham, said—such as his concern about the definition of "beliefs", which does present a problem—the spirit behind the amendment is tremendously important. The more that young people can be exposed to programmes containing discussion of different religions and beliefs, the more we support practical ways of breaking down barriers, so it is hugely helpful.
I am also very grateful to the noble Baroness, Lady Howe of Idlicote, for clarifying the intention behind Amendment No. 131, about which, as the noble Baroness quite rightly said, I was concerned in Committee. Now that I understand that the amendment would encourage original programmes for children and young people that have a high content of the United Kingdom's history, culture and tradition, I entirely support what the noble Baroness is trying to achieve.
Lord McIntosh of Haringey: My Lords, I respond to the non-government amendments in this group. First,

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we have some difficulties with the wording of Amendment No.124A, including those mentioned by the noble Lord, Lord Holme of Cheltenham. However, I gladly invite everyone who put their names to the amendment—indeed, anyone who has spoken on the subject—to talk to me between now and Third Reading to see whether any progress can be made.
Amendment No. 129A, in the names of the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Phillips of Sudbury, would amend the wording of our amendment to include a specific provision for discussion of different religions and beliefs. I can give an absolute assurance or an unqualified undertaking—I could use any of the appropriate phrases in such circumstances—that the provision of news and information, which is in our amendments, can encompass discussion, for example, by way of analysis and the presentation of different perspectives and points of view. The same could go for programmes about the history of different religions and other beliefs. So the additional wording proposed by Amendment No. 129A is unnecessary. I liked the example, on the definition issue, given by the right reverend Prelate the Bishop of Manchester involving Sydney Smith. My favourite definition is from Ernest Bevin, who said that socialism is the policy of the Labour Party at any one time.
Lord Lea of Crondall: My Lords, the Labour government.
Lord McIntosh of Haringey: Thank you, my Lords. I rely on a trade unionist to correct me on these matters.
Amendment No. 131, the amendment of the noble Baroness, Lady Howe, also relates to programming for children and young people. It would specify that a significant proportion of such programming should be intended for audiences in the United Kingdom. In Committee we were of the view that the amendment was not necessary, and we are still of that view. The obligations for broadcasters to provide programmes for children and young people which are both high quality and original will in themselves be sufficient to ensure that such programmes appeal to the tastes and interests of the relevant audiences within the UK.
We acknowledge the unique importance of programmes for children and young people. That is why we tabled Amendment No. 130, which requires broadcasters to provide a suitable quantity and range of high quality and original children's programmes. In those circumstances, we believe that there is no case for Amendment No. 131. I hope that the noble Baroness agrees that it has been overtaken by the government amendment.
Amendment No. 133E is interesting. I was glad that the noble Lord, Lord Phillips, explained it. The answer was given by the noble Lord, Lord Lipsey. Clearly, not all broadcasters will be financially healthy and there may be circumstances in which, if they are on the point of going bust, one relaxes the rules for a short while until they can recover afterwards. That is rather like the difficulty that the Strategic Rail Authority has with certain train operating companies. It may be desirable
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to close them down, as happened recently, or to bail them out. One cannot lay down cases in advance. In the Bill we have allowed the option for Ofcom to temper the wind to the shorn lamb under certain circumstances. However, the circumstances will be determined by Ofcom. I am sure that Ofcom will riot wish to see that as a general let-out from the obligations on broadcasters.
Lord Phillips of Sudbury: My Lords, does the Minister believe that lawyers and some television companies will see this as a marvellous weapon with which to bash Ofcom if it tries to exercise any of its disciplinary powers? That is my fear.
Lord McIntosh of Haringey: My Lords, I do not see how they can when it is specifically stated that Ofcom is of the opinion; it is its judgment that is provided for in the Bill. Lawyers would have to prove that it was not of the opinion, which I believe would be rather difficult.
On the noble Lord's point about waiting for a five-year review before taking action, I can assure him on that. Where a report has been made under Clause 260, that will help Ofcom to formulate its views on enforcement under Clause 266. However, there is nothing to require such a report before action is taken. In other words, the enforcement procedure laid down in Clause 266 relating to the obligations under Clause 260 is pretty fierce. I hope that I have responded to the non-government amendments.
Lord Lea of Crondall: My Lords, I thank all the distinguished contributors who commented on Amendment No. 124A. The noble Lords, Lord Holme of Cheltenham and Lord Bragg, the noble Baronesses, Lady McIntosh of Hudnall, Lady Whitaker and Lady Buscombe, and the noble Viscount, Lord Falkland, were all in support. I thank the Minister for his ready agreement to the fact that there could be some issues to tease out at a meeting to see whether we can make progress.
I cannot resist the temptation to respond very quickly to the intriguing point made by the noble Lord, Lord Holme of Cheltenham. He asked what the issues were in, for example, Brideshead Revisited. I was trying to work that out. What are the issues in Hamlet? Well, existentialism, obviously. What are the issues in Waiting for Godot? I believe that the play begins with the line, "Nothing to be done". Is not the answer to what the issues are that we do not know what they are, and that that is the nature of the drama? I do not know whether the noble Lord asked a rhetorical question and whether I am doing OK in trying to respond, or whether another sort of question was involved. In that spirit of pedantry, I believe that there may be a question about how we address this conundrum of words.
My noble friend Lord Bragg put his finger on another important question. We should avoid going into a great litany—we did that earlier in the Bill—and stating that broadcasting must cover everything in Rogets Thesaurus. We want somehow to give a very

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strong message, which Ofcom somehow cannot ignore. As the noble Baroness, Lady Buscombe, said, that is the point.
In conclusion, I welcome the Minister's response to Amendment No. 130 and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Holme of Cheltenham Lord Holme of Cheltenham moved Amendment No. 125:
Page 231, line 20, after "facilitating" insert "civic understanding and"
The noble Lord said: My Lords, in Committee I moved an amendment with a similar intention to that in this amendment and Amendment No. 126. The intention was and is that whatever else public service broadcasting is or is not taken to mean, it includes beyond peradventure proper coverage of Parliament. On that occasion, despite support from every quarter of the Chamber, and with no one dissenting—I am grateful to the noble Baroness, Lady Howe, for confirming that she then supported and still supports the spirit of the amendments—I regret to say that I received a rather dusty answer from the then Minister, the noble Baroness, Lady Blackstone. To some extent, that was probably my fault for having put the amendment in the wrong place. I am sorry about that but I have now remedied the matter and the amendments are now in the right place.
It is essential to a healthy democracy that citizens understand their institutions. Repeated opinion polls in this country, on which the noble Lord, Lord McIntosh, is deeply expert, show that they do not understand their public institutions. Despite good work by many individual editors and reporters at the BBC and other public service broadcasters, there is a deep deficit in understanding of Parliament in particular. That is no doubt partly our own fault and we should see what we can do to make ourselves more understandable. However, it is also due in no small measure to a culture of entertainment and sensationalism in relation to public life—tabloid values, if you will—which pervades too much of news and current affairs, which are referred to in these provisions. There is what sometimes seems to be a fairground mentality which takes our shared democratic decision-making in Parliament and reflects it through distorting mirrors to play to that showbiz culture. I am afraid that that tone is often set from the top of the broadcasting organisations.
I am well aware of the need not to overload Ofcom but my aim in this regard is much humbler. I seek a definitive recognition in the Bill that Her Majesty's Government believe that the proper reporting of Parliament and other elected bodies is part of the news and current affairs coverage referred to in Clause 261(3)(c). It is important for our civic understanding and democratic future that that should be so. I beg to move.
7 p.m.
Lord Peyton of Yeovil: My Lords, I should like to express my warm agreement with what the noble Lord, Lord Holme of Cheltenham, said. This is not a disguised plea for kinder or fairer treatment of individual politicians. They, for better or worse, will remain fair game, whatever we say. It is a plea on behalf of the manmade institution of Parliament. If people are not told about it, have no information about it or only minimal information, accompanied by generous doses of derision, Parliament will not survive. Unhappily for the media, if they are to remain free, the only certainty they have is that there is a free Parliament in existence.
I would be in favour of keeping this Bill within manageable proportions, even though it started fairly gross. However, the noble Lord, Lord Holme, was absolutely right in requiring some acknowledgement by the Government that it is important that the media should understand and recognise that, without fair ventilation, the institutions which are important to civilised life will have little chance of survival.
There is no need for me to prolong these remarks, but I share the hope of the noble Lord, Lord Holme, that the same representations, which received a rather abrupt dismissal by the noble Baroness, Lady Blackstone, at an earlier stage, will be treated more kindly, more understandingly, more generously and more wisely by the noble Lord, Lord McIntosh, who is more than capable of doing so.
Lord Fowler: My Lords, I should like to support what the noble Lords, Lord Holme of Cheltenham and Lord Peyton of Yeovil, have said. What the noble Lord, Lord Holme, said—that citizens should understand their institutions—goes to the heart of this amendment.
What has not been mentioned in quite such detail, however, is that there is absolutely no question but that the reporting of Parliament has steadily, year by year, gone down the scale of media priorities. When I joined The Times in the 1960s, we had a trained staff of seven or eight trained shorthand writers, all of whom could do incredible shorthand speeds of over 200 words per minute. We had two pages devoted to Parliament and were reporting Parliament absolutely straight—reporting what Members of Parliament or noble Lords had actually said. The same kinds of standards were also applied by the broadcasting organisations. Issues were reported fully and the reporting of the proceedings of Parliament was heard in programmes at peak times or in adjoining programmes to which people would listen.
We have therefore come a long way down the scale over the past years. The sketch writers now seem to reign supreme. If there is a Budget Statement or a debate on fox-hunting or something of that kind, then there is straight reporting. Often, however, it is to try to get some amusement out of the proceedings of Parliament. Straight reporting of what is taking place in Parliament is a very low priority, and that is a very great pity.

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This is an amendment to a clause on public service broadcasting. The clause itself requires a comprehensive and authoritative coverage of news and current affairs. I think that is right. One of the great things about organisations like the BBC is that that can be provided. What these amendments also require, however, is that the coverage and the reporting of Parliament and other legislatures should be on the face of the Bill. That would be a very sensible step forward and I therefore totally support what the noble Lord, Lord Holme, has said.
Lord Phillips of Sudbury: My Lords, 1 rise briefly to make sure that, in his response, the Minister does not say that the clause concerned, Clause 260(6)(c), already deals with the matter. I suspect that he may.
The amendment would make the clause read that the,
"services (taken together) provide … for Facilitating civic understanding and fair and well-informed debate".
There is a difference between civic understanding and fair and well-informed debate. The former is wider than the latter, and it is very important that one does not simply rely on the British adversarial tradition of debate.
My other point, which I make briefly but I hope relevantly, is that the Government themselves introduced citizenship education into the curriculum last autumn. I very much hope that they accept this amendment, because it directly underpins that very important initiative.
Lord Bridges: My Lords, I have great sympathy with this amendment. It seems to me to be an object that we should all pursue. I do see some difficulty with it, however.
We would clearly regard it as wholly inappropriate to lay down any guidelines for what the printed press say about proceedings in Parliament. That would seem to infringe upon censorship and would be deeply unpalatable to all our traditions. Why is it, therefore, that we are prepared to lay down quite clear guidelines for the television world?
There needs to be some clarity of thought here. The only conclusion I would draw is that what we say to the world of television must be in the form of exhortation and general principles but not of statutory enforcement.
Lord McNally: My Lords, I take the point which has just been made by the noble Lord, Lord Bridges. However, I think that it is worth Parliament drawing the media's attention to the correlation between the apathy, cynicism and other maladies which affect our political system, and the fact that media coverage has moved away from factual reporting towards entertainment. One has only to look, as the noble Lord, Lord Fowler, has said, at the growth in the number of sketch writers and the almost total absence of any actual parliamentary reporting, even in the broadsheets.
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There is the paradox that we have the technology to have 200 television channels, but not one that can or wants to carry Parliament regularly. There is the parliamentary channel. However, that in itself has its dangers. I do not want to see politics driven into a safe ghetto of a parliamentary channel, which can be reached only by the few.
I return to an old theme and it is one of exhortation. Most of the BBC's political programmes are over 20 years old in concept. It recently had a major rethink in its political coverage, which resulted in some presenters appearing not wearing ties and one programme for young people, which it is about to abandon.
I believe that much more effort could be made to cover politics seriously, particularly the working of this Parliament—if only for the benefit of journalists themselves. I receive a number of telephone calls from political journalists, who clearly do not know how this place works. It could certainly benefit them.
There is an obsession with viewing figures. One cannot run a programme that has only 800,000 viewers, although that is probably more than Gladstone addressed in his whole political life. I believe that much is still worth saying to the media about their responsibilities in making democracy work. There is more need for civic education—an idea pioneered by both my noble friends Lord Holme and Lord Phillips. There has been a tendency within the United Kingdom to think that somehow belief in democracy and democratic institutions come with one's mother's milk. That is a complacent attitude. Democracy needs democrats in order to work, and we need a great deal of help in creating those democrats.
Baroness Howe of Idlicote: My Lords, I rather disagree with my noble friend Lord Bridges but very much agree with what the noble Lord, Lord McNally, said. First, we must not forget that we are regulating a system—the broadcasting system—to which approximately 70 per cent of those who receive information go for that information. Secondly, one knows that a certain slant comes with the information in newspapers. Impartiality, which is important, certainly does not preclude new concepts relating to the things that we regard as so important—the broadcasting of Parliament and the fact that we need to get over to the rising generation the importance of such institutions in upholding democracy and so on. Therefore, I very much agree with the noble Lord's amendment. I hope very much, too, that the Minister will take it to heart.
Lord Norton of Louth: My Lords, I add my support for Amendment No. 126. I believe that a very special case is to be made for it. We must remember that Parliament, as an institution, is unique. It is the core institution at the heart of our political system. It is the means through which people speak authoritatively to government and the means through which government seek to regulate the activities of citizens. Therefore, it is distinguishable from all other institutions. For that reason it deserves particular treatment in terms of

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coverage. That does not necessarily equate with supportive coverage. I believe that it is possible to provide objective and fair coverage of proceedings. I think of BBC radio's "Today in Parliament" programme as demonstrating what is possible.
Therefore, I regard the amendment as extremely important. But, although I regard it as necessary, it is not sufficient. It is necessary in the context of this clause. I do not consider it to be sufficient, but I believe that sufficient conditions must then be provided by Parliament itself in demonstrating its relevance, making it appropriate and attracting those outside to show that it is able to deliver. The mass media are a means through which we are able to show that. Therefore, I believe that Parliament deserves special treatment. I strongly support the amendment.
Baroness Buscombe: My Lords, I support Amendments Nos. 125 and 126, to which my name is added. While I am reluctant to be too prescriptive as to what precisely is required in order to fulfil the public service remit, ensuring that there is sufficient coverage of the proceedings of Parliament and of the other elected legislatures in the United Kingdom is a very important aspect of public service broadcasting. The broadcasts provide a primary means by which the electorate educate themselves in the process of government and the legislature, and it is vital for the successful functioning of a democracy that the electorate are well informed.
I am particularly keen on the words "civic understanding", and here I think especially of young people. I agree entirely with all that the noble Lord, Lord McNally, said about the BBC's programming in relation to Parliament and politics. Much of the format is so old-fashioned that it is a turn-off for most young people. I hope that the Government will accept the amendments so that this matter can be treated as something of a priority.
One of the upsides today is that young people are not prepared to mark their cross or tick the box unless they feel that they understand the issues. That must be a good thing. They are far more questioning; they do not take anything for granted; and they do not vote just as their parents did. However, they are not prepared to vote or to take part in the democratic process unless they are comfortable that they understand the issues. We must all encourage broadcasters to respond. They have a very powerful platform from which they can assist in encouraging young people to become involved in the democratic process and in showing in a good light the many ways in which Parliament and, indeed, all other forms of parliament—local government, too—contribute to a civic society. Therefore, I hope that the Minister will be able to accept the amendments and, in particular, the one relating to civic understanding because it is all-encompassing.
7.15 p.m.
Lord Evans of Temple Guiting: My Lords, one of the requirements under the public service television remit
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is that broadcasters must provide comprehensive and authoritative coverage of news and current affairs and that they must do so to the extent that is appropriate for facilitating fair and well-informed debate on news and current affairs.
Amendment No. 125 would make the facilitating of "civic understanding" a further objective of the news and current affairs requirement. Taking civic understanding to mean an awareness of the processes of government and politics at all levels seems an entirely proper consideration for public service broadcasters to have in mind. We are therefore very happy to accept the amendment.
Noble Lords: Hear, hear!
Lord Evans of Temple Guiting: My Lords, that is the good news. We have more difficulty with Amendment No. 126. This would require that, in addition to the news and current affairs obligations, broadcasters must provide comprehensive and authoritative coverage of Parliament and other UK legislatures.
The BBC agreement does, indeed, include an obligation on the corporation to broadcast an impartial daily account of proceedings in both Houses of Parliament. BBC Parliament offers daily, very full coverage of Westminster and the regional parliaments and assemblies. The noble Lord, Lord McNally, may not like what he sees, but that is the reality. Parliament is shown every day on BBC Parliament. The BBC also provides extensive television coverage of major parliamentary debates on BBC News 24, daily news bulletins and programmes such as "Newsnight". It also offers coverage of parliamentary debates on radio and online on BBCi.
That said, we do not believe that it would be right to include coverage of Parliament or other UK legislatures within the public service television remit and thereby impose it as a specific obligation across the whole public service broadcasting sector. All the public service broadcasters have obligations in respect of news and current affairs in both the tier 2 and tier 3 contexts.
At tier 2 the broadcasters will be subject to specific quotas for news and current affairs programming while, at tier 3, news and current affairs coverage is, as I said, an aspect of the overall public service remit. Fulfilment of those obligations must, in the nature of things, involve attention to the work of Parliament and other legislative bodies. That will be reinforced, at the tier 3 level, by the inclusion of the reference to civic understanding, to which we have agreed.
However, we cannot see our way to accepting that coverage of Parliament should become a direct obligation on broadcasters other than the BBC. Our overall approach to the regulation of public service broadcasting involves a spectrum of obligations, with the BBC at one end and Channel 5 at the other. Within that framework, a specific requirement to provide parliamentary coverage would seem to us an unduly heavyweight obligation to apply to the public service sector as a whole.

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To summarise, we are very willing to accept Amendment No. 125, and hope that this will be taken as clear evidence that the Government understand and have sympathy for the concerns raised in this very interesting debate. But we are not persuaded that the proposal embodied in Amendment No. 126 would be a sensible way forward. I hope that the amendment will not be pressed.
Lord Holme of Cheltenham: My Lords, I thank the Minister for that reply, which, in terms of Amendment No. 125, is extremely welcome. I am grateful for the graceful and ready way in which the Government have accepted the inclusion of the words "civic understanding". I am not entirely confident that the way in which the noble Lord chose to define civic understanding as automatically implying the coverage of Parliament which Amendment No. 126 seeks would stand up. However, I shall read his remarks most carefully.
I am most grateful to the noble Lords, Lord Peyton and Lord Fowler, the noble Baroness, Lady Howe, the noble Lord, Lord Norton, the noble Baroness, Lady Buscombe, and my noble friends Lord Phillips and Lord McNally for their contributions. I believe that the House would care to remember the point raised by the noble Baroness, Lady Buscombe; namely, that young people are keenly interested in issues. All the polling evidence to which I referred earlier shows that they are well informed and concerned about contemporary issues. The total disconnect arises because they do not connect those issues to the Palace of Westminster, and the work that we do at both ends of the palace. There is only a small connection. Broadcasters need to be sensitive to that problem.
The noble Lord, Lord Bridges, voiced interesting dissent. I should not advance these amendments were it not for the fact that we were talking not about broadcasting but about the public service obligations of broadcasters. I can conceive of no more central public good than that people understand their democratic institutions.
We shall study carefully what the Minister said. We welcome the concession on Amendment No. 125. I reserve my position for a later stage. I commend Amendment No. 125.
On Question, amendment agreed to.
[Amendment No. 126 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 127 and 128:
Page 231, line 28, at end insert ", of programmes of an educational nature and of other programmes of educative value"
Page 231, line 31, after "religion" insert "and other beliefs"
On Question, amendments agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 129:
Page 231, line 32, at end insert—
"() that the programmes included in those services that deal with religion and other beliefs include—

(i) programmes providing news and other information about different religions and other beliefs;

(ii) programmes about the history of different religions and other beliefs; and

(iii) programmes showing acts of worship and other ceremonies and practices (including some showing acts of worship and other ceremonies in their entirety);"

The noble Lord said: My Lords, I beg to move.
[Amendment No. 129A, as an amendment to Amendment No. 129, not moved.]
On Question, Amendment No. 129 agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 130:
Page 231, line 34, after "quantity" insert "and range'"
On Question, amendment agreed to.
[Amendment No. 131 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 132 and 133:
Page 232, line 19, leave out from beginning to second "and" and insert "the BBC Charter and Agreement"
Page 232, line 38, at end insert—
"() In this section "belief means a collective belief in, or other adherence to, a systemised set of ethical or philosophical principles or of mystical or transcendental doctrines."
On Question, amendments agreed to.
Clause 261 [Public service remits of licensed providers]:
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 133A:
Page 232, line 40, at beginning insert "In addition to the requirements of section 260,"
The noble Lord said: My Lords, I bring before the House another gritty amendment. Again, it deals with the relationship between Clause 260, the public service remit for television, and Clause 261, public service remits of licensed providers. As I understand it, the full public service broadcasting remit is to be found in Clauses 260 and 261. Clause 260 is the overall public service broadcasting remit. Clause 261 is the individual remit for the licensed broadcasters referred to in it.
In Committee, at col. 1174 of the Official Report of 3rd June, I asked this question of the Minister, the noble Lord, Lord McIntosh of Haringey:
"Do I summarise fairly the Minister's proposition by saying that the provisions of Clause 261 are in addition to the provisions of Clause 260; that is, that where one refers to Channel 3, Channel 4 or Channel 5 services, all of the provisions of Clause 260 will apply to those channels notwithstanding the provisions of Clause 261?"
The noble Lord, Lord McIntosh of Haringey, replied with his usual direct succinctness:
"That is correct".
It is in pursuance of that that I put forward the amendment, which puts clearly and unequivocally on the face of the Bill for the poor devils hereafter who must construe this gargantuan and Byzantine piece of legislation that the Clause 261 remit is in addition to the general overall remit of Clause 260. It is a helpful amendment. I believe that the two amendments grouped with it are in the same spirit and to the same effect. I beg to move.
Lord McIntosh of Haringey: My Lords, I understand the motives that lead the noble Lord again to bring forward the issue. I shall reply but in more than three words because it is important to have on the record the relationship between Clauses 260 and 261.
Amendment No. 133A would add to Clause 261 a statement that the conditions imposing individual public service remits for Channels 3, 4 and 5 set out in that clause apply "in addition" to the overall public service remit in Clause 260. Amendments Nos. 133C and 133D would add to the public service remit for Channels 3, 4 and 5 by providing that the requirements to provide high quality and diverse programming would be applied,
"in accordance with the standards as set out in Clause 260"—
in other words, the requirements of the overall public service broadcasting remit.
The issue underlying all three amendments is the relationship between the overall public service broadcasting remit in Clause 260 and the individual remits applying to the licensed public service broadcasters under Clause 261. That is what the noble Lord has just said in effect. There is concern that the effect of the overall remit is weakened by what appear to be less stringent obligations under the terms of Clause 261. Again, that is what the noble Lord has just said. I hope that I reassure him that that concern is misplaced.
Clause 260 defines the overall remit for public service television broadcasting and applies to the BBC, the Welsh Authority, ITV, Channel 4, Channel 5 and the public teletext provider. It defines the purposes of public service broadcasting and will be used by Ofcom as the basis for its review and reporting function, which we have just been debating.
Clause 261 specifies public service remits for each of the individual licensed public service channel providers and for the public teletext provider. These remits constitute the programme quality obligations that broadcasters individually must satisfy, according to the terms of their individual remits, within the self-regulatory framework provided at tier 3.
Lord Crickhowell: My Lords, perhaps I may interrupt the noble Lord to raise a point that has been puzzling me. In the debate on 3rd June, in referring to Clause 260 and the questions that had been posed, he said:
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"it is not an obligation on broadcasters; it is a very detailed set of standards set out for Ofcom".
In the next column he said:
"Clause 260 is not just a set of words but standards that have to be adhered to, and if they are not adhered to Ofcom has a duty to take enforcement action".—[Official Report, 3/6/03; cols. 1172–3.]
What I am left uncertain about—and perhaps he can clarify—is which clause imposes obligations on Ofcom and which clauses impose obligations on the broadcasters. There is a contradiction between his two statements.
Lord McIntosh of Haringey: My Lords, perhaps the noble Lord, Lord Crickhowell, will allow me to develop the argument. I agree that it is a complex relationship, but I shall read out the rest of my text and I hope it will become clear. If not, a note from the Box will enable me to answer the noble Lord's question.
A licensed broadcaster cannot ignore Clause 260 just because it is a matter for self-regulation rather than a licence condition. Indeed, I think I have answered the noble Lord's question already. The fact that a matter mentioned in Clause 260 is not mentioned in Clause 261 does not mean that it is unenforceable. It is clear from Clause 266 that licensed broadcasters must each contribute to fulfilment of the overall remit or face Ofcom enforcement action under Clause 266. Ofcom can of course also take enforcement action under Clause 266 in the event of a licensed broadcaster failing to fulfil its own individual remit under Clause 261.
I would further emphasise that the full remit for each public service broadcaster comprises not only the tier 3 programme quality obligations but also the specific, objectively measurable tier 2 requirements; that is, when we are talking about percentages and regional obligations and so on. The combined effect of the tier 2 and tier 3 remits is to establish a spectrum of obligations across the public service sector, ranging from the BBC at one end to Channel 5 at the other. The BBC's remit is set out in the agreement and that of the Welsh Authority services in Schedule 12 to the Bill.
I hope that demonstrates why we cannot accept the amendment tabled by the noble Lord, Lord Phillips. It does not reflect the careful balance we have constructed between the overall public service remit in Clause 260 and the individual public service remit of each licensed broadcaster. That is because it implies that the overall public service remit falls to be treated as though it formed part of the licence conditions of each individual broadcaster. The same applies to Amendments Nos. 133C and 133D. That is not our intention; but, as I have explained, it does not mean either that the overall public service remit is unenforceable.
The relevant measure for each licensed broadcaster will be whether it has made an adequate contribution towards fulfilment of the public service broadcasting purposes and not whether broadcasters have individually satisfied those purposes.
I return to the point of the noble Lord, Lord Crickhowell. Clause 260 provides the requirement for the public service broadcasting sector

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as a whole; it does not apply directly to individual broadcasters. But the enforcement action can be taken against a broadcaster that fails to contribute to the fulfilment by the broadcasting sector as a whole of the Clause 260 remit.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for that careful reply and to his civil servants. They have been extremely courteous and helpful in engaging with me on this difficult issue. I am particularly obliged for a letter written on 17th June, which to some extent the noble Lord has reiterated today.
I suppose that I feel a little sad that this issue cannot be made a little plainer in the language of the Bill. It is so esoteric. I have to say that the Bill as a whole strikes me ever more as being a bounty for my profession that it does not deserve. I understand what the Minister says. I am at least reassured by his affirmation of what he said on 3rd June that the provisions of Clause 261 are in addition to the general requirements of Clause 260. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 133 B had been withdrawn from the Marshalled List.]
[Amendments Nos. 133C and 133D not moved.]
Clause 266 [Enforcement of public service remits]:
[Amendment No. 133E not moved.]
Lord Evans of Temple Guiting: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.36 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Mental Health
7.36 p.m.
Lord Chanrose to ask Her Majesty's Government how they intend to implement the recommendations in the Department of Health report on mental health in ethnic communities, Inside, Outside.
The noble Lord said: My Lords, I am grateful for this opportunity to discuss the report on improving mental health services for black and ethnic minority communities in England, which was published in March this year. I also thank all noble Lords for participating tonight.
Your Lordships may consider me rather impatient as I asked a similar Starred Question of the Minister two months ago. In my defence, I was not expecting my request for this dinner-hour debate to be agreed to so soon after 28th April. But I must point out that Inside, Outside is the first report in 55 years of the NHS of a national approach taken to reduce and eliminate ethnic inequalities in mental health service experience and outcome for patients from black and ethnic minority groups in Britain.
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For 30 years before this important report, African-Caribbean people have been over-represented in our psychiatric hospitals. Although they make up less than 2 per cent of the British population, African-Caribbean people formed 25 to 40 per cent of the in-patient population. Their admission to hospital was two or three times more likely than white patients to be on a compulsory order and twice as likely to be under Section 136 of the Mental Health Act 1983. In addition, African-Caribbean people were twice as likely to have been admitted to hospital from prison and less likely to have been referred to psychiatric services by GPs. African-Caribbean young men were more likely to receive treatment in secure facilities. The admission rates for schizophrenia have been seven times the rate in men and 13 times for women in African-Caribbean communities.
The experience of Asian and Chinese communities in mental health services has been hindered by language and cultural barriers. Presentation of mental illness tends to be through physical symptoms such as loss of energy, poor appetite and dizziness. Whether these symptoms are determined by the stigma of mental illness among ethnic minority communities or by cultural factors has not been conclusively determined.
In that context, I am pleased to note that this report recommends that minority ethnic groups will not be excluded from any research unless there are very good reasons for such exclusion. There are financial implications of this recommendation, of course. Bilingual professionals who understand the culture and speak the same language as patients are needed to cross the cultural and linguistic divide. Suicide rates are also higher in young Asian women and among Irish-born people living in the United Kingdom compared with the majority population.
Against these experiences of black and minority ethnic people in Britain, mental health advocates have developed in these communities in order to argue for culturally appropriate services in mainstream mental health.
The Government's National Service Framework for Mental Health and the NHS Plan surprisingly have only limited references to black and minority ethnic patients. The NHS Plan identifies the need for crisis resolution services for acute mental illness among ethnic minority patients to be in place by this year—2003. It does not adequately address the particular needs of black and minority ethnic groups.
So how comprehensive is the new report, and will it fulfil its aim of improving mental health services for black and minority ethnic communities in England? First, the report acknowledges that problems experienced by minority ethnic groups within our mental health services may be worsening. It sets out to tackle ethnic inequalities within mental health services, including tackling racism and institutional discrimination within the services. That comprehensive approach is to be welcomed and fully supported.

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Secondly, extensive consultation has taken place among ethnic minority communities across England in the production of the report. That exemplar of best practice must be applauded and continued for other service issues. Thirdly, the document aims to set out proposals:
"for reforming the service experience and service outcome of people from black and minority ethnic groups who experience mental ill health and who come into contact with mental health services as users and carers".
That emphasis on mainstream services is absolutely correct.
However, fourthly, I am surprised that no emphasis has been placed on encouraging leadership commitment of clinicians and support services—especially as mental health services operate in a range of settings such as primary care, hospitals, the community and prison. The document states:
"it is essential to place progressive community based mental health at the centre of service development and delivery".
For that to become a reality, surely clinical leadership should be identified to implement that progressive objective. Therefore, would the Minister inform us of plans to develop clinical leadership in the care and support of black and minority ethnic patients in mental health services?
Fifthly, in primary care, the capacity of general practitioners to recognise psychiatric disorder in black and ethnic minority patients appears to be more limited than in others. That has not improved since 1996–97, when I conducted focus groups to listen to GPs in seven inner-city locations in England when I was director of the NHS Ethnic Health Unit.
As a result, all minority ethnic groups are more likely than white patients to be, to cite the report,
"misunderstood and misdiagnosed and more likely to be prescribed drugs and ECT (electro-convulsive therapy) rather than talking therapies such as psychotherapy and counselling".
Readmission rates are also higher among those diverse groups. I am pleased to note the report's suggested standards for all GPs to have training in cultural awareness, and for culture and mental health to become part of GP training. Can the Minister give details of the programme to train GPs and staff in the mainstream mental health services to provide a culturally competent service?
Sixthly, national service framework 7, on preventing suicide and reducing the national suicide rate by at least one fifth by 2010, makes the important observation that UK death certificates do not record ethnic data. That deficiency needs to be corrected. I therefore urge the Minister to encourage the Government to include the ethnic group of the deceased to replace place of birth in all UK death certificates to improve mortality data—particularly on suicides.
Seventhly, the report recommends the recognition and use of community development workers to improve the capacity of communities to support members with mental health needs. That is a long-awaited recognition of voluntary groups which have
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been developed over at least three decades among ethnic minority communities. But those workers need to be part of the mainstream mental health services if the scheme is not to be marginalised. Will the Minister therefore outline how community development workers will be integrated into mainstream mental health services?
My final question concerns plans to monitor and audit the implementation of the report. If that is to be through clinical governance, it would merit inclusion in the race equality schemes of NHS trusts and local authorities.
In conclusion, I commend the Government on publishing this highly significant report. It has the potential to fulfil the wishes of people, such as Geoff Thompson in Manchester, who work with young disaffected black men. He has identified high-quality mental healthcare as a means of helping those young men to rejoin society with a feeling of self-worth and well-being and to contribute positively to the local community. I look forward to hearing the Minister's response.
7.45 p.m.
Baroness Howells of St Davids: My Lords, it is often considered by some that any debate raising the concerns of minority groups is "political correctness". This topic concerns us all. That is why I am pleased to support the noble Lord, Lord Chan, by adding a few thoughts to this debate on the Department of Health's report on mental health in ethnic communities, Inside, Outside.
Let me begin by drawing attention to a report published by the Sainsbury Centre for Mental Health entitled, Breaking the Cycle of Fear. That report highlighted the client group as African and African-Caribbean. It explored circles of fear and identified impediments to change. The document referred to by the noble Lord, Lord Chan, Inside, Outside, addresses an identical list of findings and recommendations.
The report found that professional staff who worked in areas with significant populations of black people do not have opportunities to talk about their needs and concerns as professionals in working effectively with the client group. It also found that mental health services were re-enforcing the disadvantages of being black in this society.
The report found that the culturally sensitive organisations in the community were doing a much better job than the NHS, despite being poorly resourced. That lack of adequate funding prevented the groups from giving long-term care. That type of user community care has been a catalyst for promoting the best practice on offer, but voluntary groups need funding to provide the right structure for sustainability.
I could go on about the similarity between the recommendations, but that is not the point that I want to pursue. I want to draw the House's specific attention to the long-held belief in our community that we are the most researched group to date in the UK. Empirical data continue to be collected, with a

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significant lack of interest in implementing the findings and recommendations. I hope that the Minister can assure the House tonight that the recommendations in the report will be given due care and attention—with a view to implementation. Both reports contain recommendations for black mental health services.
The report recommends that that service should be delivered within a culturally appropriate environment. The agenda should be client-based to address the needs of parents, carers and other family. A strong partnership between statutory and voluntary agencies is needed. Services must be developed and rooted in the local community. Personal and professional staff development is a necessity. Patients must be treated as people with very defined needs. Those recommendations also form part of the National Health Service's own report. My question to the Minister is this: will anything be done to implement the recommendations, and if so, what?
I should like to turn to an area of deep concern to the black community, that of spirituality and mental health. Spirituality and mental health are more intertwined in the African-Caribbean community than in any other. There is now a growing body of evidence which suggests that the relationship between mental health patients and their religious and spiritual lives is very intertwined and that beneficial health outcomes can be derived from encouraging patients to share their beliefs. It can also bring about great benefit not only to the patient, but to those who listen to and care for them. Yet there seems to be a reluctance on the part of practitioners to engage with religion even though the patient may display a strong need for the solace of his or her religious beliefs.
Another point for consideration is that, because of society's perception of mentally ill people as dangerous, society's perception of black men as dangerous and the minority communities' fear of psychiatric services, the reaction between these competing attitudes is all-important in perpetuating the problems of service delivery. From the various reports, we are led to believe that those perceptions delay treatment and society suffers.
Could the Minister say what action, if any, has been taken to overcome the complex interactions between the perceptions of the patient and the service providers? These are areas of consistent concern and have been much researched, revealing a lack of non-pharmacological treatments, poor communication, low levels of involvement in treatment delivery, ignorance on the part of psychiatrists of any spiritual dimension to patients' problems and a general failure of services to acknowledge that racism is a factor in their illness.
I welcome the proposals in the NHS document. I urge the Government seriously to consider those proposals and to seek implementation.
7.52 p.m.
Baroness Finlay of Llandaff: My Lords, I am grateful to my noble friend Lord Chan for raising the
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issue of the mental health of those in minority communities. Both he and the noble Baroness, Lady Howells, have outlined the issues for black and ethnic minority groups and the importance of this report. My noble friend Lord Chan also mentioned the importance of further research to move forward the quality of care and to ensure that services meet needs.
I should like to widen the debate and go beyond the visible markers of race and the report itself, which addresses England. There are many important subtleties in the delivery of services to those whose first language is not English. The most stark examples come from members of the refugee population, many of whom have been deeply traumatised. Among them, the women are often culturally mistrustful of male professionals.
Language is for the communication of facts. It also communicates beliefs and expressions of value. But it is also for the communication of empathy and confidence. In the setting of a doctor's surgery or a hospital, patients feel anxious and therefore inhibited. That is a sad inevitability. Even the stammerer will have difficulty expressing himself and will communicate less fully than when relaxed. Anxiety makes people more tongue-tied, especially in their second language. So for all patients it is important that the setting is comfortable, quite apart from the language used.
Even when healthcare professionals have a few words of a patient's language, whatever that language may be, it can help to break down barriers. The patient feels that the doctor, nurse or other healthcare worker has some understanding of their culture and values and, therefore, of their needs. This topic is not about political correctness, as the noble Baroness, Lady Howells, emphasised. It is about the quality of care for all.
When my son came back from a placement in Hong Kong, as a keen cook he had learnt a few words of Cantonese to shop in the markets. As a medical student back on the hospital wards, he joined the morning ward rounds. One day a woman with no word of English had been admitted as an emergency. She looked frightened and so he stepped forward from behind the consultant and greeted her in Cantonese. She grabbed his hand and, with great relief, managed to communicate with him, and him with her. Her anxiety levels fell as she realised that, even with limited language, he had some understanding of her culture—he was communicating empathy and compassion, but I think probably remarkably little factual information.
In general medical illness, around 20 per cent of patients develop psychiatric illness. In women the rate is slightly higher than in men; in breast cancer patients it is probably because of all the body image and sexuality issues as well as the trauma of illness and treatment. Add to that issues of race and culture, along with the approach to sexuality within different racial groups, and one can see that quickly a problem can develop which demands great sensitivity.
In those with neurological or endocrine disease, the incidence of psychiatric illness is particularly high. Liaison psychiatry is crucial, but the service is

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currently woefully undermanned. Many ill patients feel most comfortable when communicating in their primary language. When delirium or dementia occur, the ability to communicate in a second language may be lost completely and patients retain only first-language skills learnt early in life. It is the language of their mothers, with which they were comforted, that they retain. There are case reports of patients who were severely depressed and became mute, unable to communicate in their second language. As their depression lifted, their communication skills in English returned.
I should like briefly to turn to the Welsh dimension. There are many living outside Wales whose first language was Welsh. Many spoke only Welsh until the age of five when brought up in bilingual families; a few were raised in monoglot families and did not use English until much later, in their education. In Wales it is often said: "English for intelligibility, Welsh for identity". Until the mid-1880s, around 90 per cent of those living in Wales spoke or understood Welsh—the history and culture is integrally linked to language. Today there are around 3,000 Welsh speakers but, interestingly, S4C, the Welsh language TV channel, has total viewing figures of 900,000, which shows that there are many in England who watch Welsh language television.
There are many ethnic minorities living in the UK who are not identified by racial or other groups. I used the Welsh as a specific example whose needs must not be overlooked, but the same applies to those from eastern European backgrounds and so forth. Only today I heard from a psychiatrist of a patient whose language is French. He was looking for a psychiatrist sufficiently fluent in French to speak to the patient. Despite not being a psychiatrist, I volunteered to help out as my knowledge of the French language is not too bad.
So whenever there is a consideration of communication with those with psychiatric needs who are traumatised by life events or otherwise disturbed secondary to systemic illness, care must be culturally sensitive. It is as if a louvred window can open when empathy is expressed in the patient's own language, recognising the culture with which they are familiar. Thus communication can come through to those in need.
The report makes some important recommendations which could potentially improve the care of all patients and raise the quality of care right across the board. I hope that the Department of Health will take them very seriously because we could see improvements in care for all, not only for those in the black and ethnic minority communities specifically identified in the report.
8 p.m.
Lord Alderdice: My Lords, I am grateful to the noble Lord, Lord Chan, for introducing the debate. He does not need to apologise for his remarkable success in achieving it.
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I might be thought to have a particular interest in this subject, both as a psychiatrist and as an Irishman, because on a number of occasions in the report my ethnic minority is mentioned as having difficulties in this area, particularly in regard to suicide and the diagnosis of alcoholism.
In my part of the world, the whole notion of people being discriminated against is more often regarded as sectarianism, whereas both here and in the United States it is regarded more often as racism. It is an issue that has been of substantial interest to me for a long time. It is not easy to deal with. Whether in terms of mental health or outside of it, this is an extremely difficult issue.
The report is valuable because, for the first time, it sets out the enormity of the problem in a particular way, although other reports through the 1990s and at the start of 2000 identified some quite striking matters. For example, they identified that African-Caribbean citizens were six times more likely to be diagnosed with a schizophrenic illness; that they were more likely to have ECT and physical treatments, as the noble Lord, Lord Chan, said; and that they were much more likely, as the Royal College stated in its submission to the Health Select Committee, to be admitted and detained against their will.
These are striking matters and cannot be ignored. But when one becomes convinced that there is a problem—as any reading of the report and its predecessors would demonstrate—what precisely does one do about it? The first thing to do is to consider the problem. So the first question I would ask the Minister is what arrangements have been made for this report to be distributed to enable wide consultation? Reports such as this benefit a great deal from being circulated to all health and social service trusts and to a wide range of responsible individuals and groups, who can then respond to it. So what has happened so far with the report? One would expect something of this kind to have happened.
Dealing with the problem will be difficult. In the United States and my own part of the world—where we have tried to deal with these matters over quite a long period of time—we have set down many of the kinds of procedures identified in the report. For example, the compiling of figures requires the identification of those involved. As the noble Lord, Lord Chan, said, the fact that there is no identification of ethnic background on death certificates makes it difficult for anyone to carry out research on suicide figures. There are many other ways in which it would be possible to carry out research work if there was an identification of ethnic background.
People are very often wary of doing this. In my own part of the world it was very worrying when it was suggested that one's religious background should be noted down. People thought that that would only emphasise differences. We have to strike a balance and, on balance, I and my colleagues have felt over the years that it is important to have such identification. It is not without its dangers but it is very difficult to get figures if it is not done. The idea is put forward in the

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report that it should be on death certificates and, by analogy, in many other areas, for instance, on admission forms and so on. It would be extremely valuable if ethnic background were noted down—not only for research into the size of the problem but for ongoing monitoring to ascertain whether there have been any better or worse developments.
However, I cannot respond to the report as though it is the answer to all the problems. I know that the authors of the report do not suggest that it is, but I should like to point out one or two matters that need to be considered along with the report. It is stated that most of the reforms have rarely been implemented and that not much research has been carried out previously. That is only partly true. Some of the recommendations have been implemented, particularly on the wider issues not only of mental health but of racism and sectarianism.
One of the worries is that after 30 or 40 years we still have in the United States of America and in my part of the world many of the same underlying difficulties. Even when you have improved the figures, you have not necessarily changed the feelings people have inside. That is a real problem. In the United States it has now reached the point where approximately half the population believe that the problem of racism has been sorted out when of course it is manifestly clear that it has not been. Even among those who believe that it has not been resolved there is something of an impasse. There are those who one might describe as anti-racists, who take the view expressed in the document that anti-discriminatory practice will follow from ensuring the eradication of discriminatory attitudes. However, there are others, who one might describe as pragmatists, who believe that the way to deal with the problem is to ensure that there are anti-discriminatory practices and that changes in attitude will then flow from that.
The difficulty in the United States is that these two groups of people, who are both concerned to deal with the racism that manifestly still exists, have got into a stand-off with each other. It would be a serious mistake if we started arguing about which of these attitudes should come first. On its own, simply trying to change people's attitudes may not bring the results we want.
There is a suggestion that board members and so on should go on courses. That is all very well, but we have an old saying at home that "a man convinced against his will is of the same opinion still". People can go through all kinds of educative training methods, but they will still feel the same inside.
So what might change people's attitudes? It is quite clear from a practical point of view that people from ethnic backgrounds, particularly African-Caribbean backgrounds, are six times more likely to be diagnosed as suffering from schizophrenic illness. In the past, some people said, "That is because we know that when people are taken out of their normal culture there is a much greater likelihood that they will break down in psychotic illness". That was all very well 15, 20 or 30 years ago, but the vast majority of these people are
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second and third generation—they are not out of their cultural environment, they are in it. This is their home. That explanation clearly does not work.
So what is the reason? Is it the expression of religious faith, as the noble Baroness suggested, of culture or background or ways of relating? Or is it simply a misunderstanding of language? Are these the reasons for people being misdiagnosed? Or is it the case that the diagnosis is correct—in which case one would expect to see appropriate treatment leading to rapid remissions? But have we done the research to know that? Are we following these matters up? The truth is that we do not know for sure. Before we assume that a sixfold increase in diagnosis is only about racism it might be worthwhile for my psychiatric colleagues and others to look at the issue more closely and to recognise that it is not good psychiatric practice to get it wrong in terms of diagnosis and treatment.
It is fortunate that within the psychiatric community there is a substantial body of people from different ethnic minorities. Indeed, the Royal College of Psychiatrists is not restricted to England, England and Wales or even these islands, but has many members throughout the world who could be collaborating in these kinds of studies. But research takes money, resource and encouragement from government. I should like to feel that even today we might have an indication from the Government that they regard the issue as so important and they regard mental health as so important that they not only give encouragement, as asked for in the report, but provide resources for the research, which, as is pointed out in the report, is at the moment inadequate.
All of us could say much more about this subject, but for the moment it is perhaps enough to say that it is important that the debate is pursued by this report going around the country. Perhaps in another few months the noble Lord, Lord Chan, might feel free to come back so that we might see something of the reporting back from those consultations.
8.9 p.m.
Earl Howe: My Lords, I understand why the noble Lord, Lord Chan, should wish to table this Question before the summer recess, since it provides us with a timely opportunity to debate these complex and important issues. I say "timely", not only because we now have a new cohort of Ministers in place in the Department of Health who are, doubtless, eager to hang upon our every word, but because the implementation framework for Inside, Outside is something that will be uppermost in all their minds very soon.
It is excellent to be able to welcome back to our debates the noble Lord, Lord Alderdice, who has such first-hand knowledge and experience of mental health matters. The noble Baroness, Lady Howells is also an indispensable participant in any debate that touches on ethnic minorities. I listened to both, as I did to Lord Chan, with great attention, and agree very much with what they said.

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A charge of institutional racism against clinicians and mental health workers is an extremely serious one. If there is one thing that I hope Inside, Outside is able to do before any implementation framework is even discussed, it is to make people sit up and question their own behaviour. Of course, the racism we are dealing with is usually not an arrestable offence of a kind that overtly infringes the Race Relations Act. But if there is discrimination in the delivery of care, whether conscious or not, against patients of particular ethnic backgrounds, the charge of racism unfortunately sticks. I find this disturbing enough to ask the Minister whether the Government have considered a public inquiry. We are into that territory. The report suggests that the problems experienced by minority ethnic groups, in terms of both patient experience and health outcomes, may actually be getting worse. But even if that is an overly pessimistic perception, that kind of racism, as MIND has pointed out, is difficult to eradicate. That is why the remedial measures proposed in the report focus on what have to be seen as longer term strategies. Cultural awareness training, entrenching quality standards and involvement of consumers in the delivery of services—all are sensible ideas but require sustained commitment and resources.
Whenever we debate mental illness, we refer to the stigma that accompanies it. I think that gradually it is becoming less stigmatised. Indeed, a survey published by the Department of Health only last Friday contained, for me, some encouraging statistics about public attitudes. The vast majority of people, nearly 90 per cent, have a caring and sympathetic view of mental illness; and about three-quarters of respondents thought it should be treated as an illness like any other. Those results send out a rather different flavoured message than the one of institutional racism contained in Inside, Outside. The two messages do not contradict or nullify one another. They simply point up valid but contrasting truths from different perspectives. What really matter are the perceptions of service users, and here the data are more worrying.
The noble Baroness, Lady Howells, referred to the recent work by the Sainsbury Centre which focused on what it terms "the circles of fear" surrounding service users. That is not so much referring to fear about this or that kind of treatment. It is the fear that by merely engaging with mental health services it will ultimately cost the patients their lives. They see before them a system that appears coercive and inhumane. They associate it automatically with that other system characterised by compulsion and control, namely, the criminal justice system. Black people are therefore deterred from accessing services. They have little confidence in the care pathways that are on offer and there is therefore no incentive for the relevant communities to become actively engaged with the design or delivery of those services. It is truly a vicious circle, which is why I say again that none of us should underestimate the difficulty of the problems that have been identified.
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Those difficulties are compounded by the perceptions surrounding the Government's Mental Health Bill, published last year. The debate on the Bill—rightly or wrongly—concentrated on the potential dangers that psychiatric patients posed, rather than on the far more important issue of appropriate treatment for all patients. We need to shift the debate away from the rare incidents of violence that all too easily tend to stigmatise anyone with a mental health problem.
Even if those problems can be tackled effectively and we begin to move away from those perceptions—I am sure that it is possible to try—there are other hurdles that stand in the way of timely and effective interventions for ethnic minorities. Many have been mentioned, not least by the noble Lord, Lord Chan. Many GPs lack the training to identify psychiatric disorders. There is often a language barrier. The significance of a patient's ethnic and social background is sometimes overlooked. There are shortages of trained staff, especially in London, as identified by the King's Fund in its report last year.
It is the resource issue that many of us regard as central to the forthcoming implementation strategy. If I were being critical of the Government's performance in this area of healthcare, I would say that it is now six years since they promised as a manifesto commitment to treat mental health as a priority. Yet, in many crucial respects, they have not delivered. The experience and opinions of 27 mental health trusts, recently garnered by my party, reflect real concerns about the Government's engagement in the area and about the future.
To be sure, some new funding is flowing in, but many trusts feel constrained by national service frameworks to spend money on developing new services while baseline services are pared back. In some trusts, there are large inherited deficits, and the books can be balanced only by maintaining vacancies deliberately. That is not a healthy climate for progress in service delivery, either for patients or for those looking after them. A good number of trusts depend heavily on agency staff—again, not exactly a marker of stability—while many others have not yet employed any primary care mental health workers, which is a key requirement under the NHS Plan.
It is good to see that assertive outreach teams are gradually becoming established, although that is not by any means universal, and the majority do not have 24-hour cover. Early intervention teams—another key target in the NHS Plan—are still a rarity, largely, it seems, because of funding constraints. The same applies to crisis resolution teams. If we are in that situation today, what hope is there for making a reality of the kinds of resource-intensive initiatives recommended in Inside, Outside? With that in mind, it would be helpful if the Minister could say why there is no indicator in the mental health trust performance indicators to measure a trust's ability to deal with the needs and health outcomes of patients from ethnic minority communities.

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A year ago the Department of Health published a survey of ethnic minority psychiatric illness rates carried out by the National Centre for Social Research and University College, London. It was, I think, the first time that any sort of detailed analysis had been done of the mental health of ethnic minority groups and how it compared with that of the white population. The key finding—I found it surprising—was that, contrary to what is commonly perceived and despite their over-representation in the mental health system, black Caribbeans do not have significantly higher rates of psychotic illness, including schizophrenia, than other population groups.
One can take that result in isolation and, perhaps, question it, but if one then looks at that finding in tandem with the results of a recent study by King's College, London, one sees an even more interesting picture. King's found that, although rates of schizophrenia were up to twice as high among British Afro-Caribbeans as in the rest of the population, they were also markedly higher than the rates among blacks living in Trinidad and Barbados. What that suggests, as the study points out, is that the reasons for the high incidence of illness among British black people are social, not genetic. Unemployment and separation from both parents are frequent common markers. If the roots of much mental illness lie in social disadvantage, rather than elsewhere, there are obvious major implications for other areas of government policy-making.
Modern society is often alienating and fragmented, which is why we all agree that governments have a duty to shape health services to support those who are most vulnerable. The way they do that is, in many respects, a measure of how civilised society is or aspires to be. Tonight's debate has shown that we still have a considerable hill to climb.
8.20 p.m.
Lord Warner: My Lords, I thank the noble Lord, Lord Chan, for his support on the issue and on maintaining its high profile. He need not apologise, certainly to me, for any sense of impatience he may feel he is exuding. We welcome continuing attention to this area and his concerns are totally justified by the history in this area.
I am also grateful for the thoughtful contributions from all noble Lords. I assure the noble Earl, Lord Howe, that I am hanging on everyone's words. I want to spend most of my time outlining how we shall be taking forward the ideas in Inside, Outside. Where I do not have time adequately to cover all the detailed points raised I promise to write to noble Lords.
I share my noble friend Lady Howells's concerns that we want implementation, not just more fact finding—as do the communities affected. The ministerial foreword recognises that we have to tackle racism in institutional discrimination in this area. The points made by the noble Earl, Lord Howe, and the noble Lord, Lord Alderdice, are well taken. I am not sure that a public inquiry, which the noble Earl,
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Lord Howe, mentioned, would be the right approach as it could delay pushing on with the changes we want to make, which I will outline.
I do not have time to go into the wider mental health issues raised by the noble Earl, Lord Howe. It is fair to say that we tried to give some information about progress in answer to a Question in this area last week and I am happy to write further to him and other participants with details of progress in the area. I do not think money is the issue in making progress in many of the areas. The noble Earl acknowledged that the assertive outreach teams were progressing well. There is also a human resource issue. It is not just about money, but finding the right people with the right skills and attitudes in the right places to work in the area.
The content of Inside, Outside is not new, but for the first time the inequalities faced by these groups in mental health services have been put across in a powerful manner. It is worth quoting briefly from the report:
"There does not appear to be a single area of mental health care in this country in which black and minority ethnic groups Tare as well, or better than, the majority white community"—
That is a damning statement. The report continues:
"Both in terms of service experience and the outcome of service interventions, they fare much worse than people from the ethnic majority do".
That state of affairs cannot continue. The Government acknowledge that inequality and we are committed to taking action to improve the situation.
The noble Lord, Lord Alderdice, asked about dissemination. There was a ministerial launch of the report in March. Considerable media coverage was attracted, and the report is freely available on the Internet and from the department in hard copy.
Inside, Outside only sets out on paper the harsh reality faced by many black and minority ethnic people today: unacceptable numbers of young black men being detained under the Mental Health Act: higher rates of suicide by women of South Asian and Irish origin; and delays in accessing services and higher readmission rates by most groups. Inside, Outside only gives additional weight to the testimony given by the families, carers and friends of service users of their needs.
I turn to what the department is going to do. Inside, Outside advocates a way forward by reducing and eliminating ethnic inequalities in mental health service experience and outcome, by developing cultural capability within the workforce and by capacity-building within communities.
The Department of Health and the Modernisation Agency, with the National Institute of Mental Health in England, will be carrying out a wide range of activities to ensure that those recommendations take place. First, we will reduce the current ethnic inequalities in mental health services and outcome by a variety of methods. The story of people from minority ethnic groups contacting mental health services reported in Inside, Outside is unsatisfactory. To rectify this, the national institute will develop what we are

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calling a pathways to recovery model to identify critical paths in mental healthcare. The model will seek to construct a more positive pathway for people in distress by offering an earlier and wider choice of treatment and helping to reduce distress. The national institute will be working with partners with the objective of creating a better pathway into and out of mental health services. This is an initiative long asked for by the communities themselves.
We will also promulgate examples of effective practice, such as the innovative work of Antenna Outreach in Tottenham. Antenna provides a range of innovative services—home tuition, developing work placements, developing sports programmes and community involvement. These initiatives help with early intervention and improve outcomes.
Secondly, we will develop the capabilities of the mental health workforce in providing appropriate and effective services for a multicultural population. The National Institute of Mental Health in England will be developing a cultural capability framework for services, and this will involve developing a set of indicators for cultural competence, a curriculum on cultural competence for NHS staff, and developing and nurturing leadership in the field of cultural competence. The noble Lord, Lord Chan, is quite right to emphasise the importance of leadership in this area. This will enable services to deliver a more person-centred approach that fits people's cultural and linguistic background, to which many noble Lords referred.
We will also help local services. Albert Persaud of the national institute, in collaboration with local communities, has been leading on development of How are you feeling booklets aimed at the early detection of emotional distress in mothers. The booklets were developed in collaboration with local women in Sheffield and local minority ethnic organisations, and have already been greatly welcomed.
We are also seeking international collaboration on development of multicultural values in mental health. The national institute is supporting a meeting of the Values in Psychiatric Diagnosis Research Methods Working Group later this month. Eminent researchers from the UK, USA, Spain, Israel and Italy will be looking at how to include culture in models of interdisciplinary team working.
Thirdly, Inside, Outside identifies the important role of the voluntary sector in this field. We recognise that to ensure any significant change in mental health services, we will have to work better with communities and voluntary organisations. These are the areas my noble friend Lady Howells outlined so eloquently. We will actively work across government departments to ensure greater collaboration in ensuring local communities and voluntary organisations are involved with local mental health services. This is an area where, if we are honest, government departments have not always hit the highest spot in terms of performance.
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The national institute will also be hiring a fellow to work with the black and minority ethnic voluntary sector to help ensure that effective action takes place. We have already ensured that one of the key recommendations of Inside, Outside, the community development worker, will be introduced. The requirement of having 500 workers by 2006 was made a target in the current NHS priorities and planning framework. These are a new cadre of worker designed to improve access to mental health services and provide greater linkages between the statutory and community sectors.
Turning briefly to the department, these changes will take place and we will seek to modernise the services. The action plan will be in the shape of actions needed to be taken by health and social care services to combat the inequalities faced by service users.
We have consulted with the black, south Asian, Chinese and Irish communities across England over the past few months about what communities want and what they thought of the recommendations of Inside, Outside. In total, 12 community consultations were carried out, using community languages. They provided evidence of people's experience, their advice and the proposed impact of the recommendations of Inside, Outside. We will make public the findings from these consultations and they will be fed into the action plan work we are doing.
The National Institute of Mental Health for England, which is part of the Modernisation Agency in its role as the implementation arm of the department's mental health policy, will help trusts to implement the action plan being developed. But we are not waiting for the action plan to be issued.
Changes have already begun. Apart from the initiatives already outlined, the national institute will have a specific work programme on ethnicity and mental health. The chief executive will personally co-chair a national steering group with the noble Lord, Lord Adebowale, to help ensure close working with mental health services and effective change. The steering group will oversee the action plan implementation.
I can announce today that the national institute has appointed Professor Kamlesh Patel as the national strategic director of its black and minority ethnic programme. Professor Patel will provide overall leadership of the programme. Professor Patel is with the national institute in an acting capacity. In due course the post will be advertised nationally. Professor Patel is currently chairman of the Mental Health Act Commission and head of the Centre for Ethnicity and Health at the University of Central Lancashire. He has an established track record as both a practitioner and an academic in the fields of mental health and substance misuse. He is well qualified to undertake this important task.
The national institute's programme will push forward work on research and development, training, workforce development and service development. It will be done in a culturally sensitive way, as the noble

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Lord, Lord Chan, seeks. It will also promote black and minority ethnic leadership in conjunction with the leadership centre in the Modernisation Agency.
The institute will continue to work with community groups, professional organisations and voluntary organisations to bring about change on how black and minority ethnic mental health services are delivered.
The Inside, Outside report recognises that mental health services are going through a period of significant change. We need to harness this change to ensure the best outcome for black and minority ethnic service users. To deliver the principal objectives of Inside, Outside, immediate work is now starting. There are no quick fixes, but I hope that I have communicated to noble Lords that we are trying to give some impetus for this.
In conclusion, I pay tribute to and thank Professor Sashidharan and his colleagues for their work in producing Inside, Outside.
Baroness Andrews: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.32 to 8.36 p.m.]

Communications Bill
Consideration of amendments on Report resumed.
Clause 72 [Conditional access systems and access to digital services]:
Lord Gordon of Strathblane Lord Gordon of Strathblane moved Amendment No. 134:
Page 72. line 36, at end insert—
"() It shall be the duty of OFCOM to draw up and to issue guidance as to the manner in which access-related conditions set in accordance with subsection (2)(b) (and in particular the first indent to sub-paragraph (b) of Part I to Annex I to the Access Directive) may be satisfied in relation to each protected programme service.
() Such guidance must be issued by OFCOM within twelve months from the commencement of this section.
() Before publishing or revising the guidance, OFCOM must consult with every person providing a protected programme service and any other person as they think fit.
() It shall he the duty of OFCOM to carry out regular reviews of the operation of the access related conditions set in accordance with subsection (2)(b) and the guidance in respect of them, and to prepare and publish a report on every review in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.
() Every report published by OFCOM under this section must set out OFCOM's findings in carrying out the review, any recommendations made by them and any changes to the guidance as OFCOM consider appropriate.
The noble Lord said: My Lords, I was enormously encouraged by the reply of the noble Lord, Lord Davies, to the earlier debate on electronic programme guides and ensuring that there was due prominence, in that I recall his saying that he thought that it would be appropriate for Ofcom to publish a code on the matter. That is exactly what I am seeking by these
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amendments; nothing more elaborate than that. I was also at least mildly encouraged by the response of the noble Lord, Lord McIntosh, when I raised this issue in Committee. He said:
"I hope that when Ofcom takes over those responsibilities and has in addition the responsibility for complying with Part 1, Annex 1, of the directive and the wording of Clause 72, it will provide the guidance that my noble friend seeks without spelling that out in the Bill".—[Official Report, 3/6/03; col. 1194.]
I hope that the Minister is right, but I should like some reassurance. The honest truth is that we have had Oftel for a very long time but we have not seen the sort of transparency of code for which I am looking.
I know that some noble Lords think that this amendment is unnecessary and that it is the sort of thing that Ofcom would do automatically. I wish that that were true. Unfortunately it cannot be guaranteed. Oftel, for example, has not so far declared that Sky Subscriber Services Ltd has a significant market power. That is self-evidently obvious. A market survey would demonstrate it in about a quarter of an hour. However, Oftel has not done that yet. So there is no guarantee that Ofcom is going to give this the priority that we are seeking.
Some people are unaware that no one really knows what people are currently paying for conditional access. The BBC has just done a deal but no one knows what the rate is or what rate other channels are paying for conditional access. I know that it is not quite conditional access in the case of the BBC but I will come to that in a moment. The fact is that we should have a transparent regime. If it is possible for various regulators to spell out the price of electricity and gas then it should be possible for Ofcom to spell out the price of conditional access. It is an important issue. Without that the whole digital revolution cannot take place properly.
The BBC deal does not make my amendment redundant; far from it. I am very glad that the BBC has reached agreement with Sky, but what that agreement has thrown up is that quite clearly the BBC still needed what Sky has referred to as "regionalisation" in order to deliver the appropriate BBC regional service in slot 101 and slot 102. Sky is regarding that as a form of conditional access, which is probably right—I make no complaint about that. However, that means that nobody knows what rates the BBC is paying. Perhaps more importantly, because it has not yet been decided, nobody knows what rate Channel 3—which has much more specific regional obligations—will have to pay to Sky. If the BBC has just done a deal, we should be able to assume that the same will automatically apply to ITV when it comes to look for that agreement. However, we cannot make that assumption and that cannot be right.
The conditional access costs will continue to be crucial. It has been a contentious issue for a long time. I do not blame the Government for introducing 34 pages of clauses exactly a year ago, withdrawing them before the Bill even hit the Commons and then relying entirely on the European directive. However, we need some assurance that someone will put flesh on the bones and that we will have a transparent regime that

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we can all understand. Indeed, we should be able to forecast what will have to be paid for conditional access. All that my amendment does it to ask Ofcom to do that—to spell it out clearly and quickly. If the Government are not disposed to accept the amendment, will they at least confirm that it is their view that Ofcom should act in such a way as a matter of urgency when it takes over in December? I beg to move.
Lord Thomson of Monifieth: My Lords, I apologise for not being in my place when the noble Lord, Lord Gordon of Strathblane, began his speech. I strongly support the case that he has made for some means—preferably legislative and statutory—to make the conditional access system open and transparent.
Conditional access has created a major problem and distortion for the broadcasting system in this country from the earliest days following its introduction. I remember arguments about it in earlier Broadcasting Acts. The decision that the BBC has apparently been able to make is a healthy one in terms of the overall situation, but very many problems remain to be solved. The noble Lord, Lord Gordon of Strathblane, has performed a service by putting down this amendment and pressing, in one way or another, for total transparency about the pricing arrangements associated with conditional access. It is in the interests of the general viewer of television in this country.
Lord Bragg: My Lords, I support the amendment of my noble friend Lord Gordon of Strathblane. I, too, apologise for not being in my place. That adjournment put us all at a disadvantage. We thought that we had seven or eight minutes; we had two or three.
I support every word said by my noble friend Lord Thomson, as I have done over the years in listening to his wise counsel. We have been on the same side in many battles. Transparency for conditional access is absolutely essential. Otherwise, there is an opportunity for fudge and for exploitation. Heaven forfend, but the opportunity is there.
There is no reason why there should not be transparency. There is no reason why there should not be a relationship established between different broadcasters seeking that access. If one particular organisation can monopolise and manipulate it, that is another distortion in what is supposed to help a market process. I therefore heartily support the amendment of my noble friend Lord Gordon of Strathblane.
Baroness Buscombe: My Lords, we on these Benches also support the amendment proposed by the noble Lord, Lord Gordon of Strathblane. As noble Lords have said, it would oblige Ofcom to publish guidance on how it will interpret the obligation placed on conditional access providers to offer their services to all broadcasters on fair, reasonable and nondiscriminatory terms. A transparent regime is important. The amendment would not set a price for conditional access, nor would it prejudge how Ofcom
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goes about determining what is a fair and reasonable price. However, it will ensure that Ofcom reviews the pricing regime as a matter of priority.
I also want to speak to Amendments Nos. 136 to 138. Those amendments return to an issue debated in Committee. There remains a concern that wording used in Clause 269 and subsection (2) in particular suggests that there are other intermediary players in the satellite broadcasting process to or through which PSBs may offer their service. Consequently, the digital satellite platform is not an open platform.
I welcome the Minister's statement in Committee that the satellite platform is open in the sense that any broadcaster can approach the operator of a satellite and negotiate facilities for the transmission of a service and also buy conditional access and EPG services from Sky in the UK. Clearly, that is not in dispute. In view of that consensus, it is difficult to understand the Government's explanation of the clause in Committee when the Minister said:
"The first objective aims to secure that the channel provider does not refuse to provide his channel to the provider of a satellite service, if they can agree terms".
He also said:
"It is, therefore, quite different from the second objective which requires the channel provider to ensure that its service will be made available to satellite viewers, and to ensure that as many people as practicable can receive the service. The second objective does not mean that an intermediary is required".—[Official Report, 3/6/03; col. 1196.]
It appears from those statements that the first objective has been designed to apply to instances at which an intermediary provider and a satellite broadcasting process exists. Why otherwise would a PSB be refusing to provide its channel to that provider? But why is the first objective needed at all? Given that we all agree that the satellite platform is open, it is difficult to see how a situation could arise in which a PSB could refuse to provide its channel to the provider of an intermediate satellite service.
We contend that there is no possibility of that happening in the UK because the only satellite platform that exists is open and the PSBs already conform to objective 2 by making their services available to viewers directly without any intermediary players being involved. The Minister in fact confirmed in Committee that as things stand the second objective might suffice,
"but if the situation changes, the other objectives could be brought into play to ensure universal availability".—[Official Report, 3/6/03; col. 1197.]
I should be grateful if the Minister would explain how the situation might change to where a PSB is in a position to refuse to provide his channel to a satellite service, which justifies the existence of the first objective. Otherwise, I urge the Minister to accept my amendments, which would ensure that Clause 269 is a more accurate reflection of the way in which the UK's satellite platform actually operates.
8.45 p.m.
Lord McIntosh of Haringey: My Lords, let me begin by addressing Amendment No. 134. The intention of this amendment is to place Ofcom under a duty to issue guidance on how the requirements of conditions set under Clause 72 can be met. Subsection (2) of the clause deals with the setting of access-related conditions in relation to conditional access systems. One of the key requirements of those conditions, set out in Part I of Annex I of the access directive, is that operators of conditional access systems should offer those services to all broadcasters on a fair, reasonable and non-discriminatory basis.
The Government recognise that the question of what constitutes "fair, reasonable and non-discriminatory" access is of crucial importance, not least to public service broadcasters; it is a very difficult issue. It is therefore entirely appropriate and desirable that Ofcom should issue guidance on how those requirements can be met. In any case, it has been Oftel's practice to do so, and I am confident that Ofcom will follow that practice.
The only question is whether it is necessary to place a duty on Ofcom on this point in the Bill. That is not the Government's view. There are a great many things which it is sensible—even desirable—for Ofcom to do but which we do not think it necessary to put in the Bill. Except for a few questions of very fundamental importance, such as the use of its powers to impose financial penalties, we do not think it necessary or desirable to specify all the matters on which it would be desirable for Ofcom to issue guidance. It has been said amiably enough that the Bill is long enough. The proposed requirement is unnecessary and would add to Ofcom's procedural load without in practice adding anything to the degree of transparency and regulatory certainty which will be provided in accordance with the directive because, as I say, I am sure that Ofcom will follow Oftel's existing practice on this point; I would expect it to do so.
Lord Thomson of Monifieth: My Lords, is the noble Lord really saying that the way conditional access works is a matter for guidance and not a matter for proper regulation? Is it not a much more serious matter than simply one of providing reasonable guidance?
Lord McIntosh of Haringey: My Lords, guidance is quite a powerful thing, in its place. Ofcom has the responsibility of adhering to the conditions of part 1 of annex 1 of the access directive. If it does not: do so, then we are in trouble with Europe. It is therefore Ofcom's responsibility to achieve that aim. How it does it is a matter for Ofcom. If it can do it through guidance, then it is entirely proper that it should do it through guidance.
Perhaps I may now turn to Amendments Nos. 136, 137 and 138. Here I do not have very much more to add to what I said in Committee. We all share the objective of providing universal and free availability of the public service broadcasting channels. The debate in Committee demonstrated that we all share a
824
common understanding of the processes by which satellite television reaches us today. But we also agree that technology moves faster than legislation and that we should, if we can, make the Bill as future-proof as possible.
As we explained in Committee, there is scope for various models of satellite broadcasting. While some broadcasters will do all the work themselves, others will use a satellite service operator. Some will broadcast in the clear; others will have their services encrypted. Again, as we made clear in Committee, it is a mistake to think that Clause 269 implies that public service broadcasting channels can only he made available to viewers by offering their channels to, for example, Sky to broadcast on satellite. What matters for us is not the means by which the channels are made available but the result that the clause delivers, which is the availability to satellite viewers of public service channels.
Ofcom will impose the conditions that it considers appropriate to secure that the licensed public service channels are at all times offered as available to be broadcast by means of every major satellite television service. Ofcom will pursue three objectives, but it might not need to impose conditions to secure all three of them for any one channel. That will depend on the means by which the channel provider ensures that its service will be available to satellite viewers. The second objective can be secured in a way that does not imply that an intermediary is required.
As I explained in Committee, as things stand, we might be able to achieve our goal of universal availability through the second objective alone; but if the situation changes, the other objectives could be brought into play. It might also be the case that, because a public service broadcaster is broadcasting its channels itself, no further conditions need to be imposed in order to achieve the third objective, as public service broadcasters are already required to make their services available free of charge—otherwise, it serves the purpose that the provider of a satellite television service cannot charge for reception of the public service channels alongside the pay channels that it provides.
Perhaps I may finish by repeating what we are trying to do: whatever the market or technical conditions prevailing in the future, we aim to ensure that public service channels continue to be universally available free of charge. We think that that is provided by the clause as drafted. Therefore, we do not see any need for the amendments.
Lord Gordon of Strathblane: My Lords, I thank the Minister for his reply and those noble Lords who took part in the debate entirely in my support. I have in mind, in particular, the noble Lords, Lord Thomson and Lord Bragg, and the noble Baroness, Lady Buscombe.
I am slightly unhappy that the Minister has chosen to say that Ofcom should follow the example of Oftel. I am quite happy to accept the noble Lord's expression of hope that it is the proper function of Ofcom to spell

825
this out and give us a transparent regime; but to add that Oftel's practice should be followed rather vitiates it.
There is no transparent regime at the moment. There are no noble Lords in this House, including, I suspect, government Ministers, who know who pays what to Sky for conditional access. That cannot be a satisfactory situation.
When the Minister liaises with Ofcom, I trust that he will see the need to stress that we hope that Ofcom will behave in a very much more transparent and speedy manner than Oftel. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 268 [Must-offer obligations in relation to networks]:
[Amendment No. 135 not moved.]
Clause 269 [Must-offer obligations in relation to satellite services]:
[Amendments Nos. 136 to 139 not moved.]
Clause 273 [Programming quotas for independent productions]:
[Amendment No. 140 had been withdrawn from the Marshalled List.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 140A:
Page 245, line 24, after "programmes" insert "which are made by independent producers"
The noble Baroness said: My Lords, in moving Amendment No. 140A, I shall speak also to Amendment No. 141A. These amendments seek to introduce an alternative definition of "independent" for the purposes of the independent production quota. The quota requires that each licensed public service channel ensures that a minimum of 25 per cent of broadcasting time is allocated to independent production.
Currently, production companies which have an ownership relationship—that is, those that share the same parent but have no preferential commissioning relationship with a broadcaster—are deemed to be non-qualifying independents. The current regime determines independence based on common shareholding criteria. The Broadcasting (Independent Productions) (Amendment) Order has recently revised the requirements for independent production companies. Share restrictions now apply only in respect of any broadcaster which provides a television service intended for reception anywhere in the United Kingdom.
The amendment adopts a definition of "independence" that would allow companies which gain no economic advantage from an ownership relationship with another broadcaster to produce programmes that qualify for the quota. The amendment proposes an economic dependency test which requires producers who have more than a 25 per cent common shareholding with a broadcaster to show that they have derived no more than 33 per cent of their gross revenue from production activity from that
826
broadcaster. The test would be easy to measure and proposes that if a production company should change status and become economically dependent on the main broadcaster, it would automatically lose its independent status.
The amendment differs slightly from the one tabled in Committee as it includes a provision that prohibits any producers who are owned or controlled by a broadcaster from qualifying for the independent production quota if a sister company receives more than 33 per cent of its revenue from that broadcaster, even if the company concerned makes nothing at all from the broadcaster. The amendment has been refined to alleviate concerns expressed in Committee that such a test could allow the quota to be attacked by the back door.
We urge the Government to consider these amendments as we feel that the independent sector is of fundamental importance to the broadcasting industry. I beg to move.
Lord Crickhowell: My Lords, earlier in the evening I warned my noble friend that I had some anxieties about her amendment. I had read it only during the course of our proceedings, and I was worried that it might raise the difficulty with which I dealt in Committee. On hearing what my noble friend said and on reading and re-reading the definitions in Amendment No. 141A, I believe that my anxieties may be misplaced. As my noble friend said, they are concerned with ownership relationships.
But perhaps I may explain my anxieties. During the Committee stage, I raised the issue of ITV companies being able to bid for independent production. I said that that was the kind of argument that Ofcom was being established to settle. It is for Ofcom to decide what role the ITV companies can play in the UK programme supply market over and above their regional licence obligations. For that reason, I tabled the amendment. The Minister who replied to me on that occasion said that, indeed, this was an issue for Ofcom. The noble Baroness, Lady Blackstone, said:
"These subsections give Ofcom a duty to consider all aspects of the programming quota for independent productions, including the definitions that the Secretary of State has made by order under Clause 273 and Schedule 12 to define qualifying programmes and independent production".—[Official Report, 3/6/03; cols. 1209–10.]
I emerged satisfied from that debate because I felt that a clear steer had been given to Ofcom: that it was Ofcom which would deal with the matter. We were dealing with Clause 273 which defines in subsection (2)(b) that,
"independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this section".
Perhaps my suspicions were aroused because the noble Lord, Lord Alli, withdrew Amendments Nos. 140 and 141 which would have raised the issue of quotas by value as well as volume. I wondered whether there was a connection with the fact that this amendment had been tabled.

827
All I seek is an assurance that the amendment introduced by my noble friend relating to programmes which are made by independent producers, which are then defined, will not later impose a restriction preventing Ofcom going down the route for which I argued in Committee and which the Minister said that Ofcom would be able to follow. I hope that it does not inhibit the ability of the Secretary of State to produce suitable definitions.
On re-reading several times my noble friend's amendment on ownership relationships, I think that the position is all right. But I seek reassurance that the position established earlier, which I think was wholly satisfactory, has not in some way been undermined.
9 p.m.
Lord Bragg: My Lords, on the noble Lord's last point, is it possible for the Minister to give us some reassurance that the smaller regional public service television companies in ITV, which for many reasons are languishing at present, can under well-regulated and transparent circumstances be allowed to behave and pitch as independents in the grander scheme of things? They are quite restricted with ITV. They are excluded from the BBC at present. They are in a very difficult position all round. This is a very good chance to help regional television and everything that goes with it. I should be pleased if we could have a reassurance on that.
Lord Lipsey: My Lords, I support my noble friend and the tenor of the debate. It is quite curious that when the BBC had a problem with its independent suppliers about Endemol which caused it to miss its quota the Government rushed forward with an order to correct the position. ITV never seems to receive quite the same solicitousness from Ministers.
However, on the other point raised by my noble friend, one of the characteristics of the ITV regional companies is that they are companies making programmes outside the M25. With great respect, much of the "indie-industry" is also outside the M25. I hope that there is to he some parity of treatment between the attention given to the BBC's problems and that given to ITV and that the amendments will be regarded with sympathy.
Lord Davies of Oldham: My Lords, as has been indicated in several contributions, the amendments are similar to ones we discussed in Committee so I shall keep my response brief.
The amendments seem to be intended to ensure that producers with an ownership link to UK broadcasters can be considered independent subject to an economic dependency test. The ITC considered this very issue in its UK programme supply review, which examined the overall economic health of the TV programme supply market in the UK, and in particular the role of independent producers within it.
The ITC concluded that there was not a case at the moment for changes in qualification criteria to include producers who have ownership links to UK
828
broadcasters. It considered available evidence which showed that producers in this category were not being unduly affected by exclusion from the quota at present, and that a change of definition would most likely impact adversely on other, non-aligned, independent producers. The ITC therefore recommended that the current definitions should remain unchanged for the time being.
The situation, however, will be kept under review. Ofcom will be required to review the operation of the quota, including the various definitions, on an annual basis and report to the Secretary of State. Any further changes to the definitions can be made by secondary legislation, though the amendments we are now considering—this must be a signal and crippling disadvantage to them—would effectively take that flexibility away by defining the term "independent producer" on the face of the legislation.
What would be the point of Ofcom's review if there were no means of giving effect to its recommendations? Therefore, that argues very much in favour of our current approach of' defining in secondary legislation the terms "independent productions" and "qualifying programmes". It gives us that flexibility. We cannot know whether the definitions in place today will remain appropriate in 10, five or even two years' time. We need the flexibility of the order-making power to ensure that these definitions are right. To define in primary legislation the term "independent producer" would greatly restrict this flexibility.
I have heard what my noble friends have said in their eloquent pleas about the issues with regard to particular groups of independent producers. My noble friend the Minister is prepared to talk to them further to see whether we can make progress on what they have identified as a real issue. However, I am indicating this evening that we do not consider that the solution lies in changing the primary legislation.
Lord McNally: My Lords, does the Minister agree that the initiative, which was very welcome at the time, that emerged from the pre-legislative Select Committee was for the ITC to make a study? From that study came some very useful advances for the independent sector. Would it not be far better if the kind of proposals put forward by the noble Lords, Lord Crickhowell and Lord Bragg, for the smaller ITV companies could be dealt with in a similar pragmatic way once Ofcom was up and running? I did not indicate this earlier, but if the noble Lord is looking for support in that approach, he will have it from these Benches.
Lord Davies of Oldham: My Lords, uncharacteristically, the noble Lord, Lord McNally, is late to the party, but his contribution is very welcome. I see considerable merit in what he indicates. The noble Lord is, in his usual benign way, giving necessary

829
reinforcement to the Government as to why he thinks we should reject the rigidity implicit in the amendments.
Baroness Buscombe: My Lords, I thank the Minister for his response. Of course I would like to be early for a party. I think that was rather an unfair comment about the noble Lord, Lord McNally.
I am rather disappointed by the Minister's response. One of the reasons for tabling these amendments was to follow up the order to which the noble Lord, Lord Lipsey, referred, with which we were not happy. It seemed to be prejudiced against some of the smaller companies and to be a reaction to a particular situation—Endemol. We felt that was rather unfair. So we are reluctant to trust that the order route is satisfactory.
That said, if the Minister is suggesting to me that our amendments would remove future flexibility by defining the term "independent production", I am concerned I notice my noble friend Lord Crickhowell nodding at that remark. I defer to my noble friend on that issue. It is disappointing. We worked hard to try to table an amendment that would alleviate the clear concern in Committee that such tests as we were keen to apply could allow the quota to be attacked by the back door.
That said, I am pleased that the Minister has offered further discussion about the smaller regional TV companies, for example. The suggestion made by the noble Lord, Lord McNally, is a good one. Therefore, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 141 had been withdrawn from the Marshalled List.]
[Amendment No. 141A not moved.]
Clause 276 [Appointed news providers for Channel 3]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 142:
Page 249, line 17, leave out paragraphs (a) and (b).
The noble Baroness said: My Lords, I shall speak to Amendments No. 142 and 143 in Clause 276, to Amendments Nos. 144 and 145 in Clause 277, to Amendment No. 146, after Clause 277, and to Amendment No. 244 in my name and that of the noble Lords, Lord McNally and Lord Gordon of Strathblane, and the noble Baroness, Lady Howe of Idlicote. I thank those noble Lords for adding their names to those important amendments.
Taken together, the effect of Amendments Nos. 142, 143, 145 and 146 would be to delete the requirement for Channel 3 to appoint a new supplier from among a list of companies that have secured nominated status from the regulator. De facto, that would also do away with current ownership restrictions placed on the so-called nominated news provider. However, it would retain the obligation on Channel 3 to supply a news service competitive with other national news services. It would also retain the new powers proposed by the Government that give Ofcom power to issue guidance
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on the terms that it believes will be necessary to secure the delivery by any news provider appointed by Channel 3 to meet its news obligations. As well as giving guidance on those terms, Ofcom will have the power under Clause 276(3)(d) to approve the terms agreed between Channel 3 and its news supplier.
Those are powerful provisions that will ensure that Channel 3 has a news supplier that is adequately resourced to discharge the obligations with regard to news on Channel 3 included in the Bill. Amendment 204 is a consequential amendment that deletes Clause 343, which would raise the current 20 per cent ownership limit to 40 per cent. Taken together, those amendments, which were also presented in Committee, would remove the proposed ITN ownership restrictions while retaining clear obligations on ITV to properly fund a news service that is capable of competing with that of Sky News and the BBC.
The issues in this debate have been well rehearsed both in another place and in Committee in this House. Whatever initial opposition there was at the start of the process has gradually evaporated to the point where, in Committee, the Minister faced the unenviable task of being the only Member of your Lordships' House out of 10 who spoke on the issue to defend the status quo.
The power and persuasion of the arguments deployed across the Chamber during our debate in Committee exposed the fact that the Government have no clear or logical reason for retaining ownership restrictions on ITN. Each argument that has been advanced by the Government has been comprehensively dismissed.
First, Ministers argued that the retention of the current rules is necessary to protect the editorial quality of news on ITV. But, as acknowledged by the Government elsewhere in the Bill, editorial quality is more appropriately safeguarded by content regulation than by ownership. The quality and impartiality of news on television is indeed a matter of great importance. That is why we, along with ITV and ITN, are happy to support those aspects of Clause 276 that strengthen the obligations on Channel 3 to provide a high quality news service and give Ofcom greater powers with regard to the terms agreed.
Secondly, it has been argued that it is important to keep the rules on ITN ownership because we do not know who might own ITV following the Government's relaxation of the media ownership rules, the implication being that ITN might fall into the hands of foreigners. This is perverse nonsense from a Government who are relaxing the rules to allow non-EEA owners of ITV. In addition, the current rules do not afford ITN any such protection. In the last bidding round for the ITV contract, the ITC approved a bid from a largely foreign-led consortium consisting of Sky, Bloomberg and CBS. ITV chose to stick with ITN, but there is nothing in the current Bill to prevent ITV awarding the contract to a company other than ITN next time around.
Finally the Government have argued that increasing the share that any individual company may hold in ITN from 20 per cent to 40 per cent will help to boost investment in the company by allowing it to move from a minimum of five to three shareholders. But if this relaxation is of such benefit, why is it that ITN has been the most vociferous opponent of the rules as currently framed in the Bill? Have the Government not begun to ask themselves why, if these rules are so good for ITN, it is ITN that has led the charge against them?
It is because they will have the opposite effect. They will condemn ITN to a fragmented shareholding structure and make it more difficult for its management team to secure investment, grow the business and keep the ITN brand strong. In Committee the Government indicated that Ofcom would be able to lift the ownership rules and that they did not object to Ofcom looking at this as an early priority. But the reality is that, on taking office, Ofcom will immediately have to deal with the obligatory review of the whole of public service broadcasting to inform the BBC's charter review process, the replacement of every Channel 3 analogue licence and the Channel 5 analogue licence with new digital licences, the establishment of a new co-regulatory body to regulate broadcast advertising, the setting of origination targets and quotas and the introduction of new programme codes, to name only a few of its tasks.
The reality is that if we leave this to Ofcom, it will slip to the middle or bottom of a very long list of priorities. That will leave ITN labouring under ownership restrictions not faced by any of its competitors, unable to secure the investment it badly needs now if it is to sustain its position as a market leader in news supply. There is clear support across the House and across the broadcasting industry for the removal of these rules. Their removal will help to strengthen ITN and the news supply market in the United Kingdom.
In Committee the Minister promised to bring forward amendments on Report that might meet us half way. These have not materialised and I take that as a positive sign that Ministers are prepared to meet us not just half way, but at the final destination. I hope that the Minister will be able to give us a clear assurance on this point so that we are not compelled to divide the House on an issue on which there is such wide agreement. I beg to move.
9.15 p.m.
Lord McIntosh of Haringey: My Lords, I wonder if I might intervene now because I have something positive to say, which may be helpful. I do not wish to curtail debate and I shall be glad to respond to any further points that are made, but what I have to say now may be helpful to noble Lords.
We have listened carefully to all the arguments and we have been persuaded that we should modify the arrangements for an appointed news provider for Channel 3. We shall bring forward amendments at Third Reading to do so. Let me outline what we propose.
832
We will remove the ownership restrictions on the appointed news provider, thus removing the legal obstacles preventing ITV or anyone else from taking a majority shareholding in the appointed news provider or owning it outright. For clarity, I should add that we shall retain the restriction on bodies disqualified from holding broadcasting licences by virtue of Part. II of Schedule 2 to the Broadcasting Act 1990, such as political parties, from having an interest in the appointed news provider. I would add in passing, since I must have some retaliation for the powerful speech just made by the noble Baroness, Lady Buscombe, that the amendments as tabled would have removed that restriction, which I am sure was not their intention.
We shall also introduce a new restriction. As the House is well aware, there are restrictions preventing newspaper owners with 20 per cent or more of the national newspaper market, or bodies controlled by such owners, from holding an ITV licence. However, there are no specific restrictions on such bodies from having an interest in the appointed news provider. Although, like everyone else, they are prevented from having more than a 20 per cent interest in the news provider, once we remove the ownership restrictions they could own the appointed news provider outright. It would be odd, to say the least, for such a body to be prevented from holding a Channel 3 licence and yet he able to provide it with its news—its most politically and democratically sensitive material. We will therefore amend the Bill so that a person who cannot hold a Channel 3 licence cannot have more than a 20 per cent share in the Channel 3 news provider.
This leaves these bodies in exactly the same position as they are under the current legislation. So they will not he prejudiced, but they will not benefit either from the ownership relaxation we are providing. We will retain all the other important quality aspects of the appointed news provider regime currently set out in the Bill which require Channel 3 to provide a news programme capable of competing effectively nationally and which is adequately funded.
We will also amend the Bill to ensure that Ofcom can obtain all the information it needs from ITV or the appointed news provider to assure itself that the necessary funding arrangements are in place and working properly. As a safeguard, we will retain a power in Clause 276 to reintroduce further ownership restrictions on an appointed news provider in the future. This could he done, for example, as the result of a recommendation from the reviews that Ofcom is required to conduct when Channel 3 or Channel 5 licences change hands, or when Ofcom carries out a review of the media ownership rules under Clause 384. We think this is a useful safeguard.
Clearly, any decision to reintroduce limits in the future would have to be reasonable and proportionate and comply in particular with our European Convention on Human Rights obligations. I hope that that is helpful to the debate.
Lord Bragg: My Lords, I was about to make an immensely long and repetitive speech on this subject.

833
Instead, I thank my noble friend the Minister for such a generous and helpful response to the concentrated views expressed across the House.
Lord Fowler: My Lords, I, too, was about to make a long and spirited speech on this subject. I, too, thank the Minister. I congratulate my noble friend Lady Buscombe on the persistence with which she has put the case and for the victory she has secured.
ITN has a proud history. "News at Ten" has been genuinely innovative over the years and reporting standards have been very high. In recent years some of us feared that ITN had lost its way—particularly in regard to its decision to move the main evening news programme around the schedules—but its coverage of the Iraq war, where one of its reporters was so tragically killed, showed that its old skill and flair are still present. That needs to be underlined.
The Minister, urged on by my noble friend, has taken away one of the restrictions on ITN. It did not seem to make any kind of sense to deter investment in the way it was deterred under the rules, even as modified, in the Government's first proposals. The BBC owns its own news service, Sky owns its own news service, and we can now have a situation where ITV can benefit from the same kind of freedom. I believe that, as a result of that, it will go forward from strength to strength and become a major force in British and international television, as it deserves to be.
Lord Crickhowell: My Lords, I was not going to make a long speech because I said what I wanted to say at the Committee stage. I thank the Minister for his wholly helpful statement. It needs to be said that the restrictions he suggested are also very reasonable. The balance he has produced is acceptable and greatly improves the Bill.
Like my noble friend Lord Fowler, I, too, congratulate my noble friend on the Front Bench on a notable victory. She has achieved a significant improvement to the Bill—a very satisfactory outcome. It shows that when the House works on a cross-Bench basis with support from all parts of the House we can improve legislation, as we have done on this occasion.
Baroness Howe of Idlicote: My Lords, I also congratulate both the Government and the noble Baroness, Lady Buscombe.
I admit that when we debated this in Committee the arguments were so convincing, made even more convincing now, that I could not believe that the Government would not give way. I also admit that I made a rather cross comment about the Government not giving way. I take that back unreservedly. I am delighted that the Government have given way, and I agree that the additional conditions make much sense for the future. So there is no need to say any more, just congratulations.
Lord McNally: My Lords, I am sure that I can help the noble Lord, Lord Lipsey. It is a matter of historical
834
record that two years ago the Liberal Democrat conference adopted a policy document that advocated this policy at a time when even ITN did not believe that that was achievable. That only goes to show that what the Liberal Democrats said two years ago, the Conservatives and the Labour Party pretty well catch up when they get going. Thank you very much, Minister.
Lord Lipsey: My Lords, I am tempted to say that I was about to make a short speech but will instead embark on a long one. All that I wish to say in response to this remarkable development is that this Report stage demonstrates this House working at its best. I contrast that with a less satisfactory Bill, such as the Licensing Bill.
There has been give and take on this Bill, a good atmosphere, genuine argument, and as a result—I do not like the words "concessions" or "victories"—we have made progress by consensus. I happily pay tribute to the role played by the noble Baroness, Lady Buscombe, and I also thank the Minister for the approach that he has injected into this Report stage. For once, we can be proud of our work.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I have no response, except to say that I have been outnumbered 10 to one on more than one occasion, and I expect that to continue. It does not always mean that I am wrong. On this occasion I add my congratulations to those who have successfully argued the case.
Baroness Buscombe: My Lords, it gives me great pleasure to thank the Minister for his response. I also thank all noble Lords who have contributed to this important debate through the different stages of the Bill—my noble friends Lord Fowler and Lord Crickhowell, the noble Lords, Lord Bragg, Lord Lipsey and Lord McNally, and the noble Baroness, Lady Howe.
I thank those who have complemented me, but this is a victory for all noble Lords and for the Government, who are now making good law. It is an example of your Lordships' House working at its best, but I also thank the Secretary of State for offering me the opportunity to debate these issues with the Minister. That contributed greatly to the result that we have achieved. The Minister has given a clear assurance and was kind enough to give me advance notice of his comments. We have come a long way and we are enormously grateful. We shall consider the proposed amendments with care, to ensure that they fully reflect the Government's reassurances and the Minister's comments this evening. On that basis, it gives me great pleasure to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 143 not moved.]
Clause 277 [Power to repeal Channel 3 news provider provisions]:
[Amendments Nos. 144 and 145 not moved.]
[Amendment No. 146 not moved.]
9.30 p.m.
Clause 281 [Regional programme-making for channels 3 and 5]:
Lord Puttnam Lord Puttnam moved Amendment No. 146A:
Page 253, line 11, leave out "suitable" and insert substantial"
The noble Lord said: My Lords, I rise briefly to move—move again—the amendment. I read carefully the Hansard report of our discussion in Committee. It was a fairly sad occasion. I then went to the Oxford English Dictionary and looked up the definition of the words "substantial" and "suitable". According to the OED, "substantial" means,
"Having solid worth or value, of real significance; solid; weighty; important, worthwhile".
The dictionary adds "ample and nourishing". Under "suitable", we find:
"fitted for or appropriate to a purpose".
I suggest that there is no contest between the meaning of those two words. It is clear that what we are looking for, in the context of the clause, is "substantial". I would even be prepared happily to settle for "significant". In no way can the word "suitable" be applied. I beg to move.
Lord Crickhowell: My Lords, the Minister is basking in the glow of the approval of the whole House for the action that he took on the previous amendment. He can gain even greater approval if, on this occasion, he again accepts this utterly reasonable amendment, which will strengthen the Bill. The issue has been raised repeatedly by the noble Lord, Lord Puttnam, and the amendment deserves support.
I am optimistic that, with the Minister in such positive and constructive form, we can make another improvement to the Bill.
Baroness Buscombe: My Lords, we support the amendments.
Lord McIntosh of Haringey: My Lords, in Committee, the noble Lord, Lord Puttnam, said, I think, that we were losing a "slam-dunk" opportunity to be flexible. We debated the amendments in Committee, and I cannot accept the amendments before us today. I listened carefully to the views that were expressed in Committee, and I hope that, even if we cannot accept the exact wording proposed, there will be something that we can do to meet the concerns expressed.
The concerns expressed are difficult, and I am not sure that we got that across adequately in Committee. The problem is that, unlike the word "substantial", the current words "suitable" and "sufficient" have a wide meaning. I know that that is a cause of concern to some people, but the words give Ofcom essential flexibility to apply the targets for regional production, investment in regional production, and regional programming at a level appropriate to the service in question.
836
We need flexibility because this is not an area in which one size can fit all. There are considerable differences in the production capabilities of the different regional Channel 3 licensees. What is right for, say, Granada in Manchester, with a well established production base, may not be right for smaller licensees such as Channel or Ulster or for the London licensees. Similarly, what may be right for Channel 3 may not be right for Channel 5, which has no production base of its own and is, after all, a national service. I know that the amendments do not apply to Channel 4, but the same arguments would apply there.
Ofcom would have no flexibility, as it does at the moment, to take such factors into account when setting targets. For example, if it were to set a target for Channel 5 that appeared to them to be "substantial", that target would set a threshold because Ofcom would have deemed it to be "substantial". It would not have the flexibility to set targets significantly above that threshold to determine, for example, that a "substantial" amount in the case of a Channel 3 service should be much higher than for Channel 5. So, there is a danger that the targets would be set at the lowest common denominator. That is not what we want.
There is also a problem with regional programming. The current word—"sufficient"—gives Ofcom the flexibility to take individual circumstances into account but ensures that whatever targets are imposed must be enough, in its view. Clearly, the regional programming requirements in relation to the national Channel 3 service—currently GM TV—should be different from those of the regional licensees, but the amendments would take away any discretion for Ofcom to take that into account in setting targets.
But—I had to say that, because that is the view of parliamentary counsel expert in these drafting matters—
Lord Crickhowell: My Lords, can I encourage the Minister by saying that I agree with what he has been saying? I think there is a point that needs to be taken into account. Because we are on Report I can make the point only by intervention. If he can meet us at least half way while providing the flexibility that I agree is required, I for one will be satisfied.
Lord McIntosh of Haringey: My Lords, I had reached the word "but". We recognise the strength of feeling on the matter and we want to do what we can to address the concerns expressed. We must ensure that Ofcom has the flexibility to treat different services differently, but within that we will look at whether we can find some alternative wording that would be more satisfactory.
We hope that it will be possible to incorporate the word "significant"—which I believe was the fallback position of my noble friend Lord Puttnam—perhaps with a qualification to ensure that Ofcom's flexibility is preserved. We will come back with suggestions on Third Reading.
Lord Puttnam: My Lords, I thank the Minister for that generous offer. I agree entirely with the noble

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Lord, Lord Crickhowell, that the first part of the Minister's answer was accurate and absolutely fair. I would settle comfortably on the word "significant". I shall make one other point with respect to "suitable". We live in a world of downward pressure: on costs and on quality. I have always been concerned that the word "suitable" represented an escape clause for those who wished to press downwards. I think "significant" would serve nicely and I hope that it finds an ability to commend itself to the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 146B and 146C not moved.]
Clause 282 [Regional programmes on Channel 3]:
[Amendments Nos. 146D to 146M not moved.]
Lord Crickhowell Lord Crickhowell moved Amendment No. 147:
After Clause 282, insert the following new clause—
"VARIATION OF PUBLIC SERVICE OBLIGATIONS OF CHANNEL 5
(1) In the event that the share of audience or share of revenue of Channel 5 for any twelve month period is in excess of 15 per cent, as measured by OFCOM in their review under section 351, the Secretary of State shall by order, require OFCOM to review the conditions placed upon Channel 5 under sections 274 and 281.
(2) Following such a review, OFCOM shall be required to increase the proportions of original and regional programmes required to be produced by Channel 5 to meet or exceed those most recently required of Channel 3.
(3) In the event that Channel 3, in the same period, had a share of audience or share of revenue below 15 per cent, the proportions of original and regional programmes required to be produced by Channel 5 should be no less than those levels produced by Channel 3 when its share of audience was last at or above 15 per cent."
The noble Lord said: My Lords, my noble friend Lord Renton of Mount Harry, who tabled the amendment, cannot be here tonight. I added my name to it because I have been an advocate of future-proofing. It seemed a good idea to provide for a situation where Channel 5 might grow and have a much larger share of business than it has at present.
That is all I need to say about the amendment. The object is to future-proof and provide for what might well happen in the future. Whether it is perfect in its present form I would not know; I suspect that, as usual on these occasions, Ministers will find technical faults. But the principle seems absolutely sound. It is right, even in the absence of my noble friend Lord Renton of Mount Harry, that we should have the opportunity for a brief debate on the principle and to hear what the Minister has to say. I beg to move.
Viscount Falkland: My Lords, we on these Benches agree with the amendment in the name of the noble Lord, Lord Renton of Mount Harry, and the explanation given by the noble Lord, Lord Crickhowell. We think it is a sensible approach. I spoke to the amendment last time; in fact I agreed with the noble Lord, Lord Renton of Mount Harry, to put my name to it. but something went wrong with a
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technicality in our procedures. I repeat that I agree with the sensible provision for the future contained in the amendment.
Lord Brooke of Sutton Mandeville: My Lords, I indicated in Committee a sympathy for my noble friend Lord Renton of Mount Harry's then-Amendment No. 233A. I rise again in his absence on Report to support his Amendment No. 147. Indeed, I go a little further than my noble friend Lord Crickhowell.
I appreciate that returning to the issue on Report might be regarded as an example of the self-indulgence to which the Leader of the House alluded the other day, but I hope that I shall be forgiven for using this opportunity to reflect a little further on what the noble Lord, Lord Davies, said about my noble friend's amendment in Committee. He first said that Ofcom's discretion would be circumscribed in setting targets by this amendment through its concentration on viewer numbers, and I acknowledge the logic of that.
Secondly, however, he went on to say that the then Amendment No. 200, which is not part of this package now, might,
"lead to decreases in the various requirements on public service channels in response to falling revenues and audience shares, rather than increases".—[Official Report, 3/6/02; col. 1216.]
This does not seem a fair charge tonight against the wording of my noble friend's Amendment No. 147.
Finally, the noble Lord said that my noble friend's then amendment, which is parallel to tonight's, would have represented a penalty for success and might have led a shrewd channel owner to curb the channel's growth in viewers when it was approaching the high jump bar which my noble friend's amendment represented. I appreciate that the noble Lord, Lord Davies, was not speaking to the issues of media ownership at col. 1216 for those issues then lay ahead of us, just as they do tonight. But they certainly underlay the motivation of my noble friend's amendments in Committee as well as on Report this evening.
A powerful plank in the Government's arguments for their media ownership proposals in the Bill is the desire to encourage investment. But any businessman, like the shrewd channel owner which the noble Lord, Lord Davies, mentioned in Committee and to whom I have just referred, prefers, when making an investment, to deal with known facts and with constants rather than with variables and uncertainties. We all know how much the independent channels have overpaid the Treasury for their licences in the past and thus foregone the capital they could have invested in their regional channels' programming because one cannot spend the same money twice.
The same observation, incidentally, applies to the Treasury's much larger recent auction for the telecommunications licences. The Treasury may smile in both instances but the massive, excessive expenditure in acquiring the licences—again, in both instances—cannot represent investment in the productive side of the two respective industries.

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So I support the efforts of my noble friend Lord Renton of Mount Harry to introduce certainty rather than uncertainty into genuine investment decisions, and I support my noble friend Lord Crickhowell in bringing this matter back for consideration in your Lordships' House at Report.
Lord McIntosh of Haringey: My Lords, the purpose of this amendment seems to be to allow Ofcom to ratchet up Channel 5's original production and regional programme-making requirements if its audience share or share of revenues exceed 15 per cent. We discussed this amendment in detail in Committee. It seems to be an attempt to deal with concerns about the future ownership of Channel 5. That is really what is behind it; we will be discussing it tomorrow and I shall leave my arguments on that major issue and on the related issues of plurality and public interest tests in merger legislation until we reach that point. In the meantime, I have some comments about this amendment which, if the noble Lord, Lord Crickhowell, will forgive me, I do not think will survive the major debates we have tomorrow.
I am not persuaded of the need for this amendment for two reasons. First, I am not convinced it will have the right effect. A 15 per cent target might appear an appropriate level for audience share or share of investment in the current climate, but we can only guess at how the broadcasting landscape could look in, say, five years' time. If there is really an expansion of successful channels, possibly nobody will get 15 per cent, in which case this does not seem very relevant. To have a rigid threshold based on 2003 audience share levels on the face of the Bill seems unhelpful.
Furthermore, the amendment only considers the relationship between Channel 5 and Channel 3. I do not think it is right to make a direct and inflexible comparison between these two public service channels, particularly when it is possible that both channels could in the future find themselves in a weaker market position as multi-channel viewing gains ground—which is another way of saying what I have just said in my own words.
Secondly, Ofcom already has a range of powers to ensure that targets for original and regional production are set and maintained at the right levels. These include the annual factual and statistical report on television and radio services in the United Kingdom, which will include consideration of the financial condition of the market and any trends appearing or operating in the size of the audience; regular reviews of the public service remit and the extent to which public service broadcasters have provided television services which, as a whole, fulfil the purposes of public service broadcasting in the United Kingdom; and the review of various public service obligations, including original and regional productions, on a change of control of a Channel 3 or Channel 5 licence, to ensure that standards do not fall.
As well as those specific powers, the Bill also preserves for Ofcom a general power under the Broadcasting Act 1990 to vary a licence having given the holder a reasonable opportunity to make
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representations. So Ofcom may at any time alter the original and regional production requirements following consultation with the licence holder.
I am confident that Ofcom will set the right targets, review them as appropriate and take action when necessary. I am therefore not persuaded that a further, very specific power of the nature proposed is needed.
9.45 p.m.
Lord Crickhowell: My Lords, the Minister has given a helpful response in the sense that he has spelt out the powers available. As on many occasions I have advocated that Ofcom is the right body to review such matters and to put forward subsequent advice or take decisions, I accept much of what he has said. The point has been made, and in the circumstances it is right for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 148 had been re-tabled as Amendment No. 152A.]
Clause 298 [Code relating to provision for the deaf and visually impaired]:
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 149:
Page 264, line 42, leave out "from time to time" and insert "at least once every three years"
The noble Lord said: My Lords, it is no exaggeration to say that this group—Amendments Nos. 149 to 159A—will determine not only the future amount of television that can be enjoyed by disabled people with sensory impairment but the quality of their enjoyment. General technological advances have been made, and the potential for the future is immense, as we are all well aware. The adjustments that must be made for disabled people are very tiny by comparison. There is no doubt that companies could make them if they so chose. It is Parliament's responsibility to see that they do so.
Tonight I shall focus on four areas. First, I shall refer to Ofcom reviewing the code—Amendment No. 149. Secondly, I shall speak about the inclusion of deaf-blind people. Thirdly, I shall speak to Amendment No. 153 on the time scale for reaching targets. Fourthly, I shall talk about the power of Ofcom to exclude programmes from having to meet the requirements. I shall also comment briefly on the government amendments.
Amendment No. 149 will require Ofcom to review the code relating to the provisions for deaf and visually impaired people at least once every three years instead of "from time to time". We discussed the issue in Committee, and those who supported me agreed that the phrase is far too vague and far too loose. The noble Baroness, Lady Blackstone, rejected our views in Committee, arguing that we should trust Ofcom. She said that she would expect Ofcom to review and revise the code regularly, and that to require more would impose an unnecessary burden.
I disagree for three reasons. First, I am sure that those about to lead Ofcom—the noble Lord, Lord Currie, in particular—will take their

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responsibilities seriously. However, their successors may not do so. Secondly, Ofcom will be an extraordinarily busy regulator, and it may be inadequately funded for that task. Without a legal requirement to review the code, it will be pushed aside to make way for any other business legally required. The sheer volume of Ofcom's work could be decisive. Thirdly and significantly, placing a statutory requirement on the timing of a review signals Parliament's view that the code is a matter of importance.
It is not a question of trusting Ofcom, as intimated by the noble Baroness, Lady Blackstone. It is a matter of Parliament telling Ofcom that the code really matters to disabled people and must be kept updated because of the dynamism of the industry and the rising expectations of disabled people.
I turn to Amendment No. 150. In Committee the noble Baroness, Lady Blackstone, recognised the special problems of those who are deafblind, but she was content to leave the Bill as it was without any amendment referring to them. However, it is essential to recognise that without such reference in the Bill Ofcom will not have the authority to meet the special needs of those with a dual handicap. Provision for those who are deaf and provision for those who are blind are simply not enough because that assumes that those who are hearing impaired can see well and that those who are visually impaired can hear well. Clearly, that is not the case. There is a wide spectrum of impairment ranging across both disabilities and allowance has to be made for that.
It would be especially unfortunate to reject this amendment because it is quite easily possible to make simple changes that would be of great benefit to deafblind people. For example, increasing the size of lettering or changing the font can make all the difference for those who are deaf but have little sight. We do not know what benefits will emerge for the future, but for now we must ensure that Ofcom has the power to consider them. We hope that the Government will accept this amendment. Frankly, I think that it would be outrageous for the Bill to leave this House without a reference to deafblind people.
I turn to my Amendments Nos. 150B and 153. It really is ridiculous to allow television companies 10 years to reach the subtitling target set out in the Bill. For a dynamic industry 10 years must seem like a joke. In Committee my views received welcome support, even from the Minister. The noble Baroness, Lady Blackstone, accepted the thrust of the argument and said that challenging interim five-year targets would be set. As usual, my noble friend Lord McIntosh has kept faith and tabled new clauses which go some way towards relieving the deep anxieties of many disabled people. We are pleased that all sides of the House understandably expressed concerned at the incredible 10-year provision in the Bill.
I shall therefore not be moving my Amendments Nos. 150B and 153. However, I am very sorry that my noble friend's timescale does nothing about targets for signing and audio-description. I think that it is wrong
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to fail to do so. I hope that when he replies he will be able to make some provision on signing and audio-description, both of which are terribly important.
The new clauses will ensure that there are a number of developments which are very important to disabled people. Ofcom would have the responsibility to see that every television channel promotes the service they offer to disabled people. That is really splendid news on this important issue.
The figures for subtitles, signing and audio-description will now be averaged over 12 months rather than on a weekly basis. I appreciate that companies want some flexibility. However, to move from a weekly to an annual basis is far too big a jump. It is just not acceptable. I think that a monthly basis would be a reasonable compromise. It is not clear how that will affect disabled people, but I expect it to be less of an issue on subtitling than on signing and audio-description. Disabled people and Members on both sides of the House will appreciate any clarification from my noble friend on those two points—signing and audio-description.
The Bill's five-year interim target for subtitles is set at 60 per cent. Although that is less than my amendment provides for, it is a compromise and is none the worse for that, especially because of the important addendums that the target may be increased, the date may be brought forward by order of the Secretary of State, and Ofcom will have explicit power to set further interim targets after the 10-year anniversary. The significance of that is that subtitles may be extended beyond 80 per cent, moving us closer to the dream of 100 per cent subtitles, where all deaf people can watch all television in comfort and with comprehension. That would he one of the best, if not the best record, in the whole world.
I shall mention a final provision of the new clauses. Where the Secretary of State chooses to alter any of the 10-year targets by order, he can do so only by replacing them with a higher target. Again, that is good news. I express my appreciation to the Government and to my noble friend Lord McIntosh in particular for the constructive way in which they have tackled these problems.
In brief, the Bill clearly has good intentions that will give deaf and visually impaired people much greater access to television. It could and should enable them to share in the welcome expansion of programmes of all kinds. However, so much depends on its future implementation. In particular, the exemption of programmes should be minimal, or it could be massive. On that hinges the value of the Bill to people with hearing and visual disabilities. Ofcom will decide which programmes will be excluded and that is right and proper. The issues that it should consider in making its decision are a matter for Parliament and not for Ofcom. The current wording is so loose that it could lead to either minimal or massive exemptions. The issue should be debated in this House so that Ofcom can know our views and then get on with its job.
My own view and that of some Members of this House, as it is of the RNID and other organisations concerned with these problems, is that exemptions should be absolutely minimal and should be granted only for exceptional and pressing reasons. It would be very helpful if Ofcom were to give advance notice of applications and an opportunity for voluntary organisations to comment before any exemptions are made.
If my noble friend Lord McIntosh were to give an assurance that Ofcom would be expected to operate in an open and consultative manner on exemptions, as does the Federal Communications Commission in the United States, it would he tremendously important for deaf people and a very healthy development.
I have tabled Amendment No. 155 because in any discussion on disability, I have found that one striking fact emerges; that is, the effects of practically any disability are perceived very differently by the public from those experiencing the disability. That has very important implications for the Bill because Ofcom can assess the benefits of subtitling, signing and audio description in one way, but disabled people see them entirely differently. The public could regard subtitles, for example, with mild interest or possibly irritation, whereas to a deaf person they are crucial to watching and comprehending television. Without them, in a real sense, television is useless and irrelevant to profoundly deaf people because they cannot understand the dialogue—imagine that. Basically, that is the reason for my amendment, and I hope that my noble friend the Minister will he able to accept it.
Amendment No. 156 also relates to the need to have more than an official view before making a decision on exclusion or inclusion. Organisations for the disabled can effectively reflect the views of disabled people, and they need to have the right to do so. Consultation and transparency lead to a very different animal from protestations—which is all we have now—and the amendment would provide for them.
I know that my noble friend the Minister will do what he can, and I thank him very sincerely for the great advances that we are making for deaf and sight impaired people in the Bill. I greatly appreciate all that he has done. I beg to move.
10 p.m.
Lord McIntosh of Haringey: My Lords, I do not want to get into the habit of speaking twice on every group of amendments but it might be for the convenience of the House if I speak to the many government amendments in this group and then respond to the debate at the end as briefly as possible.
We have made clear throughout the passage of the Bill that we fully recognise the importance of access to television services for people with sensory impairments. The provisions in this Bill and other recent developments will lead to a very significant improvement on the current position. In July 2001 we increased the subtitling target for digital terrestrial broadcasters from 50 per cent to 80 per cent. In the
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Bill, we have extended this requirement, and requirements to provide signing and audio description. I know that the noble Lord, Lord Ashley, is not satisfied with what we are doing in that regard but we have made changes. That requirement will apply to all licensed broadcasters including. for the first time, digital cable and satellite broadcasters. Those changes should lead to a dramatic increase in the provision of services to help people with sensory impairments to enjoy television. We know that many people would like us to do more. The noble Lord, Lord Ashley, knows that whenever I offer him something, he wants more. I pay tribute to him for that; he is a doughty fighter and he is very difficult to resist. We indicated in Committee that we would bring forward amendments at Report to deal with two of the concerns that had been expressed. The government amendments in this group represent the outcome of that commitment and also make a further concession to address Amendment No. 157.
The first part of Amendment No. 150A deals with the concerns expressed that many sensorily impaired people are unaware of the existence of subtitling, signing and audio description, and are therefore unable to benefit. The amendment will place Ofcom under a duty to include in its code on access to television for people with sensory impairments a requirement that broadcasters make adequate information about those services available to those who are likely to want to make use of them.
The second part of Amendment No. 150A fulfils our commitment to introduce a fixed, five-year interim target for subtitling, to ensure that progress towards meeting the main target by the 10th anniversary is accelerated in the early years. That target will apply to all services for which the relevant date is after the passing of the Bill; that is, all television licensable content services and restricted television services, and those digital television programme services and licensed public service channels the provision of which begins after the passing of the Bill. There is certainly an incentive here to get the Bill passed.
The target will be 60 per cent. In determining that percentage, we have taken into account both the desire of people with hearing impairments to ensure more subtitling provision, and the understandable concerns of broadcasters about the additional costs that this will impose on them. We believe that a target of 60 per cent strikes the right balance. It is a tough but achievable figure for the broadcasters and will lead to the availability of much more subtitling than might have been expected on a linear progression to 80 per cent.
Amendment No. 156F allows the Secretary of State to set a higher target, or require the target to be met by a different anniversary, where it appears that the 60 per cent target is likely to be fulfilled before the fifth anniversary. That will ensure that there is flexibility to require more from those services for which the 60 per cent target would be less challenging. I hasten to add that that is an upward motion, not a downward one.
Finally, Amendment No. 156H deals with another point of concern which we did not specifically undertake to consider in Committee. That amendment

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will ensure that the provision of subtitling, signing and audio description is not cut back, by changing the existing order-making power in Clause 301(1)(b) to ensure that the percentage figure for the 10-year targets for all those services can only be increased in future, not decreased. As I said, we introduced the amendment specifically to address the intention underlying Amendment No. 157, which we may be debating very shortly.
I hope that the House will agree with me that these amendments show that the Government take these issues very seriously, that we have listened to the concerns expressed and that we are prepared to act where appropriate. We believe that we have gone as far as we can and that it would not be right to impose any further burdens on broadcasters in this area. I have not gone into the detail of all the other amendments but it is obvious that they are consequential on the major points to which I referred.
Lord Carter: My Lords, the only contribution I intend to make is on the government amendments. It is something of a culture shock for me to be questioning the Government on the quality of their amendments.
The amendments to which my noble friend referred were Amendments Nos. 150, 150D, 150E, 151A and 152B to leave out "in every week". We believe that this has been introduced without any consultation with the relevant organisations to increase flexibility for the broadcasters. In other words, they are allowed to concentrate their provision on certain weeks or months in the year so long as they reach the overall average year target. At the moment they are judged against a weekly output averaged over a year.
We are not quite clear what powers Ofcom has to prevent abuse. Let me give an example. There are dead periods of the year in television—the summer—when there are a great many repeats and very little origination of programmes. That could be the period that the broadcaster chose to use rather than the period when there were a lot of original programmes. We are not being suspicious here, but we are concerned about something introduced, as we understand it, at the behest of the broadcasters to increase their flexibility. We are not sure why.
I think that my noble friend will now have to reply at the end of the debate, but he has to deal with this concern. We do not quite understand why it has been done. Has Ofcom enough power to prevent the broadcaster using this change to vary the proportions that are subtitled, and so on, to suit themselves? At the moment there seems to be a system of weekly averaging over the year which works in favour of disabled people. It would be extremely helpful if my noble friend could specifically deal with that point.
Lord Addington: My Lords, I would like to become an echo to the noble Lord, Lord Carter, on that last point. The idea is to make sure that people are not cut off from the media of entertainment, news and cultural involvement that is provided with broadcasting. If you
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are getting programmes only every second week or for a period of time, you are cut off. It does not matter if there is that block of time, you are still cut off.
The noble Lord, Lord Carter, puts his finger on a very serious concern. If the Minister can explain why this concern is irrelevant, I would go away from here fairly happy—but only if we received that assurance. Without that a great hole will have been made in an otherwise very welcome government amendment.
The only other amendment I wish to speak to is Amendment No. 149. As the noble Lord, Lord Ashley, pointed out, the deafblind do not fall into the category of the hearing or visually impaired. They are a separate group who share some characteristics. They should appear on the face of the Bill. It is clear that they have not been brought into government thinking—certainly not into the main part of it. They are a small group and should have been included.
This is a very good opportunity to make sure that they are brought into the structure of government thinking. It is not a great crime on the part of the Government; it is just a case of adjusting your mind to a new set of problems. You may think that you have dealt with a disability issue hut, so long as you are naming individual disabilities, you will discover that there is something else. I am rather like a scratched record on the matter but until there is a more structured approach which includes disability rights as civil rights within the whole structure I have to persist.
This Bill does many good things, but its structure means that you are naming disability groups. The deafblind should certainly be here. For that matter. I would like to see the other disability groups who might be affected also named—but that is by the by. If we are here dealing with sensory impairment, the deafblind are certainly an important, if small, group. Having said that, provided that we are worrying about nothing when it comes to the weekly quotas, the noble Lord's amendment is very welcome and I thank him for putting it forward.
Baroness Darcy de Knayth: My Lords, as my name has been added to some of these amendments, I want to thank the Minister very much for his amendments and to endorse all that has been said thus far. I should like the target to be reached a little more quickly, hut I appreciate very much what the Minister has done. I echo the plea of the noble Lord. Lord Addington, for more focus to be placed on the deafblind because they run the risk of far more exclusion than anyone else.
Baroness Buscombe: My Lords, for all the reasons that the noble Lord, Lord Ashley of Stoke, has given, we have considerable sympathy with Amendment No. 149, which would give Ofcom the duty to draw up a code on provisions for the deaf and visually impaired at least once every three years rather than from time to time.
Although I am reluctant to place an unnecessary burden on Ofcom, the reality is that, with the rapid pace of change in technology, a report must be produced regularly to ensure that it is up to date and

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includes the latest developments and opportunities for disabled people in the communications industry. Perhaps the Minister would find a period of time other than three years a little more palatable, but we believe that the terminology "from time to time" somewhat reeks of deadlines being pushed further and further back.
Amendment No. 155 recognises that able-bodied people are often not the best judges of what benefits disabled people. We on these Benches support this amendment. It seems a sensible addition to the Bill in that it recognises that disabled people themselves are the best judges of what would and would not be of benefit.
Government Amendment No. 156F would empower the Secretary of State to alter either the percentage target or the date by which a target should be reached if it seemed that the original target would he met in advance of the deadline. The intention behind this amendment is sound. Some channels will find it easier than others to meet targets. Where rapid progress can be made, the Secretary of State should raise the bar for such channels. However, the amendment concerns us in that it provides an incentive for channels to do the minimum possible to meet the targets so that they do not give the Secretary of State a reason for revising their target upwards. Therefore, can the Minister assure us on this matter? I question what reasons the Government have for believing that this amendment will not act as a disincentive for channels to meet their targets.
Baroness Howe of Idlicote: My Lords, I rise merely to congratulate the Government on what they have done thus far. It is clearly a move in the right direction, although, as has been pointed out by the noble Baroness, Lady Buscombe, some clauses still cause considerable concern—not least, Clauses 149 and 150. While we all appreciate that there has been some movement on the part of the Government, I hope that the Minister will realise how strong the feeling is in this direction and that he will be able to do rather more by Third Reading.
10.15 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I shall respond to non-government amendments and to points made in the debate. Amendment No. 149 would require Ofcom to review and revise its code relating to provision for the deaf and visually impaired,
"at least once every three years",
rather than "from time to time". That would be the case regardless of whether it was thought that any review or revision was necessary.
We fully expect Ofcom to review and revise its code regularly, but we believe that decisions on the frequency of the reviews should be left to Ofcom, which has the expertise and experience to judge when they might be necessary. The situation might be very different in five or 10 years' time from the current one. We may need to have such reviews far more frequently
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in the near future and far less frequently later, or, as technology develops, the other way round. Frankly, I do not believe that Amendment No. 149 would lead to a different end result.
Amendment No. 150 would require Ofcom's code relating to provision for the deaf and visually impaired to give guidance on the extent to which applicable services should promote the understanding and enjoyment of programmes by persons with a dual sensory impairment, as well as persons who are deaf or hard of hearing, and blind or partially sighted. We do not underestimate the problems faced by people with a dual sensory impairment. We certainly recognise that they have particular needs. But we do not believe that an amendment to the Bill is necessary.
Realistically, a person would need to have some form of hearing or visual ability in order to enjoy or understand television. In this case, the current duty to promote understanding and enjoyment for people who are deaf or hard of hearing and blind or partially sighted would seem to satisfy that need.
There is specialist equipment such as the talking teletext service, which is particularly useful for people with dual sensory impairment. The ITC's technology group believes that it is possible to design a digital version of the talking teletext equipment—I referred to that in debating an earlier amendment—and suggests that the equipment manufacturers work with broadcasters and set-top box manufacturers to try to find a commercial solution. I think that that is the right way to proceed and more likely to bring about the desired result than bringing forward an amendment to the Bill.
I remind the House that government Amendment No. 22, which we moved last week, introduced a duty on Ofcom that focuses on widening the availability of consumer equipment which is convenient for use by the widest practical range of users, including disabled people. That was in response to Amendment No. 39 tabled by the noble Lord, Lord Ashley, in Committee. Ofcom will be required to take those steps, and enter into such arrangements as will encourage others to secure that wide availability. It would not be appropriate for Ofcom to become involved in design, much less manufacture and marketing; so the focus is correct.
Amendment No. 152 is consequential to Amendment No. 151, which will be discussed in the following group.
The noble Lord, Lord Ashley, said that he will not move Amendment No. 150B, so I can move on from that, except to say that we still think that a 10-year period in which to satisfy those obligations is right. It gives those services with new obligations, such as digital, cable and satellite services, enough time to plan for the introduction of these new requirements. That is important, because there are substantial costs involved. Ten years is a long time, that is why we have agreed a fixed, five-year interim target, which is the purpose of government Amendment No. 150A. I know that the noble Lord, Lord Ashley, is not satisfied

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with that response. However, I know that it is also recognised around the House that that is a significant improvement.
Amendment No. 153 would require all channels to achieve at least 40 per cent of their 10-year targets for subtitling, signing and audio description by the first anniversary of the relevant date; and at least 90 per cent of their 10-year targets by the fifth anniversary of the relevant date.
Government Amendment No. 150A goes a considerable way towards meeting this amendment. After consideration, we thought that a fixed, five-year interim target should only apply to subtitling, which is a well-established technology. We concluded that a five-year target of 60 per cent struck the right balance between the objective of accelerating the provision of subtitling and the need to avoid imposing new burdens on broadcasters in an unreasonable time-scale. I know that some people would wish for higher than 60 per cent. I know that some people would wish it to include signing and audio description, which are less well developed than subtitling. But I hope that they will accept that we have listened to the concerns and acted on them.
On Amendment No. 154, Ofcom's code relating to provision for the deaf and visually impaired must set out the descriptions of programmes that should be excluded from the subtitling, signing and audio description obligations. The amendment would mean that Ofcom would have to consider the number of viewers per programme when considering which programmes should be excluded from these obligations.
In excluding programmes, or in special cases all programmes in a service, Ofcom must have regard to a number of factors set out in subsection (6)(a) to (f) of Clause 298. Those include the size of the intended audience for the programme. I am not clear how Amendment No. 154 would add to those requirements.
Amendment No. 155 aims to ensure that Ofcom would have to have regard to the extent of the benefit as perceived by the disabled person in setting out the descriptions of programmes which should be excluded programmes, rather than just the extent of the benefit for disabled people as now.
Amendment No. 156 would require Ofcom to have regard in the same context to the views of organisations representing persons who are hearing or visually impaired. Both amendments seem to be aimed at ensuring that Ofcom consults disabled people and their representatives on individual exclusions and that they decide which programmes it is appropriate to exclude from the perspective of the disabled person. Ofcom is already required to consult these people on its code relating to provision. That code will set out the overall policy on programme exclusions. So the RNID, the RNIB and others with an interest are already consulted on the policy regarding exclusions.
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In making decisions on individual exclusions, Ofcom will only be applying the code and we are not persuaded of the need for further consultations.
My noble friend Lord Ashley made a particular point on the need for targets for signing and audio-description, to which I have already referred. He referred to the need for Ofcom to act in an open and consultative manner. I entirely agree. I can give him an assurance that we would expect Ofcom to do just that.
My noble friend Lord Carter raised the issue of the targets on a weekly basis. There is not a change of policy, only a change in drafting. At present there is a tension between the requirement in Clause 298(2) for figures to be averaged over a 12-month period and the apparent requirement in Clause 298(3) for targets to be met every week. We have never intended that broadcasters should meet targets every week. That could be very difficult.
Therefore, we require some way to bring these two figures together. The answer is that the 12-month period continually rolls forward. For example, if the year starts on 1st January 2004, the target must be met over the period to 31st December 2004, but it must be met also over the period 8th January 2004 to 7th January 2005, 15th January 2004 to 14th January 2005 and so on. So although the target is calculated over a 12-month period, it is based on figures calculated on a weekly basis. That should make clustering of provisions in fallow periods harder to hide and so help to discourage it, which is the matter that concerned my noble friend Lord Carter.
I understand the point made by the noble Lord, Lord Addington, about deafblind being a different category. Although I recognise the tragic position of those people, I say only that their problems are wider than those of broadcasting. The whole issue of how they communicate with the outside world of course relates to broadcasting, but it also relates to other forms of communication. Of course broadcasting has an important role to play, but there are other developments that must impact to enable them to communicate at all with the outside world. It is important that we should recognise that, as well as broadcasters recognising their problems.
Lord Ashley of Stoke: My Lords, I thank all noble Lords who have taken part in the debate. We have not received all we asked for, but, being realistic, in politics one never does. It is my conviction that millions of disabled people will look back on tonight as a landmark. I shall certainly associate it with the name of my noble friend Lord McIntosh. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 150 not moved.]
The Chairman of Committees: I should point out that if Amendment No. 150A is agreed to, I cannot call Amendment No. 150B.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 150A:
Page 265, line 8, leave out subsection (2) and insert—
"(1A) The code must include provision for securing that every provider of a service to which this section applies ensures that adequate information about the assistance for disabled people that is provided in relation to that service is made available to those who are likely to want to make use of it.
(2) The code must also require that, from the fifth and tenth anniversaries of the relevant date, the obligations in subsections (2A) and (3), respectively, must be fulfilled by reference to averages computed over each of the following—

(a) the twelve month period beginning with the anniversary in question; and

(b) every twelve month period ending one week after the end of the previous period for which an average fell to be computed.

(2A) The obligation to be fulfilled from the fifth anniversary of the relevant date is that at least 60 per cent. of so much of every service which—

(a) is a service to which this section applies, and

(b) has a relevant date after the passing of this Act,

as consists of programmes that are not excluded programmes must be accompanied by subtitling."
On Question, amendment agreed to.
[Amendment No. 150B not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 150C to 150E:
Page 265, line 14, leave out "Those obligations" and insert "The obligations to be fulfilled from the tenth anniversary of the relevant date"
Page 265, line 15, leave out "in every week".
Page 265, line 18, leave out "in every week".
On Question, amendments agreed to.
Lord Addington Lord Addington moved Amendment No. 151:
Page 265. line 20, at end insert—
"() that at least 50 per cent in every week of so much of—

(i) a Channel 3 service,

(ii) Channel 4,

(iii) Channel 5, or

(iv) S4C Digital

as consists of programmes that are not excluded programmes must be accompanied by audio-description for the blind."
The noble Lord said: My Lords, this amendment will make much more sense if Amendment No. 152 is taken at the same time—it was a long list and there were bound to be one or two mistakes, but nothing fatal.
Those amendments concern targets for audio description. Taken together, they are designed to ensure that we get 50 per cent targets for audio description. That is now certainly achievable—we referred to this earlier. We have a network that may speed us on our way—it is called the Sky broadcasting system—if we are prepared to pump in enough money to allow us access, which is not that great. I refer the House to comments made earlier today.
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If we have that attitude, we will probably be able to achieve something similar to that which has just been achieved with subtitling. It has been said that the technology is not quite advanced as that in subtitling; but it is not far off; it is not much more expensive. It is about £200 an hour more expensive, on the figures that have been cited to me for about two years. In other words, we could accept that and do something, if we had the will. There are technical problems with getting the box and having it transferred to terrestrial digital, but that is achievable, if we have sufficient political will. However, it is best that we leave that matter there.
However, I hope that the Government will closely consider Amendment No. 152A. That would mean that repeats would not be considered twice. There would thus be a commitment to ensure that under the very modest target of 10 per cent of programmes to be audio described, they would be new programmes. That will have the huge advantage of a bank of audio described programmes. As we use viewer peaks, if a programme is a success, it is understandable—indeed, commendable—that it is repeated; but let us ensure that only new programmes are counted.
I believe that the noble Lord mentioned that Amendment No. 156H pre-empts Amendment No. 157. The aim was that targets could only be raised. I am slightly annoyed that the Government spotted that first and did not give me a chance to say so, but, hey, you cannot have everything.
Turning to Amendments Nos. 158 and 159, we have already discussed the principle of having a regular review written into legislation. I ask the Government to think again about that, because they should consider the concept. It is important to know that one can review things regularly and not wait for something to occur, especially when things change so quickly.
I turn to government Amendment No. 160. That is very interesting and I await to hear what the Minister has to say about it. I beg to move.
Lord Carter: My Lords, I shall speak briefly to Amendment No. 152A. It repeats a point that we raised in Committee under an amendment in my name, to which we have not received a satisfactory answer. It concerns the calculation of the percentage for audio description—the 10 per cent. From briefing that we received from the BBC and others, we discovered that repeats are included in that calculation. For example if "EastEnders" is audio described, if the omnibus edition on Sunday is also audio described, that is included in the percentage. On other channels, the same programme may be frequently repeated.
If it was required that all qualifying audio description was on new programming, even though the target remained at 10 per cent, that would quickly increase the amount of audio described material. It is as simple as that. I cannot quite see why either the broadcasters or the Government want to resist that, because that is an easy way to increase the amount of audio description without altering the percentage in the Bill. I hope that the Minister will be able to give a logical reason why repeats should be included.

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Turning to sub-paragraph (ii), I had thought that Ofcom would have the power to vary rather than to increase the percentage because, while I know that the Minister will be briefed to tell me that under Clause 301 the Government will have the power to alter the percentages by affirmative order, the sub-paragraph marks an attempt to probe whether a way could be found for Ofcom to deal with this problem. For certain major broadcasters the figure of 10 per cent will be too low, but for some of the smaller broadcasters, it is actually too high. Does Ofcom have the power to vary the percentage in order to meet the particular circumstances of each broadcaster?
However, the main point I wish to put is that contained in sub-paragraph (i). If we are to have a target of 10 per cent, then it is important to ensure that it is met on programmes that have not previously been audio described and that repeats should not be included.
10.30 p.m.
Lord McIntosh of Haringey: My Lords, we have had a full debate on the needs of people with sensory impairments so I shall try not to go over old ground. Let me start by introducing government Amendment No. 160 to Clause 304. It addresses the concerns expressed in Committee that the electronic programme guides should be as accessible as possible to people with disabilities, who might need them even more than ordinary viewers.
The amendment should help to ensure that electronic programme guides are easy to use and that solutions are developed to ensure, for instance, that blind people can have an audio electronic programme guide. It should deal with the need for the availability of aids to viewing such as subtitles, signing and audio description to be clearly indicated in and accessed through the guide. I hope that the House will agree that in this we have listened to the concerns expressed and have acted accordingly.
I shall respond to the other amendments in this group. Amendment No. 151 proposes setting a 50 per cent audio description target for the licensed public service broadcasters and S4C Digital. As we have made clear, the 10 per cent target for audio description represents the result of a thorough review and consultation by the Government in 2001. After due consideration we concluded that the 10 per cent target should be maintained in the light of the costs of providing the service and, in particular, the unresolved production and distribution difficulties with the audio description modules needed to receive the service.
I do not disagree with the noble Lord, Lord Addington, that in the future things could improve, perhaps even in the near future, but at present we are disappointed that the current problems with the module have not been solved. We shall continue to work with interested parties to identify possible solutions. In any case, the Secretary of State has the power to increase the 10 per cent target for audio
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description. So if there were significant advances in the current technology, the target could be increased. We shall keep this under review.
Amendment No. 152A, retabled from Amendment No. 148, proposes that the target for programmes that must be audio described should apply only to programmes which have not previously been audio described, the point made by my noble friend Lord Carter. This would mean that repeats of the same programme could not count towards the target percentage.
We do not think that it is necessary to do this. Programmes which have already been audio described could be discounted from the calculations if Ofcom were to conclude that such repeats should be excluded programmes. That is provided for in Clause 298(5). I suggest that representatives and organisations of those with visual impairments ought to discuss that with Ofcom.
Amendment No. 152A also seeks to give Ofcom the power to vary the 10 per cent audio description target for some broadcasters. Ofcom already has the flexibility to set different interim targets for different broadcasters, but we believe that it is right for the Secretary of State to set the 10-year target itself. This is a political rather than a broadcasting matter.
Clause 301, as my noble friend Lord Carter anticipated, allows the Secretary of State, following consultation with Ofcom, to increase by order the target percentage for audio description. So even though the target is currently 10 per cent, if significant technological advances were made leading to a more widespread take-up of the modules, the targets could be increased. I hope that that will happen. In any case, once the 10-year anniversary has passed, Ofcom can set further targets through the provision in government Amendment No. 156A, which we have just discussed. On my noble friend's question of whether there could be a lower percentage, I shall have to write to him.
As the noble Lord, Lord Addington, recognised, Amendment No. 157 is already covered by government Amendment No. 156H. Amendments Nos. 158 and 159 would require the Secretary of State to conduct a review before making an order to modify the 10-year targets for subtitling, signing and audio description.
I presume the review is intended to be on the same lines as that proposed in Amendment No. 159. This sets out a detailed procedure for the Secretary of State to review the targets after one and three years. Of course the targets should be kept under review, but the process set out in Amendment No. 158 is unnecessary and overly burdensome, particularly when the review is intended to take place so soon after these issues have been thoroughly consulted upon and debated in the context of the Bill.
I commend Amendment No. 160. I hope that the other amendments will not be pressed.
Lord Addington: My Lords, I shall welcome Amendment No. 160 when we come to it but first let

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me get the usual suspects out of the way first. The system for broadcasting audio description to those who wish to use it is in a mess. It is a cloud hanging over this part of the Bill. That is why we need to have proper provision for it on the face of the Bill. We should think twice about allowing broadcasters to go on for years producing audio described programmes that no one can receive.
As to Amendment No. 152A, we need firmer assurances in regard to specially produced programmes. We are trying to build up a bank of new programmes and we need something more solid. At the moment programmes are repeated over and over again. One wonders what percentage of an audio-described "Fawlty Towers" or "Porridge" the BBC would use. Forget about "EastEnders", which is repeated once a week. How many times have we seen these programmes? I suspect that most of us could reproduce the dialogue word for word. Indeed, the generation that discovered "Monty Python" five years after it was originally shown could do so in regard to certain episodes. We have to look at the matter of specialist services again.
Having said that, I thank the Government for meeting us at least part of the way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 151A:
Page 265, line 21, leave out "in every week".
On Question, amendment agreed to.
[Amendments Nos. 152 and 152A not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 152B:
Page 265, line 25, leave out "in every week".
On Question, amendment agreed to.
[Amendment No. 153 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 153A to 153C:
Page 265, line 29, after "in" insert "subsection (2A) or in"
Page 265, line 31, after "that" insert "subsection or"
Page 265, line 33, after "to" insert "subsection (2A) and"
On Question, amendments agreed to.
[Amendment No. 154 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 154A:
Page 265, line 35, after "that" insert "subsection or"
On Question, amendment agreed to.
[Amendments Nos. 155 and 156 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 156A to 156C:
Page 266, line 8, leave out from "(9)," to "and" in line 9 and insert "from dates falling before an anniversary mentioned in subsection (2);
() requirements on persons providing such services to meet further targets from dates falling after the anniversary mentioned in subsection (3);"
Page 266, line 16, leave out from "(2)" to end of line 17.
Page 266, line 28, leave out paragraph (f).
On Question, amendments agreed to.
Clause 300 [Meaning of "relevant date" in s.298]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 156D and 156E:
Page 267, line 18, at end insert "or"
Page 267, line 19, leave out from "service" to end of line 21.
On Question, amendments agreed to.
Clause 301 [Power to modify targets in s.298]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendments Nos. 156F to 156J:
Page 267, line 34, at end insert—
"() Where it appears to the Secretary of State, in the case of services of a particular description, that the obligation specified in section 298(2A) has been or is likely to be fulfilled in their case before the anniversary so specified, he may by order modify section 298 so as to do one or both of the following—

(a) increase the percentage so specified in relation to services of that description;

(b) substitute a different anniversary for the anniversary by which that obligation must be fulfilled in the case of such services."

Page 267, line 37, leave out "specified in subsection (2) of that section" and insert "by which the obligations specified in subsection (3) of that section must be fulfilled"
Page 267, line 39, leave out "different" and insert "higher"
Page 267, line 40, leave out "subsection (3) of that section' and insert "that subsection"
On Question, amendments agreed to.
[Amendment No. 157 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 157A:
Page 267, line 41, leave out "virtue of subsection (1)" and insert "an order under this section"
On Question, amendment agreed to.
[Amendments Nos. 158 and 159 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 159A:
Page 268, line 4, leave out "subsection (1)" and insert "this section"
On Question, amendment agreed to.
Clause 304 [Code of practice for electronic programme guides]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 160:
Page 269, line 11, at end insert—
"() The practices required by the code must also include the incorporation of such features in electronic programme guides as OFCOM consider appropriate for securing that persons with disabilities affecting their sight or hearing or both—

(a) are able, so far as practicable, to make use of such guides for all the same purposes as persons without such disabilities; and

(b) are informed about, and are able to make use of, whatever assistance for disabled people is provided in relation to the programmes listed or promoted."

On Question, amendment agreed to.
[Amendments Nos. 161 to 163 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 164:
Page 269, line 28, leave out paragraph (a).
On Question, amendment agreed to.
Clause 306 [Character and coverage of sound broadcasting services]:
Baroness Buscombe Baroness Buscombe had given notice of her intention to move Amendment No. 165:
Page 270, leave out lines 13 to 16 and insert—
"(b) that the departure would not narrow the range of programmes (including in particular the diversity of music) available by way of relevant independent radio services to persons living in the area or locality for which the service is to be provided,"
The noble Baroness said: My Lords, in rising to speak to the next group of amendments, I shall not move our Amendments Nos. 165, 166, 167, 205, 206 and 207.
Instead, we commend the Government on responding to the amendments tabled by the Opposition in Committee. We welcome the Government's move to address our concerns regarding the inclusion of music in Clauses 306 and 348, rather than in Clause 307. Furthermore, we support the Government's shift towards making the burden on commercial radio, under Clause 307, less onerous and prescriptive. We are also pleased that the amendments to Clause 307, tabled by the Minister, reflect the policy advocated from these Benches, in both your Lordships' House and the other place, throughout the passage of the Bill.
[Amendment No. 165 not moved.]
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 165A:
Page 270, line 23, at end insert—
"(1B) The matters to which OFCOM must have regard in determining for the purposes of this section the character of a service provided under a local licence include, in particular, the selection of spoken material and music in programmes included in the service.""
The noble Lord said: My Lords, I shall also speak to the remaining government amendments in this group. I am enormously grateful to the noble Baroness,
858
Lady Buscombe, for the position that she has adopted, and her recognition of the way we have responded to debates in Committee and tabled our amendments. However, I am not sure whether the whole House agrees with the noble Baroness that we have carried out the task that we embarked upon, in responding to the Committee debate, to create a new situation with our amendments, which we hope will be commended to the whole industry. I am aware that concerns have been expressed about aspects of the proposals prior to the tabling of our amendments. However, at this stage I shall curtail my contribution and listen to the debate from those who wish to express anxieties about our amendments, and then reply. I beg to move.
Lord Eatwell: My Lords, it is difficult not to take up the Minister's invitation. I declare an interest as chairman of the Commercial Radio Companies Association, and I shall speak to this bloc of government amendments.
On Second Reading I was highly critical of Clause 307, which was introduced without any consultation. That would have imposed a one-size-fits-all localness code on local radio stations from Capital Radio, London to Oban Radio on the west coast of Scotland. I argued that this was not only excessively onerous regulation, but also unnecessary, because all the requisite powers to enforce localness are available in flexible, licence-specific form in Clause 306. I thank the Minister for the consultation that has since taken place on these matters, and congratulate him on the amendments to Clause 307.
Instead of the extreme micro-management that characterised the old Clause 307, the new Clause 307 passes to Ofcom the responsibility of drawing up guidance on how localness should be achieved. Given that the Government have abandoned the previous definition of "localness", based on inputs—where employees live, what might be the proportion of local advertising, and so on—is it the Government's understanding that these input controls would not and could not be introduced by Ofcom in the form of guidance? To put the matter another way, can we now consider Clause 306 as embodying the rules on localness, and Clause 307 as containing the guidance?
Will the Minister confirm that it is not the Government's intention that the guidance referred to in Clause 307 should be the means of introducing new regulatory controls by the back door? I should like that confirmation.
I turn to Amendments Nos. 165 and 165A. I am glad that the noble Baroness did not press Amendment No. 165. I ask those who put forward these amendments regarding the music industry to consider two facts as regards Amendment No. 165A, which was moved: first, the UK music industry is 10 times larger than the commercial radio industry; secondly, the music industry is predominantly American owned, whereas the commercial radio industry is predominantly British. The Government must consider whether they have got their priorities right in that amendment.

859
I wish that I could be as complimentary about the new clause set out in government Amendment No. 66A as I have been about the amendments to Clause 307. Amendment No. 166A inserts yet another new clause introduced under cover of darkness, without consultation. Like many such clauses, the new clause, introduced with excessive haste, is totally at variance with the spirit of the rest of the Bill. When they published the Bill in draft form, my right honourable friends the Secretary of State for Culture, Media and Sport and the Secretary of State for Trade and Industry jointly declared:
"Unnecessary regulations need to be removed wherever possible … Red tape and the frictional cost of regulation will be reduced, allowing companies to grow and invest more freely".
Yet, this evening, the Minister wishes to impose new, extra regulation through Amendment No. 166A, governing consultation about change of local service formats. Why?
Ofcom already has the power to consult, if it sees fit. What is to be gained by removing its discretion and forcing it to consult in every case in which a format is to be changed? Have the Government no faith in the noble Lord, Lord Currie, and his team, that all discretion must be removed from him?
There are over 250 commercial radio stations in the UK. During 2002, the Radio Authority agreed to 35 changes in formats. Holding month-long consultations on those 35 changes such as the Government seek to impose would significantly increase the regulatory burden. Will the. Minister tell us what was the outcome of the Government's regulatory impact assessment of the new clause? What is the regulatory cost that the regulatory impact assessment tells us will be associated with the clause? Can the Minister say which decisions made in the past year by the Radio Authority to permit change of format he now believes to have been made in error? Exactly which of the Radio Authority's decisions would have benefited from the elaborate procedures set out in Amendment No. 166A? The Government say that they believe in evidence-based policy. Will the Minister gave us the evidence of the errors that the Radio Authority has made?
Amendment No. I 66A is about increased consultation. Yet the Government have failed to consult. Will the Minister at least do the decent thing and withdraw Amendment No. 166A, so that there can be a period of consultation prior to Third Reading?
10.45 p.m.
Lord McNally: My Lords, that was a robust defence of the interests of the Commercial Radio Companies Association by its chairman. I have no objection to that. I welcome the government amendments that recognise the importance of music in radio, and I am grateful for them.
It is interesting that the government amendments to Clause 307 represent a weakening of powers. The Commercial Radio Companies Association should take credit for some good lobbying in that direction. However, the noble Lord, Lord Eatwell, has to
860
understand that commercial radio is operating against a background of some deep public concern. The truth is that when we look abroad and see the future, it does not work in terms of diversity in local radio. We on these Benches do not want to see any further weakening and we certainly would not support the deletion of Clause 307. There are even concerns about Amendment No. 166. Amendment No. 166A seeks to introduce new Section 106ZA. Subsection (4) of the new section states:
"OFCOM—

(a) are not required to publish a notice under this section, and

(b) may specify a period of less than 28 days in such a notice as the period for representations,

if they consider that the publication of the notice, or allowing a longer period for representations, would result in a delay that would be likely prejudicially to affect the interests of the licence holder".
That could be quite a get-out.
All I am saying is that matching the indignant tone of the noble Lord, Lord Eatwell, is a counterbalancing concern that our local radio could go—and in some cases is already going—the way that deregulation has gone in other countries; namely. station after station being hoovered up by large conglomerates, which homogenise the product to the detriment of local voice, music and identity. In a way the Minister is caught between a rock and a hard place. There is more than one side to the argument, and I look forward to his response.
Lord Eatwell: My Lords, before the noble Lord sits down, since he mentioned me, will he acknowledge that in the other countries he is thinking of—probably the United States and Australia—format regulation does not exist? In Britain we have strict format regulation, which ensures that diversity in radio is maintained, and the homogenising process he described cannot occur?
Lord McNally: My Lords, I agree that we have format content, and by God we are determined to keep it.
Lord Davies of Oldham: My Lords, I am delighted that that little exchange helped to clarify some of the key issues involved with the amendments. As I have indicated, the amendments were tabled in the light of consultation and the discussion in Committee, where we promised to address these issues, which were forcefully addressed on that occasion.
The change to Clause 306, which deals with the requests for departures from the character of the service, makes it completely clear that the character of a service includes the music and spoken material selected for inclusion on that service. The same change is made to Clause 348, which deals with variations to licences following change of control. That ensures that Ofcom must consider the selection of music played on a station when considering the character of the station. That provision has general approval.
The new clause requires Ofcom to consult on requests to depart from the character of a service, except where there are considerations of commercial

861
confidentiality—so it is not the case that it happens on all occasions—or where the time taken would prejudice the interest of a licence holder. In circumstances where a radio station might be in severe difficulties, Ofcom has the capacity to reach a judgment on whether it needs to engage in those procedures.
There are also a number of changes to Clause 307, which deals with Ofcom's duty to secure that local material is included in local radio stations. The amendments we have tabled make it clear that not all services need include local material. We make it clear that a suitable proportion of local material must be locally made. We remove specific examples of what the guidance could cover and remove references to the need to secure "local connections". We remove references to a code to emphasise that the clause is concerned not with a code but with guidance; we define more clearly what is meant by local material, making it clear that it includes music; and we make it clear that local advertising is not to be included in that guidance.
Those were some of the issues raised in Committee and which have been raised with us through the industry on which we believe we have made a suitable response. The guidance only bites on the station on the conditions already included in licences. It is not a way of introducing regulation via the back door, which I think my noble friend Lord Eatwell indicated, and might be a justified suspicion. Because of the restrictions under which the guidance operates, we are ensuring that it is not additional regulation in those terms. I hope he will recognise the value of that point.
We do not accept the argument that the guidance is all about "one size fits all". We think there are clearly levels of flexibility which meet some of the points about which my noble friend indicated he was anxious. In our view, guidance is inherently less regulatory than changing licences. The guidance will have effect only in so far as there are already localness conditions in a licence. It will not place new requirements on the licence holder. Rather, it will merely interpret and explain existing requirements which are often loosely defined. For example, there may be requirements that a service includes,
"features of particular local relevance"
or be,
"a locally-oriented station for the area".
The guidance could set out the sort of things which a station could do to satisfy these requirements.
The notion of the guidance being "one size fits all" is misplaced. Guidance is only guidance, and it will remain the responsibility of the licence holder to decide how to meet whatever undertakings it has already given. Secondly, as I indicated, the guidance will just bite on existing commitments into which the licence holder has entered.
My noble friend expressed anxieties in other areas, particularly on Amendment No. 166A, in which, as he will appreciate, I see considerable merit. There could be many people who may wish to express their opinion
862
on any proposed change, from other stations in the area to the music industry and to those who would be most affected—the listeners to the station. This seems a good example of open and consultative regulation. We have built in safeguards for the industry. The minimum time period for consultation has been kept down to 28 days so as to avoid unnecessary delays in the process. Furthermore, Ofcom does not have to consult where that would involve publishing matters which are commercially confidential. It can choose to foreshorten the period of consultation or not consult at all if it is anxious about the viability of the station.
We are seeking to indicate, through these amendments, that, far from the guidance being an excessively tough regulatory mechanism, it is well suited to the needs of the industry. It takes into account what the noble Lord, Lord McNally, indicated—that we have to strike a balance between two perspectives on the achievements and value of local radio. We are seeking, through the amendments and as a result of the discussions we have had, to strike that balance. The noble Lord, Lord McNally, kindly referred to me being between a rock and a hard place. I do not know which is more comfortable, but I will try and find out. I beg to move.
On Question, amendment agreed to.
[Amendment No. 166 not moved.]
Lord Davies of Oldham Lord Davies of Oldham moved Amendment No. 166A:
After Clause 306, insert the following new clause—
"CONSULTATION ABOUT CHANGE OF CHARACTER OF LOCAL SERVICES
After section 106 of the 1990 Act there shall be inserted—
"106ZA CONSULTATION ABOUT CHANGE OF CHARACTER OF LOCAL SERVICES
(1) Before deciding for the purposes of a condition imposed under section 106(1 A) whether to consent to a departure from the character of a service provided under a local licence, OFCOM must publish a notice specifying—

(a) the proposed departure; and

(b) the period in which representations may be made to OFCOM about the proposal.

(2) That period must end not less than 28 days after the date of publication of the notice.
(3) The notice must be published in such manner as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM's opinion, are likely to be affected by the departure.
(4) OFCOM—

(a) are not required to publish a notice under this section, and

(b) may specify a period of less than 28 days in such a notice as the period for representations,

if they consider that the publication of the notice, or allowing a longer period for representations, would result in a delay that would be likely prejudicially to affect the interests of the licence holder.
(5) OFCOM are not required under this section—

(a) to publish any matter that is confidential in accordance with subsection (5) or (6); or

(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.

(6) A matter is confidential under this subsection if—

(a) it relates specifically to the affairs of a particular body; and

(b) its publication would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that body.

(7) A matter is confidential under this subsection if—

(a) it relates specifically to the private affairs of an individual; and

(b) its publication would or might, in OFCOM's opinion, seriously and prejudicially affect the interests of that individual.""

On Question, amendment agreed to.
Clause 307 [Local content and character of local sound broadcasting services]:
Lord Davies of Oldham Lord Davies of Oldham moved Amendments Nos. 166B to 166Q:
Page 271, line 6, after "services" insert -but, in the case of each such service, only if and to the extent (if any) that OFCOM consider appropriate in that case"
Page 271, line 7, leave out from "that" to end of line 8 and insert ", where such Programmes are included in such a service, what appears to OFCOM to be a suitable Pro Portion of them consists of locally-made Programmes."
Page 271, line 10, leave out "a code giving"
Page 271, line 12, leave out "code" and insert "guidance"
Page 271, line 14, leave out subsections (3) and (4).
Page 271, line 31, leave out "code may make different provision" and insert "guidance may be different"
Page 271, line 32, leave out "code" and insert "guidance"
Page 271, line 33, leave out "code" and insert "guidance"
Page 271, line 39, leave out "code and every revision of the code" and insert "guidance and every revision of it"
Page 271, line 42, leave out from beginning to end of line 2 on Page 272.
Page 272, line 4, leave out "(including news)"
Page 272, line 10, at end insert "or a Part of it"
Page 272, line 13, at end insert—
""material" includes news, information and others Poken material and music; and
"Programme" does not include an advertisement,"
Page 272, line 14, leave out second "in" and insert "within"
On Question, amendments agreed to.
[Amendment No. 167 not moved.]
11 p.m.
Baroness Buscombe Baroness Buscombe moved Amendment No. 168:
Page 273, line 32, leave out "and"
The noble Baroness said: My Lords, I shall also speak to Amendments Nos. 168 to 171 and 173 to 181. I regret that the debate on the amendments in Committee failed to take us much further, so I have decided to return once again to this extremely important issue.
I shall first review the issue to hand. At present it appears that the Bill contains no restriction on Ofcom's ability to undertake the economic regulation of broadcasting using its Broadcasting Act powers through broadcasters' licences, as opposed to its Competition Act powers or its sector specific competition powers.
In the latter two instances, economic regulation is by definition a matter of competition, and decisions taken through these routes by Ofcom are subject to full rights of appeal to the competition appeals tribunal. In the former instance, regulation of broadcasters through their licences for a competition purpose is also subject to full rights of appeal to the CAT where that is the only or main reason for the decision. However, economic regulation may not always be a matter of competition. It may, for example, be a matter of promoting consumers' interests with little or no competition element. For example, Ofcom could impose conditions on broadcasting licensees relating to the packaging and pricing of channels and services pursuant to its Clause 3 duties to further the interests of consumers in relevant markets or to secure the availability of a wide range of TV and radio services.
In such instances, where economic regulation is applied through broadcasters' licences for reasons not wholly or mainly for a competition purpose, there is no right of appeal to the CAT. Instead, broadcasters may only take the more limited route of judicial review, which looks at the decision-making process only, not the merits of the decision. That stands in stark contrast to the economic regulation of, for example, telephony providers and providers of other electronic communications networks and services under Part 2 of the Bill where all decisions are subject to appeal to the CAT.
With one very significant exception, Amendments Nos. 173 and 174 would address this problem by ensuring that any person affected by a decision of Ofcom to exercise any of its Broadcasting Act powers in fulfilment of general duties under Section 3 may appeal to the CAT. The exception is that Amendment No. 175 would amend Clause 310(8) to ensure that the right of appeal to the CAT is disapplied in relation to all Ofcom's content functions unless any such decision were made for a competition purpose as reflected in Amendment No. 176.
Amendments Nos. 178 to 191 are consequential to these amendments and widen the scope of any future Ofcom review of its codes, guidance, directions and, as proposed in Amendment No. 179, conditions.
In Committee the Minister drew a distinction between Part 2 and Part 3 of the Bill. In Part 3, he explained, Ofcom is required to make "subjective content judgments" that are subject to appeal by judicial review only, while in Part 2 there are no subjective content judgments, and all decisions are subject to appeal to the CAT.
I agree with that analysis in relation to "content judgments". As I have made clear all along, my amendments do not seek to introduce a right of appeal to the CAT on all Ofcom decisions under its Broadcasting Act powers. I recognise that most content decisions will have some economic impact. however small, and accept that they should attract no more than a right of judicial review. That is why my amendments disapply the CAT appeals route to Ofcom's content functions.
Rather, as I said, my amendments seek to bring within the CAT appeals process those decisions taken and imposed in Broadcasting Act licences under Part 3 that are not wholly or mainly for a competition purpose but nevertheless are unambiguously economic regulation. That is the extent of their ambition.
I regret to say that I was confused by some of what the Minister had to say in response to the amendments in Committee. At one point he appeared to agree with me that a CAT appeal would be appropriate where economic regulation was applied to broadcasters for reasons other than a competition purpose. The Minister said:
"Intervention, such as economic regulation in pricing and in the packaging of channels made in the interests of consumers should be treated in the same way in terms of route of appeal as a competition intervention. For example, Ofcom may wish to intervene in Sky's packaging of channels so that consumers could have more choice of packages without having to buy a lot of unwanted channels as a minimum".
However, the Minister went on to say:
"But the purpose of the intervention would be a subjective question of what represented an acceptable amount of consumer choice".
Given the Minister's previous statement that subjective decisions under Part 3 are subject only to judicial review, this would appear to confirm that a CAT appeal would not be possible for economic regulation in pricing and packaging of channels made in the interests of consumers. I should be grateful for some clarification from the Minister.
In rejecting these amendments in Committee the Minister also argued:
"Ofcom's duty to further the interests of consumers is qualified by the parameter, where appropriate, of promoting competition".—[Official Report, 3/6/03; 1293.]
The Minister suggested in this regard that an intervention in the packaging of channels in the consumer interest would not be possible unless Ofcom could show that it was not appropriate to achieve the same result through the use of general or sectoral competition powers, and that such a decision could be challenged through judicial review.
This explanation, I regret to say, provides no assurances and completely misses the point of the amendments. The fact is that even if Ofcom were able to show that it was inappropriate to achieve the desired level of channel unpackaging through general or sectoral competition powers, the regulation pursuant to the duty to further the interests of consumers would still be a purely economic one. This should be subject to a right of appeal to the CAT. To suggest that Broadcasting Act licensees could challenge the process through judicial review is a wholly inadequate substitute for a right of appeal to the CAT.
It is also important to point out that there are Clause 3 duties other than the furthering of consumer interests which OFCOM could use to impose economic regulation through broadcasters' licences. The duty to secure a wide range of television and radio services, for
866
example, could equally be used by Ofcom to require the unpackaging of channels, without any identified competition purpose.
I also raised in Committee the inequity that cable operators, who are retailers of pay television, will escape regulation of their pay TV retail activities, as they may not hold TLCS licences unless they themselves provide channels whereas identical retail activities of satellite operators will be regulated simply because the satellite operator happens to hold TLCS licences for channels which he himself provides. The Minister said in response simply that no unfair treatment exists because a cable operator who owned a channel would be in the same position as the satellite operator.
Here, again, the point has been missed. Clearly, where cable companies do not have their own channels, they do not require a licence for these. I am not arguing that that is an unfair position. What I am saying is that because such licences are not owned by cable operators they do not find themselves exposed to the same potential for economic regulation of, say, pricing and packaging television services. That is the inequality that I wish the Government to address, or at least against which to provide additional safeguards for broadcasters through an appeal to the CAT.
In conclusion, therefore, I am disappointed that the Government have yet again failed to address our core concerns on this issue. Let me say again that I am not talking about a CAT appeal for subjective content regulation, as I think the Government by now understand. Yet they seek in their answers to present a simplistic divide between content regulation on the one hand, with an appeal through judicial review, and economic regulation for a competition purpose on the other, with an appeal to the CAT. It is difficult to understand why the Government refuse to acknowledge that economic regulation for reasons other than a wholly or mainly competition purpose may take place under Part 3 and a right of appeal to the CAT should be provided.
I now turn briefly to my other amendments. Amendments Nos. 168 and 169 seek to extend Clause 310(1) to cover Ofcom's powers to issue codes of practice or guidance to holders of licences. In spite of the Minister's view that such a provision is already provided for under subsection (1)(d), I continue to believe that it would be helpful for that to be more clearly indicated on the face of the Bill.
Amendments Nos. 170 and 171 would require Ofcom not to use its Broadcasting Act powers on any matter where that matter is capable of being dealt with under the Competition Act. The amendments would replace the current wording which simply provides that, before exercising any of its Broadcasting Act powers for a competition purpose, Ofcom should consider whether a more appropriate way to proceed would be under the Competition Act. The Minister in Committee opposed these amendments, on the basis that where conduct breaches both the competition and broadcasting Acts, it might still be more appropriate to act under the Broadcasting Act. Yet the Minister

867
provides no examples of where that might in fact be the case. Perhaps he can take the opportunity tonight to provide some examples to justify his position.
Finally, my Amendment No. 177 would introduce additional procedural safeguards into Part 3 of the Bill along similar lines to the set of tests for setting or modifying conditions in Clause 44 in Part 2 of the Bill.
I am pleased that the Minister agreed with the principle behind the amendments, but am surprised by his view that the Bill,
"contains sufficient provisions to ensure that that is delivered".—[Official Report, 3/6/03; col. 1295.]
Where in the Bill are these provisions to be found? If they are there, why have the Government also seen the need to introduce specific conditions into Part 2? Further clarification on this matter would be welcome. I beg to move.
Lord McNally: My Lords, I shall be extremely succinct. These Benches do not share the concerns voiced by the noble Baroness, Lady Buscombe, about Clause 310. We think that the indiscretions and powers contained therein are about right.
Lord Davies of Oldham: My Lords, at this late hour I am glad to see that normal relations between the Front Benches have been resumed. We are in the critical relationship again after a period of amity that lasted all of one hour, but for which I am duly grateful.
The noble Baroness, Lady Buscombe. did lay one charge. I will not repeat all the arguments we heard in Committee. She quoted from the Committee proceedings that I had said that:
"intervention, such as economic regulation in pricing and in the packaging of channels made in the interests of consumers, should be treated in the same way in terms of route of appeal as a competition intervention".—[Official Report, 3/6/03; col. 1293.]
She is right; that is what I said. However, I fear that she is taking my remarks somewhat out of context. We were discussing in Committee whether Ofcom could use its general duty to further the interests of consumers to intervene in the packaging and pricing of channels. I made it quite clear that it would be difficult to see how Ofcom could justify intervening in the packaging of channels in the consumer interest without being able to show that it was not appropriate via the competition powers that Ofcom will have.
It is hard to imagine, therefore, a situation where any intervention in pricing and packaging of channels, which is the nub of the issue, would not be undertaken using Ofcom's competition powers. It therefore follows that the noble Baroness gets the result that she desires. Such an intervention would have a route of appeal to the CAT, which is the point that we were trying to establish.
I should like to be clear about what the principal effect of the amendment tabled by the noble Baroness would be and why we do not intend to accept it. The amendment stems obviously from her concern, clearly
868
expressed in her speech this evening as it was in Committee, on the part of one broadcaster in particular, that if Ofcom undertakes economic regulation other than for a competition purpose—as defined in Clause 310(7) for example—under its duty in Clause 3 to promote the interests of consumers, that broadcaster would not have a route of appeal to the Competition Appeal Tribunal.
The main difference of view between that broadcaster and the Government derives from the broadcaster's understanding of economic regulation. It considers all interventions in the economic arrangements of broadcasters—for example, the packaging of channels—to be purely economic issues, whereas we consider that such issues can contain significant elements of consumer interest.
In our view, therefore, regard should be paid, when considering appeal mechanisms, to the purpose of the regulator's intervention, as well as to its effect. That is why we have made sure that interventions for a competition purpose should have a route of appeal to the CAT. The broadcaster's specific concern is that Ofcom will use its general duty,
"to further the interests of consumers".
and to intervene in the packaging of its channels. I tried to make it clear in Committee, and I shall make another attempt this evening, that Ofcom's duty to further the interests of consumers is limited by the parameter where appropriate by promoting competition. That means that contrary to what the broadcaster fears, Ofcom cannot simply intervene in the packaging of its channels in the consumer's interests without being able to show that it was not appropriate to resolve the issue by encouraging more competition. As I said earlier, I fear that Ofcom's efforts to evaluate properly those options could result in challenge under judicial review. The noble Baroness will recognise the strength of that sanction.
I hope that I have reassured the noble Baroness sufficiently for her to consider withdrawing her amendments. I also want briefly to mention Amendment No. 172, which she graciously mentioned. I shall move it in due course. We agreed to consider an opposition amendment that sought to require Ofcom to inform any person affected of the use of the Broadcasting Act powers for a competition purpose and also to inform those affected that they may appeal to the Competition Appeal Tribunal against the intervention. We agree with the principle. That is why the amendment will be a requirement on Ofcom in that respect.
Baroness Buscombe: My Lords, I thank the Minister for his response. The hour is very late and I do not want to detain the House. I am rather disappointed

869
that he did not move further in the direction that I sought on the amendments. I shall take away his response and think about it, but for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 169 to 171 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 172:
Page 273, line 42, at end insert—
"(3A) If OFCOM have decided to exercise any of their Broadcasting Act powers for a competition purpose, they must, on or before doing so, give a notification of their decision.
(3B) A notification under subsection (3A) must—

(a) be given to such persons, or published in such manner, as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM's opinion, are likely to be affected by their decision; and

(b) must describe the rights conferred by subsection (4) on the persons affected by that decision."

On Question, amendment agreed to.
[Amendments Nos. 173 to 176 not moved.]
[Amendment No. 177 not moved.]
Clause 311 [Review of powers exercised for competition purposes]:
[Amendments Nos. 178 to 181 not moved.]
Lord Grocott: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Finance Bill
Brought from the Commons; read a first time, and ordered to be printed.
House adjourned at nineteen minutes past eleven o'clock.